File No. 70-8375
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form U-1
________________________________________
Amendment No. 3
to the
APPLICATION-DECLARATION
under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
_________________________________________
Gulf States Utilities Company
350 Pine Street
Beaumont, TX 77701
(Name of company filing this statement and address
of principal executive offices)
___________________________________________
Entergy Corporation
(Name of top registered holding company parent of each
applicant or declarant)
____________________________________________
Frank Gallaher Glenn E. Harder
President Vice President-Financial
Gulf States Utilities Company Strategies and Treasurer
350 Pine Street Entergy Services, Inc.
Beaumont, TX 77701 P. O. Box 61000
New Orleans, LA 70161
(Names and addresses of agents for services)
________________________________________
The Commission is also requested to send copies of any
communications in connection with this matter to:
Laurence M. Hamric, Esq. Benny Hughes, Esq.
Denise C. Redmann, Esq. Orgain, Bell & Tucker, L. L. P.
Entergy Services, Inc. 470 Orleans Street
225 Baronne Street Beaumont, TX 77701
New Orleans, LA 70113
Thomas J. Igoe, Jr., Esq. David P. Falck, Esq.
Reid & Priest Winthrop, Stimson, Putnam & Roberts
40 West 57th Street One Battery Park Plaza
New York, NY 10019 New York, NY 10004<PAGE>
<PAGE>
Item 1. Description of Proposed Transactions
Paragraphs 11 through 13 of Section B in Item 1 in this
proceeding are deleted in their entirety, with Paragraphs 14, 15 and 16
being renumbered as 11, 12 and 13, respectively.
Paragraphs 1 and 2 and the heading of Section C in Item 1 in
this proceeding are hereby amended to read in their entirety as follows:
Section C. Issuance and Sale of Tax-Exempt Bonds and Related Transactions
1. The Company also may seek to enter into arrangements for the
issuance of Tax-Exempt Bonds, and the Company proposes from
time to time through December 31, 1995 to enter into (i) one or
more Equipment Leases and Subleases and/or supplements and/or
amendments thereto (collectively, the "Equipment Lease") and/or
(ii) one or more Refunding Agreements and/or supplements and/or
amendments thereto (collectively, the "Refunding Agreement")
with one or more governmental authorities (each an "Issuer")
for the issuance and sale by the Issuer(s) of one or more
series of Tax-Exempt Bonds in an aggregate principal amount not
to exceed $250,000,000 pursuant to one or more trust indentures
and/or supplements thereto (collectively, the "Indenture")
between the Issuer(s) and one or more trustees (collectively,
the "Trustee").
2. The proceeds of the sale of Tax-Exempt Bonds, net of any
underwriters' discounts or other expenses payable from the
proceeds, will be applied to finance certain facilities
including but not limited to sewage and/or solid waste disposal
or pollution control facilities ("Facilities") that have not
heretofore been the subject of such financing, or to refinance
outstanding tax-exempt bonds issued for that purpose. The
Company shall accomplish such financing or refinancing through
use of either the Equipment Lease or the Refunding Agreement
(solely for refinancing). Should the Company choose to use the
Equipment Lease, then, pursuant to the terms of each Equipment
Lease, the Company will agree to purchase, acquire, construct
and install the Facilities and lease such Facilities to the
Issuer. The Issuer will agree to pay to the Company as rental
for the use of the Facilities an amount equal to the lesser of
(a) the total amount of the proceeds from the sale of the Tax-
Exempt Bonds or (b) the total cost of construction of the
Facilities. Pursuant to the provisions of the Equipment Lease,
the Issuer will sublease the Facilities to the Company for an
amount sufficient to pay the principal or redemption price of,
premium, if any, interest and other amounts owing on the Tax-
Exempt Bonds together with related expenses. Such amounts will
be paid by the Company directly to the Trustee pursuant to the
Indenture. Should the Company choose to use the Refunding
Agreement, the Company will agree to pay the principal or
redemption price of, premium, if any, interest and other
amounts owing on the Tax-Exempt Bonds together with related
expenses. Such payments will be paid by the Company directly
to the Trustee pursuant to the Indenture. Under both the
Equipment Lease and/or the Refunding Agreement, the Company may
also be obligated to pay (i) the fees and charges of the
Trustee and any registrar or paying agent under the Indenture,
and, if any, the Remarketing Agent and the Tender Agent
hereinafter referred to, (ii) all expenses incurred by the
Issuer in connection with its rights and obligations under both
the Equipment Lease and/or the Refunding Agreement, (iii) all
expenses necessarily incurred by the Issuer or the Trustee
under the Indenture in connection with the transfer or exchange
of Tax-Exempt Bonds, and (iv) certain other fees and expenses.
Paragraph 5 of Section C in Item 1 in this proceeding is hereby
amended to read in its entirety as follows:
5. The Equipment Lease and/or the Refunding Agreement, and the
Indenture for each series of Tax-Exempt Bonds may provide for a
fixed interest rate and/or for an adjustable interest rate as
hereinafter described. No series of Tax-Exempt Bonds would be
sold if the fixed interest rate or initial adjustable interest
rate thereon would exceed the lower of 13% per annum or rates
generally obtained at the time of pricing for sales of tax-
exempt bonds having the same maturity, issued for the benefit
of companies of comparable credit quality and having similar
terms, conditions and features. At August 15, 1994, such rate
is estimated to be approximately 7.25% per annum for tax-exempt
bonds having a maturity of 30 years, no optional redemption for
the first ten years after initial issuance and no Collateral
Bonds (as defined below) or other security arrangements. As to
series having an adjustable interest rate, the interest rate
for Tax-Exempt Bonds of such series during the first Rate
Period (hereinafter referred to) would be determined in
discussions between the Company and the purchasers of such
series from the Issuer and be based on the current tax-exempt
market rate for comparable bonds having a maturity comparable
to the length of the initial Rate Period. Thereafter, for each
Rate Period, the interest rate on such Tax-Exempt Bonds would
be that rate which would be sufficient to remarket the Tax-
Exempt bonds of such series at their principal amount. Such
subsequent interest rates would not be greater than rates
generally obtained at the time of remarketing of tax-exempt
bonds having the same maturity, issued for the benefit of
companies of comparable credit quality and having comparable
terms and would not exceed a specified maximum rate that will
not be greater than 13% per annum. Such interest rates would
be determined based upon the market rates for bonds of
comparable maturity and quality. Paragraphs 6 - 9 below
relates to Tax-Exempt Bonds having an adjustable interest rate
while such rate is adjustable.
Paragraphs 7 and 8 of Section C in Item 1 in this proceeding
are hereby amended to read in their entirety as follows:
7. The Equipment Lease and/or the Refunding Agreement, and the
Indenture may provide that holders of Tax-Exempt Bonds would
have the right to tender or be required to tender their Tax-
Exempt Bonds and have them purchased at a price equal to the
principal amount thereof, plus any accrued and unpaid interest
thereon, on dates specified in, or established in accordance
with, the Indenture. A Tender Agent may be appointed to
facilitate the tender of any Tax-Exempt Bonds by holders. Any
holder of Tax-Exempt Bonds wishing to have such Tax-Exempt
Bonds purchased may be required to deliver such Tax-Exempt
Bonds during a specified period of time preceding such purchase
date to the Tender Agent, if one shall be appointed, or to the
Remarketing Agent appointed to reoffer such tendered Tax-Exempt
Bonds for sale.
8. Under the Equipment Lease and/or the Refunding Agreement, the
Company would be obligated to pay amounts equal to the amounts
to be paid by the Remarketing Agent or the Tender Agent
pursuant to the Indenture for the purchase of Tax-Exempt Bonds
so tendered, such amounts to be paid by the Company on the
dates such payments by the Remarketing Agent or the Tender
Agent are to be made; provided, however, that the obligation of
the Company to make any such payment under the Equipment Lease
and/or the Refunding Agreement would be reduced by the amount
of any other moneys available therefor, including the proceeds
of the sale of such tendered Tax-Exempt Bonds by the
Remarketing Agent.
Paragraph 12 of Section C in Item 1 in this proceeding is
hereby amended to read in its entirety as follows:
12. In addition or as an alternative to the security provided by a
letter of credit, in order to obtain a more favorable rating on
Tax-Exempt Bonds and consequently improve the marketability
thereof, the Company may (a) provide an insurance policy for
the payment of the principal of and/or interest on and/or
premium on one or more series of Tax-Exempt Bonds, and/or (b)
provide security for holders of Tax-Exempt Bonds and/or the
Bank by obtaining the authentication of and pledging one or
more new series of First Mortgage Bonds and/or MTNs
("Collateral Bonds") under the Mortgage, as it may be
supplemented. Premiums on any insurance policies will not
exceed the rate of premiums generally obtained at the time of
entering into the insurance arrangements by companies of
comparable credit quality on insurance policies having
comparable terms and are not expected to exceed 1.2% of the
total debt service on such Tax-Exempt Bonds to maturity.
Collateral Bonds would be issued on the basis of unfunded net
property additions and/or retired bond credits and would be
delivered to the Trustee under the Indenture and/or the Bank to
evidence, in part, and secure the Company's obligation to pay
the subrentals for the Facilities financed and/or the Company's
obligation to pay amounts owing in respect of the Tax-Exempt
Bonds under the Refunding Agreement and/or the Company's
obligation to reimburse the Bank under the Reimbursement
Agreement. Collateral Bonds could be issued in several ways.
First, if Tax-Exempt Bonds bear a fixed interest rate,
Collateral Bonds could be issued in a principal amount equal to
the principal amount of such Tax-Exempt Bonds and bear interest
at a rate equal to the rate of interest on such Tax-Exempt
Bonds. Secondly, they could be issued in a principal amount
equivalent to the principal amount of such Tax-Exempt Bonds
plus an amount equal to interest on those bonds for a specified
period. In such case, Collateral Bonds could be issued in a
principal amount equivalent to the principal amount of such
Tax-Exempt Bonds plus an amount equal to interest on those Tax-
Exempt Bonds for a specified period, but carry a fixed interest
rate that would be lower than the fixed interest rate of the
Tax-Exempt Bonds. Thirdly, Collateral Bonds could be issued in
a principal amount equivalent to the principal amount of such
Tax-Exempt Bonds for a specified period, but carry a fixed
interest rate that would be lower than the fixed interest rate
of the Tax-Exempt Bonds. Fourthly, they could be issued in a
principal amount equivalent to the principal amount of Tax-
Exempt Bonds at an adjustable rate of interest, varying with
such Tax-Exempt Bonds but having a "cap" (not greater than 13%
per annum) above which the interest on Collateral Bonds could
not rise. For further information with respect to the
Collateral Bonds, the Reimbursement Agreement and the proposed
insurance arrangement, reference is made to Exhibits A-3, A-6,
B-10 and B-11. The Company will not use a combination of
letter of credit, insurance arrangements and/or Collateral
Bonds to secure any series of Tax-Exempt Bonds unless the
resulting effective interest cost savings on such series is
greater than the total cost of providing such additional
security.
Paragraph 14 of Section c in Item 1 of this proceeding is
hereby amended to read in its entirety as follows:
14. For further information with respect to the terms of the
Indenture, the Equipment Lease, the proposed insurance
arrangement and the Refunding Agreement, reference is made
to Exhibits B-8, B-9, B-11 and B-12.
Item 3. Applicable Statutory Provisions
Paragraphs (a), (b) and (c) in Item 3 in this proceeding are
hereby amended to read in their entirety as follows:
(a) Bonds, MTNs and Preferred
The Company believes that Sections 6(a) and 7 of the Holding
Company Act and Rules 23 and 24 thereunder apply to the
proposed issuance(s) and sale(s) of Bonds, MTNs and Preferred.
(b) Tax-Exempt Bonds
The sections of the Holding Company Act and the rules
thereunder that may be applicable to the tax-exempt financing
of the Facilities are set forth below:
(i) Lease of the Section 12(d)
Facilities
to the Issuer(s)
(ii) Sublease of the Sections 9(a) and 10
Facilities from
the Issuer(s)
(iii)Reimbursement Sections 6(a) and 7
Agreement
(iv) Issuance and Sections 6(a) and 7
Pledge of
Collateral Bonds
(v) Refunding Sections 6(a) and 7
Agreement
(c) Acquisition Program
The Company believes that Sections 9(a), 10 and 12(c) of the
Holding Company Act and Rule 42 thereunder apply to the
proposed acquisition by the Company of Industrial Development
Revenue Bonds and Pollution Control Revenue Bonds.
In the event that the Commission deems any other section of the
Holding Company Act or rule thereunder to be applicable, the Company
requests that the Commission's order or orders herein also be issued
under and with respect to such other section or rule.
<PAGE>
Item 6. Exhibits and Financial Statements
(a) Exhibits:
A-3 Form of additional Supplemental Indenture
relating to the Collateral Bonds.
A-6 Form of Collateral Bonds.
B-8 Form of Parish Indenture.
B-11 Form of insurance policy and provisions relating
to bond insurance.
B-12 Form of Refunding Agreement.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, the undersigned company has duly caused this amendment to be signed
on its behalf by the undersigned thereunto duly authorized.
GULF STATES UTILITIES COMPANY
By: /s/ Glenn E. Harder
Glenn E. Harder
Vice President -Financial
Strategies and Treasurer
Dated: September 16, 1994
Exhibit A-3
GULF STATES UTILITIES COMPANY
350 Pine Street
Beaumont, Texas 77701
TO
CHEMICAL BANK,
as Trustee
450 West 33rd Street
New York, New York 10001
-------------------------
FIFTY-EIGHTH SUPPLEMENTAL INDENTURE
Dated as of ______1, 1994
-------------------------
Relating to an Issue of First Mortgage Bonds,
Environmental Series 1994A Due _______ 1, 20__
and
Supplementing Indenture of Mortgage
Dated September 1, 1926
-------------------------
THIS INSTRUMENT GRANTS A SECURITY
INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED
PROPERTY PROVISIONS
<PAGE>
GULF STATES UTILITIES COMPANY
TABLE OF CONTENTS
-------------------------
Inserted for convenience only and not as a part of
Fifty-eighth Supplemental Indenture.
Page
Parties
Recitals
Performance of Acts Necessary to Legality
Granting Clauses
Exception Clause
Habendum
Declaration of Trust
Execution
Acknowledgments
Affidavit of Vice President of the Company
Resolution of Ad Hoc Committee of the Board of
Directors of the Company
(Authorizing Fifty-eighth Supplemental Indenture)
ARTICLE ONE.
Environmental Series 1994A Bonds
and Certain Provisions Relating Thereto.
SECTION 1.01 A. Terms of the Environmental
Series 1994A Bonds
B. Form of the Environmental Series
1994A Bonds
SECTION 1.02 Redemption Provisions for the
Environmental Series 1994A Bonds
SECTION 1.03 Certificates of Available Net Additions
SECTION 1.04 Duration of Effectiveness of Article One
SECTION 1.05 Restriction on Payment of Dividends
on Common Stock, etc.
ARTICLE TWO.
SECTION 2.01 Consent to Modifications of Indenture
SECTIONS 2.02 - Sundry Provisions
2.06
SECTION 2.07 Modifications of Indenture
SECTION 2.08 Consent by Acceptance
SECTION 2.09 Restriction on Modifications
ARTICLE THREE.
Schedule of Mortgaged Properties
<PAGE>
THIS FIFTY-EIGHTH SUPPLEMENTAL INDENTURE, dated as of the
_____ day of ___________________, 1994, by and between GULF
STATES UTILITIES COMPANY, a corporation duly organized and
existing under the laws of the State of Texas (hereinafter
sometimes called the Company), party of the first part, and
CHEMICAL BANK, a corporation duly organized and existing under
the laws of the State of New York and having its principal place
of business in the Borough of Manhattan, City and State of New
York, as successor trustee under the Indenture of Mortgage and
indentures supplemental thereto hereinafter mentioned
(hereinafter sometimes called the Trustee), party of the second
part;
WITNESSETH: That
WHEREAS, the Company has heretofore executed and delivered
its Indenture of Mortgage, dated September 1, 1926 (hereinafter
sometimes called the Original Indenture), to THE CHASE NATIONAL
BANK OF THE CITY OF NEW YORK, as trustee, in and by which the
Company conveyed and mortgaged to The Chase National Bank of the
City of New York, as trustee, certain property, therein
described, to secure the payment of its bonds issued and to be
issued under the Original Indenture in one or more series, as
therein provided; and
WHEREAS, the Company has heretofore executed and delivered
to The Chase National Bank of the City of New York, as trustee,
the First through the Fourth Supplemental Indentures, all
supplemental to the Original Indenture; and
WHEREAS, on March 21, 1939, The Chase National Bank of the
City of New York resigned as trustee under the Original Indenture
and all indentures supplemental thereto as aforesaid, pursuant to
Section 4 of Article XIV of the Original Indenture, and by an
Indenture dated March 21, 1939, said resignation was accepted and
Central Hanover Bank and Trust Company was duly appointed the
successor trustee under the Original Indenture and all indentures
supplemental thereto, said resignation and appointment both being
effective as of said date, and Central Hanover Bank and Trust
Company did by said Indenture dated March 21, 1939 accept the
trust under the Original Indenture and all indentures
supplemental thereto; and
WHEREAS, the Company has heretofore executed and delivered
to Central Hanover Bank and Trust Company, as successor trustee,
the Fifth through the Tenth Supplemental Indentures,
supplementing and modifying the Original Indenture; and
WHEREAS, the name of Central Hanover Bank and Trust Company,
successor trustee, as aforesaid, was changed effective June 30,
1951 to "The Hanover Bank"; and
WHEREAS, the Company has heretofore executed and delivered
to The Hanover Bank, as successor trustee, the Eleventh through
the Twentieth Supplemental Indentures, supplementing and
modifying the Original Indenture; and
WHEREAS, on September 8, 1961, pursuant to the laws of the
State of New York, The Hanover Bank, successor trustee, as
aforesaid, was duly merged into Manufacturers Trust Company, a
New York corporation, under the name "Manufacturers Hanover Trust
Company," and Manufacturers Hanover Trust Company thereupon
became the duly constituted successor trustee under the Original
Indenture, as supplemented and modified as aforesaid; and
WHEREAS, the Company has heretofore executed and delivered
to Manufacturers Hanover Trust Company, as successor trustee, the
Twenty-first through the Fifty-fourth Supplemental Indentures,
supplementing and modifying the Original Indenture; and
WHEREAS, on June 19, 1992, pursuant to the laws of the State
of New York, Manufacturers Hanover Trust Company, successor
trustee, as aforesaid, was duly merged into Chemical Bank, a New
York corporation, under the name "Chemical Bank," and Chemical
Bank thereupon became and is now the duly constituted successor
trustee under the Original Indenture, as supplemented and
modified as aforesaid; and
WHEREAS, the Company has heretofore executed and delivered
to Chemical Bank, as successor trustee, the Fifty-fifth through
the Fifty-seventh Supplemental Indentures, supplementing and
modifying the Original Indenture; and
WHEREAS, the series of bonds established under the Seventh
Supplemental Indenture and under each successive supplemental
indenture have been designated respectively and are referred to
herein as "Bonds of the 1976, 1978, 1979, 1980, 1981, 1982, 1983,
1986, 1987, 1988, 1989, 1989A, 1990, 1992, 1996, 1997, 1998,
1998A, 1999, 1999A, 2000, 2000A, 2001, 2003, 2004, 2005, 2006,
2007, 2009, 2009A, 1987A, 2010, 1991, 1993, 2012, 2013, 2013A,
1994, 2014B, C and D, 2015, 2016, 2016A, 1994A, 2002, 2022,
2004A, 2024, 1996A, 1997A, 1998B, 1999B, 2003A Series and the
Medium Term Note Series, Sub-series A and B"; and
WHEREAS, under the Original Indenture, as supplemented and
modified, any new series of bonds may at any time be established
by the Board of Directors of the Company and the terms thereof
may be specified by a supplemental indenture executed by the
Company and Trustee; and
WHEREAS, the Company has acquired certain additional
property not heretofore specifically subjected to the lien of the
Original Indenture as supplemented and modified, which by the
terms thereof is subject to the lien thereof, and the Company
desires specifically to describe such property and specifically
to subject it to the lien and the operation of the Indenture as
hereinafter defined; and
WHEREAS, the Company proposes to create under the Original
Indenture, as supplemented and modified as aforesaid and as
further supplemented by this Fifty-eighth Supplemental Indenture
(the Original Indenture as so supplemented and modified being
hereinafter sometimes called "the Indenture"), a new series of
Bonds to be designated "First Mortgage Bonds, Environmental
Series 1994A Due ___________, 20___ in the aggregate principal
amount of $____________, such Bonds when originally issued to be
dated as of _____________ 1, 1994, and to mature on ___________,
20___, (hereinafter sometimes referred to as the "Environmental
Series 1994A Bonds"); and
WHEREAS, all acts and proceedings required by law and by the
Restated Articles of Incorporation, as amended, and By-laws of
the Company necessary to make the Environmental Series 1994A
Bonds, when executed on behalf of the Company, authenticated and
delivered by the Trustee and duly issued, the valid, binding and
legal obligations of the Company, and to constitute the Indenture
a valid and binding mortgage for the security of all the Bonds of
the Company issued or to be issued under the Indenture, in
accordance with its and their terms, have been done and taken;
and the execution and delivery of this Fifty-eighth Supplemental
Indenture have been in all respects duly authorized;
NOW, THEREFORE, THIS FIFTY-EIGHTH SUPPLEMENTAL INDENTURE
WITNESSETH:
That in order to secure the payment of the principal of,
premium, if any, and interest on, all Bonds at any time issued
and outstanding under the Indenture, according to their tenor,
purport and effect, and to secure the performance and observance
of all the covenants and conditions in said Bonds and in the
Indenture contained, and to declare the terms and conditions upon
and subject to which the Environmental Series 1994A Bonds are to
be issued and secured, and also to secure the payment of the
redemption price and accrued interest on the Environmental Series
1994A Bonds, and for and in consideration of the premises and of
the mutual covenants herein contained and of the acceptance of
the Environmental Series 1994A Bonds by the holders thereof, and
of the issuance of certain bonds by the Parish of West Feliciana,
State of Louisiana, hereinafter described, and of the sum of $1
duly paid to the Company by the Trustee, at or before the
execution and delivery hereof, and for other valuable
consideration, the receipt whereof is hereby acknowledged, the
Company has executed and delivered this Fifty-eighth Supplemental
Indenture, and by these presents does grant, bargain, sell,
alienate, remise, release, convey, assign, transfer, mortgage,
hypothecate, pledge, set over and confirm unto the Trustee, its
successors in trust and assigns, the following property, rights,
privileges and franchises hereinafter described, including
property acquired by the Company since the execution and delivery
by it of the Fifty-seventh Supplemental Indenture:
CLAUSE I.
All the property, real, personal or mixed, tangible or
intangible (other than excepted property as hereinafter defined)
of every kind, character and description which is described in
the Schedule of Mortgaged Properties set forth in Article Three
hereof.
CLAUSE II.
Without in any way limiting anything in Clause I or
hereinafter described, all and singular the lands, real estate,
chattels real, interests in land, leaseholds, ways, rights of
way, grants, easements, servitudes, rights pursuant to
ordinances, consents, permits, patents, licenses, lands under
water, water and riparian rights, franchises, privileges,
immunities, rights to construct, maintain and operate
distribution and transmission systems, all other rights and
interests, gas, water, steam and electric light, heat and power
plants and systems, dams, and dam sites, stations and
substations, powerhouses, electric transmission and distribution
lines and systems, pipe lines, conduits, towers, poles, wires,
cables and all other structures, machinery, engines, boilers,
dynamos, motors, transformers, generators, electric and
mechanical appliances, office buildings, warehouses, garages,
stables, sheds, shops, tunnels, subways, bridges, other buildings
and structures, implements, tools and other apparatus,
appurtenances and facilities, materials and supplies, and all
other property of any nature appertaining to any of the plants,
systems, business or operations of the Company, whether or not
affixed to the realty, used in the operation of any of the
premises or plants or systems, or otherwise, which are now owned
or which may hereafter be owned or acquired by the Company, other
than excepted property as hereinafter defined; including (but not
limited to) all its properties situated in the Cities of
Beaumont, Port Arthur and Orange, and in the Counties of Brazos,
Burleson, Chambers, Falls, Galveston, Grimes, Hardin, Harris,
Jasper, Jefferson, Leon, Liberty, Limestone, Madison, Milam,
Montgomery, Newton, Orange, Polk, Robertson, San Jacinto,
Trinity, Tyler, Walker, Waller and Washington, Texas, and
vicinity, and the Cities of Baton Rouge, Jennings and Lake
Charles and in the Parishes of Acadia, Allen, Ascension,
Beauregard, Calcasieu, Cameron, East Baton Rouge, East Feliciana,
Iberia, Iberville, Jefferson Davis, Lafayette, Livingston, Pointe
Coupee, St. Helena, St. Landry, St. Martin, St. Tammany,
Tangipahoa, Vermilion, Washington, West Baton Rouge and West
Feliciana, Louisiana, and vicinity, and wheresoever situated
(other than excepted property as hereinafter defined).
CLAUSE III.
All corporate, Federal, State, county (parish), municipal
and other permits, consents, licenses, bridge licenses, bridge
rights, river permits, franchises, patents, rights pursuant to
ordinances, grants, privileges and immunities of every kind and
description, now belonging to or which may hereafter be owned,
held, possessed or enjoyed by the Company (other than excepted
property as hereinafter defined) and all renewals, extensions,
enlargements and modifications of any of them.
CLAUSE IV.
Also all other property, real, personal or mixed, tangible
or intangible (other than excepted property as hereinafter
defined) of every kind, character and description and wheresoever
situated, whether or not useful in the generation, manufacture,
production, transportation, distribution, sale or supplying of
electricity, steam, water or gas, now owned or which may
hereafter be acquired by the Company, it being the intention
hereof that all property, rights and franchises acquired by the
Company after the date hereof (other than excepted property as
hereinafter defined) shall be as fully embraced within and
subjected to the lien hereof as if such property were now owned
by the Company and were specifically described herein and
conveyed hereby.
CLAUSE V.
Together with all and singular the plants, buildings,
improvements, additions, tenements, hereditaments, easements,
servitudes, rights, privileges, licenses, and franchises and all
other appurtenances whatsoever belonging or in anywise
appertaining to any of the property hereby mortgaged or pledged,
or intended so to be, or any part thereof, and the reversion and
reversions, reservation and reservations, remainder and
remainders, and the tolls, rents, revenues, issues, earnings,
income, products and profits thereof and every part and parcel
thereof and all of the estate, right, title, interest,
possession, property, claim and demand of every nature whatsoever
of the Company at law, in equity or otherwise howsoever, in, of,
and to such property and every part and parcel thereof.
CLAUSE VI.
Also any and all property, real, personal or mixed,
including excepted property, that may, from time to time
hereafter, by delivery or by writing of any kind, for the
purposes hereof be in anywise subjected to the lien hereof or be
expressly conveyed, mortgaged, hypothecated, assigned,
transferred, deposited and/or pledged by the Company, or by
anyone in its behalf or with its consent, to and with the
Trustee, which is hereby authorized to receive the same at any
and all times as and for additional security and also, when and
as in the Seventh Supplemental Indenture provided, as substituted
security hereunder, to the extent permitted by law. Such
conveyance, mortgage, hypothecation, assignment, transfer,
deposit and/or pledge or other creation of lien by the Company or
by anyone in its behalf or with its consent of or upon any
property as and for additional security may be made subject to
any reservations, limitations, conditions and provisions which
shall be set forth in an instrument or agreement in writing
executed by the Company, or the person or corporation conveying,
assigning, mortgaging, hypothecating, transferring, depositing
and/or pledging the same, respecting the use, management and
disposition of the property so conveyed, assigned, mortgaged,
hypothecated, transferred, deposited and/or pledged, or the
proceeds thereof.
CLAUSE VII.
PROPERTIES EXCEPTED.
There is, however, expressly excepted and excluded from the
lien and operation of this Indenture all ''Excepted Property'' as
defined and described in Granting Clause VII of the Indenture
(omitting from such exception specifically described property
thereafter expressly subjected to the lien of the Indenture),
together with all property released by the Trustee or otherwise
disposed of by the Company free from the lien of the Indenture
prior to the execution of this Fifty-eighth Supplemental
Indenture.
TO HAVE AND TO HOLD the trust estate and all and singular
the lands, properties, estates, rights, franchises, privileges
and appurtenances hereby mortgaged, hypothecated, conveyed,
pledged or assigned, or intended so to be, together with all the
appurtenances thereto appertaining and the rents, issues and
profits thereof, unto the Trustee and its successors in trust and
to its assigns, forever.
SUBJECT, HOWEVER, to the exceptions (except as omitted above
in Clause VII hereof), reservations, restrictions, conditions,
limitations, covenants and matters recited in the Schedule of
Mortgaged Properties set forth in Article Three hereof, in
Article Twenty of the Indenture, and in each respective Article
Three of the Eighth and each consecutive succeeding Supplemental
Indenture through the Seventeenth Supplemental Indenture and,
likewise, of the Nineteenth through the Thirty-seventh
Supplemental Indentures and, also, the Thirty-ninth through the
Fifty-seventh Supplemental Indentures or contained in any deeds
and other instruments whereunder the Company has acquired any of
the property now owned by it, to permitted encumbrances as
defined in Subsection B of Section 1.07 of the Indenture, and,
with respect to any property which the Company may hereafter
acquire, to all terms, conditions, agreements, covenants,
exceptions and reservations expressed or provided in the deeds or
other instruments, respectively, under and by virtue of which the
Company shall hereafter acquire the same and to any liens thereon
existing, and to any liens for unpaid portions of the purchase
money placed thereon, at the time of such acquisition.
BUT, IN TRUST, NEVERTHELESS, for the equal and proportionate
use, benefit, security and protection of those who from time to
time shall hold the Bonds and coupons, if any, authenticated and
delivered under the Indenture and duly issued by the Company,
without any discrimination, preference or priority of any one
Bond or coupon, if any, over any other by reason of priority in
the time of issue, sale or negotiation thereof or otherwise,
except as provided in Section 12.28 of the Indenture, so that,
subject to said Section 12.28 of the Indenture, each and all of
said Bonds and coupons, if any, shall have the same right, lien
and privilege under the Indenture and shall be equally secured
thereby and shall have the same proportionate interest and share
in the trust estate, with the same effect as if all the Bonds and
coupons, if any, had been issued, sold and negotiated
simultaneously.
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the
covenants, agreements and conditions of the Original Indenture as
modified and supplemented by previous supplemental indentures and
by this Fifty-eighth Supplemental Indenture.
ARTICLE ONE.
Environmental Series 1994A Bonds and
Certain Provisions Relating Thereto.
Section 1.01
A. Terms of the Environmental Series 1994A Bonds. There
is hereby established a new series of Bonds to be issued under
and secured by the Indenture, to be known as and entitled "First
Mortgage Bonds, Environmental Series 1994A Due ____________,
20___" (herein referred to as the "Environmental Series 1994A
Bonds"). The aggregate principal amount of the Environmental
Series 1994A Bonds Series shall be $___________.
The definitive Environmental Series 1994A Bonds shall be
registered bonds without coupons of the denominations of $1,000
and integral multiples thereof as shall be authorized by written
order of the Company, numbered _______ consecutively upwards.
The Environmental Series 1994A Bonds shall be dated as
provided in Section 3.05 of the Indenture. The Environmental
Series 1994A Bonds shall mature on __________, 20__. The
Environmental Series 1994A Bonds shall be issued by the Company
to First National Bank of Commerce, as Trustee (the "Parish
Trustee") under that certain Trust Indenture dated as of
____________, 19___ (the "Trust Indenture") between the Parish
Trustee and the Parish of West Feliciana, State of Louisiana (the
"Parish"), in order to secure the payment when due (whether at
maturity, by acceleration, upon redemption, or otherwise) of the
principal of and interest on the Parish of West Feliciana, State
of Louisiana, Pollution Control Revenue Refunding Bonds (Gulf
States Utilities Company Project), Series 1994 (the "Parish
Series 1994 Bonds"). Issuance of the Parish Series 1994 Bonds on
the terms and conditions set forth in the Trust Indenture shall
constitute the consideration for the issuance of the
Environmental Series 1994A Bonds. Notwithstanding any provision
herein to the contrary, the obligation of the Company to make
payments with respect to the principal of the Environmental
Series 1994A Bonds and to deposit cash to redeem bonds of such
series shall be fully or partially, as the case may be, satisfied
and discharged to the extent that, at the time that any such
payments or deposits shall be due, the then due principal of and
interest on the Parish Series 1994 Bonds shall have been fully or
partially paid or there shall be in the Bond Fund established
pursuant to the Trust Indenture, sufficient available funds to
fully or partially pay the then due principal of and interest on
the Parish Series 1994 Bonds . The Trustee may conclusively
presume that the obligation of the Company to make payments with
respect to the principal of and interest on the Environmental
Series 1994A Bonds shall have been fully satisfied and discharged
unless and until the Trustee shall have received a written notice
from the Parish Trustee, signed by its President, a Vice
President or a Trust Officer, stating (i) that timely payment of
the principal of or interest on the Parish Series 1994 Bonds
(whether upon acceleration of maturity of the Parish Series 1994
Bonds or otherwise) has not been made, (ii) that there are not
sufficient available funds in the Bond Fund under the Trust
Indenture to make such payment or redemption and (iii) the amount
of additional funds required to make such payment or redemption.
In the event that the Parish Series 1994 Bonds outstanding
under the Trust Indenture shall become immediately due and
payable pursuant to Section 10.2 of the Trust Indenture, upon the
occurrence of an Event of Default under Section 10.1(a) or (b) of
the Trust Indenture, all of the Environmental Series 1994A Bonds
then outstanding shall be redeemed by the Company, on the date
such Parish Series 1994 Bonds shall have become immediately due
and payable, at the principal amount of the Environmental Series
1994A Bonds.
In the event that any Parish Series 1994 Bonds are to be
redeemed pursuant to Section 4.1 of the Trust Indenture, the
Environmental Series 1994A Bonds, in a principal amount equal, as
nearly as practicable, to the sum of (i) the principal amount of
such Parish Series 1994 Bonds to be redeemed and (ii) ______-
twelfths (__/12) of the annual interest due on such Parish Series
1994 Bonds to be redeemed, shall be redeemed by the Company, on
the date fixed for such redemption of Parish Series 1994 Bonds,
at the principal amount thereof to be redeemed.
The Trustee may conclusively presume that no redemption of
the Environmental Series 1994A Bonds is required pursuant to this
subsection unless and until the Trustee shall have received a
written notice (which may be a facsimile followed by a mailed
counterpart) from the Parish Trustee, signed by its President, a
Vice President or a Trust Officer, stating that, as the case may
be, the Parish Series 1994 Bonds have become immediately due and
payable pursuant to Section 10.2 of the Trust Indenture, upon the
occurrence of an Event of Default under Section 10.1(a) or (b) of
the Trust Indenture, or Parish Series 1994 Bonds are to be
redeemed pursuant to Section 4.1(b) of the Trust Indenture and
specifying the date fixed for the redemption and the principal
amount thereof. Said notice shall also contain a waiver of
notice of such redemption by the Parish Trustee, as the holder of
all the Environmental Series 1994A Bonds then outstanding.
The Environmental Series 1994A Bonds shall not be
transferable by the Parish Trustee except to a successor trustee
under the Trust Indenture and the Company hereby instructs the
Trustee to so limit transfers requested by the holder of the
Bonds of such Series.
The principal of and interest on the Environmental Series
1994A Bonds will be paid in any coin or currency of the United
States of America which at the time of payment is legal tender
for the payment of public and private debt, at the corporate
trust office in the Borough of Manhattan, City and State of New
York, of the Trustee.
The definitive Environmental Series 1994A Bonds may be
issued in the form of Bonds engraved, printed, lithographed, or
partly engraved and partly printed or lithographed, on steel
engraved borders [or as typed Bonds.]
Upon compliance with the provisions of Section 3.10 of the
Indenture and upon payment, at the option of the Company, of the
charges provided in Section 3.11 of the Indenture, the
Environmental Series 1994A Bonds may be exchanged for a new bond
or bonds of the said series of different authorized denominations
of like aggregate principal amount.
The Trustee hereunder shall, by virtue of its office as such
Trustee, be the registrar and transfer agent of the Company for
the purpose of registering and transferring bonds of the
Environmental Series 1994A Bonds.
B. Form of the Environmental Series 1994A Bonds. The
Environmental Series 1994A Bonds, and the Trustee's
authentication certificate to be executed on the Environmental
Series 1994A Bonds, shall be in substantially the following
forms, respectively:
<PAGE>
(FORM OF FACE OF THE ENVIRONMENTAL SERIES 1994-A BOND)
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR TRUSTEE
UNDER THE TRUST INDENTURE, DATED AS OF _____________ 1, 1994
BETWEEN THE PARISH OF WEST FELICIANA, STATE OF LOUISIANA, AND
_____________________________________, AS TRUSTEE.
GULF STATES UTILITIES COMPANY
FIRST MORTGAGE BOND, ENVIRONMENTAL SERIES 1994A
DUE ___________________
GULF STATES UTILITIES COMPANY, a Texas corporation
(hereinafter sometimes called the "Company"), for value received,
hereby promises to pay to __________________, as Trustee under
the Trust Indenture, dated as of ____________ 1, 1994 between the
Parish of West Feliciana, State of Louisiana, and
__________________, as Trustee, or registered assigns,
___________________ Dollars on ___________________, without
interest thereon.
The principal of and interest on this bond will be paid in
any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and
private debts, at the corporate trust office in the Borough of
Manhattan, City and State of New York, of the Trustee under the
Indenture.
This bond is one of the bonds, of the above designated
series (hereinafter referred to as the "Environmental Series
1994A Bonds"), of an authorized issue of bonds of the Company,
known as First Mortgage Bonds, issued or issuable in one or more
series under and equally secured (except in so far as any sinking
and/or improvement fund, maintenance and replacement fund or
other fund established in accordance with the provisions of the
Indenture hereinafter mentioned may afford additional security
for the bonds of any specific series) by an Indenture of Mortgage
dated September 1, 1926, as supplemented and modified by
indentures supplemental thereto, to and including a Fifty-eighth
Supplemental Indenture dated as of _________ 1, 1994, to Chemical
Bank, as Trustee (hereinafter referred to as the "Trustee"), to
which Indenture of Mortgage, as so supplemented and modified, and
all indentures supplemental thereto (herein sometimes called the
Indenture) reference is hereby made for a description of the
property mortgaged and pledged as security for said bonds, the
nature and extent of the security, and the rights, duties and
immunities thereunder of the Trustee, the rights of the holder of
said bonds and of the Trustee and of the Company in respect of
such security, and the terms upon which said bonds may be issued
thereunder.
The Environmental Series 1994A Bonds have been issued by the
Company to secure the payment when due (whether at maturity, by
acceleration, upon redemption, or otherwise) of the principal of
and interest on the Parish of West Feliciana, State of Louisiana,
Pollution Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series 1994 (hereinafter called the ''Parish
Series 1994 Bonds"). Notwithstanding any provision herein to the
contrary, the obligation of the Company to make payments with
respect to the principal of Environmental Series 1994A Bonds and
to deposit cash to redeem bonds of such series shall be fully or
partially, as the case may be, satisfied and discharged to the
extent that, at the time that any such payments or deposits shall
be due, the then due principal of and interest on the Parish
Series 1994 Bonds shall have been fully or partially paid or
there shall be in the Bond Fund established pursuant to the Trust
Indenture, dated as of _____________ 1, 1994 (herein referred to
as the "Trust Indenture"), between the Parish of West Feliciana,
State of Louisiana, and _____________________, as Trustee (the
"Parish Trustee"), sufficient available funds to fully or
partially pay the then due principal of and interest on the
Parish Series 1994 Bonds. The Trustee may conclusively presume
that the obligation of the Company to make payments with respect
to the principal of the Envoronmental Series 1994-A Bonds have
been fully satisfied and discharged unless and until the Trustee
shall have received a written notice from the Parish Trustee,
signed by its President, a Vice President or a Trust Officer,
stating (i) that timely payment of the principal of and interest
on the Parish Series 1994 Bonds (whether upon acceleration of
maturity or otherwise) has not been made, (ii) that there are not
sufficient available funds in the Bond Fund under the Trust
Indenture to make such payment, and (iii) the amount of
additional funds that are required to make such payment or
redemption.
The Environmental Series 1994A Bonds are subject to
redemption prior to maturity upon the optional or mandatory
redemption, in whole or in part, of the Parish Series 1994 Bonds
issued under the Trust Indenture, or upon the acceleration of
maturity of all or any part of the Parish Series 1994 Bonds as
provided in the Trust Indenture. To cause the redemption of the
Environmental Series 1994A Bonds, the Parish Trustee shall
deliver to the Trustee (and mail a copy thereof to the Company) a
written demand (hereinafter referred to as the "Redemption
Demand") for the redemption of the Environmental Series 1994A
Bonds equal, as nearly as practicable, in principal amount to the
sum of (i) the principal amount of Parish Series 1994 Bonds and
(ii) ______-twelfths (__/12) of the annual interest due on such
Parish Series 1994 Bonds to be redeemed or paid upon such
accelerated maturity to be redeemed by the Company, on the date
fixed for redemption of Parish Series 1994 Bonds, at the
principal amount thereof. The Redemption Demand shall be signed
by the President, a Vice President or a Trust Officer of the
Parish Trustee stating that, as the case may be, the Parish
Series 1994 Bonds have become immediately due and payable
pursuant to Section 10.2 of the Trust Indenture, upon the
occurrence of an Event of Default under Section 10.1(a) or (b) of
the Trust Indenture, or Parish Series 1994 Bonds are to be
redeemed pursuant to Section 4.1(b) of the Trust Indenture and
specifying the date fixed for the redemption and the principal
amount thereof. The Redemption Demand shall also contain a
waiver of notice of such redemption by the Parish Trustee, as
holder of all the Environmental Series 1994A Bonds then
outstanding. The Trustee may conclusively presume the statements
contained in the Redemption Demand to be correct. Redemption of
the Environmental Series 1994A Bonds shall be in principal amount
equal, as nearly as practicable, to the sum of (i) the principal
amount of the Parish Series l994 Bonds and (ii) ________-twelfths
(__/12) of the annual interest due on such Parish Series 1994
Bonds to be redeemed or paid upon accelerated maturity, and such
amounts shall become and be due and payable on the redemption
date or the date of accelerated maturity. The Company hereby
covenants that, if a Redemption Demand shall be delivered to the
Trustee, the Company, subject to the provisions of the preceding
paragraph regarding the satisfaction and discharge of this
obligation, will deposit with the Trustee, on or before the
redemption date of the Environmental Series 1994A Bonds so called
for redemption, an amount in cash sufficient to redeem such Bonds
so called for redemption, plus any premium and accrued interest
thereon.
If this bond or any portion thereof (One Thousand Dollars or
an integral multiple thereof) is duly called for redemption and
payment duly provided for or otherwise duly satisfied and
discharged as specified in the Indenture (including but not
limited to Section 1.01 of the Fifty-eighth Supplemental
Indenture), this bond or such portion thereof shall cease to be
entitled to the lien of the Indenture from and after the date
payment is so provided for or otherwise duly satisfied and
discharged and shall cease to bear interest from and after the
redemption date.
In the event of the selection for redemption of a portion
only of the principal of this bond, payment of the redemption
price will be made only (a) upon presentation of this bond for
notation hereon of such payment of the portion of the principal
of this bond so called for redemption, or (b) upon surrender of
this bond in exchange for a bond or bonds of authorized
denominations of the same series, for the unredeemed balance of
the principal amount of this bond.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than
seventy-five per cent in principal amount of the bonds (exclusive
of bonds disqualified by reason of the Company's interest therein
) at the time outstanding, including, if more than one series of
bonds shall be at the time outstanding, not less than sixty per
cent in principal amount of each series affected, to effect, by
an indenture supplemental to the Indenture, modifications or
alterations of the Indenture and of the rights and obligations of
the Company and of the holders of the bonds; provided, however,
that no such modification or alteration shall be made without the
written approval or consent of the registered owner hereof which
will (a) extend the maturity of this bond or reduce the amount of
the principal hereof, or (b) permit the creation of any lien, not
otherwise permitted, prior to or on a parity with the lien of the
Indenture, or (c) reduce the percentage of the principal amount
of the bonds upon the approval or consent of the holders of which
modifications or alterations may be made as aforesaid.
By acceptance of this bond the Parish Trustee agrees, for
itself and the holders from time to time of the Parish Series
1994 Bonds, to deliver this bond to the Company for cancellation
when required under the provisions of Section _______ of the
Fifty-eighth Supplemental Indenture.
The Parish Trustee, as original holder of all the bonds of
this series, consented to the execution and delivery by the
Company and Chemical Bank, Trustee, of a supplemental indenture
to modify the Indenture (i) to eliminate the requirement for a
maintenance and replacement fund and all references and
requirements relating thereto and (ii) to eliminate all
requirements with respect to and all references to a minimum
provision for depreciation. Such consent is binding upon all
subsequent holders of all bonds of this series. By virtue of the
[ ] receipt of the Parish Series 1994 Bonds,
each holder thereof shall be deemed to have consented to the
action of the Parish Trustee in consenting to and approving the
modifications and amendments of the Indenture as described
herein. Such modifications shall become effective if and when
requisite consents have been obtained from holders of bonds of
other series and a supplemental indenture effecting such
modifications has been duly authorized and executed or on June 2,
2010, whichever occurs first.
Subject to the restriction noted on this bond, this bond is
transferable by the registered owner hereof in person or by his
duly authorized attorney at the corporate trust office of the
Trustee in the Borough of Manhattan, City and State of New York,
upon surrender of this bond for cancellation and upon payment, if
the Company shall so require, of the charges provided for in the
Indenture, and thereupon a new registered bond of the same series
of like principal amount will be issued to the transferee in
exchange therefor.
The registered owner of this bond, at the option of such
registered owner, may surrender the same for cancellation at said
office and receive in exchange therefor the same aggregate
principal amount of bonds of the same series but of other
authorized denominations, upon payment, if the Company shall so
require, of the charges provided for in the Indenture and subject
to the terms and conditions therein set forth.
If a default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable
before maturity in the manner and with the effect provided in the
Indenture. The holders of certain specified percentages of the
bonds at the time outstanding, including in certain cases
specified percentages of bonds of particular series, may in the
cases, to the extent and under the conditions provided in the
Indenture, waive certain defaults thereunder and the consequences
of such defaults.
No recourse shall be had for the payment of the principal of
this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator,
shareholder, director or officer, past, present or future, as
such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or
statute or rule of law, or by the enforcement of any assessment
or penalty, or otherwise, all such liability of incorporators,
shareholders, directors and officers, as such, being waived and
released by the holder and owner hereof by the acceptance of this
bond and as provided in the Indenture.
This bond shall not become or be valid or obligatory for any
purpose until the authentication certificate hereon shall have
been signed by the Trustee.
<PAGE>
IN WITNESS WHEREOF, Gulf States Utilities Company has caused
these presents to be executed in its corporate name, by facsimile
signature or manually, by its Chairman of the Board of Directors
or its President or one of its Vice Presidents and by its
Treasurer or an Assistant Treasurer under its corporate seal or a
facsimile thereof, all as of
GULF STATES UTILITIES COMPANY
By
______________________________
Vice President-Financial Strategies
________________________________
Assistant Treasurer
<PAGE>
(FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE
FOR BONDS)
TRUSTEE'S AUTHENTICATION CERTIFICATE
This is one of the bonds, of the series designated therein,
described in the within mentioned Indenture.
CHEMICAL BANK,
As Trustee
By
___________________________
Authorized Officer.
Section 1.02. Redemption Provisions for the Environmental
Series 1994A Bonds. The Environmental Series 1994A Bonds shall
be subject to redemption prior to maturity at any time or times,
in whole or in part, all as more fully provided in the Form of
the Environmental Series 1994A Bonds set forth in Section 1.01 of
this 1994 Supplemental Indenture.
Section 1.03. Certificates of Available Net Additions. So
long as any of the Environmental Series 1994A Bonds remain
outstanding, certificates of available net additions filed by the
Company with the Trustee pursuant to Section 2.03 of the
Indenture shall continue to refer to the minimum provision for
depreciation and said term shall continue to have the effect
provided for in such certificates, unless and until the
modifications contained in Section 2.01 or Section 2.07 of this
Fifty-eighth Supplemental Indenture become effective.
Section 1.04. Duration of Effectiveness of Article One.
Section 1.01 through 1.03 of this Article shall continue in force
and effect only so long as any of the Environmental Series 1994A
Bonds are outstanding.
Section 1.05. Restriction on Payment of Dividends on Common
Stock, etc. Notwithstanding the provision of Section 9.10 of the
Indenture that the covenants therein contained shall continue
only so long as any of the Bonds of the 1976 Series shall remain
outstanding, the Company hereby covenants that the covenants made
by the Company in said Section 9.10 of the Indenture shall also
continue so long as any of the Environmental Series 1994A Bonds
shall remain outstanding.
ARTICLE TWO.
Section 2.01. Consent to Modification of Indenture. The
Parish Trustee as original and sole holder of the Environmental
Series 1994A Bonds has duly consented to the Company and the
Trustee entering into an indenture supplemental to the Indenture
for the purpose of modifying and amending the Indenture as
hereinafter described, such consent having been given upon
original issuance of each such bond and in satisfaction of the
provisions of Section 18.02 of the Indenture and Section 2.08 of
this Fifty-eighth Supplemental Indenture. Such consent shall
bind the original and every future holder of each such bond and
every bond issued in exchange therefor or in lieu thereof as
provided by Section 13.02 of the Indenture. The modifications
and amendments so consented to are as follows:
A. that Section 4.04 of the Indenture relating to the
maintenance and replacement fund and all of the obligations
and requirements thereof and each and all other references,
obligations and requirements in the Indenture with respect
to such fund, including but not limited to the inclusion of
the failure to discharge or satisfy obligations to such fund
as a default in Section 12.01 of the Indenture, are
eliminated and of no further force or effect, provided that
no cash, Bonds, refundable indebtedness, debt retirements or
property additions theretofore applied as credits under
Section 4.04 may be made the basis for further action or
credit under the Indenture and any cash in such fund shall
constitute trust moneys subject to the provisions of Article
Eight and any unmatured Bonds and refundable indebtedness in
such fund shall be delivered to the Company; and
B. that Section 1.06E of the Indenture defining
"minimum provision for depreciation" and each and all other
references, obligations, and requirements in the Indenture
with respect thereto are eliminated and of no further force
and effect.
Section 2.02. This Fifty-eighth Supplemental Indenture is
executed and shall be construed as an indenture supplemental to
the Original Indenture as supplemented and modified. As
heretofore supplemented and modified, and as supplemented hereby,
the Original Indenture is in all respects ratified and confirmed,
and the Original Indenture, as heretofore supplemented and
modified, and this Fifty-eighth Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
Section 2.03. The recitals in this Fifty-eighth
Supplemental Indenture are made by the Company only and not by
the Trustee; and all of the provisions contained in the Original
Indenture as supplemented and modified, in respect to the rights,
privileges, immunities, powers and duties of the Trustee shall be
applicable in respect hereof as fully and with like effect as if
set forth herein in full.
Section 2.04. Although this Fifty-eighth Supplemental
Indenture is dated for convenience and for the purpose of
reference as of ___________ 1, 1994, the actual date or dates of
execution by the Company and by the Trustee are as indicated by
their respective acknowledgments hereto annexed.
Section 2.05. In order to facilitate the recording or
filing of this Fifty-eighth Supplemental Indenture, the same may
be simultaneously executed in several counterparts and each shall
be deemed to be an original and such counterparts shall together
constitute one and the same instrument.
Section 2.06. The words "herein", "hereof", "hereunder" and
other words of similar import refer to this Fifty-eighth
Supplemental Indenture. All other terms used herein shall be
taken to have the same meaning as in the Original Indenture and
indentures supplemental thereto, except in cases where the
context clearly indicates otherwise.
Section 2.07. Modifications of Indenture. Effective as of
June 2, 2010, if not previously so modified with the requisite
consents of the Bondholders, the Original Indenture as
supplemented and amended shall be further modified as follows:
(a) Section 4.04 relating to the maintenance and
replacement fund and all of the obligations and requirements
thereof and each and all other references, obligations and
requirements in the Indenture with respect to such fund,
including but not limited to the inclusion of the failure to
discharge or satisfy obligations to such fund as a default
in Section 12.01, are eliminated and shall be of no further
force or effect, provided that no cash, Bonds, refundable
indebtedness, debt retirements or property additions
theretofore applied as credits under Section 4.04 may be
made the basis for further action or credit under the
Indenture and any cash in such fund shall constitute trust
moneys subject to the provisions of Article Eight and any
unmatured Bonds and refundable indebtedness in such fund
shall be delivered to the Company.
(b) Section 1.06E defining "minimum provision for
depreciation" and each and all other references, obligations
and requirements in the Indenture with respect thereto are
eliminated and shall be of no further force or effect.
Section 2.08. Consent by Acceptance. Any provision of the
Indenture to the contrary notwithstanding, the consent of the
holders of the Environmental Series 1994A Bonds to the
modifications provided for in Section 2.01 of this Fifty-eighth
Supplemental Indenture shall be conclusively evidenced by the
acceptance of such Bonds by the holder thereof upon initial
issuance, and the Company and the Trustee may conclusively rely
thereupon without compliance with the requirements of Section
13.01 of the Indenture. All such consents shall bind future
holders of such Bonds as provided in Section 13.02 of the
Indenture. Consents as to any of the Environmental Series 1994A
Bonds to the modifications provided for in Section 2.01 hereof
may alternatively be evidenced as otherwise provided in the
Indenture.
Section 2.09. Restriction on Modifications. Any provisions
of the Indenture to the contrary notwithstanding, without the
consent of the holders of the Environmental Series 1994A Bonds so
affected, no supplemental indenture shall (a) change the date or
amount of or deny an optional repayment right, if any, (b) change
the date for redemption or redemption price, if any, or (c)
permit redemption, other than as provided in each case with
respect to such bond upon original issuance.
ARTICLE THREE.
Schedule of Mortgaged Properties.
All of the following described property heretofore acquired
by the Company but not heretofore specifically described in the
Indenture is hereby acknowledged as part of the trust estate.
A. Real Property in the State of Texas.
The following described pieces, parcels or tracts of land
lying and being in the State of Texas, in _____________ County,
together with all improvements of every description thereon
stationed or in anywise incident or appertaining thereto, having
been conveyed to the Company by certain instruments recorded as
hereinafter set forth:
(All recording references contained in the description of land
situated in a specified county are to the Deed of Records of said
County.)
B. Electric and Gas Meters.
1. All electric meters and electric metering equipment
appurtenant to the Company's electric transmission and/or
distribution lines and system conveyed and mortgaged by the
Indenture, including, without limitation, the following
additional electric meters located in the several communities in
the State of Louisiana hereinafter mentioned, and their
respective vicinities not heretofore specifically described in
the Indenture.
[TABLES]
2. All gas meters and gas metering equipment appurtenant
to the Company's gas distribution lines and system in the State
of Louisiana, conveyed and mortgaged by the Indenture, including,
without limitation, _______ additional gas meters located in the
City of Baton Rouge and vicinity.
IN TESTIMONY WHEREOF, GULF STATES UTILITIES COMPANY has
caused these presents to be executed in its name and behalf by
its Chairman of the Board of Directors, its President or a Vice
President and its corporate seal to be hereunto affixed or a
facsimile thereof printed hereon and attested by its Secretary or
an Assistant Secretary, and CHEMICAL BANK, in token of its
acceptance hereof, has likewise caused these presents to be
executed in its name and behalf by its President or a Vice
President and its corporate seal to be hereunto affixed and
attested by an Assistant Vice President or Trust Officer, each in
the presence of the respective undersigned Notaries Public, and
of the respective undersigned competent witnesses, as of the day
and year first above written.
GULF STATES UTILITIES COMPANY
By:____________________________
Vice President-Financial Strategies
and Treasurer
Attest: Before me
________________________ ______________________________
Assistant Secretary ______________________________
______________________________
Signed, sealed and delivered ______________________________
in the presence of: ______________________________
(Notarial Seal)
______________________________
______________________________
(Corporate Seal)
<PAGE>
CHEMICAL BANK
By:_________________________
Vice President
Attest: Before me
_______________________
Trust Officer ______________________________
(Notary Public, State of New York
No. __________
Qualified in New York County
Commission Expires ________, 19__
Signed, sealed and delivered (Notarial Seal)
in the presence of:
______________________________
______________________________
<PAGE>
GULF STATES UTILITIES COMPANY
United States of America,
State of Louisiana,
Parish of Orleans,
I, the undersigned, a Notary Public duly qualified,
commissioned, sworn and acting in and for the Parish and State
aforesaid, hereby certify that, on this the ____ day of
___________, 1994:
Before me personally appeared ___________________, Vice
President-Financial Strategies and Treasurer, and
___________________, Assistant Secretary, of GULF STATES
UTILITIES COMPANY, both of whom are known to me to be the persons
whose names are subscribed to the foregoing instrument, and
separately acknowledged to me that they executed the same in the
capacities therein stated for the purposes and considerations
therein expressed and as the act and deed of GULF STATES
UTILITIES COMPANY.
Before me personally came ___________________, to me known,
who being by me duly sworn, did depose and say, that he resides
in ________, Louisiana; that he is Vice President-Financial
Strategies and Treasurer of GULF STATES UTILITIES COMPANY, one of
the corporations described in and which executed the above
instrument; that he knows the seal of said corporation; that the
seal affixed to or printed on said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors
of said corporation, and that he signed his name thereto by like
order.
BE IT REMEMBERED, that before me, and in the presence of
_____________ and ___________________, competent witnesses,
residing in said State, personally came and appeared
___________________ and ___________________, Vice President-
Financial Strategies and Treasurer, and Assistant Secretary,
respectively, of GULF STATES UTILITIES COMPANY, a corporation
created by and existing under the laws of the State of Texas,
with its Texas domicile in the City of Beaumont, Texas, and said
___________________ and ___________________, declared and
acknowledged to me, Notary, in the presence of the witnesses
aforesaid, that they signed, executed and sealed the foregoing
indenture for and on behalf of and in the name of GULF STATES
UTILITIES COMPANY, and have affixed the corporate seal of said
Company to the same or caused it to be printed thereon, by and
with the authority of the Board of Directors of said Company.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ____th day of
___________, A.D. 1994.
_________________________________
[name]
NOTARY PUBLIC
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
(Notarial Seal)
<PAGE>
CORPORATE TRUSTEE
United States of America,
State of New York,
County of New York,
I, the undersigned, a Notary Public duly qualified,
commissioned, sworn and acting in and for the County and State
aforesaid, hereby certify that, on this _____th day of
_____________, 19___:
Before me personally appeared ___________________ a Vice
President of CHEMICAL BANK, and ___________________, a Trust
Officer, both of whom are known to me to be the persons whose
names are subscribed to the foregoing instrument and both of whom
are known to me to be a Vice President and a Trust Officer,
respectively, of CHEMICAL BANK, and separately acknowledged to me
that they executed the same in the capacities therein stated for
the purposes and consideration therein expressed, and as the act
and deed of CHEMICAL BANK.
Before me personally came ___________________, to me known,
who being by me duly sworn, did depose and say, that he resides
in ___________________; that he is a Vice President of CHEMICAL
BANK, one of the corporations described in and which executed the
above instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
BE IT REMEMBERED, that before me, and in the presence of
___________________ and ___________________, competent witnesses,
residing in said state, personally came and appeared
___________________ and ___________________, a Vice President and
a Trust Officer, respectively, of CHEMICAL BANK, a corporation
created by and existing under the laws of the State of New York
with its domicile in the City of New York, New York, and said
__________________ and ___________________, declared and
acknowledged to me, Notary, in the presence of the witnesses
aforesaid that they signed, executed and sealed the foregoing
indenture for and on behalf of and in the name of CHEMICAL BANK
and have affixed the corporate seal of CHEMICAL BANK to the same
by and with the authority of the Board of Directors of CHEMICAL
BANK.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____th day of
___________________, A.D. 1994.
______________________________
(Notarial Seal)
<PAGE>
AFFIDAVIT RELATING TO BUSINESS AND COMMERCE CODE OF THE STATE OF
TEXAS.
State of Louisiana,
Parish of Orleans ,
BEFORE ME, the undersigned authority, on this day personally
appeared ___________________, affiant, who, being duly sworn, on
his oath says:
( 1 ) that he is Vice President-Financial Strategies and
Treasurer of GULF STATES UTILITIES COMPANY;
(2) that the above and foregoing Fifty-eighth Supplemental
Indenture to which this certificate is annexed is an Indenture
which by its terms subjects to the lien thereof property then
owned and property to be acquired by said Company subsequent to
the execution by it of said Indenture; and
(3) that the said GULF STATES UTILITIES COMPANY, which
executed the aforesaid Fifty-eighth Supplemental Indenture, is a
utility as defined in Section 35.01(a)(2) of the Business and
Commerce Code of the State of Texas, namely, a person engaged in
the State of Texas in the generation, transmission, distribution
and sale of electric power.
WITNESS my hand and facsimile seal of said Corporation this
_____th day of ___________________ , 1994
______________________________
Vice President-Financial Strategies
and Treasurer of
Gulf States Utilities Company
<PAGE>
SWORN TO AND SUBSCRIBED before me by the said
___________________, this _____th day of ___________________,
1994, to certify which, witness my hand and seal of office.
______________________________
(NOTARIAL SEAL) [Name]
NOTARY PUBLIC
State of Louisiana, Parish of Orleans
My Commission is Issued for Life
<PAGE>
State of Texas,
County of Jefferson,
BEFORE ME, the undersigned authority, on this day personally
appeared ___________________, known to me to be the person whose
name is subscribed to the foregoing instrument and known to me to
be Vice President-Financial Strategies and Treasurer of GULF
STATES UTILITIES COMPANY and acknowledged to me that he executed
the same for the purposes and consideration therein expressed and
in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____th day of
___________________, 1994.
_______________________________
_______________________________
(Notarial Seal) _______________________________
_______________________________
_______________________________
<PAGE>
CERTIFIED COPY OF RESOLUTION OF BOARD OF DIRECTORS OF
GULF STATES UTILITIES COMPANY ADOPTED ON BEHALF OF
THE BOARD OF DIRECTORS BY ITS DULY AUTHORIZED AD HOC COMMITTEE
ON ___________________
I, the undersigned, Assistant Secretary of GULF STATES
UTILITIES COMPANY, hereby certify:
(1) That the Ad Hoc Committee, duly established and
authorized at a Meeting of the Board of Directors of said
Corporation duly held ___________________, at which a quorum for
the transaction of business was present and acting throughout,
did by action of not less than a majority of such Committee on
___________________, pursuant to such authority and on behalf of
the Board of Directors adopt the following resolutions:
RESOLVED, that it is advisable and in the best interest
of this Company to, and that this Company enter into a
Fifty-eighth Supplemental Indenture supplementing the
Indenture of Mortgage of the Company, dated September
1, 1926, as heretofore supplemented and modified, for
the purposes, among others of
(a) specifically subjecting to the lien of the
Indenture certain additional property;
(b) setting forth the description, form and terms
of the Environmental Series 1994A Bonds due
__________________ and additional covenants of the
Company in that regard;
(c) providing for elimination of provisions
relating to the maintenance and replacement funds and
the minimum provision for depreciation effective as of
June 2, 2010; and the Board of Directors, acting by and
through its duly authorized Ad Hoc Committee, hereby
approves the form of draft of said Fifty-eighth
Supplemental Indenture which has been submitted to the
Committee and hereby authorizes the Chairman of the
Board of Directors, the President or any Vice President
of the Company to execute in the name and on behalf of
this Company under its corporate seal, or a facsimile
thereof, attested by its Secretary or one of its
Assistant Secretaries, and to acknowledge and deliver
to the Trustee, a Fifty-eighth Supplemental Indenture
in the form of said draft with such changes in any part
thereof not inconsistent with these resolutions as the
signing officers shall approve, such approval to be
conclusively evidenced by their signatures thereto.
(2) That the executed Fifty-eighth Supplemental Indenture to
which this certificate is annexed is the Fifty-eighth
Supplemental Indenture authorized by the foregoing resolution and
that said resolution has not been amended or revoked and is now
in full force and effect.
WITNESS my hand and facsimile seal of said Corporation this
_____th day of ___________________, 1994.
______________________________
<PAGE>
The State of Louisiana,
Parish of Orleans,
BEFORE ME, the undersigned authority, on this day personally
appeared ___________________, known to me to be the person whose
name is subscribed to the foregoing instrument and known to me to
be Assistant Secretary of GULF STATES UTILITIES COMPANY and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____th day of
___________________, 1994.
___________________________________
(Notarial Seal) [NAME]
NOTARY PUBLIC
State of Louisiana, Parish of Orleans
My Commission is Issued for Life
Exhibit A-6
(FORM OF FACE OF THE ENVIRONMENTAL SERIES 1994-A BOND)
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR TRUSTEE
UNDER THE TRUST INDENTURE, DATED AS OF _____________ 1, 1994
BETWEEN THE PARISH OF WEST FELICIANA, STATE OF LOUISIANA, AND
_____________________________________, AS TRUSTEE.
GULF STATES UTILITIES COMPANY
FIRST MORTGAGE BOND, ENVIRONMENTAL SERIES 1994A
DUE ___________________
GULF STATES UTILITIES COMPANY, a Texas corporation
(hereinafter sometimes called the "Company"), for value received,
hereby promises to pay to __________________, as Trustee under
the Trust Indenture, dated as of ____________ 1, 1994 between the
Parish of West Feliciana, State of Louisiana, and
__________________, as Trustee, or registered assigns,
___________________ Dollars on ___________________, without
interest thereon.
The principal of and interest on this bond will be paid in
any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and
private debts, at the corporate trust office in the Borough of
Manhattan, City and State of New York, of the Trustee under the
Indenture.
This bond is one of the bonds, of the above designated
series (hereinafter referred to as the "Environmental Series
1994A Bonds"), of an authorized issue of bonds of the Company,
known as First Mortgage Bonds, issued or issuable in one or more
series under and equally secured (except in so far as any sinking
and/or improvement fund, maintenance and replacement fund or
other fund established in accordance with the provisions of the
Indenture hereinafter mentioned may afford additional security
for the bonds of any specific series) by an Indenture of Mortgage
dated September 1, 1926, as supplemented and modified by
indentures supplemental thereto, to and including a Fifty-eighth
Supplemental Indenture dated as of _________ 1, 1994, to Chemical
Bank, as Trustee (hereinafter referred to as the "Trustee"), to
which Indenture of Mortgage, as so supplemented and modified, and
all indentures supplemental thereto (herein sometimes called the
Indenture) reference is hereby made for a description of the
property mortgaged and pledged as security for said bonds, the
nature and extent of the security, and the rights, duties and
immunities thereunder of the Trustee, the rights of the holder of
said bonds and of the Trustee and of the Company in respect of
such security, and the terms upon which said bonds may be issued
thereunder.
The Environmental Series 1994A Bonds have been issued by the
Company to secure the payment when due (whether at maturity, by
acceleration, upon redemption, or otherwise) of the principal of
and interest on the Parish of West Feliciana, State of Louisiana,
Pollution Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series 1994 (hereinafter called the ''Parish
Series 1994 Bonds"). Notwithstanding any provision herein to the
contrary, the obligation of the Company to make payments with
respect to the principal of Environmental Series 1994A Bonds and
to deposit cash to redeem bonds of such series shall be fully or
partially, as the case may be, satisfied and discharged to the
extent that, at the time that any such payments or deposits shall
be due, the then due principal of and interest on the Parish
Series 1994 Bonds shall have been fully or partially paid or
there shall be in the Bond Fund established pursuant to the Trust
Indenture, dated as of _____________ 1, 1994 (herein referred to
as the "Trust Indenture"), between the Parish of West Feliciana,
State of Louisiana, and _____________________, as Trustee (the
"Parish Trustee"), sufficient available funds to fully or
partially pay the then due principal of and interest on the
Parish Series 1994 Bonds. The Trustee may conclusively presume
that the obligation of the Company to make payments with respect
to the principal of the Envoronmental Series 1994-A Bonds have
been fully satisfied and discharged unless and until the Trustee
shall have received a written notice from the Parish Trustee,
signed by its President, a Vice President or a Trust Officer,
stating (i) that timely payment of the principal of and interest
on the Parish Series 1994 Bonds (whether upon acceleration of
maturity or otherwise) has not been made, (ii) that there are not
sufficient available funds in the Bond Fund under the Trust
Indenture to make such payment, and (iii) the amount of
additional funds that are required to make such payment or
redemption.
The Environmental Series 1994A Bonds are subject to
redemption prior to maturity upon the optional or mandatory
redemption, in whole or in part, of the Parish Series 1994 Bonds
issued under the Trust Indenture, or upon the acceleration of
maturity of all or any part of the Parish Series 1994 Bonds as
provided in the Trust Indenture. To cause the redemption of the
Environmental Series 1994A Bonds, the Parish Trustee shall
deliver to the Trustee (and mail a copy thereof to the Company) a
written demand (hereinafter referred to as the "Redemption
Demand") for the redemption of the Environmental Series 1994A
Bonds equal, as nearly as practicable, in principal amount to the
sum of (i) the principal amount of Parish Series 1994 Bonds and
(ii) ______-twelfths (__/12) of the annual interest due on such
Parish Series 1994 Bonds to be redeemed or paid upon such
accelerated maturity to be redeemed by the Company, on the date
fixed for redemption of Parish Series 1994 Bonds, at the
principal amount thereof. The Redemption Demand shall be signed
by the President, a Vice President or a Trust Officer of the
Parish Trustee stating that, as the case may be, the Parish
Series 1994 Bonds have become immediately due and payable
pursuant to Section 10.2 of the Trust Indenture, upon the
occurrence of an Event of Default under Section 10.1(a) or (b) of
the Trust Indenture, or Parish Series 1994 Bonds are to be
redeemed pursuant to Section 4.1(b) of the Trust Indenture and
specifying the date fixed for the redemption and the principal
amount thereof. The Redemption Demand shall also contain a
waiver of notice of such redemption by the Parish Trustee, as
holder of all the Environmental Series 1994A Bonds then
outstanding. The Trustee may conclusively presume the statements
contained in the Redemption Demand to be correct. Redemption of
the Environmental Series 1994A Bonds shall be in principal amount
equal, as nearly as practicable, to the sum of (i) the principal
amount of the Parish Series l994 Bonds and (ii) ________-twelfths
(__/12) of the annual interest due on such Parish Series 1994
Bonds to be redeemed or paid upon accelerated maturity, and such
amounts shall become and be due and payable on the redemption
date or the date of accelerated maturity. The Company hereby
covenants that, if a Redemption Demand shall be delivered to the
Trustee, the Company, subject to the provisions of the preceding
paragraph regarding the satisfaction and discharge of this
obligation, will deposit with the Trustee, on or before the
redemption date of the Environmental Series 1994A Bonds so called
for redemption, an amount in cash sufficient to redeem such Bonds
so called for redemption, plus any premium and accrued interest
thereon.
If this bond or any portion thereof (One Thousand Dollars or
an integral multiple thereof) is duly called for redemption and
payment duly provided for or otherwise duly satisfied and
discharged as specified in the Indenture (including but not
limited to Section 1.01 of the Fifty-eighth Supplemental
Indenture), this bond or such portion thereof shall cease to be
entitled to the lien of the Indenture from and after the date
payment is so provided for or otherwise duly satisfied and
discharged and shall cease to bear interest from and after the
redemption date.
In the event of the selection for redemption of a portion
only of the principal of this bond, payment of the redemption
price will be made only (a) upon presentation of this bond for
notation hereon of such payment of the portion of the principal
of this bond so called for redemption, or (b) upon surrender of
this bond in exchange for a bond or bonds of authorized
denominations of the same series, for the unredeemed balance of
the principal amount of this bond.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than
seventy-five per cent in principal amount of the bonds (exclusive
of bonds disqualified by reason of the Company's interest therein
) at the time outstanding, including, if more than one series of
bonds shall be at the time outstanding, not less than sixty per
cent in principal amount of each series affected, to effect, by
an indenture supplemental to the Indenture, modifications or
alterations of the Indenture and of the rights and obligations of
the Company and of the holders of the bonds; provided, however,
that no such modification or alteration shall be made without the
written approval or consent of the registered owner hereof which
will (a) extend the maturity of this bond or reduce the amount of
the principal hereof, or (b) permit the creation of any lien, not
otherwise permitted, prior to or on a parity with the lien of the
Indenture, or (c) reduce the percentage of the principal amount
of the bonds upon the approval or consent of the holders of which
modifications or alterations may be made as aforesaid.
By acceptance of this bond the Parish Trustee agrees, for
itself and the holders from time to time of the Parish Series
1994 Bonds, to deliver this bond to the Company for cancellation
when required under the provisions of Section _______ of the
Fifty-eighth Supplemental Indenture.
The Parish Trustee, as original holder of all the bonds of
this series, consented to the execution and delivery by the
Company and Chemical Bank, Trustee, of a supplemental indenture
to modify the Indenture (i) to eliminate the requirement for a
maintenance and replacement fund and all references and
requirements relating thereto and (ii) to eliminate all
requirements with respect to and all references to a minimum
provision for depreciation. Such consent is binding upon all
subsequent holders of all bonds of this series. By virtue of the
[ ] receipt of the Parish Series 1994 Bonds,
each holder thereof shall be deemed to have consented to the
action of the Parish Trustee in consenting to and approving the
modifications and amendments of the Indenture as described
herein. Such modifications shall become effective if and when
requisite consents have been obtained from holders of bonds of
other series and a supplemental indenture effecting such
modifications has been duly authorized and executed or on June 2,
2010, whichever occurs first.
Subject to the restriction noted on this bond, this bond is
transferable by the registered owner hereof in person or by his
duly authorized attorney at the corporate trust office of the
Trustee in the Borough of Manhattan, City and State of New York,
upon surrender of this bond for cancellation and upon payment, if
the Company shall so require, of the charges provided for in the
Indenture, and thereupon a new registered bond of the same series
of like principal amount will be issued to the transferee in
exchange therefor.
The registered owner of this bond, at the option of such
registered owner, may surrender the same for cancellation at said
office and receive in exchange therefor the same aggregate
principal amount of bonds of the same series but of other
authorized denominations, upon payment, if the Company shall so
require, of the charges provided for in the Indenture and subject
to the terms and conditions therein set forth.
If a default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable
before maturity in the manner and with the effect provided in the
Indenture. The holders of certain specified percentages of the
bonds at the time outstanding, including in certain cases
specified percentages of bonds of particular series, may in the
cases, to the extent and under the conditions provided in the
Indenture, waive certain defaults thereunder and the consequences
of such defaults.
No recourse shall be had for the payment of the principal of
this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator,
shareholder, director or officer, past, present or future, as
such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or
statute or rule of law, or by the enforcement of any assessment
or penalty, or otherwise, all such liability of incorporators,
shareholders, directors and officers, as such, being waived and
released by the holder and owner hereof by the acceptance of this
bond and as provided in the Indenture.
This bond shall not become or be valid or obligatory for any
purpose until the authentication certificate hereon shall have
been signed by the Trustee.
IN WITNESS WHEREOF, Gulf States Utilities Company has caused
these presents to be executed in its corporate name, by facsimile
signature or manually, by its Chairman of the Board of Directors
or its President or one of its Vice Presidents and by its
Treasurer or an Assistant Treasurer under its corporate seal or a
facsimile thereof, all as of
GULF STATES UTILITIES COMPANY
By ______________________________
Vice President-Financial Strategies
________________________________
Assistant Treasurer
Exhibit B-8
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 September 1, 1994
$102,000,000
Parish of St. West Feliciana, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Gulf States Utilities Company Project)
Series 1994
<PAGE>
Trust Indenture
This Trust Indenture dated as of September 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, 1994, by and
between the Issuer and City National Bank, a national banking
association duly organized and existing under the laws of the
State of Louisiana, 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 at the
River Bend Unit 1 nuclear power plant in the Parish of West
Feliciana, Louisiana, owned by Gulf States Utilities Company, a
Texas corporation (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 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 thereunder, and said refunding bonds never to
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), including, without limitation, its right to
receive the First Mortgage Bonds (as hereinafter defined); all
Revenues (as hereinafter defined) and the proceeds of all
thereof; and the First Mortgage Bonds issued and delivered by the
Company pursuant to the Refunding Agreement.
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:
ARTICLE I
DEFINITIONS
SECTION 1.1. 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, as trustee, as heretofore and hereafter
amended and supplemented.
"Company Mortgage Trustee" means the 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 Company's River Bend Unit 1 nuclear power plant
in the Parish of West Feliciana, Louisiana, financed 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 and held by the
Trustee pursuant to Section 4.3 of the Refunding Agreement.
"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 on the books of the
Department of Treasury of the United States of America), 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 of a series are
payable, and any successor designated pursuant to this Indenture.
With respect to the Bonds, the Trustee is the original Paying
Agent.
"person" means natural persons, firms, associations,
corporations and public bodies.
"Plant" means the Company's 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 between the Issuer and the Prior Trustee.
"Prior Trustee" means City National Bank of Baton Rouge, in
the City 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 September 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 moneys paid or payable by the Company
to the Trustee for the account of the Issuer in respect of the
principal of and premium, if any, and interest on the First
Mortgage Bonds, including, without limitation, amounts paid or
payable by the Company pursuant to Section 4.2 of the Refunding
Agreement as the payments, 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.
SECTION 1.2. 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.
ARTICLE II
THE BONDS
SECTION 2.1. 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.
SECTION 2.2. 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 in the aggregate
principal amount of $102,000,000, (iii) shall be issued in
denominations of $5,000 and any integral multiple thereof, (iv)
shall be numbered consecutively from R-1 upwards in order of
issuance according to the records of the Trustee, (v) shall be
dated as hereinafter provided, (vi) shall bear interest as
hereinafter provided, payable semiannually on _________ and
_________ of each year, commencing ________, 1995, and (vii)
shall mature on ________________.
The Bonds shall bear interest from and including the date
thereof until the principal thereof shall have become due and
payable in accordance with the provisions hereof, whether at
maturity, upon redemption or otherwise, at the rate of _______%
per annum.
Bonds issued before _________, 1994 shall be dated
_________, 1994, and Bonds issued on or subsequent to _________,
1994 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.
SECTION 2.3. 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.
SECTION 2.4. 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.
SECTION 2.5. 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.
SECTION 2.6. 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.
SECTION 2.7. 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, in Section 2.11 hereof, or in any supplemental
indenture.
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;
(b) An original duly executed counterpart or a duly
certified copy of the Refunding Agreement;
(c) (i) An original duly executed counterpart or a
duly certified copy of the indenture supplemental to the
Company Mortgage creating the series of First Mortgage Bonds
to be issued in respect of the Bonds as provided in Section
4.3 of the Refunding Agreement and (ii) such First Mortgage
Bonds;
(d) A written order to the Trustee by the Issuer to
authenticate and deliver the Bonds of such series to the
original purchasers thereof upon payment to Trustee, but for
the account of the Issuer, of a sum specified in such order;
and
(e) 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.
SECTION 2.8. 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 the same series of like date, number, maturity 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 and 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 Bonds were 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 such Bonds shall have matured, instead of issuing a new
Bond, the Issuer may pay the same without the surrender thereof.
SECTION 2.9. 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 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 of
the same series with corresponding maturities. 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 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.
SECTION 2.10. 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 an appropriate certificate describing the
Bonds involved and the manner of disposition.
SECTION 2.11. 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.
ARTICLE III
REFUNDING FUND
SECTION 3.1. 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".
SECTION 3.2. 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.
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 4.1. 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, in whole but not in
part, at any time, 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
shall have been condemned or taken by eminent domain; or
(iv) the operation of the Facilities 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
________________, in whole at any time or in part from time to
time (and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable), at the
redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued interest to the redemption date:
Redemption Period Redemption Price
The Bonds shall also be subject to optional redemption by the
Issuer, at the direction of the Company, in whole but not in
part, at any time prior to ________________, at a redemption
price equal to _______% 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.
SECTION 4.2. 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
shall state that said redemption shall be conditional upon the
receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, such 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.
SECTION 4.3. 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.
SECTION 4.4. 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.
SECTION 4.5. Partial Redemption of Bonds. 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 the same series and the same
maturity, of authorized denominations in an aggregate principal
amount equal to the unredeemed portion of the Bond surrendered.
ARTICLE V
GENERAL COVENANTS; THE FIRST MORTGAGE BONDS
SECTION 5.1. 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 8.4 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 IV, 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.
SECTION 5.2. 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.
SECTION 5.3. 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.
SECTION 5.4. 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.
SECTION 5.5. 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.
SECTION 5.6. 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.
SECTION 5.7. 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.
SECTION 5.8. No Transfer of First Mortgage Bonds. The
Trustee shall not sell, assign or transfer the First Mortgage
Bonds except to a successor trustee under this Indenture.
SECTION 5.9. Voting of First Mortgage Bonds. The Trustee
shall, as the holder of the First Mortgage Bonds, attend such
meeting or meetings of holders of first mortgage bonds issued
under the Company Mortgage or, at its option, deliver its proxy
in connection therewith, as relate to matters with respect to
which it is entitled to vote or consent. So long as no Event of
Default hereunder shall have occurred and be continuing, either
at any such meeting or meetings, or otherwise when the consent of
the holders of the Company's first mortgage bonds issued under
the Company Mortgage is sought without a meeting, the Trustee
shall vote as the holder of the First Mortgage Bonds, or shall
consent with respect thereto, proportionately with what the
Trustee reasonably believes will be the vote or consent of the
holders of all other first mortgage bonds of the Company then
outstanding under the Company Mortgage the holders of which are
eligible to vote or consent; provided, however, that the Trustee
shall not vote as such holder in favor of, or give its consent
to, any amendment or modification of the Company Mortgage which
is correlative to any amendment or modification of this Indenture
referred to in Section 12.2 hereof without the prior consent and
approval, obtained in the manner prescribed in said Section 12.2,
of Bondholders which would be required under said Section 12.2
for such correlative amendment or modification of this Indenture.
Any action taken by the Trustee in accordance with the
provisions of this Section shall be binding upon the Issuer and
the Bondholders.
SECTION 5.10. Surrender of First Mortgage Bonds. The
Trustee shall surrender First Mortgage Bonds to the Company
Mortgage Trustee in accordance with the provisions of Section
4.3(d) and (e) of the Refunding Agreement.
SECTION 5.11. Notice to Company Mortgage Trustee. In the
event that a payment on the First Mortgage Bonds shall have
become due and payable and shall not have been fully paid after
the expiration of the applicable grace period, the Trustee shall
immediately give notice thereof to the Company Mortgage Trustee
specifying the amount of funds required to make such payment. In
the event that any Bonds are to be redeemed pursuant to any
provisions of this Indenture requiring mandatory redemption of
Bonds (other than at the direction of the Company), except for
provisions which establish sinking fund redemption requirements,
the Trustee shall forthwith give notice thereof to the Company
Mortgage Trustee specifying the principal amount of Bonds so to
be redeemed and the redemption date therefor. Any such notice
given by the Trustee shall be signed by its President, a Vice
President or a Trust Officer thereof. The Trustee shall incur no
liability for failure to give any such notice and such failure
shall have no effect on the obligations of the Company on the
First Mortgage Bonds or on the rights of the Trustee or of the
bondholders.
ARTICLE VI
REVENUES AND FUNDS
SECTION 6.1. 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".
SECTION 6.2. 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.
SECTION 6.3. 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.
SECTION 6.4. 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.
SECTION 6.5. 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.
SECTION 6.6. 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.
SECTION 6.7. 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, 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. Furthermore, if for any reason the Refunding Agreement
ceases to be in force and effect while any Bonds are outstanding,
the Issuer agrees that if it shall receive any moneys derived
from the Facilities, it will forthwith upon receipt thereof pay
the same over to the Trustee to be held, administered and
disbursed by the Trustee in accordance with provisions of the
Refunding Agreement that would be applicable if the Refunding
Agreement were then in force and effect, and if there be no such
provisions which would be so applicable, then the Trustee shall
hold, administer and disburse such moneys solely for the
discharge of the Issuer's obligations under this Indenture.
SECTION 6.8. 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 as specified in the Refunding Agreement.
ARTICLE VII
SECURITY FOR AND INVESTMENTS
SECTION 7.1. 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.
(b) 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.
SECTION 7.2. 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 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.
SECTION 7.3. 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 have 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.
ARTICLE VIII
RIGHTS OF THE COMPANY
SECTION 8.1. 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.
SECTION 8.2. 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.
ARTICLE IX
DISCHARGE OF LIEN
SECTION 9.1. 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.
ARTICLE X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
SECTION 10.1. 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) an "Event of Default" as such term is defined in
Section 8.1(a) of the Refunding Agreement; or
(d) 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 (d) 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.
SECTION 10.2. 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 Bonds shall,
without further action, become and be immediately due and
payable, anything in this Indenture or in the Bonds to the
contrary notwithstanding, and the Trustee shall give notice
thereof in writing to the Issuer and the Company, and notice to
bondholders in the same manner as a notice of redemption under
Section 4.2 hereof.
Upon the occurrence and continuance of an Event of Default
described in clause (c) of the first paragraph of Section 10.1
hereof, and further upon the condition that, in accordance with
the terms of the Company Mortgage, the First Mortgage Bonds shall
have become immediately due and payable pursuant to any provision
of the Company Mortgage, the Bonds shall, without further action,
become and be immediately due and payable, anything in this
Indenture or in the Bonds to the contrary notwithstanding, and
the Trustee shall give notice thereof in writing to the Issuer
and the Company, and notice to Bondholders in the same manner as
a notice of redemption under Section 4.2 hereof.
SECTION 10.3. 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.
SECTION 10.4. 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.
SECTION 10.5. 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.
SECTION 10.6. 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.
SECTION 10.7. 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.
SECTION 10.8. 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.
SECTION 10.9. 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.
SECTION 10.10. 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.
SECTION 10.11. Waivers of Events of Default. The provisions
of this Article X are subject to the condition that any waiver of
any "Default" under the Company Mortgage and a rescission and
annulment of its consequences shall constitute a waiver of the
corresponding Event or Events of Default under clause (c) of the
first paragraph of Section 10.1 hereof and a rescission and
annulment of the consequences thereof, but no such waiver,
rescission and annulment shall extend to or affect any subsequent
Event of Default or impair any right or remedy consequent
thereon.
ARTICLE XI
THE TRUSTEE AND PAYING AGENTS
SECTION 11.1. 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
indentures 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.
SECTION 11.2. 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.
SECTION 11.3. 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.
SECTION 11.4. 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.
SECTION 11.5. 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 have capital
and surplus of at least $10,000,000.
SECTION 11.6. 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.
SECTION 11.7. 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.
SECTION 11.8. 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.
SECTION 11.9. 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.
SECTION 11.10. 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.
SECTION 11.11. 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 corporation 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.
SECTION 11.12. 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.
SECTION 11.13. 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.
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.1. 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 Trustee
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.
SECTION 12.2. 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.
SECTION 12.3. 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.
SECTION 12.4. 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.
ARTICLE XIII
AMENDMENT TO REFUNDING AGREEMENT
SECTION 13.1. 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 or 4.3 of the
Refunding Agreement or the nature of the obligations of the
Company on the First Mortgage Bonds as provided in Section 4.3 of
the Refunding Agreement.
SECTION 13.2. 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.
SECTION 13.3. 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.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Consents, etc. of Bondholders. Any request,
direction, objection 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 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.
SECTION 14.2. 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.
SECTION 14.3. 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 thereof.
SECTION 14.4. 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.
Poydras Plaza, 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.
SECTION 14.5. 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.
SECTION 14.6. 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.
SECTION 14.7. 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.
SECTION 14.8. 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.
SECTION 14.9. 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.
SECTION 14.10. Bonds Owned by the Issuer or 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.
SECTION 14.11. 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.
SECTION 14.12. Subordination of 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 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.
<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 _______________________
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:_________________________________
Title:
[SEAL]
<PAGE>
EXHIBIT A
TO THE TRUST INDENTURE
[FORM OF FACE OF SERIES 1994 BOND]
No. R-___ $_______
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:
Maturity Date:
Interest Rate:
Registered Owner:
Principal Amount: CUSIP __________
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 becomes due and payable, at the rate per annum
shown above, semiannually on __________ and __________ of each
year commencing on the __________ or __________ 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. 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 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.
REFERENCE IS HEREBY MADE TO THE ADDITIONAL PROVISIONS OF
THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF WHICH FOR ALL
PURPOSES SHALL HAVE THE SAME EFFECT AS IF SET FORTH HEREIN.
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: ___________________________
ATTEST: President
West Feliciana Parish Police
Jury
By: _______________________________ [SEAL]
Secretary
West Feliciana Parish Police Jury
<PAGE>
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: ___________
[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 Certificate in
every particular, without alteration or enlargement 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>
[FORM OF REVERSE OF SERIES 1994 BOND]
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 Bond (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 September 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 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 Gulf States Utilities Company, a
Texas corporation (the "Company"), and paying the costs of
issuing the Bonds. 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 are not general obligations of the Issuer but are
special obligations payable solely from Revenues of the Issuer
(as defined in the Indenture), including (i) payments to be made
by the Company to the Trustee for the benefit of the Issuer
(except payments with respect to the indemnification or
reimbursement of certain expenses of the Issuer) under a
Refunding Agreement dated as of September 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.
The obligation of the Company to make such payments is evidenced
in part by the Company's first mortgage bonds issued and
delivered to the Trustee as an additional series under the
Company's Indenture of Mortgage dated as of September 1, 1926
made to The Chase National Bank in the City of New York, as
trustee (the "Company Mortgage Trustee"), as heretofore and
hereafter amended and supplemented (the "Company Mortgage"). 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, in whole but not in
part, at any time, 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 Facilities 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 shall have
been condemned or taken by eminent domain; or
(iv)the operation of the Facilities 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
________________, in whole at any time or in part from time to
time, and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable, at the
redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued interest to the redemption date:
Redemption Period Redemption Price
The Bonds shall also be subject to optional redemption by the
Issuer, at the direction of the Company, in whole but not in
part, at any time prior to ________________, at a redemption
price equal to ______% 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. 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 shall
state that said redemption shall be conditional upon the receipt
of such moneys by the Trustee on or prior to the date fixed for
such redemption. If such moneys shall not have been so received,
such 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 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.
This Bond is issued with the intent that the laws of the
State of Louisiana will govern its construction.
EXHIBIT B-11
SUPPLEMENT TO
BOND DOCUMENTS RELATING TO BOND INSURANCE
This Supplement to Bond Documents relating to Bond Insurance
dated as of , 1994 (the "Supplement"), by and among
the Parish of West Feliciana, Louisiana (the "Parish"), Gulf
States Utilities Company (the "Company") and
(the "Trustee"):
W I T N E S S E T H:
GENERAL RECITALS AND FINDINGS
(a) The Parish and the Company have entered into a
Refunding Agreement dated as of , 1994 (the
"Agreement") providing, among other things, for the obligation of
the Company to make certain "Repayments" with respect to the
Parish's Pollution Control Revenue Refunding Bonds (Gulf States
Utilities Project) Series 1994 (the "Series 1994 Bonds").
(b) The Parish on , 1994 adopted a resolution
which, among other things, authorized the issuance of the Series
1994 Bonds, and further specifically authorized the President of
the Parish (the "President") to approve such modifications or
amendments as may be required to be made to the Trust Indenture,
dated as of , 1994 (the "Indenture") between the
Parish and the Trustee, pursuant to which the interests of the
registered owners of the Series 1994 Bonds (the "1994
Bondholders") are secured, the Agreement or any other document
required with respect thereto, in each case in the event that a
policy of municipal bond insurance shall have been obtained with
respect to the Series 1994 Bonds.
(c) By commitment dated , 1994 (the
"Commitment"), AMBAC Indemnity Corporation ("AMBAC Indemnity")
has committed to issue a Municipal Bond Guaranty Insurance Policy
(the "Policy") insuring the timely payment of the principal of
and interest on the Series 1994 Bonds. AMBAC Indemnity has
required, as conditions to the issuance of the Policy pursuant to
the Commitment, certain modifications to be made to the Agreement
and the Indenture (collectively, the Agreement and the Indenture
are hereinafter referred to as the "Bond Documents").
(d) The President, on behalf of the Parish, the Company and
the Trustee, by the execution of this Supplement, each finds and
determines that the modifications of the Bond Documents as set
forth in this Supplement, to the extent applicable to a Bond
Document to which it is a party or is otherwise bound, are
approved by such party, shall be binding thereon and are
incorporated in such Bond Documents.
NOW, THEREFORE, in consideration of the modifications herein
made, and subject to the conditions herein set forth, the
President, on behalf of the Parish, the Company and the Trustee,
agree, to the extent applicable with respect to the Series 1994
Bonds, as follows:
AGREEMENT
The Agreement, as it relates to the Series 1994 Bonds, is
hereby amended and supplemented as follows:
1. , Section , of the Agreement is hereby
amended and supplemented by adding thereto the following defined
terms:
"AMBAC Indemnity" shall mean AMBAC Indemnity Corporation, a
Wisconsin-domiciled stock insurance company.
"Municipal Bond Guaranty Insurance Policy" shall mean the
municipal bond insurance policy issued by AMBAC Indemnity
insuring the payment when due of the principal of and interest on
the Series 1994 Bonds as provided therein.
2. The Agreement is hereby amended and supplemented by
adding thereto a new Article captioned "ADDITIONAL PROVISIONS
WITH RESPECT TO Series 1994 Bonds RELATING TO BOND INSURANCE",
which section shall read in its entirety as follows:
"(a) Any provision of this Agreement expressly recognizing
or granting rights in or to AMBAC Indemnity may not be amended in
any manner which affects the rights of AMBAC Indemnity hereunder
without the prior written consent of AMBAC Indemnity.
(b) AMBAC Indemnity's consent shall be required in addition
to 1994 Bondholder consent, when required, for the following
purposes: (i) execution and delivery of any supplemental
Indenture or any amendment, supplement or change to or
modification of the Agreement; (ii) removal of the Trustee and
selection and appointment of any successor trustee; and (iii)
initiation or approval of any action not described in (i) or (ii)
above which requires 1994 Bondholder consent.
(c) To the extent that this Agreement confers upon or gives
or grants to AMBAC Indemnity any right, remedy or claim under or
by reason of this Agreement, AMBAC Indemnity is hereby explicitly
recognized as being a third-party beneficiary hereunder and may
enforce any such right, remedy or claim conferred, given or
granted hereunder.
(d) Nothing in this Agreement expressed or implied is
intended or shall be construed to confer upon, or to give or
grant to, any person or entity, other than the Parish, the
Trustee, AMBAC Indemnity and the 1994 Bondholders, any right,
remedy or claim under or by reason of this Agreement or any
covenant, condition or stipulation hereof, and all covenants,
stipulations, promises and agreements in this Agreement contained
by and on behalf of the Company shall be for the sole and
exclusive benefit of the Parish, the Trustee, AMBAC Indemnity and
the 1994 Bondholders.
(e) While the Municipal Bond Guaranty Insurance Policy is
in effect, the Company shall furnish to AMBAC Indemnity, as soon
as practicable after the filing thereof, a copy of any Annual
Report on Form 10-K and Quarterly Report on Form 10-Q of the
Company filed by the Company with the Securities and Exchange
Commission.
(f) The Trustee will permit AMBAC Indemnity to have access
to and to make copies of all books and records relating to the
Series 1994 Bonds at any reasonable time.
INDENTURE
The Indenture, as it relates to the Series 1994 Bonds, is
hereby amended and supplemented by adding a new paragraph ____ to
Article ___ thereof, which paragraph __ shall read in its
entirety as follows:
"(___) Additional Provisions with respect to Series 1994
Bonds Relating to Bond Insurance. As long as the Municipal
Guaranty Insurance Policy is in full force and effect with
respect to the Series 1994 Bonds and AMBAC Indemnity is not in
default thereunder -
(i) Any provision of this Indenture expressly
recognizing or granting rights in or to AMBAC Indemnity may not
be amended in any manner which affects the rights of AMBAC
Indemnity hereunder without the prior written consent of AMBAC
Indemnity.
(ii) Anything in this Indenture to the contrary notwith
standing, upon the occurrence and continuance of an Event of
Default, and subject to the indemnification provisions contained
in paragraphs (__) and (__) of Article __, AMBAC Indemnity shall
be entitled to control and direct the enforcement of all rights
and remedies granted to the 1994 Bondholders or the Trustee for
the benefit of the 1994 Bondholders under this Indenture, and
AMBAC Indemnity shall also be entitled to approve, to the extent
granted to the 1994 Bondholders, all waivers of Events of
Default.
(iii) (a) The Company or the Trustee (as appropriate)
shall furnish to AMBAC Indemnity a copy of any notice to be given
to the 1994 Bondholders, including, without limitation, notice of
any redemption of or defeasance of Series 1994 Bonds, and any
certificate rendered pursuant to this Indenture relating to the
security for the Series 1994 Bonds.
(b) The Trustee shall notify AMBAC Indemnity of any failure
of the Company to provide the Trustee notices, certificates, and
other documents required to be furnished to the Trustee by the
Indenture.
(c) Notwithstanding any other provision of this Indenture,
the Trustee shall promptly (but no later than 5 calendar days)
notify AMBAC Indemnity if at any time there are insufficient
moneys to make any payments of principal and/or interest on
Series 1994 Bonds as required and promptly (but no later than 5
calendar days) upon the occurrence of any Event of Default
hereunder known to the Trustee.
(iv) Notwithstanding anything herein to the contrary, in
the event that the principal and/or interest due on the Series
1994 Bonds shall be paid by AMBAC Indemnity pursuant to the
Municipal Bond Guaranty Insurance Policy, the Series 1994 Bonds
shall remain outstanding for all purposes, not be defeased or
otherwise satisfied and not be considered paid by the Parish, and
the assignment and pledge of the Trust Estate and all covenants,
agreements and other obligations of the Parish to the 1994
Bondholders shall continue to exist and shall run to the benefit
of AMBAC Indemnity, and AMBAC Indemnity shall be subrogated to
the rights of such registered owners.
(v) The Parish and the Trustee agree to comply with the
following provisions:
(a) If payment of principal or interest due on the Series
1994 Bonds has not been made to the Trustee, the Trustee, or
any 1994 Bondholder to whom such payment is due, shall so
notify AMBAC Indemnity by telephonic or telegraphic notice,
subsequently confirmed in writing, or written notice by
registered or certified mail. Such notice shall specify the
amount of the anticipated deficiency, the Series 1994 Bonds
to which such deficiency is applicable and whether such
Series 1994 Bonds will be deficient as to principal or
interest, or both. AMBAC Indemnity, on the later of the
date due for payment or within one business day after
receipt of notice of nonpayment, will deposit sufficient
moneys with United States Trust Company of New York, as
insurance trustee for AMBAC Indemnity or any successor
insurance trustee (the "Insurance Trustee").
(b) The Trustee shall, after giving notice to AMBAC
Indemnity as provided in (a) above, make available to AMBAC
Indemnity and, at AMBAC Indemnity's direction, to the
Insurance Trustee, the registration books of the Parish
maintained by the Trustee relating to the Series 1994 Bonds
and all records relating to the respective account of the
Debt Service Fund maintained under this Indenture.
(c) The Trustee shall provide AMBAC Indemnity and the
Insurance Trustee with a list of 1994 Bondholders entitled
to receive principal or interest payments from AMBAC
Indemnity under the terms of the Municipal Bond Guaranty
Insurance Policy, and shall make arrangements with the
Insurance Trustee (i) to mail checks or drafts to the 1994
Bondholders entitled to receive full or partial interest
payments from AMBAC Indemnity and (ii) to pay principal upon
Series 1994 Bonds surrendered to the Insurance Trustee by
the 1994 Bondholders entitled to receive full or partial
principal payments from AMBAC Indemnity.
(d) The Trustee shall, at the time it provides notice to
AMBAC Indemnity pursuant to (a) above, notify 1994
Bondholders entitled to receive the payment of principal or
interest thereon from AMBAC Indemnity (i) as to the fact of
such entitlement, (ii) that AMBAC Indemnity will remit to
them all or a part of the interest payments next coming due,
(iii) that should they be entitled to receive full payment
of principal from AMBAC Indemnity, they must present and
surrender their Series 1994 Bonds (together with any
appropriate instrument of assignment) for payment to the
Insurance Trustee, and not the Trustee, and (iv) that should
they be entitled to receive partial payment of principal
from AMBAC Indemnity, they must present and surrender their
Series 1994 Bonds for payment thereon first to the Trustee,
who shall note on such Series 1994 Bonds the portion of the
principal paid by the Trustee, and then, along with an
appropriate instrument of assignment, to the Insurance
Trustee, which will then pay the unpaid portion of
principal. The Insurance Trustee shall disburse to 1994
Bondholders or the Trustee the payment due less any amount
held by the Trustee for payment of principal of or interest
on Series 1994 Bonds and legally available therefor.
(e) In the event that the Trustee has notice that any
payment of principal of or interest on a Series 1994 Bond
which has become due for payment and which is made to a 1994
Bondholder by or on behalf of the Parish has been deemed a
preferential transfer and theretofore recovered from its
1994 Bondholder pursuant to the United States Bankruptcy
Code by a trustee in bankruptcy in accordance with the
final, nonappealable order of a court having competent
jurisdiction, the Trustee shall, at the time AMBAC Indemnity
is notified pursuant to (a) above, notify all 1994
Bondholders that in the event that any 1994 Bondholder's
payment is so recovered, such 1994 Bondholder will be
entitled to payment from AMBAC Indemnity to the extent of
such recovery if sufficient funds are not otherwise
available, and the Trustee shall furnish to AMBAC Indemnity
its records evidencing the payments of principal of and
interest on the Series 1994 Bonds which have been made by
the Trustee and subsequently recovered from 1994 Bondholders
and the dates on which such payments were made.
(f) In addition to those rights granted AMBAC Indemnity
under this Indenture, AMBAC Indemnity shall, upon remittance
and transfer of Series 1994 Bonds or appropriate instruments
of assignment, become the owner thereof, and to evidence
such ownership (i) in the case of claims for past due
interest, the Trustee shall note AMBAC Indemnity's rights as
owner on the registration books of the Parish maintained by
the Trustee upon receipt from AMBAC Indemnity of proof of
the payment of interest thereon to the 1994 Bondholders, and
(ii) in the case of claims for past due principal, the
Trustee shall note AMBAC Indemnity's rights as owner on the
registration books of the Parish maintained by the Trustee
upon surrender of the Series 1994 Bonds by the 1994
Bondholders thereof together with proof of the payment of
principal thereof.
(vi) (a) AMBAC Indemnity shall receive five days' prior
written notice of any Trustee resignation.
(b) Notwithstanding any other provision of this Indenture,
in determining whether the rights of the 1994 Bondholders
will be adversely affected by any action taken pursuant to
the terms and provisions of this Indenture, the Trustee
shall consider the effect on the 1994 Bondholders as if
there were no Municipal Bond Guaranty Insurance Policy.
(vii) To the extent that this Indenture confers upon or
gives or grants to AMBAC Indemnity any right, remedy or claim
under or by reason of this Indenture, AMBAC Indemnity is hereby
explicitly recognized as being a third-party beneficiary
hereunder and may enforce any such right, remedy or claim
conferred, given or granted hereunder.
(viii) Nothing in this Indenture expressed or implied is
intended or shall be construed to confer upon, or to give or
grant to, any person or entity, other than the Parish, the
Trustee, AMBAC Indemnity and the 1994 Bondholders of the Series
1994 Bonds, any right, remedy or claim under or by reason of this
Indenture or any covenant, condition or stipulation hereof, and
all covenants, stipulations, promises and agreements in this
Indenture contained by and on behalf of the Parish shall be for
the sole and exclusive benefit of the Parish, the Trustee, AMBAC
Indemnity and the 1994 Bondholders."
This Supplement may be executed in any number of
counterparts, all of which taken together shall constitute one
and the same instrument, and any of the parties hereto may
execute this Supplement by signing any such counterpart.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed by their duly authorized officers and
agents as of the date first above written.
[Parish]
By
[Company]
By
[Trustee]
By
Title
<PAGE>
AMBAC
INDEMNITY CORPORATION
MUNICIPAL BOND GUARANTY INSURANCE POLICY
Effective Date: Policy No.
AMBAC Indemnity Corporation (AMBAC), in consideration of the
payment of the premium and subject to the terms of this policy,
hereby unconditionally and irrevocably guarantees to any owner or
holder, as hereinafter defined, of the following described
obligations, the full and complete payment required to be made by
or on behalf of the Issuer to:
or its successor (the "Paying Agent") of an amount equal to (i)
the principal of (either at the stated maturity or by any
advancement of maturity pursuant to a mandatory sinking fund
payment) and interest on the Obligations (as that term is defined
below) as such payments shall become due but shall not be so paid
(except that in the event of any acceleration of the due date of
such principal by reason of mandatory or optional redemption or
acceleration resulting from default or otherwise, other than any
advancement of maturity pursuant to a mandatory sinking fund
payment, the payments guaranteed hereby shall be made in such
amounts and at such times as such payments of principal would
have been due had there not been any such acceleration; and (ii)
the reimbursement of any such payment which is subsequently
recovered from any owner or holder pursuant to a final judgment
by a court of competent jurisdiction that such payment
constitutes an avoidable preference to such owner or holder
within the meaning of any applicable bankruptcy law. The amounts
referred to in clauses (i) and (ii) of the preceding sentence
shall be referred to herein collectively as the "Insured
Amounts." "Obligations" shall mean:
Upon receipt of telephonic or telegraphic notice, such notice
subsequently confirmed in writing by registered or certified
mail, or upon receipt of written notice by registered or
certified mail by AMBAC or its designee from the Paying Agent or
any owner or holder of an Obligation or coupon thereof the
payment of an Insured Amount for which is then due, that such
required payment has not been made, AMBAC, on the due date of
such payment or within one business day after receipt of notice
of such nonpayment, whichever is later, will make a deposit of
funds in an account with United States Trust Company of New York,
in New York, New York, or its successor, sufficient for the
payment of any such Insured Amounts which are then due. Upon
presentment and surrender of such Obligations or coupons or
presentment of such other proof of ownership of the Obligations,
together with any appropriate instruments of assignment to
evidence the assignment of the Insured Amounts due on the
Obligations as are paid by AMBAC, and appropriate instruments to
effect the appointment of AMBAC as agent for such owners or
holders of the Obligations or coupons in any legal proceeding
related to payment of Insured Amounts on the Obligations or
coupons, such instruments being in form satisfactory to United
States Trust Company of New York, United States Trust Company of
New York shall disburse to such owners, holders or the Paying
Agent payment of the Insured Amounts due on such Obligations and
coupons, less any amount held by the Paying Agent for the payment
of such Insured Amounts and legally available therefor. This
policy does not insure against loss of any prepayment premium
which may at any time be payable with respect to any Obligation
or coupon.
As used herein, the term "owner" shall mean the registered owner
of any Obligation as indicated in the books maintained by the
Paying Agent, the Issuer or any designee of the Issuer for such
purpose and the term "holder" shall mean the bearer of any
Obligation not registered as to principal or as to principal and
interest for such purpose and, when used with reference to a
coupon, shall mean the bearer of the coupon. The terms owner or
holder shall not include the Issuer or any party whose agreement
with the Issuer constitutes the underlying security for the
Obligations.
Any service of process on AMBAC may be made to AMBAC or an
agent designated for such purpose and such service of
process shall be valid and binding as to AMBAC. AMBAC's
offices are located at One State Street Plaza, New York, New
York 10004.
This policy is non-cancellable for any reason. The premium
on this policy is not refundable for any reason including
the payment prior to maturity of the Obligations.
IN WITNESS WHEREOF, AMBAC has caused this policy to be executed
by its duly authorized officers in facsimile.
AMBAC Indemnity Corporation
Authorized Representative
President [SEAL]
Secretary
Exhibit B-12
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 September 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>
Refunding Agreement
This Refunding Agreement dated as of September 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, 1994, 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 State of Louisiana, 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 never to 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:
ARTICLE I
DEFINITIONS
SECTION 1.1. 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, as trustee, as heretofore and hereafter
amended and supplemented.
"Company Mortgage Trustee" means the 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 with the proceeds of the Prior Bonds at the
Company's 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 and held by the
Trustee pursuant to Section 4.3 hereof.
"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 on the books of the
Department of Treasury of the United States of America), 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 September
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, Cajun Electric
Power Cooperative, Inc., a Louisiana corporation, 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, between the
Issuer and City National Bank of Baton Rouge, in the City of
Baton Rouge, Louisiana.
"Refunding Date" means ___________, 1995, [or such later
date as may be agreed to by the Issuer and 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.
SECTION 1.2. 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.
SECTION 1.2. 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.
ARTICLE II
REPRESENTATIONS
SECTION 2.1. 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 to be 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) will be 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.
SECTION 2.2. 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
Articles of Incorporation or its Bylaws, has power to enter
into this Agreement and to perform and observe the
agreements and covenants on its part contained herein,
including, without limitation, the power to issue the First
Mortgage Bonds as contemplated herein and in the Company
Mortgage, 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, including,
without limitation, the issuance and delivery of the First
Mortgage Bonds, 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 or under the Company Mortgage.
(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 or
thereunder.
(f) The Facilities are located within the jurisdiction
of the Issuer.
(g) 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.
(h) 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.
(i) 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.
(j) The principal amount of the Bonds shall not exceed
the outstanding principal amount of the Prior Bonds.
(k) The Bonds are not and will not be "federally
guaranteed" (as defined in Section 149(b) of the Code).
(l) 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.
(m) 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.
(n) None of the proceeds of the Bonds will be used to
finance Costs of Issuance of the Bonds.
(o) 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.
ARTICLE III
THE BONDS AND THE PROCEEDS THEREOF
SECTION 3.1. 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.
SECTION 3.2. 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.
SECTION 3.3. 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.
ARTICLE IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS;
FIRST MORTGAGE BONDS
SECTION 4.1. 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.
SECTION 4.2. 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 on
such date pursuant to the Indenture, together with accrued
interest and any applicable redemption premium, (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 (v) any
Administration Expenses. The Company directs the Trustee to
apply such amounts to the purpose for which they are paid. Such
payments shall be paid by check, draft 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.
(b) 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.
(c) Anything herein, in the Indenture or in the Bonds to
the contrary notwithstanding, the obligations of the Company
hereunder shall be subject to the limitation that payments
constituting interest under this Section 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.
(d) In addition to the options and obligations of the
Company under Article VIII 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.
SECTION 4.3. First Mortgage Bonds.
(a) Concurrently with the issuance and delivery
by the Issuer of the Bonds, and in order to evidence the payment
obligation of the Company under Section 4.2 hereof, the Company
shall issue and deliver to the Issuer a series of First Mortgage
Bonds (i) maturing on the stated maturity date of the Bonds, (ii)
in a principal amount equal to the principal of the Bonds plus
______ months' (___/12) of the annual interest on the Bonds,
(iii) containing redemption provisions correlative to any
provisions of the Indenture relating to the Bonds requiring
mandatory redemption thereof, (iv) requiring payments to be made
to the Trustee for the account of the Issuer, and (v) bearing no
interest.
(b) The obligation of the Company to make any payment of
the principal of or premium, if any, on the First Mortgage Bonds,
whether at maturity, upon redemption or otherwise, shall be
reduced by the amount of any reduction under the Indenture of the
amount of the corresponding payment required to be made by the
Issuer thereunder in respect of the principal of or premium, if
any, or interest on the Bonds.
(c) The Issuer shall not sell, assign or transfer the First
Mortgage Bonds, except to the extent provided in Section 4.4
hereof. In view of the pledge and assignment referred to in said
Section 4.4, the Issuer agrees that (i) in satisfaction of the
obligations of the Company set forth in paragraph (b) of this
Section with respect to the Bonds, the First Mortgage Bonds shall
be issued and delivered to, registered in the name of, and held
by the Trustee for the benefit of the owners and holders from
time to time of the Bonds; (ii) the Indenture shall provide that
the Trustee shall not sell, assign or transfer the First Mortgage
Bonds except to a successor trustee under the Indenture, and
shall surrender First Mortgage Bonds to the Company Mortgage
Trustee in accordance with the provisions of subsection (e) of
this Section; and (iii) the Company may take such actions as it
shall deem to be desirable to effect compliance with such
restrictions on transfer, including the placing of an appropriate
legend on each First Mortgage Bond and the issuance of
stop-transfer instructions to the Company Mortgage Trustee or any
other transfer agent under the Company Mortgage. Any action
taken by the Trustee in accordance with the provisions of Section
5.9 of the Indenture shall be binding upon the Company.
(d) At the time any Bonds cease to be outstanding (other
than by reason of the payment or redemption of First Mortgage
Bonds and other than by reason of the applicability of clause (b)
in the definition of "outstanding" herein), the Issuer shall
cause the Trustee to surrender to the Company Mortgage Trustee a
corresponding principal amount of First Mortgage Bonds, plus, in
the case of the Bonds, a principal amount of such First Mortgage
Bonds equal to ______ months' (__/12) of the annual interest
payable in respect of such series.
(e) For the purpose of determining whether or not any
payment of the principal of or premium, if any, on the First
Mortgage Bonds shall have been made in full, any moneys paid by
the Company in respect of the First Mortgage Bonds which shall
have been withdrawn by the Trustee from the Bond Fund pursuant to
Section 10.2 of the Indenture shall be deemed to have been paid
by the Company to the Trustee pursuant to Section 4.5 hereof and
not to have been paid by the Company in respect of the First
Mortgage Bonds.
SECTION 4.4. Payments Assigned; Obligation Absolute.
It is understood
and agreed that all payments under Section 4.3 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), including the right to receive
the First Mortgage Bonds, and the First Mortgage Bonds, 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 4.3 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 4.3 and the other
payments due hereunder shall continue to be payable at the times
and in the amounts specified herein and in the First Mortgage
Bonds, 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, or the Company Mortgage Trustee, the holders of bonds
and others under the Company Mortgage, 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.
During the term hereof, the Company (i) shall not suspend or
discontinue the making of payments for which it is obligated
hereunder, (ii) shall, except to the extent provided in Section
8.2 hereof, perform and observe all of its other obligations
contained herein and (iii) except as explicitly permitted herein,
shall not terminate this Agreement for any cause including,
without limiting the generality of the foregoing, any acts or
circumstances that may constitute failure of consideration,
commercial frustration of purpose, any change in tax or other
laws by the United States of America or the State of Louisiana or
any political subdivision of either, or any failure of the Issuer
to perform and observe any obligation or condition arising out of
or connected with this Agreement. This provision shall not be
construed to release the Issuer from the performance of any of
its obligations under this Agreement; and in the event the Issuer
shall fail to perform any such obligation, the Company may
institute such action against the Issuer as the Company may deem
necessary to compel performance; provided, however, that no such
action shall claim or attempt to establish or work a reduction of
payments payable by the Company hereunder. The Company may at
its own cost and expense and in its own name or in the name of
the Issuer, prosecute or defend any action or proceedings or take
any other action involving third persons which the Company deems
reasonably necessary in order to secure or protect its rights
under this Agreement, and in such event the Issuer shall
cooperate fully with the Company.
SECTION 4.5. 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.
SECTION 4.6. 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 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 or bad faith of
the Trustee, or as a result of the gross negligence 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.
SECTION 4.7. Payment of Taxes; Discharge of Liens.
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 4.3 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 4.3 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.
ARTICLE V
REFUNDING OF PRIOR BONDS
SECTION 5.1. 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.
SECTION 5.2. 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.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION 6.1. 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 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, assumes in writing all of the
obligations of the Company herein, including all obligations of
the Company under the First Mortgage Bonds. No such
consolidation, merger or sale or transfer of assets may take
place unless the corporation resulting from or surviving such
merger or consolidation or the corporation to which such sale or
transfer is made has an excess of assets over liabilities at
least as great as the Company would have had if such merger or
consolidation had not occurred or such sale or transfer had not
been made.
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.
SECTION 6.2. 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.
SECTION 6.3. 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.
SECTION 6.4. 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, if any,
as required by the Company Mortgage, including without
limitation, fire and extended coverage risks and personal and
property liability coverage (including property and comprehensive
general liability insurance) in such amounts and covering such
risks as are customarily insured against by businesses of like
size and type with respect to facilities similar in nature to the
Facilities. 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.
SECTION 6.5. 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.
SECTION 6.6. 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.
SECTION 6.7. 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.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.1. By the Issuer.
Except as provided in Article IV of this Agreement, the Issuer
will not sell, lease, assign, transfer, convey or otherwise
dispose of its interest in the Facilities or any portion thereof
or interest therein or in the revenues therefrom without the
written consent of the Company, nor will it create or suffer to
be created any debt, lien or charge thereon, not consented to by
the Company, except Permitted Encumbrances.
SECTION 7.2. 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 Sections 4.2 and 4.3 hereof
(including its obligations on the First Mortgage Bonds) 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.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1. Events of Default.
Each of the following events shall constitute and is
referred to in this Agreement as an "Event of Default":
(a) a "Default" as such term is defined in the Company
Mortgage;
(b) 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
(c) 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.
SECTION 8.2. 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 hereof and its obligations under Sections 4.7, 6.1,
6.8 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.
SECTION 8.3. Remedies on Default.
(a) Upon the occurrence and continuance of any
Event of Default described in clause (a) of Section 8.1 hereof,
the Trustee, as the holder of the First Mortgage Bonds, shall,
subject to the provisions of the Indenture, have the rights
provided in the Company Mortgage.
(b) 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.
(c) 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.
(d) Any amounts collected pursuant to action taken under
this Section shall be applied in accordance with the Indenture.
(e) 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.
SECTION 8.4. 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.
SECTION 8.5. 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 on the First Mortgage Bonds,
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.
SECTION 8.6. 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, and
any waiver of any "Default" under the Company Mortgage 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.
ARTICLE IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
SECTION 9.1. 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, 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 Bonds to be redeemed, or for the payment or redemption of
which provision is to be made, are first deemed to be paid in
accordance with Article IX of the Indenture. 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 any of the foregoing purposes.
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.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. 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.
SECTION 10.2. 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.
Poydras Plaza, 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.
SECTION 10.3. 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.
SECTION 10.4. Amendments to Refunding Agreement.
Subject to the rights of the
Company Mortgage Trustee, any holders of bonds and others under
the Company Mortgage, subsequent to the initial issuance of the
Bonds and prior to payment or provision for the payment of the
Bonds in full including interest and premium, if any, thereon in
accordance with the provisions of the Indenture, and prior to
payment or provision for the payment of expenses pursuant to
Section 4.5 hereof, this Agreement may not be effectively
amended, changed, modified, altered or terminated without the
prior written consent of the Trustee given 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.
SECTION 10.5. 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.
SECTION 10.6. 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.
SECTION 10.7. 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.
SECTION 10.8. 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.
SECTION 10.9. Applicable Law.
The laws of the State of Louisiana shall govern the construction
of this Agreement.
SECTION 10.10. 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 Indenture, and no interest on the
amount so payable shall accrue for the period after such nominal
date.
SECTION 10.11. 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.
SECTION 10.12. 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.
SECTION 10.13. 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.
SECTION 10.14. 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.
SECTION 10.15. 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.
SECTION 10.16. 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.
SECTION 10.17. Subordination to Company Mortgage; Waiver of
Lien and to Joint Ownership Agreement. Nothing in this Agreement
or the Indenture shall in any way prejudice (i) the Company
Mortgage, the lien thereof, 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.
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, Police Jury
ATTEST:
By: _______________________________ [SEAL]
Secretary, Police Jury
GULF STATES UTILITIES COMPANY
By: _________________________________
Title:
ATTEST:
By: _______________________________ [SEAL]
Title:
