UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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:
In the Matter of :
:
ENTERGY GULF STATES, INC. : CERTIFICATE PURSUANT
TO
: RULE 24
File No. 70-8721 :
:
(Public Utility Holding Company Act of 1935) :
:
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This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that the
transactions described below, which were proposed by Entergy Gulf
States, Inc. (the "Company") in its Application-Declaration, as
amended, in the above file, have been carried out in accordance
with the terms and conditions of and for the purposes represented
by said Application-Declaration, as amended, and pursuant to the
order of the Securities and Exchange Commission with respect
thereto dated January 16, 1996.
On January 20, 1999, the Industrial Development Board
of the Parish of Calcasieu, Inc., (the "Issuer") issued and sold,
to Morgan Stanley & Co. Incorporated, Morgan Keegan & Company,
Inc., Stephens Inc. and Doley Securities, Inc., as underwriters,
pursuant to a Bond Purchase Agreement dated as of January 12,
1999, $22,095,000 Industrial Development Board of the Parish of
Calcasieu, Inc. 5.45% Pollution Control Revenue Refunding Bonds
(Entergy Gulf States, Inc. Project) Series 1999 (the "Bonds"),
issued pursuant to the Trust Indenture between the Issuer and and
The Bank of New York, as trustee. The proceeds of such sale are
to be used to redeem $23,000,000 in aggregate principal amount of
the Issuer's Pollution Control Revenue Refunding Bonds (Gulf
States Utilitities Company Project) Series 1977 pursuant to the
Refunding Agreement dated as of May 1, 1998 between the Issuer
and the Company.
Attached hereto are:
Exhibit B-3(b) - Execution form of the Refunding
Agreement relating to the Bonds.
Exhibit B-11(b) - Execution form of the Trust
Indenture relating to the Bonds.
Exhibit F-1(c) - Post-effective opinion of Laurence
M. Hamric, Associate General Counsel -
Corporate and Securities of Entergy
Services, Inc., counsel for the Company.
Exhibit F-2(c) - Post-effective opinion of Thelen
Reid & Priest LLP, counsel for the
Company.
IN WITNESS WHEREOF, Entergy Gulf States, Inc. has
caused this certificate to be executed this the 29th day of
January, 1999.
ENTERGY GULF STATES, INC.
By: /s/ Steven C.
McNeal
Steven C. McNeal
Vice President and Treasurer
Exhibit B-3(b)
Refunding Agreement
between
Industrial Development Board
of the Parish of Calcasieu, Inc.
and
Entergy Gulf States, Inc.
Dated as of May 1, 1998
$22,095,000
Industrial Development Board
of the Parish of Calcasieu, Inc.
Pollution Control Revenue Refunding Bonds
(Entergy Gulf States, Inc. Project)
Series 1999
<PAGE>
Refunding Agreement
This Refunding Agreement dated as of May 1, 1998 by and
between the Industrial Development Board of the Parish of
Calcasieu, Inc., a public corporation and instrumentality of the
Parish of Calcasieu, State of Louisiana (the "Issuer"), and
Entergy Gulf States, Inc., 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 authorized and empowered by law,
including particularly the provisions of Chapter 7 of Title 51 of
the Louisiana Revised Statutes of 1950, as amended (the
"Industrial Board Act"), to acquire, own, lease, rent, repair,
renovate, improve, finance, sell and dispose of properties for
the abatement, elimination, control and prevention of air, water,
noise, or other pollution or to control or eliminate or dispose
of liquid and solid wastes; and
WHEREAS, pursuant to the provisions of the Industrial Board
Act and an Indenture of Trust and Pledge dated as of December 1,
1974, as supplemented by a First Supplemental Indenture of Trust
and Pledge dated as of September 1, 1977 by and between the
Issuer and The Bank of New York, as successor trustee to Hibernia
National Bank in New Orleans (the "Prior Trustee"), the Issuer
issued its Pollution Control Revenue Refunding Bonds (Gulf States
Utilities Company Project) Series 1977 (the "Prior Bonds") in the
aggregate principal amount of $23,000,000 for the purpose of
refunding the Issuer's Pollution Control Revenue Bonds (Gulf
States Utilities Company Project) Series 1974 (the "Series 1974
Bonds"), which Series 1974 Bonds were issued for the purpose of
acquiring, constructing and equipping certain air and water
pollution control facilities (the "Facilities") at the electric
generating plant known as Roy S. Nelson Station owned and
operated by the Company (formerly Gulf States Utilities Company)
in the geographical limits of the Issuer; and
WHEREAS, in furtherance of the statutory purposes of the
Industrial Board Act, the Issuer entered into (i) an Equipment
Lease dated as of December 1, 1974 with the Company, as
supplemented by a First Supplemental Equipment Lease dated as of
September 1, 1977, pursuant to which the Issuer acquired a
leasehold interest in the Facilities, (ii) a Sublease Agreement
dated as of December 1, 1974 with the Company, as supplemented by
a First Supplemental Sublease Agreement dated as of September 1,
1977, pursuant to which the Issuer subleased the Facilities to
the Company, and (iii) an Easement Agreement dated as of December
1, 1974 with the Company, as supplemented by a First Supplemental
Easement Agreement dated as of September 1, 1977, pursuant to
which the Issuer acquired an easement in the site of the
Facilities; and
WHEREAS, on December 31, 1993, the Company became a wholly-
owned subsidiary of Entergy Corporation and continues to operate
as a public utility company under the regulation of the Public
Utility Commission of Texas and the Louisiana Public Service
Commission; and
WHEREAS, $22,095,000 aggregate principal amount of the Prior
Bonds are outstanding, and the Company has requested that the
Issuer refund the Prior Bonds in order to achieve interest cost
savings through the issuance by the Issuer of not exceeding
$22,095,000 aggregate principal amount of its Pollution Control
Revenue Refunding Bonds (Entergy Gulf States, Inc. Project)
Series 1999 (the "Bonds"); and
WHEREAS, the Issuer 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 (the
"Act"), to issue its 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 and in accordance with the provisions
of the Act, the Issuer has agreed to issue the Bonds for the
purpose of refunding the Prior Bonds; and
WHEREAS, in consideration of the issuance of the 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 the Bonds pursuant to this Refunding Agreement, said Bonds to
be paid solely from the revenues derived by the Issuer from said
payments by the Company pursuant to this Refunding Agreement and
any moneys held under the hereinafter defined Indenture, and said
Bonds shall not constitute an indebtedness or pledge of the
general credit of the Issuer or the Parish of Calcasieu, within
the meaning of any constitutional or statutory limitation of
indebtedness or otherwise; and
WHEREAS, the execution and delivery of this Refunding
Agreement under the Act have been in all respects duly and
validly authorized by resolution of the Board of Directors of the
Issuer, 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 I.1. Definitions. In addition to the words and
terms elsewhere defined in this Refunding Agreement or in the
Indenture, the following words and terms as used in this
Refunding 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 Refunding
Agreement, the Indenture and any transaction or event
contemplated by this Refunding 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.
"Bond Fund" shall have the meaning given and assigned
thereto in the Indenture.
"Bonds" means the $22,095,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Entergy Gulf States,
Inc. Project) Series 1999 authorized to be issued under the
Indenture.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Entergy Gulf States, Inc., a corporation
organized and existing under the laws of the State of Texas, and
its permitted successors and assigns.
"Company Mortgage" means the Company's Indenture of Mortgage
dated as of September 1, 1926 made to The Chase National Bank in
the City of New York (now The Chase Manhattan Bank), as trustee,
as heretofore and hereafter amended and supplemented.
"Company Mortgage Trustee" means the successor trustee under
the Company Mortgage.
"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 Limited Offering Memorandum
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 air and water pollution
control facilities at the Plant, refinanced with the proceeds of
the Prior Bonds, as more particularly described in Exhibit A to
the Sublease Agreement dated December 1, 1974 relating to the
Prior Bonds.
"First Mortgage Bonds" means the bonds of one or more series
issued and delivered under the Company Mortgage.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or, the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" means the Trust Indenture dated as of May 1,
1998 between the Issuer and the Trustee securing the Bonds, and
any amendments and supplements thereto.
"Issuer" means the Industrial Development Board of the
Parish of Calcasieu, Inc., a public corporation and
instrumentality of the Parish of Calcasieu, State of Louisiana.
"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 at or 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.
"Plant" means the electric generating plant known as Roy S.
Nelson Station owned and operated by the Company and located in
the Parish of Calcasieu, State of Louisiana.
"Prior Bonds" means the Issuer's Pollution Control Revenue
Refunding Bonds (Gulf States Utilities Company Project) Series
1977, outstanding in the aggregate principal amount of
$22,095,000.
"Prior Indenture" means the Indenture of Trust and Pledge
dated as of December 1, 1974 by and between the Issuer and The
Bank of New York, as successor trustee to Hibernia National Bank
in New Orleans, and its successors and assigns.
"Prior Trustee" means The Bank of New York, as successor
trustee to Hibernia National Bank in New Orleans, and its
successors and assigns.
"Refunding Agreement" means this Refunding Agreement and any
amendments and supplements hereto.
"Refunding Date" means February 19, 1999, or such later date
as may be established by the Company; provided, however, that the
Refunding Date shall not be later than ninety (90) days following
the date of issuance of the Bonds.
"Refunding Fund" has the meaning set forth in the Indenture.
"Regulations" means all final and proposed United States
Income Tax Regulations.
"Series 1974 Bonds" means the Issuer's Pollution Control
Revenue Bonds (Gulf States Utilities Company Project) Series
1974.
"Trust Estate" means the property conveyed to the Trustee
pursuant to the Granting Clauses of the Indenture.
"Trustee" means The Bank of New York, of New York, New York,
as trustee under the Indenture, and its successors as trustee.
SECTION I.2. Use of Words and Phrases. "Herein",
"hereby", "hereunder", "hereof", "hereinabove", "hereinafter",
and other equivalent words and phrases refer to this Refunding
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 I.3. Nontaxability. It is intended by the parties
hereto that this Refunding Agreement and all action taken
hereunder be consistent with and pursuant to the resolution 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 II.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 public corporation and
instrumentality of the Parish of Calcasieu, 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 Refunding Agreement and the Indenture and to carry
out its obligations under this Refunding Agreement and the
Indenture and the transactions contemplated hereby and
thereby.
(c) The Issuer has duly authorized the execution and
delivery of this Refunding Agreement and the Indenture and
the issuance and sale of the Bonds.
(d) The Bonds are issued under and secured by the
Indenture, pursuant to which the interest of the Issuer in
this Refunding Agreement and the amounts payable under this
Refunding Agreement (other than indemnification and expense
reimbursement rights) are assigned to the Trustee as
security for the payment of the principal of, premium, if
any, and interest on the Bonds.
(e) Neither the execution and delivery of this
Refunding Agreement or the Indenture, nor the assignment of
this Refunding Agreement to the Trustee, nor the
consummation of the transactions contemplated by this
Refunding Agreement or the Indenture, nor the fulfillment of
or compliance with the terms and conditions of this
Refunding 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 the Articles of Incorporation or
Bylaws of the Issuer or 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 II.2. Representations and Warranties of the
Company. The Company hereby makes the following representations
and warranties as the basis for the undertakings on the part of
the Issuer herein undertaken for the benefit and reliance of the
Issuer, the Trustee and the holders of the Bonds:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Texas and is
in good standing under the laws of the State of Louisiana,
is not in violation of any provision of its Restated
Articles of Incorporation or its ByLaws, has power to enter
into this Refunding Agreement and to perform and observe the
agreements and covenants on its part contained herein and
has duly authorized the execution and delivery of this
Refunding Agreement by proper corporate action.
(b) Neither the execution and delivery of this
Refunding Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Refunding Agreement,
conflicts with or results in a breach of the terms,
conditions or provisions of any restriction or any agreement
or instrument to which the Company is now a party or by
which the Company is bound, or constitutes a default under
any of the foregoing, or results in the creation or
imposition of any lien, charge or encumbrance whatsoever
upon any of the property or assets of the Company except any
interests created therein under the Indenture.
(c) This Refunding 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 Refunding Agreement, (2)
would adversely affect the validity of this Refunding
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 Refunding Agreement or which, with the
lapse of time or with the giving of notice or both, could
reasonably be expected to become an "Event of Default"
hereunder.
(f) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Refunding 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.
ARTICLE III
THE BONDS AND THE PROCEEDS THEREOF
SECTION III.1. Agreement to Issue Bonds. The Issuer has
authorized the issuance and sale of the Bonds in the principal
amount of $22,095,000. 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 III.2. Investment of Funds; Non-Arbitrage Covenant.
Any moneys held as part of the Bond 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 and shall direct no use
or investment 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.
SECTION III.3. Agreement to Redeem Bonds. The Company
agrees to pay to the Prior Trustee, in funds available to the
Prior Trustee on or prior to the Refunding Date, for deposit into
the bond fund created under the Prior Indenture securing the
Prior Bonds and in accordance with the terms of the Prior
Indenture, any amount necessary to pay the principal of and
accrued interest due on the Prior Bonds on the Refunding Date, to
the extent that the amount delivered by the Issuer pursuant to
Section 3.1 hereof is insufficient for such purpose.
ARTICLE IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS
SECTION IV.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 Refunding 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 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 IV.2. Payments. (a) The Company shall pay to the
Trustee for the account of the Issuer on each date on which the
principal of, premium, if any, or interest on the Bonds comes
due, whether at the maturity thereof or upon acceleration,
redemption or otherwise in accordance with the provisions of the
Indenture, an amount equal to the sum of (i) all interest due and
payable on the Bonds on such date, (ii) the principal amount of
Bonds, if any, due and payable on such date, (iii) amounts, if
any, required to effect redemption of Bonds upon unconditional
call thereof on such date pursuant to the Indenture, together
with accrued interest and any applicable redemption premium, and
(iv) all amounts due on such date to the Trustee or the Issuer
under this Refunding Agreement, the Indenture or any other
agreements entered into in connection with the issuance of the
Bonds and any other Administration Expenses. The Company directs
the Trustee to apply such amounts to the purpose for which they
are paid. The payments required under this Section 4.2(a)(i),
(ii) and (iii) shall be paid by check, draft, wire transfer or
other means acceptable to the Trustee directly to the Trustee in
funds immediately available to the Trustee on the payment date,
and shall be immediately deposited by the Trustee in the Bond
Fund. In any event, the Company agrees to make payments to the
Trustee for deposit in the Bond Fund at such times and in such
amounts and 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 Issuer and
the Company hereunder shall be subject to the limitation that
payments constituting interest under this Section or the Bonds
shall not be required to the extent that the receipt of such
payment by any owner of any Bonds would be contrary to the
provisions of law applicable to such owner which limit the
maximum rate of interest that may be charged or collected by such
owner.
(d) In addition to the options and obligations of the
Company under Article IX hereof, the Company shall have the
option to make from time to time prepayments of part or all 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 IV.3. Payments Assigned; Obligation Absolute. It
is understood and agreed that all payments under Section
4.2(a)(i), (ii) and (iii) to be made by the Company are pledged
by the Issuer to the Trustee pursuant to the Indenture, and that
all rights and interest of the Issuer hereunder (except for the
Issuer's rights under Sections 4.4, 4.5, 4.6 and 8.5 hereof and
any rights of the Issuer to receive notices, certificates,
requests, requisitions, directions and other communications
hereunder) are pledged and assigned to the Trustee. The Company
assents to such pledge and assignment and agrees that the
obligation of the Company to make payments under Section
4.2(a)(i), (ii) and (iii) shall be absolute, irrevocable and
unconditional and shall not be subject to cancellation,
termination or abatement, or to any defense other than payment or
to any right of set-off, counterclaim or recoupment arising out
of any breach under this Refunding Agreement, the Indenture or
otherwise by the Issuer or the Trustee or any other party, or out
of any obligation or liability at any time owing to the Company
by the Issuer, the Trustee or any other party, and, further, that
the payments under Section 4.2(a)(i), (ii) and (iii) and the
other payments due hereunder shall continue to be payable at the
times and in the amounts specified herein, whether or not the
Facilities, or any portion thereof, shall have been destroyed by
fire or other casualty, or title thereto, or the use thereof,
shall have been taken by the exercise of the power of eminent
domain, and 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.
SECTION IV.4. 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 IV.5. Indemnification. The Company releases the
Issuer and the Trustee from, agrees that the Issuer and the
Trustee shall not be liable for, and agrees to indemnify and hold
the Issuer and the Trustee free and harmless from, any liability
for any loss or damage to property or any injury to or death of
any person that may be occasioned by any cause whatsoever
pertaining to the Facilities, including, without limitation, the
financing or refinancing of the Facilities and the Prior Bonds or
Bonds issued with respect thereto, except in any case as a result
of the negligence, willful misconduct or bad faith of the Issuer
or the Trustee.
The Company will indemnify, save, 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
Refunding Agreement, the issuance or sale of the Prior Bonds or
the Bonds, or any actions taken under the Indenture, except in
any case as a result of the negligence, willful misconduct or bad
faith of the Trustee, or as a result of the gross negligence,
willful misconduct or bad faith of the Issuer. In addition, the
Company will indemnify, save, 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, any 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 gross negligence, willful misconduct or bad faith
of the Trustee, or as a result of the gross negligence, willful
misconduct or bad faith of the Issuer.
Under this Section, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer and the Trustee to the same
extent as the Issuer and the Trustee.
SECTION IV.6. Payment of Taxes. The Company agrees that it
will pay, as the same become due, all taxes and governmental
charges of any kind whatsoever that may at any time be lawfully
assessed or levied against the Company or the Issuer with respect
to the Facilities or any portion thereof or with respect to the
Prior Bonds, including, without limiting the generality of the
foregoing, any taxes lawfully levied against the Company or the
Issuer upon or with respect to the income or profits of the
Issuer from the Facilities or any charge on the payments made
pursuant to Section 4.2(a)(i), (ii) or (iii) hereof prior to or
on a parity with the charge under the Indenture thereon and the
pledge or assignment thereof to be created and made in the
Indenture, and including all ad valorem taxes lawfully assessed
upon the Facilities, all utility and other charges incurred in
the operation, maintenance, use, occupancy and upkeep of the
Facilities, all assessments and charges lawfully made by any
governmental body against the Company or the Issuer for or on
account of the Facilities and in addition any excise tax levied
against the Company or the Issuer on the payments made pursuant
to Section 4.2(a)(i), (ii) and (iii) hereof; provided, however,
that nothing herein shall require the payment of any such tax or
charge or the making of 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
Refunding Agreement.
ARTICLE V
REFUNDING OF PRIOR BONDS
SECTION V.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
Prior Trustee for disbursement and investment in accordance with
the Prior Indenture in order to redeem the Prior Bonds on the
Refunding Date.
SECTION V.2. Compliance with Prior Indenture. The Issuer
shall, at the request of the Company, take all steps as may be
necessary under the Prior Indenture 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 VI.1. Maintenance of Corporate Existence. The
Company shall maintain its corporate existence, will not dissolve
or otherwise dispose of all or substantially all its assets and
will not consolidate with or merge with or into another
corporation or permit one or more other corporations to
consolidate with or merge into it; provided, that the Company
may, without violating the agreements contained in this Section
consolidate with or merge into another domestic corporation
(i.e., a corporation incorporated and existing under the laws of
one of the states of the United States of America or the District
of Columbia or under the laws of the United States of America) or
permit one or more such domestic corporations to consolidate with
or merge into it, or sell or otherwise transfer to another
domestic corporation all or substantially all of its assets as an
entirety and thereafter dissolve; provided that (i) both
immediately prior to such consolidation, merger, sale or transfer
and after giving effect thereto, no Event of Default (or event
which, with the giving of notice or the passage of time, or both,
would become an Event of Default) shall have occurred and be
continuing, and (ii) in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, such surviving, resulting or transferee corporation assumes
in writing all of the obligations of the Company herein.
If consolidation, merger or sale or other transfer is made
as permitted by this Section, the provisions of this Section
shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section.
SECTION VI.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 Refunding Agreement as
provided in the Indenture (including all sums deposited in the
Bond Fund from time to time pursuant to this Refunding 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 or any other funds of the Issuer.
SECTION VI.3. Arbitrage. The Issuer and the Company hereby
covenant with each other, the Trustee and each of the holders of
any Bonds that neither of them will cause or permit the proceeds
of the Bonds to be used in a manner that will cause the interest
on the Bonds to be includable in gross income of the recipients
thereof other than a person who is a "substantial user" of the
Facilities or a "related person" to such "substantial user"
within the meaning of the Code for federal income tax purposes.
In addition, the Company covenants that to the extent permitted
by law, it shall take all actions within its control necessary to
maintain the exclusion of the interest on the Bonds from gross
income for federal income tax purposes under federal tax law
existing on the date of delivery of the Bonds. In furtherance of
the foregoing, the Company also agrees on behalf of the Issuer to
comply with all rebate requirements and procedures as may become
applicable to the Bonds under the Code.
Without limiting the generality of the foregoing, the
Company further covenants and agrees, as follows:
(a) The Facilities are located within the jurisdiction
of the Issuer.
(b) Substantially all of the net proceeds of the sale
of the Series 1974 Bonds have been used to undertake the
acquisition of "air or water pollution control 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 Series 1974 Bonds and of the Prior Bonds
have been expended.
(c) The weighted average maturity of the Bonds does
not exceed 120% of the remaining reasonably expected
economic life of the Facilities financed with the proceeds
of the Series 1974 Bonds.
(d) The principal amount of the Bonds shall not exceed
the outstanding principal amount of the Prior Bonds.
(e) The Bonds are not and will not be "federally
guaranteed" (as defined in Section 149(b) of the Code).
(f) None of the proceeds of the Bonds will be used,
and none of the proceeds of the Series 1974 Bonds or the
Prior Bonds were used, to provide any airplane, skybox or
other private luxury box, or health club facility; any
facility primarily used for gambling; or any store the
principal business of which is the sale of alcoholic
beverages for consumption off premises.
(g) The information furnished by the Company and used
by the Issuer in preparing the certification pursuant to
Section 148 of the Code and information statement pursuant
to Section 149(e) of the Code, is accurate and complete as
of the date of the issuance of the Bonds.
(h) None of the proceeds of the Bonds will be used to
finance Costs of Issuance of the Bonds.
(i) The Company will take no action that would cause
any funds constituting gross proceeds of the Bonds to be
used in a manner as to constitute a prohibited payment under
the applicable regulations pertaining to, or in any other
fashion as would constitute failure of compliance with,
Section 148 of the Code.
SECTION VI.4. Maintenance of Facilities. The Company
covenants that while any of the Bonds are outstanding it will, at
its own expense, maintain the Facilities in good repair and make
all required replacements and renewals thereof. However, the
Company shall have no obligation to replace or renew any portion
of the Facilities, if in the Company's opinion, it is unnecessary
or undesirable to do so.
The Company agrees that the Facilities will be insured
against loss or damage of such kinds and in such amounts,
including without limitation, fire and extended coverage risks
(including property insurance) in such amounts and covering such
risks as are customarily insured against by companies operating
similar properties. Any provisions of this Refunding 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 VI.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 Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION VI.6. Compliance with Law. The Company shall,
throughout the term of this Refunding Agreement and at no expense
to the Issuer, promptly comply or cause compliance with all laws,
resolutions, 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 Refunding 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, resolution, 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 Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION VI.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
Refunding 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 Refunding
Agreement.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION VII.1. By the Company. The Company's interest in
this Refunding Agreement may be assigned in whole or in part, and
the Facilities may be leased or sold as a whole or in part
(whether a specific element or unit or an undivided interest), by
the Company, subject, however, to the condition that no
assignment, lease or sale (other than as described in Section 6.1
hereof) shall relieve the Company from primary liability for its
obligations under Section 4.2 hereof to pay the payments required
thereunder, or for any other of its obligations hereunder, other
than those obligations relating to the operation, maintenance and
insurance of the Facilities, which obligations (to the extent of
the interest assigned, leased or sold and to the extent assumed
by the assignee, lessee or purchaser) shall be deemed to be
satisfied and discharged. Further, upon any such lease or sale
the Company shall comply with the requirements of the Code and
the regulations promulgated thereunder (including, without
limitation, the taking of remedial action with respect to the
Bonds) as the same may then be applicable.
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.
SECTION VII.2. Limitation. This Refunding Agreement shall
not be assigned nor shall the Facilities be leased or sold, in
whole or in part, except as provided in this Article VII,
Sections 4.3 or 6.1 hereof.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION VIII.1. Events of Default. Each of the
following events shall constitute and is referred to in this
Refunding Agreement as an "Event of Default":
(a) a failure by the Company to make when due any
payment required to be made pursuant to Section 4.2 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a) or (b) of Section 10.1 of the Indenture;
(b) a failure by the Company to pay when due any other
amount required to be paid under this Refunding 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;
(c) the expiration of a period of ninety (90) days
following:
(i) the adjudication of the Company as a bankrupt
by any court of competent jurisdiction;
(ii) the entry of an order approving a petition
seeking reorganization or arrangement of the Company
under the federal bankruptcy laws or any other
applicable law or statute of the United States of
America, or of any state thereof; or
(iii) the appointment of a trustee or a
receiver of all or substantially all of the property of
the Company, unless during such period such
adjudication, order or appointment of a trustee or
receiver shall be vacated or shall be stayed on appeal
or otherwise or shall have otherwise ceased to continue
in effect; or
(d) the filing by the Company of a voluntary petition
in bankruptcy or the making of an assignment for the benefit
of creditors; the consenting by the Company to the
appointment of a receiver or trustee of all or any part of
its property; the filing by the Company of a petition or
answer seeking reorganization or arrangement under the
federal bankruptcy laws, or any other applicable law or
statute of the United States of America, or of any state
thereof; or the filing by the Company of a petition to take
advantage of any insolvency act.
SECTION VIII.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 of America or of the
States of Louisiana or Texas, or any other sovereign entity or
body politic, or any department, agency, political subdivision,
court or official of any of them, or any civil or military
authority; insurrections; riots; epidemics; landslides;
lightning; earthquakes; volcanoes; fires; hurricanes; tornados;
storms; floods; washouts; droughts; arrests; restraint of
government and people; civil disturbances; explosions; breakage
of, or accident to, machinery; partial or entire failure of
utilities; or any cause or event not reasonably within the
control of the Company, the Company is unable in whole or in part
to carry out any one or more of its agreements or obligations
contained herein, other than its payment obligations under
Section 4.2(i), (ii) and (iii) hereof and its obligations under
Sections 4.6, 6.1, 7.1 and 9.1 hereof, the Company shall not be
deemed in default by reason of not carrying out said agreement or
agreements or performing said obligation or obligations during
the continuance of such inability. The Company agrees, however,
to use its best efforts to remedy with all reasonable dispatch
the cause or causes preventing it from carrying out its
agreements; provided, that the settlement of strikes, lockouts
and other industrial disturbances shall be entirely within the
discretion of the Company, and the Company shall not be required
to make settlement of strikes, lockouts and other industrial
disturbances by acceding to the demands of the opposing party or
parties when such course is, in the judgment of the Company,
unfavorable to the Company.
SECTION VIII.3. Remedies on Default. (a) Upon the
occurrence and continuance of any Event of Default described in
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.
(b) 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 Refunding
Agreement.
(c) Any amounts collected pursuant to action taken under
this Section shall be applied in accordance with the Indenture.
(d) 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 VIII.4. No Remedy Exclusive. No remedy
conferred upon or reserved to the Issuer by this Refunding
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 Refunding 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 VIII.5. Payment of Attorneys' Fees and Other
Expenses. If the Company shall be in default under any of the
provisions of this Refunding Agreement, and the Issuer or the
Trustee shall employ attorneys or incur other expenses for the
collection of sums due and payable under this Refunding
Agreement, or for the enforcement of performance or observance of
any obligation or agreement on the part of the Company contained
in this Refunding 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 VIII.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 Refunding Agreement to the
Trustee under the Indenture, the Issuer shall have no power to
waive any default hereunder by the Company without the consent of
the Trustee. Any waiver of any "Event of Default" under the
Indenture and a rescission and annulment of its consequences
shall constitute a waiver of the corresponding Event of Default
hereunder and a rescission and annulment of the consequences
thereof.
ARTICLE IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
SECTION IX.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 of the Bonds to be redeemed, or for the payment
or redemption of which provision is to be made, and, in the case
of redemption of Bonds, or provision therefor, specifying the
date of redemption, which shall not be less than forty-five (45)
days (or such other period as may reasonably be agreed upon by
the Trustee and the Issuer with the consent of the Company) from
the date such notice is given, whether such notice shall be
unconditional, and the applicable redemption provision of the
Indenture. Unless otherwise stated therein or otherwise required
by the Indenture, such notice shall be revocable by the Company
at any time prior to the time at which the Trustee shall have
given notice to the holders of the Bonds to be redeemed. The
Company shall furnish, as a prepayment of the sums due hereunder,
any moneys or Government Securities required by the Indenture to
be deposited with the Trustee or otherwise paid by the Issuer in
connection with a defeasance of Bonds pursuant to Article IX of
the Indenture or in connection with an unconditional call for
redemption of Bonds.
SECTION 9.2. Purchase of Bonds. The Company may at any
time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts specified in such notice, and any Bonds so
purchased shall thereupon be canceled by the Trustee.
ARTICLE X
MISCELLANEOUS
SECTION X.1. Term of the Agreement. This Refunding
Agreement shall be in full force and effect from the date of
delivery of the Bonds to the initial purchasers thereof 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 Refunding
Agreement shall have been made.
SECTION X.2. Notices. Except as otherwise provided in
this Refunding 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: Entergy Gulf States, Inc.
c/o Entergy Services, Inc.
639 Loyola Avenue
New Orleans, LA 70113
Attention: Treasurer
Issuer: Industrial Development Board of
the Parish of Calcasieu, Inc.
One Lakeside Plaza, Suite 400
Lake Charles, LA 70601
Attention: President, Board of Directors
Trustee: The Bank of New York
c/o The Bank of New York Trust Company of Florida, N. A.
10161 Centurion Parkway
Jacksonville, FL 32256
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 X.3. Successors. This Refunding 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 and the Company and their respective
successors and assigns.
SECTION X.4. Amendments to Refunding Agreement. This
Refunding Agreement may not be effectively amended, changed,
modified, altered or terminated except in accordance with the
provisions of the Indenture, and no amendment to this Refunding
Agreement shall be binding upon either party hereto until such
amendment is reduced to writing and executed by both parties
hereto.
SECTION X.5. Counterparts. This Refunding 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 X.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 X.7. Photocopies and Reproductions. A photocopy
or other reproduction of this Refunding 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 X.8. Severability. If any clause, provision or
section of this Refunding 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 Refunding 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 Refunding 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 X.9. Applicable Law. The laws of the State of
Louisiana shall govern the construction of this Refunding
Agreement.
SECTION X.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 Refunding Agreement, and no interest on the amount so
payable shall accrue for the period after such nominal date.
SECTION X.11. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund upon expiration or earlier termination
of this Refunding 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 Refunding Agreement
and the Indenture, shall belong to and be paid to the Company, as
an overpayment of the payments.
SECTION X.12. Company Approval of Indenture. The Indenture
has been submitted to the Company for examination, and the
Company, by execution of this Refunding 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 X.13. Binding Effect. This Refunding 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 X.14. Captions and Headings. The captions or
headings in this Refunding Agreement are for convenience only and
in no way define, limit or describe the scope or intent of any
provisions of this Refunding Agreement.
SECTION X.15. No Personal Liability. No covenant or
agreement contained in this Refunding 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 X.16. Parties in Interest. This Refunding
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 Refunding
Agreement; provided, however, that any monetary obligation of the
Issuer created by or arising out of this Refunding Agreement
shall be payable solely out of the revenues derived from this
Refunding 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 Refunding 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 X.17. Subordination to Company Mortgage; Waiver of
Lien. Nothing in this Refunding Agreement or the Indenture shall
in any way prejudice 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 constitute or create a direct lien or encumbrance on or other
rights in or to the Plant or Facilities, provided that nothing in
the Company Mortgage or in this Refunding Agreement shall in any
way affect or diminish the obligation of the Company to pay all
amounts required to be paid by it under the terms of this
Refunding Agreement. The Trustee has agreed in the Indenture
that it shall execute and deliver any instrument requested by the
Company which is necessary or appropriate at any time to confirm
or evidence the subordination of rights described in the
preceding sentence to enable the Company to enjoy such rights and
privileges. The Trustee has acknowledged in the Indenture that
the Bonds are not secured by, and the Indenture does not
constitute or create any direct lien or encumbrance on or rights
in or to, the Plant or Facilities or any leasehold or other
estate therein. The Trustee, whenever requested by the Issuer or
the Company, has agreed to execute and deliver any instrument
necessary or appropriate to confirm the absence of any interest
by it in the property comprising the Plant or Facilities or to
evidence the subordinations described in Section 14.12 of the
Indenture.
SECTION X.18. Administrative Fee. The Company acknowledges
and agrees that the Issuer will charge an administrative fee
payable to the Trustee, in an amount set forth in Exhibit B to
the Indenture, for the purpose of paying or reimbursing the
Issuer for its reasonable administrative expenses incurred by the
Issuer in connection with the issuance of the Bonds, representing
the legal expenses of Bond Counsel and Issuer's counsel and the
Issuer Fee, which administrative fee shall be deposited by the
Company with the Trustee pursuant to Section 6.9 of the Indenture
and applied to pay the expenses set forth in Exhibit B to the
Indenture.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Refunding 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.
INDUSTRIAL DEVELOPMENT BOARD
OF THE PARISH OF CALCASIEU, INC.
By:_____________________________________
President, Board of Directors
ATTEST:
By: _______________________________ [SEAL]
Secretary-Treasurer, Board of Directors
ENTERGY GULF STATES, INC.
By:_____________________________________
Title:
ATTEST:
By: _______________________________ [SEAL]
Title:
Exhibit B-11(b)
Trust Indenture
between
Industrial Development Board
of the Parish of Calcasieu, Inc.
and
The Bank of New York
Dated as of May 1, 1998
$22,095,000
Industrial Development Board
of the Parish of Calcasieu, Inc.
Pollution Control Revenue Refunding Bonds
(Entergy Gulf States, Inc. Project)
Series 1999
<PAGE>
Trust Indenture
This Trust Indenture dated as of May 1, 1998 by and between
the Industrial Development Board of the Parish of Calcasieu,
Inc., a public corporation and instrumentality of the Parish of
Calcasieu, State of Louisiana (the "Issuer"), and The Bank of New
York, a banking corporation organized and existing under and by
virtue of the laws of the State of New York and duly authorized
to accept and execute trusts, as trustee (the "Trustee"),
W i t n e s s e t h :
WHEREAS, the Issuer is authorized and empowered by law,
including particularly the provisions of Chapter 7 of Title 51 of
the Louisiana Revised Statutes of 1950, as amended (the
"Industrial Board Act"), to acquire, own, lease, rent, repair,
renovate, improve, finance, sell and dispose of properties for
the abatement, elimination, control and prevention of air, water,
noise, or other pollution or to control or eliminate or dispose
of liquid and solid wastes; and
WHEREAS, pursuant to the provisions of the Industrial Board
Act and an Indenture of Trust and Pledge dated as of December 1,
1974, as supplemented by a First Supplemental Indenture of Trust
and Pledge dated as of September 1, 1977 by and between the
Issuer and The Bank of New York, as successor trustee to Hibernia
National Bank in New Orleans (the "Prior Trustee"), the Issuer
issued its Pollution Control Revenue Refunding Bonds (Gulf States
Utilities Company Project) Series 1977 (the "Prior Bonds") in the
aggregate principal amount of $23,000,000 for the purpose of
refunding the Issuer's Pollution Control Revenue Bonds (Gulf
States Utilities Company Project) Series 1974 (the "Series 1974
Bonds"), which Series 1974 Bonds were issued for the purpose of
acquiring, constructing and equipping certain air and water
pollution control facilities (the "Facilities") at the electric
generating plant known as Roy S. Nelson Station owned and
operated by Entergy Gulf States, Inc. (formerly Gulf States
Utilities Company), a Texas corporation (the "Company"), in the
geographical limits of the Issuer; and
WHEREAS, in furtherance of the statutory purposes of the
Industrial Board Act, the Issuer entered into (i) an Equipment
Lease dated as of December 1, 1974 with the Company, as
supplemented by a First Supplemental Equipment Lease dated as of
September 1, 1977, pursuant to which the Issuer acquired a
leasehold interest in the Facilities, (ii) a Sublease Agreement
dated as of December 1, 1974 with the Company, as supplemented by
a First Supplemental Sublease Agreement dated as of September 1,
1977, pursuant to which the Issuer subleased the Facilities to
the Company, and (iii) an Easement Agreement dated as of December
1, 1974 with the Company, as supplemented by a First Supplemental
Easement Agreement dated as of September 1, 1977, pursuant to
which the Issuer acquired an easement in the site of the
Facilities; and
WHEREAS, on December 31, 1993, the Company became a wholly-
owned subsidiary of Entergy Corporation and continues to operate
as a public utility company under the regulation of the Public
Utility Commission of Texas and the Louisiana Public Service
Commission; and
WHEREAS, $22,095,000 aggregate principal amount of the Prior
Bonds are outstanding, and the Company has requested that the
Issuer refund the Prior Bonds in order to achieve interest cost
savings through the issuance by the Issuer of not exceeding
$22,095,000 aggregate principal amount of its Pollution Control
Revenue Refunding Bonds (Entergy Gulf States, Inc. Project)
Series 1999 (the "Bonds"); and
WHEREAS, the Issuer 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 (the
"Act"), to issue its 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 and in accordance with the provisions
of the Act and other constitutional and statutory authority, and
this Trust Indenture, the Issuer proposes to issue the Bonds for
the purpose of refunding all of the outstanding Prior Bonds; and
WHEREAS, the Company has agreed to hold the Issuer harmless
from any and all liability in connection with the issuance of the
Bonds and has agreed to pay all costs associated therewith; and
WHEREAS, in consideration of the issuance of the Bonds by
the Issuer, the Company will agree to make payments in an amount
sufficient to pay the principal, premium, if any, and interest on
the Bonds pursuant to a Refunding Agreement dated as of May 1,
1998 between the Issuer and the Company (the "Refunding
Agreement"), and the Bonds shall be paid from the revenues
derived by the Issuer from said payments by the Company pursuant
to the Refunding Agreement and from certain other moneys pledged
under the Indenture, and the Bonds shall never constitute an
indebtedness or pledge of the general credit of the Issuer within
the meaning of any constitutional or statutory limitation of
indebtedness or otherwise; and
WHEREAS, all consents and approvals required to be given by
public bodies in connection with the authorization, issuance and
sale of the Bonds herein authorized as required by the Act have
been or will be secured prior to the delivery of such Bonds; and
WHEREAS, the execution and delivery of this Trust Indenture
and the issuance of the 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, 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 4.4, 4.5, 4.6 and 8.5 of the Refunding Agreement and any
rights of the Issuer to receive notices, certificates, requests,
requisitions, directions and other communications under the
Refunding Agreement); and all Revenues (as hereinafter defined)
and the proceeds of all thereof.
II
All the rights and interest of the Issuer in and to the Bond
Fund (as hereinafter defined), and all moneys and investments
therein, but subject to the provisions of this Trust Indenture
pertaining thereto, including those pertaining to the making of
disbursements therefrom.
III
All moneys, securities and obligations from time to time
held by the Trustee under the terms of this Trust Indenture and
any and all real and personal property of every kind and nature
from time to time hereafter by delivery or by writing of any kind
conveyed, mortgaged, pledged, assigned or transferred, as and for
additional security hereunder by the Issuer or by anyone in its
behalf or with its written consent to the Trustee, which is
hereby authorized to receive any and all such property at any and
all times and to hold and apply the same subject to the terms
hereof; except for moneys, securities or obligations deposited
with or paid to the Trustee for redemption or payment of Bonds
which are deemed to have been paid in accordance with Article IX
hereof and funds held pursuant to Section 6.5 hereof, which shall
be held by the Trustee in accordance with the provisions of said
Article IX or Section 6.5, as the case may be.
TO HAVE AND TO HOLD all of the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or intended
so to be, to the Trustee and its successors in said trusts and to
them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit and security of all
owners of the Bonds issued under and secured by this Trust
Indenture without preference, priority or distinction as to the
lien of any Bonds over any other Bonds, except insofar as any
sinking, amortization or other fund, or any terms or conditions
of redemption or purchase, established under this Trust Indenture
may afford additional benefit or security for the Bonds.
PROVIDED, HOWEVER, that if the Issuer shall pay or cause to
be paid to the owners of the Bonds the principal of and premium,
if any, and interest to become due thereon at the times and in
the manner stipulated therein, and if the Issuer shall keep,
perform and observe all and singular the covenants and promises
in the Bonds and in this Trust Indenture expressed as to be kept,
performed and observed by it, all as provided in and subject to
the provisions of Article IX hereof, then and in that case these
presents and the estate and rights hereby granted, except as
otherwise provided in Article IX, shall cease, terminate and be
void, and thereupon the Trustee shall cancel and discharge the
lien of this Trust Indenture and execute and deliver to the
Issuer such instruments in writing as shall be requisite to
evidence the discharge hereof pursuant to the provisions of said
Article IX; otherwise this Trust Indenture to be and remain in
full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered, and the Trust Estate (as
hereinafter defined) and the other estate and rights hereby
granted, are to be dealt with and disposed of, under, upon and
subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes as hereinafter expressed,
and the Issuer has agreed and covenanted, and does hereby agree
and covenant, with the Trustee and with the respective owners,
from time to time, of the Bonds, as follows:
ARTICLE I
DEFINITIONS
SECTION I.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.
"Administrative Fee Fund" means the fund created pursuant to
Section 6.9 hereof.
"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 $22,095,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Entergy Gulf States,
Inc. Project) Series 1999 authorized to be issued under this
Indenture.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Entergy Gulf States, Inc., a corporation
organized and existing under the laws of the State of Texas, and
its permitted successors and assigns.
"Company Mortgage" means the Company's Indenture of Mortgage
dated as of September 1, 1926 made to The Chase National Bank in
the City of New York (now The Chase Manhattan Bank), as trustee,
as heretofore and hereafter amended and supplemented.
"Company Mortgage Trustee" means the successor trustee under
the Company Mortgage.
"Event of Default" means any event of default specified in
Section 10.1 hereof.
"Facilities" means the Company's air and water pollution
control facilities at the Plant refinanced with the proceeds of
the Prior Bonds, as more particularly described in Exhibit A to
the Sublease Agreement dated December 1, 1974 relating to the
Prior Bonds.
"First Mortgage Bonds" means the bonds of one or more series
issued and delivered under the Company Mortgage.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"holder" or "bondholder" or "owner of the Bonds" or
"Bondholder" means the registered owner of any Bond.
"Indenture" means this Trust Indenture and any amendments
and supplements hereto.
"Issuer" means the Industrial Development Board of the
Parish of Calcasieu, Inc., a public corporation and
instrumentality of the Parish of Calcasieu, State of Louisiana.
"outstanding", when used with reference to the Bonds, means,
as of any particular date, all Bonds authenticated and delivered
under this Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee at or prior to such
date for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of this Indenture;
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and
delivered pursuant to this Indenture; and
(d) Bonds registered in the name of the Issuer.
"Paying Agent" means any bank or trust company designated
pursuant to this Indenture as the place at which the principal of
and premium, if any, and interest on the Bonds are payable, and
any successor designated pursuant to this Indenture. The Trustee
is the original Paying Agent.
"person" means natural persons, firms, associations,
corporations and public bodies.
"Plant" means the electric generating plant known as Roy S.
Nelson Station owned and operated by the Company and located in
the Parish of Calcasieu, State of Louisiana.
"Prior Bonds" means the Issuer's Pollution Control Revenue
Refunding Bonds (Gulf States Utilities Company Project) Series
1977, outstanding in the aggregate principal amount of
$22,095,000.
"Prior Indenture" means the Indenture of Trust and Pledge
dated as of December 1, 1974 by and between the Issuer and The
Bank of New York, as successor trustee to Hibernia National Bank
in New Orleans, and its successors and assigns.
"Prior Trustee" means The Bank of New York, as successor
trustee to Hibernia National Bank in New Orleans, 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 May 1, 1998 between the Issuer and the Company, and any
amendments and supplements thereto.
"Refunding Date" means February 19, 1999, or such later date
as may be established by the Company; provided, however, that the
Refunding Date shall not be later than ninety (90) days following
the date of issuance of the Bonds.
"Refunding Fund" means the fund established pursuant to
Section 3.1 hereof.
"Revenues" means all amounts paid or payable by the Company
pursuant to Section 4.2 of the Refunding Agreement, and all
receipts of the Trustee credited under the provisions of this
Indenture against such payments.
"Trust Estate" means the property conveyed to the Trustee
pursuant to the Granting Clauses hereof.
"Trustee" means the banking corporation or association
designated as Trustee herein, and its successor or successors as
such Trustee. The original Trustee is The Bank of New York, of
New York, New York.
SECTION I.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 II.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 $22,095,000, except as provided in Section
2.8 hereof.
SECTION II.2. Details of Bonds. The Bonds (i) shall be
designated "Industrial Development Board of the Parish of
Calcasieu, Inc. Pollution Control Revenue Refunding Bonds
(Entergy Gulf States, Inc. Project) Series 1999", (ii) shall be
issued in denominations of $5,000 and any integral multiple
thereof, (iii) shall be numbered consecutively from R-1 upwards
in order of issuance according to the records of the Trustee,
(iv) shall be dated as hereinafter provided, (v) shall bear
interest as hereinafter provided, payable semiannually on January
1 and July 1 of each year, commencing July 1, 1999, and (vi)
shall mature on July 1, 2010.
The Bonds shall bear interest from and including the date
thereof until the principal thereof shall be duly paid or
provision for payment has been made in accordance with Article XI
hereof, whether at maturity, upon redemption or otherwise, at the
rate of 5.45% per annum. Overdue installments of interest shall
not bear interest.
Bonds issued before July 1, 1999 shall be dated January 1,
1999, and Bonds issued on or subsequent to July 1, 1999 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 II.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 II.4. Execution. The Bonds shall be executed on
behalf of the Issuer by the President and the Secretary-Treasurer
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 II.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 or the Parish of Calcasieu, State of
Louisiana, within the meaning of any Louisiana constitutional or
statutory provision.
SECTION II.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 II.7. Delivery of the Bonds. The Issuer shall
execute and deliver to the Trustee and the Trustee shall
authenticate the Bonds and deliver said Bonds to the original
purchaser or purchasers thereof as may be directed hereinafter in
this Section or in Section 2.11 hereof.
Prior to the delivery on original issuance by the Trustee of
any authenticated Bonds, there shall be or have been delivered to
the Trustee:
(a) An original duly executed counterpart or a duly
certified copy of this Indenture and any supplemental
indenture thereto;
(b) An original duly executed counterpart or a duly
certified copy of the Refunding Agreement;
(c) A written order to the Trustee by the Issuer to
authenticate and deliver the Bonds to the original
purchasers thereof upon payment to Trustee, but for the
account of the Issuer, of a sum specified in such order; and
(d) A copy, duly certified by the Secretary-Treasurer
of the Issuer, of the proceedings of the governing body of
the Issuer authorizing the issuance of the Bonds.
SECTION II.8. Mutilated, Destroyed or Lost Bonds. In case
any Bond issued hereunder shall become mutilated or be destroyed
or lost, the Issuer shall, if not then prohibited by law, cause
to be executed and the Trustee shall authenticate and deliver a
new Bond of like date, number and tenor in exchange and
substitution for and upon cancellation of such mutilated Bond, or
in lieu of and in substitution for such Bond destroyed or lost,
upon the holder's paying the reasonable expenses and charges of
the Issuer, the Company and the Trustee in connection therewith,
and, in the case of a Bond destroyed or lost, his filing with the
Trustee evidence satisfactory to the Company and the Trustee that
such Bond was destroyed or lost, and of his ownership thereof,
and furnishing the Issuer, the Company and the Trustee with
indemnity satisfactory to them. The Trustee is hereby authorized
to authenticate any such new Bond. In the event any lost or
destroyed Bonds shall have matured or been called for redemption,
instead of issuing a new Bond, the Issuer may pay the same
without the surrender thereof.
SECTION II.9. Registration and Exchange of Bonds. The
Issuer hereby constitutes and appoints the Trustee as Bond
Registrar of the Issuer, and as Bond Registrar the Trustee shall
keep books for the registration and for the transfer of the Bonds
as provided in this Indenture at the principal corporate trust
office of the Trustee. The person in whose name any Bond shall
be registered shall be deemed and regarded as the absolute owner
thereof for all purposes, and payment of or on account of the
principal of and interest on any such Bond shall be made only to
or upon the order of the registered owner thereof or his legal
representative, and neither the Issuer, the Company, the Trustee,
nor the Bond Registrar shall be affected by any notice to the
contrary but such registration may be changed as herein provided.
All payments shall be valid and effectual to satisfy and
discharge the liability upon such Bond to the extent of the sum
or sums so paid.
Bonds may be transferred on the books of registration kept
by the Trustee by the registered owner in person or by his duly
authorized attorney, upon surrender thereof together with a
written instrument of transfer duly executed by the registered
owner or his duly authorized attorney in such form as shall be
satisfactory to the Trustee. Upon surrender for transfer of any
Bond at the principal corporate office of the Trustee, the Issuer
shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new Bond or Bonds in
the same aggregate principal amount and of any authorized
denomination or denominations.
Bonds may be exchanged at the principal corporate trust
office of the Trustee for an equal aggregate principal amount of
Bonds of any other authorized denomination or denominations. The
Issuer shall execute and the Trustee shall authenticate and
deliver Bonds which the bondholder making the exchange is
entitled to receive, bearing numbers not then outstanding. The
execution by the Issuer of any Bond of any authorized
denomination shall constitute full and due authorization of such
denomination and the Trustee shall thereby be authorized to
authenticate and deliver such Bond.
Such transfers of registration or exchanges of Bonds shall
be without charge to the holders of such Bonds, but any taxes,
fees 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 II.10. Cremation and Other Dispositions. All Bonds
surrendered for the purpose of payment or retirement, or for
exchange, or for replacement or payment as provided above, or for
cancellation, shall be canceled upon surrender thereof to the
Trustee and, at the option of the Trustee, either cremated,
shredded or otherwise disposed of. The Trustee shall execute and
forward to the Issuer and the Company an appropriate certificate
describing the Bonds involved and the manner of disposition.
SECTION II.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.
SECTION II.12. Book-Entry Registration of Bonds. The Bonds
shall be initially issued in the name of Cede & Co., as nominee
for DTC, as registered owner of the Bonds, and held in the
custody of DTC. The Issuer and the Trustee acknowledge that the
Issuer has executed and delivered a Blanket Letter of
Representations with DTC and that the terms and provisions of
said Letter of Representations shall govern in the event of any
inconsistency between the provisions of this Indenture and said
Letter of Representations. A single bond certificate for each
maturity of Bonds will be issued and delivered to DTC. The
Beneficial Owners will not receive physical delivery of Bond
certificates except as provided herein. Beneficial Owners are
expected to receive a written confirmation of their purchase
providing details of each Bond acquired. For so long as DTC
shall continue to serve as securities depository for the Bonds as
provided herein, all transfers of beneficial ownership interest
will be made by book-entry only, and no investor or other party
purchasing, selling or otherwise transferring beneficial
ownership of Bonds is to receive, hold or deliver any Bond
certificate.
For every transfer and exchange of the Bonds, the Beneficial
Owner may be charged a sum sufficient to cover such Beneficial
Owner's allocable share of any tax, fee or other governmental
charge that may be imposed in relation thereto.
The Issuer, the Company and the Trustee will recognize DTC
or its nominee as the Bondholder for all purposes, including
notices and voting.
Neither the Issuer nor the Trustee are responsible for the
performance by DTC of any of its obligations, including, without
limitation, the payment of moneys received by DTC, the forwarding
of notices received by DTC or the giving of any consent or proxy
in lieu of consent.
Whenever during the term of the Bonds the beneficial
ownership thereof is determined by a book entry at DTC, the
requirements of this Indenture of holding, delivering or
transferring Bonds shall be deemed modified to require the
appropriate person to meet the requirements of DTC as to
registering or transferring the book entry to produce the same
effect.
If at any time DTC ceases to hold the Bonds, all references
herein to DTC shall be of no further force or effect.
ARTICLE III
REFUNDING FUND
SECTION III.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
"Industrial Development Board of the Parish of Calcasieu, Inc.
Pollution Control Revenue Refunding Bonds (Entergy Gulf States,
Inc. Project) Series 1999 Refunding Fund".
SECTION III.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 IV.1. Redemption. The Bonds shall be subject to
redemption prior to maturity as follows:
(a) The Bonds shall be subject to optional
redemption by the Issuer, at the direction of the
Company, at any time, in whole but not in part, at a
redemption price equal to the principal amount being
redeemed plus accrued interest to the redemption date,
if:
(i) the Company shall have determined that
the continued operation of the Plant is
impracticable, uneconomical or undesirable for any
reason;
(ii) the Company shall have determined that
the continued operation of the Facilities is
impracticable, uneconomical or undesirable due to
(A) the imposition of taxes, other than ad valorem
taxes currently levied upon privately owned
property used for the same general purpose as the
Facilities, or other liabilities or burdens with
respect to the Facilities or the operation
thereof, (B) changes in technology, in
environmental standards or legal requirements or
in the economic availability of materials,
supplies, equipment or labor or (C) destruction of
or damage to all or part of the Facilities;
(iii) all or substantially all of the
Facilities or the Plant shall have been condemned
or taken by eminent domain; or
(iv) the operation of the Facilities or the
Plant shall have been enjoined or shall have
otherwise been prohibited by any order, decree,
rule or regulation of any court or of any federal,
state or local regulatory body, administrative
agency or other governmental body.
(b) The Bonds shall be subject to optional
redemption by the Issuer, at the direction of the
Company, on and after January 1, 2004, in whole at any
time or in part from time to time, at the redemption
prices (expressed as percentages of principal amount)
set forth below, plus accrued interest to the
redemption date:
Redemption Period Redemption Price
January 1, 2004 to December 31, 2004 102%
January 1, 2005 to December 31, 2005 101%
January 1, 2006 and thereafter 100%
The Bonds shall also be subject to optional
redemption by the Issuer, at the direction of the
Company, at any time prior to January 1, 2004, in whole
but not in part, at a redemption price equal to 102% of
the principal amount being redeemed plus accrued
interest to the redemption date, if the Company shall
have consolidated with or merged with or into another
corporation, or sold or otherwise transferred all or
substantially all of its assets.
In case a Bond is of a denomination larger than $5,000, a
portion of such Bond ($5,000 or any integral multiple thereof)
may be redeemed if otherwise permitted, but Bonds shall be
redeemed only in the principal amount of $5,000 or any integral
multiple thereof.
SECTION IV.2. Notice. Notice of any redemption,
identifying the Bonds or portions thereof being called and the
date on which they shall be presented for payment, shall be given
by the Trustee by first class mail, postage prepaid, to the
registered owner of each such Bond addressed to such registered
owner at his registered address and placed in the mails not less
than thirty (30) days nor more than sixty (60) days prior to the
date fixed for redemption; provided, however, that failure to
give such notice by mailing, or any defect therein, shall not
affect the validity of any proceeding for the redemption of any
Bond with respect to which no such failure or defect has
occurred.
Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the
holder or owner receives the notice.
With respect to notice of redemption of the Bonds at the
option of the Issuer (at the direction of the Company), unless
moneys sufficient to pay the principal of and premium, if any,
and interest on the Bonds to be redeemed shall have been received
by the Trustee prior to the giving of such notice, such notice
may state that said redemption shall be conditional upon the
receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, any such conditional notice shall be of no force and
effect, the Issuer shall not redeem such Bonds and the Trustee
shall give notice, in the manner in which the notice of
redemption was given, that such moneys were not so received.
SECTION IV.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 IV.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 IV.5. Partial Redemption of Bonds. In the event of
a partial redemption of Bonds, the Bonds to be redeemed shall be
selected by lot or in such other manner as may be determined by
the Trustee to be fair and equitable. Upon surrender of any Bond
for redemption in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to the holder thereof a
new Bond or Bonds, of authorized denominations in an aggregate
principal amount equal to the unredeemed portion of the Bond
surrendered.
ARTICLE V
GENERAL COVENANTS
SECTION V.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 4.4, 4.5, 4.6
and 8.5 of the Refunding Agreement and any rights of the Issuer
to receive notices, certificates, requests, requisitions,
directions and other communications under the Refunding
Agreement) in the manner and to the extent herein specified.
Anything in this Indenture to the contrary notwithstanding, it is
understood that whenever the Issuer makes any covenant involving
financial commitments, including, without limitation, those in
the various sections of this Article, it pledges no funds or
assets other than the Trust Estate in the manner and to the
extent herein specified, but nothing herein shall be construed as
prohibiting the Issuer from using any other funds or assets.
SECTION V.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
resolutions 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 V.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 V.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 V.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 V.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 V.7. Prohibited Activities. The Issuer covenants
that it shall not 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 covenants 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.
ARTICLE VI
REVENUES AND FUNDS
SECTION VI.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
"Industrial Development Board of the Parish of Calcasieu, Inc.
Pollution Control Revenue Refunding Bonds (Entergy Gulf States,
Inc. Project) Series 1999 Bond Fund".
SECTION VI.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 VI.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 VI.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 VI.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 VI.6. Administration Expenses. It is understood
and agreed that pursuant to the provisions of Section 4.4 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 VI.7. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for deposit
into the Bond Fund under any provision of this Indenture and all
moneys withdrawn from the Bond Fund and held by any Paying Agent,
shall be held by the Trustee or such Paying Agent in trust, and
except for moneys deposited with or paid to the Trustee for the
redemption of Bonds, notice of which redemption has been duly
given, and for moneys deposited with or paid to the Trustee
pursuant to Article IX hereof, shall, while held by the Trustee
or any Paying Agent, constitute part of the Trust Estate and be
subject to the lien hereof. Any moneys received by or paid to
the Trustee pursuant to any provision of the Refunding Agreement
calling for the Trustee to hold, administer and disburse the same
in accordance with the specific provisions of the Refunding
Agreement shall be held, administered and disbursed pursuant to
such provisions and, where required by the provisions of the
Refunding Agreement the Trustee shall set the same aside in a
separate account. The Issuer agrees that if it shall receive any
moneys pursuant to applicable provisions of the Refunding
Agreement (other than Sections 4.4, 4.5, 4.6 and 8.5 thereof), it
will pay the same over to the Trustee forthwith upon receipt
thereof to be held, administered and disbursed by the Trustee in
accordance with the provisions of the Refunding Agreement
pursuant to which the Issuer may have received the same.
SECTION VI.8. Refund to Company of Excess Payments.
Anything herein to the contrary notwithstanding, the Trustee is
authorized and directed to refund to the Company all excess
amounts held in the Bond Fund upon expiration or termination of
the Refunding Agreement.
SECTION VI.9. Creation of Administrative Fee Fund and
Disbursements from Administrative Fee Fund. There is hereby
created and established with the Trustee a special trust fund in
the name of the Issuer to be designated "Administrative Fee Fund
(Entergy Gulf States, Inc. Project) Series 1999". Pursuant to
the provisions of Section 10.18 of the Refunding Agreement, the
Company is required to make a deposit into the Administrative Fee
Fund on the date of initial issuance and delivery of the Bonds.
Such deposit shall be held by the Trustee uninvested and
disbursed to the firms described in Exhibit B hereto in an amount
not exceeding the amount set forth on Exhibit B hereto upon
submission to the Trustee of statements or invoices by said
firms. Any amounts remaining in the Administrative Fee Fund six
months after the date of initial issuance and delivery of the
Bonds shall be transferred to the Company.
ARTICLE VII
SECURITY FOR AND INVESTMENTS
SECTION VII.1. Investment of Moneys. (a) Moneys held for
the credit of the Bond Fund shall, upon written 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 or money
market funds comprised of 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 VII.2. Arbitrage Bond Covenant. With respect to the
authority to invest funds granted in this Indenture, the Issuer
and the Trustee hereby covenant with the holders of the Bonds
that, subject to the Company's direction of the investment of
funds, they will make no use of the proceeds of the Bonds, or any
other funds which may be deemed to be proceeds of the Bonds
pursuant to Section 148 of the Code, which would cause the Bonds
to be "arbitrage bonds" within the meaning of such Section.
The Company has agreed in the Refunding Agreement to comply
with rebate requirements of Section 148(f) of the Code. The
Trustee shall maintain such records and provide such information
as the Company may request to enable the Company to calculate the
amount of gross earnings on the Bond Fund and Refunding Fund and,
from time to time, the value of investments held therein.
SECTION VII.3. Balance in Funds After Payment of the Bonds.
Any balance in any of the funds created under this Indenture or
otherwise held by the Trustee after all the Bonds issued
hereunder and secured hereby have been paid in full, or provision
for payment in full thereof has been made, and all amounts due to
the Trustee and the Issuer have been paid, shall be paid over to
the Company. Should the holders of any Bonds fail or neglect to
present their Bonds for payment within one year from the date
such Bonds become due and payable, whether by redemption or at
maturity, the Trustee shall, at the end of such period, remit to
the Company in trust for the holders of the Bonds the money then
held for such Bonds; and the holders of such Bonds shall
thereafter have recourse only to the Company for payment thereof.
ARTICLE VIII
RIGHTS OF THE COMPANY
SECTION VIII.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 VIII.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 IX.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 X.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 or 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), (c) or (d) 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 X.2. Acceleration. Upon the occurrence and
continuance of an Event of Default described in clause (a), (b)
or (c) of the first paragraph of Section 10.1 hereof, the Trustee
may, and upon the request of the owners of 25% in principal
amount of all Bonds then outstanding shall, by notice in writing
to the Issuer and the Company, declare the principal of all Bonds
then outstanding to be immediately due and payable; and upon such
declaration the said principal, together with interest accrued
thereon to the date of acceleration, shall become due and payable
immediately at the place of payment provided therein, anything in
the Indenture or in the Bonds to the contrary notwithstanding.
Upon the occurrence of any acceleration hereunder, the Trustee
shall immediately declare all payments under the Refunding
Agreement pursuant to Section 4.2 thereof to be due and payable
immediately.
Upon the occurrence of any acceleration hereunder, the
Trustee shall notify by first class mail, postage prepaid, the
owners of all Bonds outstanding of the occurrence of such
acceleration.
If, after the principal of the Bonds has become due and
payable, all arrears of interest upon the Bonds are paid by the
Issuer, and the Issuer also performs all other things in respect
to which it may have been in default hereunder and pays the
reasonable charges of the Trustee and the Bondholders, including
reasonable and necessary attorneys' fees, then, and in every such
case, the owners of a majority in principal amount of the Bonds
then outstanding, by notice to the Issuer and to the Trustee, may
annul such acceleration and its consequences, and such annulment
shall be binding upon the Trustee and upon all owners of Bonds
issued hereunder. No such annulment shall extend to or affect
any subsequent default or impair any right or remedy consequent
thereon. The Trustee shall forward a copy of any notice from
Bondholders received by it pursuant to this paragraph to the
Company. Immediately upon such annulment, the Trustee shall
cancel, by notice to the Company, any demand for prepayment of
all amounts due under the Refunding Agreement made by the Trustee
pursuant to this Section. The Trustee shall promptly give
written notice of such annulment to the Issuer and the Company,
and, if notice of the acceleration of the Bonds shall have been
given to the Bondholders, the Trustee shall give notice of such
annulment to the Bondholders.
SECTION X.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 X.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 X.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 X.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 X.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 X.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 X.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 X.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.
ARTICLE XI
THE TRUSTEE AND PAYING AGENTS
SECTION XI.1. Acceptance of Trusts. The Trustee hereby
accepts the trust imposed upon it by this Indenture, and agrees
to perform said trust (i) except during the continuance of an
Event of Default as an ordinarily prudent trustee under a
corporate mortgage, and (ii) during the continuance of an Event
of Default, with the same degree of care and skill in the
exercise of its rights hereunder as a prudent man would exercise
or use under the circumstances in the conduct of his affairs, but
only upon and subject to the following expressed terms and
conditions:
(a) The Trustee may execute any of the trusts or
powers hereof and perform any duties required of it by or
through attorneys, agents, receivers or employees, and shall
be entitled to advice of counsel concerning all matters of
trusts hereof and its duties hereunder, and may in all cases
pay reasonable compensation to all such attorneys, agents,
receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon
the opinion or advice of any attorney, surveyor, engineer or
accountant selected by it in the exercise of reasonable
care, or, if selected or retained by the Issuer prior to the
occurrence of a default of which the Trustee has been
notified as provided in subsection (g) of this Section 11.1,
or of which by said subsection the Trustee is deemed to have
notice, approved by the Trustee in the exercise of such
care. The Trustee shall not be responsible for any loss or
damage resulting from an action or non-action in accordance
with any such opinion or advice.
(b) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on such Bonds), or for
insuring the property herein conveyed or collecting any
insurance moneys, or for the validity of the execution by
the Issuer of this Indenture or of any supplemental
indenture or instrument of further assurance, or for the
sufficiency of the security for the Bonds issued hereunder
or intended to be secured hereby, or for the value of the
title of the property herein conveyed or otherwise as to the
maintenance of the security hereof; except that in the event
the Trustee enters into possession of a part or all of the
property herein conveyed pursuant to any provision of this
Indenture, it shall use due diligence in preserving such
property; and the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any
covenants, conditions and agreements aforesaid as to the
condition of the property herein conveyed.
(c) The Trustee (not in its capacity as trustee) may
become the owner of Bonds secured hereby with the same
rights which it would have if not the 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 of
the Issuer and attested by the Secretary-Treasurer 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-Treasurer 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 XI.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 XI.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 XI.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 XI.5. Merger or Consolidation of Trustee. Any bank
or trust company with which the Trustee may be merged, or with
which it may be consolidated, or to which it may sell or transfer
its trust business and assets as a whole or substantially as a
whole, or any bank or trust company resulting from any such sale,
merger, consolidation or transfer to which the Trustee is a
party, ipso facto, shall be and become successor trustee
hereunder and vested with all of the title to the whole property
or Trust Estate and all the trusts, powers, discretions,
immunities, privileges, and all other matters as was its
predecessor, without the execution or filing of any instrument or
any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding;
provided, however, that such successor trustee shall be in good
standing and have capital and surplus of at least $10,000,000.
SECTION XI.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;
provided, however, that no such resignation shall be effective
until a successor trustee shall be appointed in accordance with
the provisions hereof. Such notice may be served personally or
sent by registered mail.
SECTION XI.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 XI.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 of the Issuer and attested by the Secretary-
Treasurer 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 XI.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 XI.10. Reliance Upon Instruments. The ordinances,
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 XI.11. Appointment of Co-Trustee. The Issuer and
the Trustee shall have power to appoint and upon the request of
the Trustee the Issuer shall for such purpose join with the
Trustee in the execution of all instruments necessary or proper
to appoint another entity or one or more persons approved by the
Trustee, and satisfactory to the Company so long as there is no
termination of the interest of the Company by virtue of an Event
of Default or otherwise, either to act as co-trustee or
co-trustees jointly with the Trustee of all or any of the
property subject to the lien hereof, or to act as separate
trustee or co-trustee of all or any such property, with such
powers as may be provided in the instrument of appointment and to
vest in such corporation or person or persons as such separate
trustee or co-trustee any property, title, right or power deemed
necessary or desirable. In the event that the Issuer shall not
have joined in such appointment within fifteen (15) days after
the receipt by it of a request so to do, the Trustee alone shall
have the power to make such appointment. Should any deed,
conveyance or instrument in writing from the Issuer be required
by any separate trustee or co-trustee so appointed for more fully
and certainly vesting in and confirming to him or to it such
properties, rights, powers, trusts, duties and obligations, any
and all such deeds, conveyances and instruments in writing shall,
on request, be executed, acknowledged and delivered by the
Issuer. Every such co-trustee and separate trustee shall, to the
extent permitted by law, be appointed subject to the following
provisions and conditions, namely:
(1) The Bonds shall be authenticated and delivered,
and all powers, duties, obligations and rights conferred
upon the Trustee in respect of the custody of all money and
securities pledged or deposited hereunder shall be
exercised, solely by the Trustee; and
(2) The Trustee, at any time by an instrument in
writing, may remove any such separate trustee or co-trustee.
Every instrument, other than this Indenture, appointing any
such co-trustee or separate trustee, shall refer to this
Indenture and the conditions of this Article expressed, and upon
the acceptance in writing by such separate trustee or co-trustee,
he, they or it shall be vested with the estate or property
specified in such instrument, jointly with the Trustee (except
insofar as local law makes it necessary for any separate trustee
to act alone), subject to all the trusts, conditions and
provisions of this Indenture. Any such separate trustee or
co-trustee may at any time, by an instrument in writing,
constitute the Trustee as his, their or its agent or
attorney-in-fact with full power and authority, to the extent
authorized by law, to do all acts and things and exercise all
discretion authorized or permitted by him, them or it, for and on
behalf of him, them or it and in his, their or its name. In case
any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all the estate, properties, rights,
powers, trusts, duties and obligations of said separate trustee
or co-trustee shall vest in and be exercised by the Trustee until
the appointment of a new trustee or a successor to such separate
trustee or co-trustee.
SECTION XI.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 XI.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 XII.1. Supplemental Indentures Without Bondholder
Consent. The Issuer and the Trustee may, from time to time and
at any time, without the consent of or notice to the Bondholders,
enter into supplemental indentures as follows:
(a) to cure any formal defect, omission, inconsistency
or ambiguity in this Indenture;
(b) to grant to or confer or impose upon the Trustee
for the benefit of the bondholders any additional rights,
remedies, powers, authority, security, liabilities or duties
which may lawfully be granted, conferred or imposed and
which are not contrary to or inconsistent with this
Indenture as theretofore in effect, provided that no such
additional liabilities or duties shall be imposed upon the
Trustee without its consent;
(c) to add to the covenants and agreements of, and
limitations and restrictions upon, the Issuer in this
Indenture other covenants, agreements, limitations and
restrictions to be observed by the Issuer which are not
contrary to or inconsistent with this Indenture as
theretofore in effect, provided that no such additional
liabilities or duties shall be imposed upon the Issuer
without its consent;
(d) to confirm, as further assurance, any pledge
under, and the subjection to any claim, lien or pledge
created or to be created by, this Indenture, of the Revenues
of the Issuer from the Refunding Agreement or of any other
moneys, securities or funds;
(e) to comply with the requirements of the Trust
Indenture Act of 1939, as from time to time amended;
(f) to provide for the registration and registration
of transfer of the Bonds through a book-entry or similar
method, whether or not the Bonds are evidenced by
certificates; or
(g) to modify, alter, amend or supplement this
Indenture in any other respect which is not materially
adverse to the Bondholders and which does not involve a
change described in clause (a), (b), (c), (d), (e) or (f) of
Section 12.2 hereof and which, in the judgment of the
Trustee, is not to the prejudice of the Trustee.
SECTION XII.2. Supplemental Indentures Requiring Bondholder
Consent. Subject to the terms and provisions contained in this
Section, and not otherwise, the holders of 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 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 XII.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 XII.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 adversely affect the
exclusion of interest on the Bonds from gross income for purposes
of federal income taxation.
ARTICLE XIII
AMENDMENT TO REFUNDING AGREEMENT
SECTION XIII.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 a majority in aggregate principal
amount of the Bonds at the time outstanding, evidenced in the
manner provided in Section 14.1 hereof; provided the Trustee
shall not, without the unanimous consent of the holders of all
Bonds then outstanding, evidenced in the manner provided in
Section 14.1 hereof, consent to any amendment which would change
the obligations of the Company under Section 4.2(a)(i), (ii) or
(iii) of the Refunding Agreement.
SECTION XIII.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 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 XIII.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 adversely affect the exclusion of
interest on the Bonds from gross income for purposes of federal
income taxation.
ARTICLE XIV
MISCELLANEOUS
SECTION XIV.1. Consents, etc. of Bondholders. Any request,
direction, objection, consent, or other instrument required by
this Indenture to be signed and executed by the Bondholders may
be in any number of concurrent writings of similar tenor and may
be signed or executed by such Bondholders in person or by agent
appointed in writing. Proof of the execution of any such
request, direction, objection, consent, or other instrument or of
the writing appointing any such agent and of the ownership of
Bonds, if made in the following manner, shall be sufficient for
any of the purposes of this Indenture, and shall be conclusive in
favor of the Trustee with regard to any action taken by it under
such request or other instrument, namely:
(a) The fact and date of the execution by any person
of any such writing may be proved by the certificate of any
officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person
signing such writing acknowledged before him the execution
thereof, or by an affidavit of any witness to such
execution.
(b) The fact of ownership of Bonds and the amount or
amounts, numbers and other identification of such Bonds, and
the date of holding the same shall be proved by the
registration books of the Issuer maintained by the Trustee
as Bond Registrar.
SECTION XIV.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 XIV.3. Severability. If any provisions of this
Indenture shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case in
any jurisdiction or jurisdictions or in all jurisdictions or in
all cases because it conflicts with any provisions of any
constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable
in any other case, circumstance or jurisdiction, or of rendering
any other provision or provisions herein contained invalid,
inoperative or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences,
clauses or paragraphs in this Indenture contained shall not
affect the remaining portions of this Indenture or any part
hereof.
SECTION XIV.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: Entergy Gulf States, Inc.
c/o Entergy Services, Inc.
639 Loyola Avenue
New Orleans, LA 70113
Attention: Treasurer
Issuer: Industrial Development Board
the Parish of Calcasieu, Inc.
One Lakeside Plaza, Suite 400
Lake Charles, LA 70601
Attention: President, Board of Directors
Trustee: The Bank of New York
c/o The Bank of New York Trust Company of Florida, N. A.
10161 Centurion Parkway
Jacksonville, FL 32256
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 XIV.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 XIV.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 XIV.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 XIV.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 XIV.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 XIV.10. Bonds Owned by the Company. In
determining whether Bondholders of the requisite aggregate
principal amount of the Bonds have concurred in any direction,
consent or waiver under this Indenture, Bonds which are owned by
the Company or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with
the Company shall be disregarded and deemed not to be outstanding
for the purpose of any such determination, except that, for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Bonds
which the Trustee knows are so owned shall be so disregarded.
Bonds so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Bonds and that the pledgee is not the Company or
any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company. In
case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION XIV.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 XIV.12. Subordination to Rights of the Company.
This Indenture and the rights and privileges hereunder of the
Trustee and the holders of the Bonds are specifically made
subject and subordinate to the rights and privileges of the
Company 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 First Mortgage Bonds heretofore or hereafter issued
thereunder, or any takers or purchasers upon default thereunder,
or constitute or create a direct lien or encumbrance on or other
rights in or to the Plant or Facilities, provided that nothing in
the Company Mortgage or in this Section shall in any way affect
or diminish the obligation of the Company to pay all amounts
required to be paid by it under the terms of the Refunding
Agreement. The Trustee agrees that it shall execute and deliver
any instrument requested by the Company which is necessary or
appropriate at any time to confirm or evidence the subordination
of rights described in the preceding sentence to enable the
Company to enjoy such rights and privileges. The Trustee
acknowledges that the Bonds are not secured by, and this
Indenture does not constitute or create any direct lien or
encumbrance on or rights in or to, the Plant or Facilities or any
leasehold or other estate therein. The Trustee, whenever
requested by the Issuer or the Company, shall execute and deliver
any instrument necessary or appropriate to confirm the absence of
any interest by it in the property comprising the Plant or
Facilities or to evidence the subordinations described in this
Section 14.12.
IN WITNESS WHEREOF, the Issuer has caused these presents to
be signed in its name and behalf by the President of the Issuer
and its corporate seal to be hereunto affixed and attested by the
Secretary-Treasurer of the Issuer, and, to evidence its
acceptance of the trust hereby created, the Trustee has caused
these presents to be signed in its behalf by one of its trust
officers and its corporate seal to be hereto affixed.
INDUSTRIAL DEVELOPMENT BOARD
OF THE PARISH OF CALCASIEU, INC.
By: ______________________________________
ATTEST: President
By: __________________________________ [SEAL]
Secretary-Treasurer
THE BANK OF NEW YORK, as Trustee
By: ______________________________________
Title:
[SEAL]
Exhibit F-1(c)
January 29, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration
("Application-Declaration") on Form U-1, as amended (File No.
70-8721), filed by Entergy Gulf States, Inc. (the "Company")
with the Securities and Exchange Commission ("Commission")
under the Public Utility Holding Company Act of 1935, as
amended, contemplating, among other things, the entry by the
Company into arrangements for the issuance and sale of one or
more series of tax exempt bonds to finance pollution control
facilities (the "Bonds"); (2) the Commission's order dated
January 16, 1996 ("Order") permitting the Application-
Declaration, as amended, to become effective with respect to
such finance arrangements; and (3) the subsequent
consummation, on January 20, 1999 pursuant to the Refunding
Agreement between the Company and the Industrial Development
Board of the Parish of Calcasieu, Inc. (the "Parish") dated as
of May 1, 1998 (the "Refunding Agreement") and the related
refinancing of outstanding pollution control revenue bonds
through the issuance by the Parish of a new series of its
Bonds (herein referred to generally as the "Transaction"), I
advise as follows:
(a) the Company is a corporation duly
organized and validly existing under the laws of the
State of Texas;
(b) the Transaction has been consummated in
accordance with the Application-Declaration, as
amended, and the Order of the Securities and
Exchange Commission with respect thereto;
(c) all state laws that relate or are applicable
to the issuance and sale of the Bonds (other than so-
called "blue sky" or similar laws, upon which we do not
pass herein) have been complied with;
(d) the Refunding Agreement is a valid and
binding obligation of the Company in accordance with
its terms, except as limited by bankruptcy, insolvency,
reorganization or other similar laws affecting
enforcement of creditors' rights; and
(e) the consummation of the Transaction by the
Company has not violated the legal rights of the holders
of any securities issued by the Company or any associate
company thereof.
I am a member of the Louisiana and Texas State Bars
and, for the purposes of this opinion, do not hold myself out as
an expert on the laws of any other state.
My consent is hereby given to the use of this opinion
as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Laurence M. Hamric
Laurence M. Hamric
Associate General Counsel -
Corporate and Securities
Exhibit F-2(c)
New York, New York
January 29, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration
("Application-Declaration") on Form U-1, as amended (File No.
70-8721), filed by Entergy Gulf States, Inc. (formerly Gulf
States Utilities Company, and herein referred to as the
"Company") with the Securities and Exchange Commission
("Commission") under the Public Utility Holding Company Act of
1935, as amended, contemplating, among other things, the
entering into arrangements for the issuance and sale of one or
more new series of tax-exempt bonds (the "Tax-Exempt Bonds");
(2) the Commission's order dated January 16, 1996 ("Order")
permitting the Application-Declaration, as amended, to become
effective with respect to the foregoing matters; and (3) the
subsequent consummation, on January 20, 1999, of the entry by
the Company into a Refunding Agreement dated as of May 1, 1998
with the Industrial Development Board of the Parish of
Calcasieu, Inc. (the "Issuer"), and the related refinancing of
outstanding pollution control revenue refunding bonds through
the issuance by the Issuer of a new series of its Tax-Exempt
Bonds (the "Transactions"). In connection therewith, we
advise you that in our opinion:
(a) the Company is a corporation duly
organized and validly existing under the laws of the
State of Texas;
(b) the Transactions have been consummated in
accordance with the Application-Declaration, as
amended, and the Order;
(c) all state laws that relate or are
applicable to the participation by the Company in
the Transactions (other than so-called "blue sky" or
similar laws, with respect to which we express no
opinion) have been complied with; and
(d) the consummation of the Transactions by
the Company has not violated the legal rights of the
holders of any securities issued by the Company or
any associate company thereof.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state for
purposes of this opinion. In giving this opinion, we have
relied, as to all matters governed by the laws of the State of
Texas, upon the opinion of Laurence M. Hamric, Esq., Associate
General Counsel -- Corporate and Securities of Entergy
Services, Inc., counsel for the Company, which is to be filed
as an exhibit to the Certificate pursuant to Rule 24.
Our consent is hereby given to the use of this
opinion as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
