Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Louisiana Power & Light Company
(Exact name of registrant as specified in its charter)
State of Louisiana 72-0245590
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
639 Loyola Avenue, New Orleans, Louisiana 70113
504-576-4000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
JOHN J. CORDARO STEVEN C. McNEAL
President Assistant Treasurer
Louisiana Power & Light Louisiana Power & Light
Company Company
639 Loyola Avenue 639 Loyola Avenue
New Orleans, Louisiana 70113 New Orleans, Louisiana 70113
504-576-4000 504-576-4000
McCHORD CARRICO, Esq. JOHN T. HOOD, Esq.
Monroe & Lemann Reid & Priest LLP
(A Professional Corporation) 40 West 57th Street
201 St. Charles Avenue New York, New York 10019
New Orleans, Louisiana 70170 212-603-2000
504-586-1900
(Names, addresses, including zip codes, and telephone numbers, including
area codes, of agents for service)
It is also respectfully requested that the Commission send copies of all
notices,
orders and communications to:
DAVID P. FALCK, Esq.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective when
warranted by market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] _____
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Each Class Amount Offering Aggregate Amount of
of Securities to be Price Offering Registration
to be Registered Register Per Unit Price * Fee
Waterford 3 Secured
Lease Obligation $322,526,000 100% $322,526,000 $111,216
* Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(o).
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time that a registration statement
becomes effective. This prospectus supplement and the accompanying prospectus
shall not constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any jurisdiction in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
PROSPECTUS SUPPLEMENT (Subject to Completion, Dated February 29, 1996)
(To Prospectus dated ______________, 1996)
$
$ Waterford 3 Secured Lease Obligation Bonds, % Series due
$ Waterford 3 Secured Lease Obligation Bonds, % Series due
Interest Payable July 2 and January 2
The Waterford 3 Secured Lease Obligation Bonds, % Series due and %
Series due (the "Collateral Bonds") will be indirectly secured, as
described in the accompanying Prospectus, by liens on, and a security interest
in, certain ownership interests in and the respective Leases relating to Unit
No. 3 (nuclear) of the Waterford Steam Electric Generating Station
("Waterford 3"), an1d will be payable solely from basic rentals and certain
other amounts to be paid under such Leases by
LOUISIANA POWER & LIGHT COMPANY
The Collateral Bonds will be issued by W3A Funding Corporation ("Funding
Corporation"), a corporation created for the sole purpose of issuing the
Collateral Bonds as described in the accompanying Prospectus. Louisiana Power &
Light Company (the "Company") will be unconditionally obligated to make rental
payments in amounts which will be at least sufficient to pay in full, when due,
all scheduled payments of principal of and interest on the Collateral Bonds,
although the Collateral Bonds will not be direct obligations of, or guaranteed
by, the Company.
The Collateral Bonds of the % Series due (the "Series Collateral
Bonds") will mature on __________ and the Collateral Bonds of the % Series
due (the "Series Collateral Bonds") will mature on . The
principal of the Collateral Bonds will be payable from time to time in
installments. The Collateral Bonds will be redeemable, in whole or in part, on
not less than 30 days' notice, either upon certain terminations of the Leases,
or at the option of Funding Corporation at the redemption prices set forth
herein (including a Make-Whole Premium (as defined herein) if redemption occurs
at the option of Funding Corporation prior to ________ for the Series
Collateral Bonds and ____ for the Series Collateral Bonds), in each case
together with accrued interest to the date fixed for redemption. (See "Certain
Terms of the Collateral Bonds".)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
PRICE OF SERIES COLLATERAL BONDS_ % AND ACCRUED INTEREST, IF ANY
PRICE OF SERIES COLLATERAL BONDS_ % AND ACCRUED INTEREST, IF ANY
Price to Underwriting
Public(1) Commissions(2)(3) Proceeds(1)(2)
Per Series Collateral Bond % %
Total $ $ $
Per Series Collateral Bond % %
Total $ $ $
_______________________________
(1) Plus accrued interest, if any, from the date of original issuance.
(2) Expenses, estimated to be $________, and underwriting commissions will be
paid from the proceeds of the issuance and sale of the Collateral Bonds.
Expenses, estimated to be $ , will be paid by the Company.
(3) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
The Collateral Bonds will be issued in fully registered form and will be
initially registered only in the name of Cede & Co, as nominee of The Depository
Trust Company ("DTC"), which will act as securities depository for the
Collateral Bonds. Beneficial interests in the Collateral Bonds will be shown
on, and transfers thereof will be effected only through, records maintained by
DTC and its direct and indirect participants. Except in the limited
circumstances described herein, certificates representing interests in
Collateral Bonds will not be issued in exchange for beneficial interests in the
Collateral Bonds. Beneficial interests in the Collateral Bonds will trade in
DTC's Same-Day Funds Settlement System and secondary market trading in such
Collateral Bonds will therefore settle in immediately available funds.
The Collateral Bonds are offered by the Underwriters named herein subject to
prior sale, when, as and if accepted by the Underwriters, and subject to
approval of certain legal matters by Winthrop, Stimson, Putnam & Roberts,
counsel for the Underwriters, and certain other conditions. It is expected that
delivery of the Collateral Bonds will be made on or about ____________, 199_
through the book-entry facilities of DTC against payment therefor in immediately
available funds.
MORGAN STANLEY & CO. CITICORP SECURITIES, INC.
Incorporated
_____________, 199_
<PAGE>
SELECTED INFORMATION
The following material, which is presented herein solely to furnish
limited introductory information regarding the Collateral Bonds, is
qualified in its entirety by reference to the detailed information
appearing elsewhere in this Prospectus Supplement and the accompanying
Prospectus. Certain capitalized terms used in this Prospectus Supplement
and the accompanying Prospectus are defined in the Glossary at the end of
the accompanying Prospectus.
Securities Offered; Interest
$ aggregate principal amount of Waterford 3 Secured Lease
Obligation Bonds, of which $___________ bear interest at the rate of %
per annum and mature on ("Series Collateral Bonds"), and
$___________ bear interest at the rate of % per annum and mature on
("Series Collateral Bonds").
Interest on the Collateral Bonds of each series will be payable on
January 2 and July 2 of each year, commencing 2, 199 .
Principal Installment Payments
The Supplemental Indenture relating to the Collateral Bonds
("Supplemental Indenture") provides for the payment of principal
installments on the Collateral Bonds on each of the Installment Payment
Dates set forth below, in an aggregate amount (subject to adjustment in
certain circumstances) equal to the Installment Payment Amounts (as defined
herein) set forth below, together with interest accrued to such Installment
Payment Date. The Outstanding Balance Factor set forth below for each
Installment Payment Date is for descriptive purposes only, and, unless
there has been a partial redemption or a default or other installment
payment adjustment, represents a factor that when multiplied by the
original principal amount of each Series Collateral Bond and Series
Collateral Bond will indicate the outstanding principal amount of such
Collateral Bond remaining unpaid after payment of the principal installment
due on such Installment Payment Date.
Installment Aggregate Installment Outstanding Balance
Payment Date Payment Amount Factor
Series Series Series Series
Collateral Collateral Collateral Collateral
Bonds Bonds Bonds Bonds
(See "Certain Terms of the Collateral Bonds_Principal Installment
Payments".)
Redemption
The Collateral Bonds will be redeemable, in whole or in part, on not less
than 30 days' notice, either (a) upon certain terminations of the Leases at
a redemption price of 100% of the unpaid principal amount thereof plus
accrued interest, if any, to the redemption date or (b) at the option of
Funding Corporation, at a redemption price of 100% of the unpaid principal
amount thereof plus accrued interest, if any, to the redemption date, plus
a Make-Whole Premium (as defined herein) if such redemption occurs at the
option of Funding Corporation prior to ____________ for the Series
Collateral Bonds and _________ for the Series Collateral Bonds. (See
"Certain Terms of the Collateral Bonds_Redemption".)
Security and Source of Payment
The Collateral Bonds will be indirectly secured, as described in the
accompanying Prospectus, by liens on, and a security interest in, certain
ownership interests in and the respective Leases relating to Waterford 3,
and will be payable solely from basic rentals and certain other amounts to
be paid under such Leases by the Company. Each Collateral Bond will be
secured by the Pledged Lessor Bonds, which will be held by the Trustee.
Each Pledged Lessor Bond will be secured by, among other things, (a) a lien
on and security interest in the Undivided Interest of the Lessor issuing
such Pledged Lessor Bond and (b) certain of the rights of such Lessor under
its Lease with the Company, including the right to receive basic rent and
certain other amounts payable by the Company thereunder. The Company is
unconditionally obligated to make payments under the Leases in amounts that
will be at least sufficient to provide for scheduled payments of the
principal of and interest on the Pledged Lessor Bonds which amounts, in
turn, will be sufficient to provide for scheduled payments of principal of
and interest on the Collateral Bonds when due. However, neither the
Collateral Bonds nor the Pledged Lessor Bonds will be direct obligations
of, or guaranteed by, the Company. (See "Security and Source of Payment
for the Collateral Bonds" in the accompanying Prospectus.)
Upon the occurrence and continuance of any Lease Indenture Event of
Default that results from a Lease Event of Default, the related Lessor will
control the exercise of remedies against the Company under the related
Lease, subject to the right of the Lease Indenture Trustee to cause such
Lessor to forbear from any proposed action which would have a material
adverse effect on the Holders of the related Lessor Bonds. There could be
circumstances, therefore, in which amounts due on the Collateral Bonds are
not paid and neither the Lease Indenture Trustee nor the Trustee would be
able to direct such Lessor's pursuit of remedies against the Company under
such Lease. The Lease Indenture Trustee would not be precluded, however,
from selling the related Lease Indenture Estate (including the Undivided
Interest) in a foreclosure or similar proceeding. If such sale occurs
prior to or simultaneously with the termination of the related Lease, such
Lessor must first be given an opportunity to purchase such Lease Indenture
Estate at the proposed sale price. In the event of a sale pursuant to a
foreclosure or similar proceeding (other than a sale to such Lessor), the
Lease Indenture Trustee would have the right to terminate such Lease in
connection with such sale. (See "Description of the Lease Indentures _
Notice; Waiver; Acceleration and Remedies" in the accompanying Prospectus.)
Under certain circumstances the Company (or jointly the Company and an
Affiliate thereof) may elect, or may be required, to assume the Lessor
Bonds issued under any Lease Indenture, in whole or in part, and all
obligations of the related Lessor under such Lease Indenture. (See
"Description of the Lease Indentures _ Assumption by the Company" in the
accompanying Prospectus.) In such cases, the Holders of the Collateral
Bonds would retain the benefit of the pledge and mortgage under the Lease
Indenture of the related Undivided Interest and the obligation to make
payments on the Pledged Lessor Bonds would become a direct obligation of
the Company.
The Holders of the Collateral Bonds will have no recourse against the
general credit of any of the institutions or individuals acting as Lessors
or against the general credit of the Owner Participant.
For a description of possible limitations on amounts payable as damages
if the Company were to reject the Leases in the context of a bankruptcy
proceeding, see "Security and Source of Payment for the Collateral Bonds"
in the accompanying Prospectus.
Waterford 3
Waterford 3 is a one-unit, nuclear-fueled electric generating plant
located in St. Charles Parish, Louisiana. Waterford 3, which was placed in
commercial operation in 1985, has a net generating capability of 1,075 MW.
Unit 3 excludes certain transmission, pollution control and other
facilities included in Waterford 3.
Use of Proceeds
The Company has determined, in light of prevailing economic and financial
circumstances, to cause a refinancing of the Initial Lessor Bonds which
were originally issued on September 28, 1989 and are currently outstanding.
As part of such refinancing, the Lessors will redeem all of the outstanding
Initial Lessor Bonds with the proceeds of the issuance and sale of the
Collateral Bonds and certain other funds as described herein. (See "The
Transactions and the Refinancing" in the accompanying Prospectus.)
W3A Funding Corporation
Funding Corporation was incorporated under the laws of the State of
Delaware for the purpose of facilitating the refinancing of the debt
associated with the Lessors' interests in Unit 3. The assets of Funding
Corporation will consist of the Pledged Lessor Bonds, which are payable
from basic rent and certain other payments which the Company is
unconditionally obligated to make under the Leases. (See "W3A Funding
Corporation" in the accompanying Prospectus.)
CERTAIN TERMS OF THE COLLATERAL BONDS
The following description of certain terms of the Collateral Bonds
offered hereby supplements, and should be read together with, the
statements under "Description of the Collateral Bonds and the Indenture" in
the accompanying Prospectus. Capitalized terms used in this Prospectus
Supplement have the same meanings as in the accompanying Prospectus.
Principal Amounts, Interest Rates, Stated Maturities and Payment
The Collateral Bonds will be issued in two separate series: $
principal amount of Waterford 3 Secured Lease Obligation Bonds, %
Series due (hereinafter sometimes called the "Series Collateral
Bonds") and $ principal amount of Waterford 3 Secured Lease
Obligation Bonds, % Series due (hereinafter sometimes called the
"Series Collateral Bonds"). The Series Collateral Bonds and the
Series Collateral Bonds are hereinafter sometimes referred to,
collectively, as the "Collateral Bonds".
The Series Collateral Bonds will mature , and the Series
Collateral Bonds will mature , . The Collateral Bonds of each
series will bear interest on the unpaid principal amount thereof from the
date of issuance at the rate per annum shown in its title, payable on
January 2 and July 2 of each year, commencing 2, 199 , to the
Holders thereof at the close of business on the December 15 or June 15, as
the case may be, next preceding such interest payment date. (Supplemental
Indenture)
The Collateral Bonds will be issued originally solely in book-entry form
to DTC or its nominee, Cede & Co., to be held in DTC's book-entry only
system. So long as the Collateral Bonds are held in the book-entry only
system, DTC (or a successor securities depositary) or its nominee will be
the registered owner or holder of the Collateral Bonds for all purposes of
the Indenture and of the Collateral Bonds. (See "_Book-Entry Only System"
below.) Except as described under "_Book-Entry Only System" below,
Beneficial Owners (as defined below) of the Collateral Bonds will not have
the right to have any Collateral Bonds registered in their names and will
not receive or have the right to receive physical delivery of certificates
representing their ownership interests in the Collateral Bonds. For so
long as any purchaser is the Beneficial Owner of a Collateral Bond, such
purchaser must maintain an account with a broker or dealer who is, or acts
through, a DTC Participant (as defined below) to receive payment of the
principal of and premium, if any, and interest on such Collateral Bond.
The laws of some states may require that certain purchasers of securities
take physical delivery of such securities. Such limits and laws may impair
the ability to transfer beneficial interests in Collateral Bonds.
So long as the Collateral Bonds are held in the book-entry only system,
the principal of and premium, if any, and interest on the Collateral Bonds
will be paid through the facilities of DTC (or a successor securities
depository). If the book-entry only system is discontinued, the principal
of and premium, if any, and interest payable at maturity on the Collateral
Bonds will be payable at the corporate trust office of any paying agent
designated by Funding Corporation from time to time; and interest and
Installment Payment Amounts (as defined below), other than such amounts
payable at maturity, will be paid by check drawn upon the paying agent and
mailed to the address of the person entitled thereto, as shown in the
securities register.
Because the principal of each Collateral Bond will be subject to payment
from time to time without surrender of, or notation on, the Collateral
Bond, the unpaid principal amount of each Collateral Bond as reflected in
the securities register maintained by the Trustee shall be controlling and
binding on each Holder with respect to the actual unpaid principal amount
of a Collateral Bond as of any date. In any case where any redemption
date, any Installment Payment Date or the stated maturity of principal of
or any installment of interest on any Collateral Bond, or any date on which
any defaulted interest or principal is proposed to be paid, is not a
business day, then (notwithstanding any other provision of the Indenture or
such Collateral Bond) payment of interest and/or principal and premium, if
any, shall be due and payable on the next succeeding business day with the
same force and effect as if made on or at such nominal redemption date, the
stated maturity, Installment Payment Date or date on which the defaulted
interest or principal is proposed to be paid, and no interest will accrue
on the amount so payable for the period from and after such redemption
date, stated maturity, Installment Payment Date or date for the payment of
defaulted interest or principal, as the case may be. If there has been a
default in the payment of interest or any Installment Payment Amount on any
Collateral Bond, such defaulted interest or principal may be payable to the
Holder of such Collateral Bond as of the close of business on a date
selected by the Trustee which is not more than 15 days and not less than 10
days prior to the date proposed by Funding Corporation for payment of such
defaulted interest or principal or in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Collateral Bond may be listed, if the Trustee deems such manner of payment
practicable. (Indenture, Sections 1.13, 2.10 and 2.16)
Principal Installment Payments
On each Installment Payment Date (set forth below), Funding Corporation
will pay an installment of principal of each Collateral Bond of each series
equal (subject to adjustment as described below) in amount (an "Installment
Payment Amount") to the Installment Payment Percentage (set forth below)
for the Collateral Bonds of such series for such Installment Payment Date
multiplied by the original principal amount of such Collateral Bond.
Installment Payment Percentage
Series Collateral Bonds Series Collateral Bonds
Installment Payment Date
Upon the occurrence of certain changes in Federal income tax rates or
laws, the Company or the Owner Participant may cause the respective
principal amounts of Series Collateral Bonds and Series Collateral
Bonds that are to be paid in installments on the Installment Payment Dates
and the stated maturity to be adjusted to match any adjustment made to the
principal amortization schedules and maturity of the Pledged Lessor Bonds
in connection with a recalculation of basic rent under one or more of the
Leases, provided that such adjustments shall not increase or decrease the
average life of the Collateral Bonds of either such series (calculated in
accordance with generally accepted financial practice) by more than 6
months or extend the final maturity of such Collateral Bonds. The Trustee
shall send by mail to each Holder of affected Collateral Bonds at least 30
days before the first payment date with respect to which an adjustment is
to be made, a revised payment schedule of principal amounts of Collateral
Bonds.
In the event there shall have been any partial redemption of the
Collateral Bonds of either series (other than pursuant to principal
installment payments), each Installment Payment Amount for each Collateral
Bond of a series subsequent to such redemption shall be reduced by (i) in
the case of a partial redemption as described under "Redemption_Optional
Redemption", an amount equal to the amount obtained by multiplying such
Installment Payment Amount as in effect prior to such redemption by a
fraction of which the numerator shall be the aggregate principal amount of
Collateral Bonds of such series redeemed pursuant to such partial
redemption, and the denominator shall be the aggregate unpaid principal
amount of Collateral Bonds of such series outstanding immediately prior to
such redemption and (ii) in the case of a partial redemption as described
under "Redemption_Redemption upon Lease Termination", an amount such that
the aggregate of all principal installment payments to be made on the
Collateral Bonds of such series on the relevant Installment Payment Date
shall be equal to the amount of principal of the Pledged Lessor Bonds to be
paid on such date under the remaining Lease Indentures, any such reduction
to be made on a pro rata basis, as nearly as practicable, among the Holders
of the Collateral Bonds of such series.
(Supplemental Indenture)
Redemption
Redemption upon Lease Termination
If any Lease is to be terminated as described in the accompanying
Prospectus in "Description of the Leases_Purchase Option for Significant
Expenditures", "_Periodic Purchase Option" or "_Termination for
Obsolescence" or in "Other Agreements_Participation Agreement", and all
Lessor Bonds issued under the related Lease Indenture are to be prepaid,
Collateral Bonds, equal in principal amount to the Pledged Lessor Bonds
issued under such Lease Indenture, will be redeemed on the date on which
such Lessor Bonds are to be prepaid, at a redemption price of 100% of the
unpaid principal amount thereof plus accrued interest, if any, to the
redemption date, all subject, however, except in the case of a termination
for obsolescence, to the right of the Company to assume such Lessor Bonds
in which event there will be no redemption of Collateral Bonds as a
consequence of such termination.
Optional Redemption
The Collateral Bonds of each series will be subject to redemption, at the
option of Funding Corporation, in whole at any time or in part from time to
time, at the redemption price of 100% of the unpaid principal amount of
such Collateral Bonds to be so redeemed, plus accrued interest, if any, to
the redemption date, plus, if such redemption is made prior to the
applicable Premium Termination Date, the Make-Whole Premium, if any. The
"Premium Termination Date" is __________ for the Series ___ Collateral
Bonds and __________ for the Series ___ Collateral Bonds.
The Make-Whole Premium, if any, on the Collateral Bonds will be
determined by an independent investment banking institution of national
standing (the "Investment Banker") selected by the Company. The Investment
Bank will first determine the Treasury Rate with respect to any redemption
of Collateral Bonds. The Treasury Rate means, with respect to each
Collateral Bond to be redeemed, a per annum rate (expressed as a semiannual
equivalent and as a decimal and, in the case of United States Treasury
bills, converted to a bond equivalent yield) determined to be the per annum
rate equal to the semiannual yield to maturity of United States Treasury
securities maturing on the Average Life Date (as defined below) of such
Collateral Bond, as determined by interpolation between the most recent
weekly average yields to maturity for two series of United States Treasury
securities (A) one maturing as close as possible to, but earlier than, the
Average Life Date of such Collateral Bond and (B) the other maturing as
close as possible to, but later than, the Average Life Date of such
Collateral Bond, in each case as published in the most recent H.15(519)
(or, if a weekly average yield to maturity for United States Treasury
securities maturing on the Average Life Date of such Collateral Bond is
reported in the most recent H.15(519), as published in H.15(519)).
"H.15(519)" means Statistical Release H.15(519), Selected Interest Rates,"
or any successor publication, published by the Board of Governors of the
Federal Reserve System. The "most recent H.15(519)" means the latest
H.15(519) which is published prior to the close of business on the third
business day prior to the applicable redemption date. The Average Life
Date for any Collateral Bond to be redeemed shall be the date which follows
the redemption date by a period equal to the Remaining Weighted Average
Life of such Collateral Bond. The Remaining Weighted Average Life of such
Collateral Bond with respect to the redemption of such Collateral Bond is
the number of days equal to the quotient obtained by dividing (A) the sum
of the products obtained by multiplying (1) the amount of each remaining
principal payment on such Collateral Bond by (2) the number of days from
and including the redemption date, to but excluding the scheduled payment
date of such principal payment by (B) the unpaid principal amount of such
Collateral Bond.
To determine the Make-Whole Premium for any Collateral Bond, the
Investment Banker then will determine, as of the third business day prior
to the redemption date, the sum of the present values of all of the
remaining scheduled payments of principal and interest from the redemption
date to maturity on such Collateral Bond computed on a semiannual basis by
discounting such payments (assuming a 360-day year consisting of twelve 30-
day months) using such Treasury Rate. If the sum of these present values
of the remaining payments as computed above exceeds the aggregate unpaid
principal amount of the Collateral Bond to be redeemed plus any accrued but
unpaid interest thereon, the difference will be payable as a premium upon
redemption of such Collateral Bonds. If the sum is equal to or less than
such principal amount plus accrued interest, there will be no premium
payable with respect to such Collateral Bond.
Procedure for and Notice of Redemption
If fewer than all of the Collateral Bonds shall be called for redemption,
the particular Collateral Bonds or portions thereof to be redeemed shall be
selected by the Trustee from the series and in the principal amount
designated by Funding Corporation except as otherwise required by the
Indenture by prorating, as nearly as practicable, the principal amount of
such Collateral Bonds to be redeemed among the Holders of such Collateral
Bonds. Any Collateral Bonds and portions of Collateral Bonds selected for
redemption which are deemed to be paid in accordance with the provisions of
the Indenture will cease to bear interest on the specified redemption date.
Notice of redemption shall be given by mail not less than 30 nor more than
60 days prior to the date fixed for redemption to the Holders of Collateral
Bonds to be redeemed (which, if the Collateral Bonds are held in the book-
entry only system, will be DTC or a successor depository); provided,
however, that failure to duly give such notice by mail, or any defect
therein, shall not affect the validity of any proceedings for the
redemption of Collateral Bonds as to which there shall have been no such
failure or defect.
With respect to notice of any redemption of the Collateral Bonds, such
notice will state that such redemption will be conditional upon the receipt
by the Trustee at or prior to the date fixed for such redemption of money
sufficient to pay the principal of and premium, if any, and interest on
such Collateral Bonds. If such money is not so received, such notice will
be of no force and effect, Funding Corporation will not redeem such
Collateral Bonds and the Trustee will give notice, in the manner in which
the notice of redemption was given, that such money was not so received,
and such redemption is not required to be made.
(Indenture, Article Six; Supplemental Indenture; and form of Collateral
Bond)
Book-Entry Only System
DTC will act as securities depository for the Collateral Bonds. The
Collateral Bonds will be issued as fully-registered securities registered
in the name of Cede & Co. (DTC's partnership nominee).
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC holds securities that its participants
("Direct Participants") deposit with DTC. DTC also facilitates the
settlement among Direct Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Direct Participants' accounts, thereby
eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. DTC is
owned by a number of its Participants (as defined below) and by the New
York Stock Exchange, Inc., the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the DTC system
is also available to others such as securities brokers and dealers, banks,
and trust companies that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly ("Indirect
Participants", and together with the Direct Participants, the
"Participants"). The Rules applicable to DTC and its Participants are on
file with the SEC.
Purchases of Collateral Bonds under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Collateral
Bonds on DTC's records. The ownership interest of each actual purchaser of
each Collateral Bond ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' respective records. Beneficial Owners
will not receive written confirmation from DTC of their purchase, but
Beneficial Owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through which the
Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Collateral Bonds are to be accomplished by entries made on
the books of Participants acting on behalf of Beneficial Owners and will be
settled in same-day funds. Beneficial Owners will not receive certificates
representing their ownership interests in the Collateral Bonds except in
the event that use of the book-entry system for the Collateral Bonds is
discontinued.
To facilitate subsequent transfers, all Collateral Bonds deposited by
Participants with DTC are registered in the name of DTC's partnership
nominee, Cede & Co. The deposit of the Collateral Bonds with DTC and their
registration in the name of Cede & Co. effect no change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the
Collateral Bonds; DTC's records reflect only the identity of the Direct
Participant to whose accounts such Collateral Bonds are credited, which may
or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
either Direct or Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time. Redemption notices
shall be sent by the Trustee to Cede & Co.
Neither DTC nor Cede & Co. will consent or vote with respect to
Collateral Bonds. Under its usual procedures, DTC mails an Omnibus Proxy
to the Trustee as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Collateral Bonds are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Principal, premium, if any, and interest payments on the Collateral Bonds
will be made to DTC. DTC's practice is to credit Direct Participants'
accounts on the payable date in accordance with their respective holdings
shown on DTC's records unless DTC has reason to believe that it will not
receive payment on the payable date. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participants and not of DTC, the Company, Funding
Corporation, the Underwriters or the Trustee, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Payment of principal, premium, if any, and interest to DTC is the
responsibility of the Trustee on behalf of Funding Corporation,
disbursement of such payments to Direct Participants is the responsibility
of DTC, and disbursement of such payments to the Beneficial Owners is the
responsibility of Participants. If DTC is at any time unwilling or unable
to continue as depositary and a successor depositary is not appointed,
Funding Corporation will issue to Beneficial Owners individual certificated
Collateral Bonds representing their ownership interests in Collateral
Bonds. In addition, the Company may at any time determine not to have any
particular series of Collateral Bonds held in the book-entry only system
and, in such event, Funding Corporation will issue to Beneficial Owners
individual certificated Collateral Bonds representing their ownership
interests in such Collateral Bonds. In any such instance, a Beneficial
Owner will be entitled to have such certificated Collateral Bonds
registered in its name. Individual certificated Collateral Bonds so issued
will be issued as registered Collateral Bonds in denominations of $1,000 or
any integral multiple thereof.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the Company believes to be
reliable, including DTC, but none of the Company, Funding Corporation, the
Underwriters or the Trustee takes responsibility for the accuracy or
completeness thereof.
None of the Company, the Trustee, Funding Corporation, the Underwriters
or any agent for payment on or registration of transfer or exchange of the
Collateral Bonds will have any responsibility or liability for any aspect
of the records relating to or payments made on account of interests of
beneficial owners of any Collateral Bond or for maintaining, supervising or
reviewing any records relating to such interests.
USE OF PROCEEDS
Proceeds from the issuance of the Collateral Bonds will be used to make
loans to the Lessors, to be evidenced by the Pledged Lessor Bonds, in
amounts sufficient, together with amounts made available to the Lessors by
the Company as rent under the related Leases and, at the option of the
Owner Participant, from amounts made available by the Owner Participant as
an additional investment, to enable the Lessors to redeem the outstanding
Initial Lessor Bonds and to pay certain costs and expenses incurred in
connection with the Refinancing.
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement among
the Company, Funding Corporation and the Underwriters, the Underwriters
named below have severally agreed to purchase from Funding Corporation, and
Funding Corporation has agreed to sell to the Underwriters, severally, the
respective principal amounts of the Collateral Bonds set forth below.
Principal Amount Principal Amount
of Series of Series
Collateral Bonds Collateral Bonds
Morgan Stanley & Co. Incorporated $ $
Citicorp Securities, Inc.
Total
The Underwriting Agreement provides that the several obligations of the
Underwriters thereunder are subject to the approval of certain legal
matters by counsel and to various other conditions. The nature of the
Underwriters' obligations is such that they are committed to purchase all
of the Collateral Bonds if any are purchased; provided that the
Underwriting Agreement provides that under certain circumstances involving
a default of Underwriters, less than all of the Collateral Bonds may be
purchased.
The Company has been advised by the several Underwriters that the
Underwriters propose to offer the Series Collateral Bonds and the
Series Collateral Bonds directly to the public at the public offering
prices set forth on the cover page of this Prospectus Supplement and to
certain dealers at such prices less a concession of % of the principal
amount of the Series Collateral Bonds and % of the principal amount
of the Series Collateral Bonds. The Underwriters may allow, and such
dealers may re-allow, a concession not in excess of % of the principal
amount of the Series Collateral Bonds and % of the principal amount
of the Series Collateral Bonds to certain other dealers. After the
initial public offering, the offering prices and other selling terms may be
changed.
The Underwriting Agreement provides that, subject to certain conditions,
the Company will indemnify each Underwriter and its controlling persons
against certain liabilities, including certain liabilities under the
Securities Act of 1933, as amended, and will contribute to payments the
Underwriters may be required to make in respect thereof.
The Company does not intend to apply for listing of the Collateral Bonds
on a national securities exchange but has been advised by the Underwriters
that the Underwriters presently intend to make a market in the Collateral
Bonds, as permitted by applicable laws and regulations. The Underwriters
are not obligated, however, to make a market in the Collateral Bonds, and
such market making may be discontinued at any time at the sole discretion
of each Underwriter. Accordingly, no assurance can be given as to the
liquidity of, or trading markets for, the Collateral Bonds.
From time to time, the Underwriters and/or certain of their affiliates
engage in transactions with or perform services for the Company in the
ordinary course of business. In addition, an affiliate of Citicorp
Securities, Inc. is the Owner Participant.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time that the registration
statement becomes effective. This prospectus shall not constitute an offer
to sell or the solicitation of an offer to buy nor shall there be any sale
of these securities in any jurisdiction in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction.
PROSPECTUS
Subject to Completion
Dated February 29, 1996
$322,526,000
Waterford 3 Secured Lease Obligation Bonds
The Waterford 3 Secured Lease Obligation Bonds (the "Collateral Bonds")
will be issued at one time or from time to time, in one or more series, at
prices and on terms to be determined at the time of sale. The Collateral
Bonds will be indirectly secured, as described herein, by liens on, and
security interests in, certain ownership interests in, and by the Leases
relating to, Unit No. 3 (nuclear) of the Waterford Steam Electric
Generating Station ("Waterford 3") and will be payable solely from basic
rentals and certain other amounts payable under such Leases by
Louisiana Power & Light Company
The Collateral Bonds will be issued by W3A Funding Corporation ("Funding
Corporation"), a corporation created for the sole purpose of issuing the
Collateral Bonds as described herein. Louisiana Power & Light Company (the
"Company"), as Lessee under each Lease, will be unconditionally obligated
to make rental payments in amounts which will be at least sufficient to pay
in full, when due, all scheduled payments of principal of and interest on
the Collateral Bonds, although the Collateral Bonds will not be direct
obligations of, or guaranteed by, the Company. This Prospectus will be
supplemented by a prospectus supplement (the "Prospectus Supplement") which
will set forth, as applicable, the designation, the aggregate principal
amount, rate and time of payment of interest, maturity, purchase price,
initial public offering price, if any, any redemption or installment
payment provisions and other specific terms of each series of the
Collateral Bonds in respect of which this Prospectus is being delivered.
The Collateral Bonds will be secured by a pledge and assignment of certain
nonrecourse Lessor Bonds ("Pledged Lessor Bonds") issued by the Lessors
under the Lease Indentures described herein. Each Pledged Lessor Bond will
be secured by a lien on and security interest in the undivided ownership
interest in Waterford 3 of the Lessor which has issued such Pledged Lessor
Bonds and certain of the rights of such Lessor under its Lease with the
Company, including the right to receive the basic rentals and certain other
amounts payable by the Company thereunder. (See "Security and Source of
Payment for the Collateral Bonds," "Description of the Collateral Bonds and
the Indenture," "Description of the Lease Indentures" and "Description of
the Leases.")
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Collateral Bonds will be sold through an underwriting syndicate
including Morgan Stanley & Co. Incorporated and Citicorp Securities, Inc.
as set forth in the Prospectus Supplement. The net proceeds from the sale
of the Collateral Bonds, and any applicable commissions or discounts, are
set forth in the applicable Prospectus Supplement. This Prospectus may not
be used to consummate sales of the Collateral Bonds unless accompanied by
the Prospectus Supplement.
MORGAN STANLEY & CO. Incorporated CITICORP SECURITIES, INC.
, 199_
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SECURITIES OFFERED HEREBY OR ANY OTHER SECURITIES OF THE COMPANY AT LEVELS
ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), and in
accordance therewith files reports and other information with the
Securities and Exchange Commission ("SEC"). Such reports include
information, as of particular dates, concerning the Company's directors and
officers, their remuneration, the principal holders of the Company's
securities and any material interest of such persons in transactions with
the Company. Such reports and other information can be inspected and
copied at the public reference facilities maintained by the SEC at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549; 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and Seven World Trade Center,
13th floor, New York, New York 10048. Copies of this material can also be
obtained at prescribed rates from the Public Reference Section of the SEC
at its principal office at 450 Fifth Street, N.W., Washington, D.C. 20549.
The Company's series of 12.64% Preferred Stock and 9.68% Preferred Stock
are listed on the New York Stock Exchange. Reports and other information
concerning the Company can be inspected and copied at the office of such
Exchange at 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC pursuant to the Exchange Act
are incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1994.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995, June 30, 1995 and September 30, 1995.
ln addition, all documents subsequently filed by the Company pursuant to
Section 13, 14 or 15(d) of the Exchange Act prior to the termination of
this offering shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such
documents (such documents, and the documents enumerated above, being herein
referred to as "Incorporated Documents").
Any statement contained herein or in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained in any other subsequently filed
Incorporated Document or in an accompanying Prospectus Supplement modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a copy of any
or all of the Incorporated Documents, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference
therein. Requests should be directed to Christopher T. Screen, P.O. Box
61000, New Orleans, Louisiana 70161, telephone number 504-576-4212. The
information relating to the Company contained in this Prospectus and any
accompanying Prospectus Supplement does not purport to be comprehensive and
should be read together with the information contained in the Incorporated
Documents.
No person has been authorized to give any information or to make any
representation not contained in this Prospectus or, with respect to any
series of the Collateral Bonds, the Prospectus Supplement relating thereto,
and, if given or made, such information or representation must not be
relied upon as having been authorized by the Company or any underwriter.
This Prospectus and any Prospectus Supplement do not constitute an offer to
sell or a solicitation of an offer to buy any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful to make
such offer in such jurisdiction.
Neither the delivery of this Prospectus and a Prospectus Supplement nor
any sale made thereunder shall, under any circumstances, create any
implication that there has been no change in the affairs of the Company
since the date of that Prospectus Supplement.
THE COMPANY
The Company was incorporated under the laws of the State of Louisiana on
October 15, 1974 and is the successor by merger to a predecessor Louisiana
Power & Light Company, which was incorporated under the laws of the State
of Florida in 1927. The merger of such predecessor corporation into the
Company became effective on February 28, 1975. The Company's principal
executive office is located at 639 Loyola Avenue, New Orleans, Louisiana
70113. Its telephone number is (504) 576-4000.
The Company is an electric public utility company with all of its
operations in the State of Louisiana. All of the outstanding common stock
of the Company is owned by Entergy Corporation ("Entergy"), a Delaware
corporation. Entergy is a registered public utility holding company under
the Public Utility Holding Company Act of 1935, as amended. The Company,
Arkansas Power & Light Company ("AP&L"), Gulf States Utilities Company
("Gulf States"), Mississippi Power & Light Company ("MP&L") and New Orleans
Public Service Inc. ("NOPSI") are the principal operating electric utility
subsidiaries of Entergy. Entergy also owns, among other entities, all of
the common stock of System Energy Resources, Inc. ("System Energy"), a
generating company, and Entergy Operations, Inc., a nuclear management
services company that operates Waterford 3 as well as the nuclear units of
AP&L, Gulf States and System Energy.
The Company, AP&L, MP&L and NOPSI own all of the capital stock of System
Fuels, Inc., a special purpose company which implements and/or maintains
certain programs for the procurement, delivery and storage of fuel supplies
for certain Entergy subsidiaries.
The foregoing information relating to the Company does not purport to be
comprehensive and should be read together with the financial statements and
other information contained in the Incorporated Documents.
USE OF PROCEEDS
Unless the accompanying Prospectus Supplement provides otherwise, the
proceeds of the sale of the Collateral Bonds will be used to make loans to
the Lessors, to be evidenced by the Pledged Lessor Bonds, in amounts
sufficient, together with amounts made available to the Lessors by the
Company as rent under the related Leases and, at the option of the Owner
Participant, from amounts made available by the Owner Participant as an
additional investment, to enable the Lessors to redeem all the outstanding
Initial Lessor Bonds and to pay certain costs and expenses incurred in
connection with the Refinancing.
RATIOS OF EARNINGS TO FIXED CHARGES
The Company has calculated ratios of earnings to fixed charges pursuant
to Item 503 of SEC Regulation S-K as follows:
Twelve Months Ended
DecembeR 31, September 30,
1990 1991 1992 1993 1994 1995
Ratio of Earnings to Fixed 2.32 2.40 2.79 3.06 2.91 3.26
Charges
THE TRANSACTIONS AND THE REFINANCING
On September 28, 1989, the Company sold, for an aggregate purchase price
of $353,600,000, and leased back, on a long-term net lease basis, three
undivided portions of its 100% ownership interest in Unit 3 in three
substantially identical, but entirely separate, Transactions, each such
Transaction being documented separately. Such Undivided Interests, which
represent, in the aggregate, approximately a 10.5% interest in Unit 3
(which is equivalent on a cost basis to approximately a 9.3% interest in
Waterford 3), were sold to First National Bank of Commerce, New Orleans,
Louisiana, as Owner Trustee under each of three separate trust agreements
(each such agreement with an institutional investor as an Owner
Participant) and as Lessor under each of three separate leases with the
Company. Unit 3 excludes certain transmission, pollution control and other
facilities included in Waterford 3. At the end of the terms of the Leases
and assuming the Company does not exercise any of its purchase options
under any Lease, the Lessors, together, as owners of the Undivided
Interests, will be entitled to approximately 10.5% of the capacity and
energy produced by Waterford 3; prior to such time such capacity and energy
remain available to the Company. After the term of a Lease, any person
(including a Lessor) other than the Company which has possession of the
related Undivided Interest would be required to compensate the Company for
the use of certain of such excluded facilities, at such levels that the sum
of such compensation (discounted to present value, where appropriate) and
the fair market value of such Undivided Interest, as of the end of the term
of such Lease, would approximate the fair market value, determined as of
such time, of an undivided ownership interest in Waterford 3 equal to such
person's entitlement share of the capacity of Waterford 3.
Approximately 87.7% of the aggregate consideration paid by the Lessors
for their respective interests in Unit 3 was provided to the Lessors from
the issuance and sale of the Waterford 3 Secured Lease Obligation Bonds
(the "Initial Lessor Bonds") in 1989. The balance of such consideration
was contributed to the Lessors by the Owner Participant. As of January 30,
1996, the outstanding Initial Lessor Bonds consist of (i) $77,840,000
aggregate principal amount of 10.30% Series A due January 2, 2005,
$38,922,000 aggregate principal amount of 10.30% Series B due January 2,
2005 and $20,861,000 aggregate principal amount of 10.30% Series C due
January 2, 2005, and (ii) $95,896,000 aggregate principal amount of 10.67%
Series A due January 2, 2017, $47,949,000 aggregate principal amount of
10.67% Series B due January 2, 2017 and $25,700,000 aggregate principal
amount of 10.67% Series C due January 2, 2017.
The Company has determined, in light of prevailing economic and financial
circumstances, to exercise its option pursuant to the Participation
Agreements to request the respective Lessors to refinance the Initial
Lessor Bonds which are currently outstanding (the "Refinancing"). The
Lessors will obtain the funds required to redeem the Initial Lessor Bonds
and to pay related expenses from non-recourse borrowings by them from
Funding Corporation and from rent payments which the Company has agreed to
make under the Leases with such Lessors and, at the option of the Owner
Participant, from amounts made available from the Owner Participant as an
additional investment. The loans by Funding Corporation to each Lessor
will be evidenced by one or more new series of Lessor Bonds (the "Pledged
Lessor Bonds") issued by such Lessor to Funding Corporation under the
related Lease Indenture. The Pledged Lessor Bonds of each Lessor will be
secured by, among other things, the basic rentals and certain other
payments which the Company is obligated to make under the relevant Lease.
Funding Corporation will obtain the funds to enable it to make the loans to
the Lessors through the offer and sale of the Collateral Bonds. (See
"Security and Source of Payment for the Collateral Bonds" and "Use of
Proceeds.")
<PAGE>
FLOW OF FUNDS FOR DEBT SERVICE PAYMENTS ON THE COLLATERAL BONDS
LOUISIANA POWER & LIGHT COMPANY
(LESSEE)
Rental Payments Due
Under the Leases
(Assigned by the
Owner Trustees)
LEASE
INDENTURE
TRUSTEES
Debt Service for Rent Payments
the Pledged Lessor in Excess of
Bonds Debt Service
TRUSTEE FOR THE COLLATERAL BONDS
(Issued by W3A Funding Corporation)
Debt Service for
the Collateral Bonds
COLLATERAL BONDHOLDERS OWNER
TRUSTEES
(LESSORS)
Rental Payments
in Excess of
Debt Service
OWNER
PARTICIPANT
See "Security and Source of Payment for the Collateral Bonds."
<PAGE>
SECURITY AND SOURCE OF PAYMENT FOR THE COLLATERAL BONDS
Concurrently with the initial authentication and delivery of the
Collateral Bonds of each series, Funding Corporation will cause to be
delivered to the Trustee Pledged Lessor Bonds (a) issued as separate series
under the Lease Indentures, (b) payable as to principal on such dates and
in such amounts that on the stated maturity of principal and each sinking
fund redemption date or principal installment payment date of such
Collateral Bonds there shall be payable on the Pledged Lessor Bonds an
amount in respect of principal equal to the principal amount of such
Collateral Bonds then to mature or to be payable in installments of
principal or be redeemed, (c) bearing interest at the same rate and payable
at the same times as the corresponding Collateral Bonds of such series, (d)
containing provisions for redemption, including redemption premiums,
correlative to the provisions for redemption (other than pursuant to a
sinking fund) of the corresponding Collateral Bonds of such series and (e)
registered in the name of the Trustee. (Indenture, Section 2.03)
The Pledged Lessor Bonds, which will be without recourse to the general
credit of the related Owner Trustee and the Owner Participant and will not
be direct obligations of, or guaranteed by, the Company, will be payable
from and secured by, among other things, a lien on and security interest in
the related Undivided Interest, and, subject to certain exceptions, the
rights of the Owner Trustee under the related Lease, including the right to
receive all basic rentals and certain other payments to be made by the
Company (subject in each case to certain permitted liens). Excluded from
the Lease Indenture Estate are any and all Excepted Payments and certain
other rights. The Leases provide that basic rent payments to be made by
the Company be calculated in such amounts as will be sufficient to provide
for the payment, when due, of scheduled payments of principal of and
interest on all of the related Lessor Bonds. (See "Description of the
Leases _ Term and Rentals.") Each Lease is a net lease pursuant to which
the Company will be unconditionally obligated to make all payments
thereunder. (See "Description of the Leases _ Net Lease.") If a Lease
Event of Default shall have occurred and be continuing under any Lease,
remedies under such Lease may be exercised as described in "Description of
the Leases _ Remedies."
If a Lease Indenture Event of Default shall have occurred and be
continuing, remedies may be exercised as described under "Description of
the Lease Indentures _ Notice; Waiver; Acceleration and Remedies." If a
Lease Indenture Event of Default shall have occurred and be continuing at a
time when there shall not have occurred and be continuing a Lease Event of
Default under the related Lease, the exercise of such remedies may not
disturb the Company's quiet use and possession of the related Undivided
Interest or require prepayment of basic rent, Casualty Value or Special
Casualty Value under such Lease.
In certain instances, the Company, or the Company and an Affiliate
thereof jointly, may elect or may be required to assume the obligations of
the Owner Trustee under the related Lease Indenture and on all or a portion
of the related Lessor Bonds (see "Description of the Lease
Indentures_Assumption by the Company"). Upon such an assumption, the Owner
Trustee would be released from its obligations under such Lease Indenture
and on the related Lessor Bonds. In such case, the Holders of such Lessor
Bonds would retain the benefit under the related Lease Indenture of the
Lien on and security interest in the related Undivided Interest, and the
obligation to make payments on such Lessor Bonds would become a direct
obligation of the Company, or the Company and an Affiliate thereof, as the
case may be.
Subject to certain conditions, additional Collateral Bonds may be issued
under the Indenture (a) for the purpose of redeeming all or any part of any
series of Collateral Bonds previously issued under such Indenture,
including the Collateral Bonds issued in connection with the Refinancing,
and of providing funds for the payment of certain expenses incurred in
connection with the issuance of such additional Securities and (b) to
provide funds for all or a portion of certain alterations, modifications,
additions or capital improvements to Unit 3, subject to certain
limitations. All additional Collateral Bonds issued under the Indenture
will be secured equally, together with the Collateral Bonds issued in
connection with the Refinancing, by all Lessor Bonds pledged by Funding
Corporation to the Trustee.
The Company has issued a new series of first mortgage bonds under its
first mortgage bond indenture to secure the payment to the Owner
Participant of the equity portion of amounts payable by the Company under
the respective Leases and other transaction documents. If prior to
maturity of such first mortgage bonds, there shall have occurred an Event
of Loss, Deemed Loss Event, Financial Event or Lease Event of Default in
respect of which the Lessee shall be obligated to prepay all or any portion
of the principal of the promissory note which was issued by the Company to
the Owner Participant as a condition to the issuance of the Initial Lessor
Bonds, then such first mortgage bonds shall be redeemed, on the date such
prepayment is to be made, in a principal amount equal to the portion of the
principal of the promissory note then to be prepaid. Neither the holders
of the Lessor Bonds (including the Trustee, as holder of the Pledged Lessor
Bonds) nor the Holders of the Collateral Bonds are entitled to the benefit
of any such financial support. (See "Other Agreements _ Participation
Agreement.")
If the Company were to enter into bankruptcy or reorganization
proceedings, the Company or its bankruptcy trustee could reject any Lease.
In such event, there could be no assurance that the amount of any claim for
damages under such Lease would be allowed in amounts sufficient to provide
for the repayment of the related Collateral Bonds. Under Section 502(b)(6)
of the United States Bankruptcy Code, as amended, a claim by a lessor for
damages resulting from the rejection of a lease of real property in
connection with bankruptcy proceedings affecting the lessee may be limited
to an amount equal to the rent reserved under the lease, without
acceleration, for the greater of 1 year or 15 percent (but not more than 3
years) of the remaining term of the lease, plus rent already due but
unpaid. Although there can be no assurances, Louisiana counsel to the
Company believes that it is likely that a bankruptcy court would find much
of the property covered by the Leases to be real property. If such
property were held to constitute personal property, the above limitation
would not apply. In any case, rejection of any Lease by the Company or its
bankruptcy trustee would not deprive the related Indenture Trustee of its
lien on and security interest in the related Undivided Interest. Rejection
of any Lease would deprive the Company of the benefit of the related
Undivided Interest and any revenues which could be derived from the sale of
the output thereof.
If the Owner Participant or any Lessor becomes subject to bankruptcy or
reorganization proceedings and, by reason of such proceedings, the Owner
Participant or any Lessor is held to have recourse liability to the Holder
of any Lessor Bond or the related Lease Indenture Trustee, and such Holder
or the related Lease Indenture Trustee actually receives payment on account
of such recourse liability, such Holder or the Indenture Trustee, as the
case may be, shall promptly refund to the Owner Participant or any Lessor,
as appropriate, any amount of such payment which exceeds the amount which
would have been received on or prior to the date of such payment by such
Holder or the Indenture Trustee if the Owner Participant or the Lessor had
not become subject to such recourse liability. (Participation Agreement,
Section 20(f))
For further information with respect to the source of payment for the
Collateral Bonds, the Indenture and the Lease Indentures relating to the
Lessor Bonds, see "Description of the Collateral Bonds and the Indenture"
and "Description of the Lease Indentures."
W3A FUNDING CORPORATION
Funding Corporation was incorporated under the laws of the state of
Delaware for the purpose of facilitating the Refinancing and has only
nominal equity capital. The only business of Funding Corporation will be
the issuance and sale of the Collateral Bonds and the lending of the
proceeds therefrom. (See "Use of Proceeds.") Funding Corporation may (but
is not required to) make loans in connection with any significant capital
improvements which may be installed at Unit 3 from time to time. The
assets of Funding Corporation will consist of any Lessor Bonds issued by
the Lessors to Funding Corporation from time to time and $1,000 in cash,
representing the equity capital contributed by its sole shareholder, NCR
Holding, Inc., which is a wholly-owned subsidiary of NCR Corporate
Research, Ltd. None of the Company, any Lessor or the Owner Participant
holds any ownership interest in Funding Corporation, NCR Holding, Inc. or
NCR Corporate Research, Ltd., and no person affiliated with the Company,
any Lessor or the Owner Participant is an officer, director or employee of
any such entity.
DESCRIPTION OF THE COLLATERAL BONDS AND THE INDENTURE
The statements contained under this caption are intended to briefly
summarize the Collateral Bonds; they do not purport to be complete and are
qualified in their entirety by reference to the Indenture, a copy of the
form of which has been filed as an exhibit to the Registration Statement of
which this Prospectus is a part. A Prospectus Supplement will describe the
following terms of the series of Collateral Bonds to be issued: (1) the
designation of each series of the Collateral Bonds; (2) the aggregate
principal amount of each series; (3) the date on which each series will
mature; (4) the rate at which each series will bear interest and the date
from which such interest accrues; (5) the dates on which interest will be
payable; and (6) the prices, terms and conditions upon which each series
may be redeemed by the Company prior to maturity or upon which installment
payments of principal will become due and payable.
General
The Collateral Bonds are to be issued under the Collateral Trust
Indenture (the "Indenture") among Funding Corporation, the Company and
Bankers Trust Company, as Trustee, as supplemented by one or more
Supplemental Indentures, among such parties.
Unless otherwise indicated in a Prospectus Supplement, the Collateral
Bonds will be issued in fully registered form without coupons in
denominations of $1,000 or any integral multiple thereof. Collateral Bonds
may be surrendered for registration of transfer or exchange for Collateral
Bonds of the same series and maturity at the corporate trust office of
Bankers Trust Company, registrar and paying agent for the Collateral Bonds,
in New York, New York. The Trustee shall not be required to register the
transfer or exchange of any Collateral Bonds called for redemption or
during a period of 15 days preceding a mailing of notice of redemption. No
service charge will be required of any Bondholder participating in any
transfer or exchange of Collateral Bonds in respect of such transfer or
exchange, but, with certain exceptions, payment may be required of any tax
or other governmental charges that may be imposed in connection therewith.
(Indenture, Sections 2.05 and 2.08)
Additional Securities
The Indenture provides that the aggregate principal amount of
Securities (including the Collateral Bonds) which may be issued thereunder
is unlimited, provided that at least an equal aggregate principal amount of
Lessor Bonds must be pledged as security under the Indenture in support of
the payment of such Securities. A separate Supplemental Indenture will be
entered into among Funding Corporation, the Company and the Trustee
establishing the designation, interest rate, sinking fund, installment
payments of principal and redemption provisions, if any, and other specific
terms of any particular series of Securities. (Indenture, Section 2.03)
Any additional series of Securities will be secured pari passu with the
Collateral Bonds by the Pledged Lessor Bonds. (Indenture, Granting
Clauses)
Merger, Consolidation and Transfer of Assets by Funding Corporation
The certificate of incorporation of Funding Corporation provides that
Funding Corporation will not (a) dissolve or liquidate, in whole or in
part, or (b) merge into or consolidate with, or sell all or any part of its
assets to, any person, firm, corporation, partnership or other entity
unless the acquiring entity or the surviving corporation, as the case may
be, has a certificate of incorporation containing provisions identical to
those of Funding Corporation's certificate of incorporation restricting the
nature of its business and purposes and its ability to take certain action
and, in the case of a sale of assets, the acquiring entity shall have
assumed all the liabilities and obligations of Funding Corporation. In
addition, Funding Corporation has agreed in the Indenture that it will not
amend those provisions of its certificate of incorporation that restrict
the nature of its business, purposes and activities and that provide for
its capitalization. (Indenture, Section 5.08)
Events of Default
The following will be Events of Default under the Indenture:
(a) failure to pay any interest on any Security when it becomes due and
payable, and the continuation of such failure for a period of 10 days; or
(b) failure to pay any principal of or premium, if any, on any Security
when it becomes due and payable, whether at its stated maturity of
principal, on any applicable redemption date or any principal installment
payment date or at any other time, and the continuation of such failure
for a period of 10 days; or
(c) failure on the part of either Funding Corporation or the Company to
perform or observe any covenant or agreement in the Indenture to be
performed or observed by it, and the continuation of such failure for a
period of 30 days after notice has been given to Funding Corporation or
the Company, as the case may be, by the Trustee, or to the Company or
Funding Corporation, as the case may be, and the Trustee by the Holders
of at least 25% in principal amount of the outstanding Securities,
specifying such failure and requiring it to be remedied and stating that
such notice is a "Notice of Default" under the Indenture; provided,
however, that the continuation of such failure for a period of 30 days or
more after such notice has been so given (but in no event for a period
which is greater than one year after such notice has been given) shall
not constitute an Event of Default if (i) such failure can be remedied
but cannot be remedied within such 30 days; (ii) the Company or Funding
Corporation, as the case may be, is diligent in pursuing a remedy of such
failure and (iii) such failure does not impair in any respect the lien
and security interest created by the Indenture; or
(d) the occurrence of any Lease Indenture Event of Default; or
(e) the entry of a decree or order by a court having jurisdiction in the
premises adjudging Funding Corporation a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of Funding
Corporation under the U.S. Bankruptcy Code or any other applicable
federal or state law or law of the District of Columbia, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of Funding Corporation or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuation of any such decree or order unstayed and in effect for a
period of 75 consecutive days; or
(f) the institution by Funding Corporation of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the institution of
bankruptcy of insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under the
United States Bankruptcy Code or any other applicable federal or state
law or law of the District of Columbia, or the consent by it to the
filing of any such petition or the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of Funding
Corporation or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by Funding Corporation in
furtherance of any such action.
(Indenture, Section 8.01)
The Company and Funding Corporation must file an annual certificate
with the Trustee as to compliance with the provisions of the Indenture.
(Indenture, Section 5.09)
Funding Corporation has agreed in the Indenture that it will not take
certain corporate action which could result in its being declared bankrupt
or insolvent. (Indenture, Section 5.08) The Company, the Lessors, the
Owner Participant and the Lease Indenture Trustees have each agreed in the
Participation Agreements that none of them will file, or participate in the
filing of, a petition seeking reorganization, arrangement, adjustment, or
composition of or in respect of Funding Corporation prior to the 181st day
following the payment in full of the Collateral Bonds and discharge of the
Indenture. (Participation Agreement, Sections 6(b), 7(b), 8(b) and 9(b))
Acceleration and Remedies
Upon the occurrence and continuance of an Event of Default, (i) if such
Event of Default is of the type specified in clause (a), (b), (c), (e) or
(f) of the first paragraph under "Events of Default" above, the Trustee may
and, upon the direction of the Holders of not less than a majority in
principal amount of the Securities outstanding the Trustee shall, and (ii)
if such Event of Default is of the type specified in clause (d) of the
first paragraph under "Events of Default" above (including without
limitation a Lease Event of Default which has resulted in a default of the
type specified in clause (a) or (b) of such paragraph) under circumstances
in which there has been an acceleration of a maturity of the related
Pledged Lessor Bonds, the Trustee shall, declare all the Securities to be
immediately due and payable; provided that no such declaration will be made
(and the Trustee will not take action to sell any property pledged to it
under the Indenture or to institute proceedings for payment on any
Securities or Pledged Lessor Bonds) in the case of a payment default of the
type specified in clause (a) or (b) of such paragraph which resulted
directly from a failure by the Company to make any payment of rent under a
Lease until such time as the Lessor under such Lease has been given the
opportunity to exercise its rights, if any, to cure such default under the
related Lease Indenture. (See "Description of the Lease Indentures -
Rights of Lessor to Cure and Purchase Lessor Bonds.") (Indenture, Section
8.02)
In addition, upon the occurrence of a Lease Indenture Event of Default,
Lease Indenture Default, Event of Loss, Deemed Loss Event or Financial
Event, if an officer of the Trustee has actual knowledge thereof, the
Trustee will give notice to all Holders of such fact in accordance with the
provisions of the Indenture and thereafter each Holder will have the right
to direct the Trustee, as the holder of the Pledged Lessor Bonds issued
under such Lease Indenture, to vote the principal amount of such Pledged
Lessor Bonds in proportion to the principal amount of Securities owned by
such Holder, or to direct the related Lease Indenture Trustee to take such
action, or refrain from taking such action, as it is permitted to take
under the terms of the related Lease Indenture. Under each Lease
Indenture, directions given to the Lease Indenture Trustee as described in
the preceding sentence will be dictated by (x) in the case of a Lease
Indenture Event of Default or a Lease Indenture Default, the holders of no
less than a majority in aggregate principal amount of the outstanding
Lessor Bonds of all series (considered as one class) and (y) in the case of
an Event of Loss, Deemed Loss Event or Financial Event, the holders of not
less than 5% in aggregate principal amount of the outstanding Lessor Bonds
of all series (considered as one class), which, in either case, will mean,
until such time, if any, as additional Lessor Bonds are issued under such
Lease Indenture, the Holders of not less than a majority or 5% respectively
in aggregate principal amount of the Collateral Bonds outstanding as a
result of the pass-through voting mechanism described above. (Indenture,
Section 3.03; Lease Indenture, Sections 2.16 and 7.07)
With certain exceptions, the request of the Holders of not less than a
majority in aggregate principal amount of Securities outstanding will be
necessary to require the Trustee to exercise any remedy under the
Indenture. (Indenture, Section 8.07) The Trustee will be entitled to
receive reasonable indemnity and under certain circumstances is not
required to act. (Indenture, Section 9.03) In addition, no Holder shall
have any right to pursue any remedy under the Indenture unless the Trustee
shall have been given written notice of an Event of Default, the Holders of
at least 25% in principal amount of all Securities then outstanding shall
have requested the Trustee to pursue a remedy, the Trustee shall have been
offered satisfactory indemnity, the Trustee shall have failed to comply
with such request within 60 days after receipt of such request and the
Trustee shall not have received during such 60 day period any direction
inconsistent with such request from Holders of a majority in principal
amount of outstanding Securities. (Indenture, Section 8.09)
Voting of Lessor Bonds
The Trustee, as holder of the Pledged Lessor Bonds, will have the right
to vote and give consents and waivers in respect of such Pledged Lessor
Bonds and the Lease Indentures only as described below. The Holders of the
Securities may instruct the Trustee as to action by the Trustee, as holder
of the Pledged Lessor Bonds, under any Lease Indenture, including the
voting of Pledged Lessor Bonds. Upon receiving from Holders any directions
as to the taking of any action, including the voting of any Pledged Lessor
Bond, the Trustee shall specify to the related Lease Indenture Trustee the
principal amount of the Pledged Lessor Bonds which is in favor of the
action or vote, the principal amount of the Pledged Lessor Bonds which is
opposed to the action or vote and the principal amount of the Pledged
Lessor Bonds which is not taking any position as to the action or vote.
Such principal amounts shall be determined by allocating to the total
principal amounts of the Pledged Lessor Bonds with respect to which
direction is to be given the proportionate principal amount of Securities
taking corresponding positions or not taking any position, based on the
aggregate principal amount of outstanding Securities. (Indenture, Section
3.03) Because the Lease Indentures permit additional Lessor Bonds to be
issued and secured thereunder, and do not require that such additional
Lessor Bonds be issued only to Funding Corporation, it is possible that at
some future time the Pledged Lessor Bonds would not constitute a majority
of the Lessor Bonds issued and outstanding under the Lease Indentures.
(See "Description of the Lease Indentures - Additional Lessor Bonds.")
Supplemental Indenture
Without the consent of the Holders of any Securities, Funding
Corporation, the Company and the Trustee may enter into supplemental
indentures for the following purposes:
(a) to establish the form and terms of any series of Securities;
(b) to evidence the succession of another corporation to the Company, and
the assumption by any such successor of the covenants of the Company
contained in the Indenture, or to evidence the succession of another
corporation to Funding Corporation, and the assumption by any such
successor of the covenants of Funding Corporation contained in the
Indenture and in the Securities;
(c) to evidence the succession of a new trustee or the appointment of a
co-trustee or a separate trustee under the Indenture;
(d) to add to the covenants of Funding Corporation or of the Company, for
the benefit of the Holders of the Securities, or to evidence the
surrender of any right or power conferred in the Indenture upon Funding
Corporation or the Company;
(e) to convey, transfer and assign to the Trustee, and to subject to the
lien of the Indenture, additional Pledged Lessor Bonds or additional
properties or assets, and to correct or amplify the description of any
property at any time subject to the lien of the Indenture or to assure,
convey and confirm unto the Trustee any property subject or required to
be subject to the lien of the Indenture;
(f) to permit or facilitate the issuance of Securities in uncertificated
form;
(g) to change or eliminate any provision of the Indenture; provided,
however, that if such change or elimination will adversely affect the
interests of the Holders of Securities of any series, such change or
elimination will become effective with respect to such series only when
no Security of such series remains outstanding; or
(h) to cure any ambiguity, to correct or supplement any provision in the
Indenture which may be defective or inconsistent with any other provision
in the Indenture, or to make any other provisions with respect to matters
or questions arising under the Indenture, provided such action shall not
adversely affect the interest of the Holders of the Securities in any
material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), as in effect
at the date of the execution and delivery of the Indenture or at any time
thereafter shall be amended and
(x) if any such amendment shall require one or more changes to any
provisions of the Indenture or the inclusion in the Indenture of any
additional provisions, or shall by operation of law be deemed to effect
such changes or incorporate such provisions by reference or otherwise, or
(y) if any such amendment shall permit one or more changes to, or the
elimination of, any provisions of the Indenture which, at the date of the
execution and delivery of the Indenture or at any time thereafter, are
required by the Trust Indenture Act to be contained in the Indenture or
are contained in the Indenture to reflect any provisions of the Trust
Indenture Act as in effect on such date,
the Indenture shall be deemed to have been amended to conform to such
amendment to the Trust Indenture Act or to effect such changes or
elimination, and Funding Corporation, the Company and the Trustee may,
without the consent of any Holders, enter into a supplemental indenture to
evidence such amendment. (Indenture, Section 11.01)
With the consent of the Holders of not less than a majority in
aggregate principal amount of all Securities then outstanding considered as
one class, Funding Corporation, the Company and the Trustee may enter into
supplemental indentures for any purpose; provided that if there is more
than one series of Securities outstanding and if a proposed supplemental
indenture directly affects the Holders of at least one, but not all, of
such series, then only the consent of a majority in aggregate principal
amount of the Holders of the directly affected series of Securities will be
required; and provided, further, that without the consent of the Holders of
all the Securities then outstanding directly affected thereby no such
supplemental indenture may:
(a) change the stated maturity of the principal of, or any installment of
interest on, or the maturity date of any installment of principal of, or
the dates or circumstances of payment of premium, if any, on any Security
or reduce the principal amount of, or the interest on, or any premiums
payable upon any redemption of, any Security or change the place of
payment where, or the coin or currency in which, any Security or the
premium, if any, or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment of principal or
interest on or after the stated maturity thereof (or, in the case of
redemption, on or after the redemption date) or such payment of premium,
if any, on or after the date such premium becomes due and payable or
change the dates or amounts of payments to be made through the operation
of a sinking fund (if any) or through installment payments of principal
(if any) in respect of such Securities;
(b) permit the creation of any lien prior or, except with respect to
additional Securities issued in accordance with the Indenture, equal to
the lien of the Indenture with respect to any of the Pledged Lessor
Bonds, terminate the lien of the Indenture on the Pledged Lessor Bonds
(except as permitted by the Indenture) or deprive any Holder of the
security afforded by the Indenture;
(c) reduce the percentage in principal amount of the Securities the
consent of whose Holders is required for any supplemental indenture or
the consent of whose Holders is required for any waiver provided for in
the Indenture or reduce the requirements of the Indenture relating to (1)
a quorum for meetings of Holders or (2) action taken by Holders pursuant
to the Indenture at meetings thereof; or
(d) modify any of the above provisions or the provisions of the Indenture
dealing with waivers of past defaults, except to increase the percentage
of the Holders whose consent is required for certain action or to provide
that certain other provisions of the Indenture cannot be modified or
waived without the consent of the Holders affected thereby.
(Indenture, Section 11.02)
Without the consent of the Holders of any Securities, the Trustee may
join in the execution of amendments of or supplements to, or waivers of the
provisions of, the Participation Agreement.
Defeasance
Securities of any series, or any portion of the principal amount
thereof, will, prior to the maturity thereof, be deemed to have been paid
for purposes of the Indenture (except as to any surviving rights of
registration of transfer or exchange expressly provided for in the
Indenture), and the entire indebtedness of Funding Corporation in respect
thereof will be deemed to have been satisfied and discharged, if (a) there
shall have been irrevocably deposited with the Trustee, in trust, money in
an amount which will be sufficient to pay when due the principal of and
premium, if any, and interest due and to become due on such Securities or
portions thereof on and prior to the stated maturity of principal or
redemption date or (b) the Pledged Lessor Bonds of the corresponding series
are deemed to have been paid in accordance with the Lease Indenture or
Lease Indentures under which such Pledged Lessor Bonds were issued.
(Indenture, Section 12.01) (See also "Description of the Lease Indentures
- - Defeasance.")
It is possible that for federal income tax purposes any deposit
contemplated in the preceding paragraph or any deeming of the Pledged
Lessor Bonds to have been paid as contemplated in such paragraph could be
treated as a taxable exchange of the related Collateral Bonds for an issue
of obligations of a trust or a direct interest in the cash and securities
held in a trust. In that case, Holders of such Collateral Bonds would
recognize gain or loss as if the trust obligations or the cash or
securities deposited or deemed paid, as the case may be, had actually been
received by them in exchange for their Collateral Bonds. Such gain or
loss, generally, would be capital in nature to Holders for whom the
Collateral Bonds are held as capital assets and any deductions for losses
would be subject to certain limitations. Such Holders would be required to
include in income a share of the income, gain or loss of the trust or the
income from the securities held in trust, as the case may be, in the
taxable year in which such event occurs. The amount so required to be
included in income could be different from the amount that would be
includable in the absence of such deposit. Neither the Company nor Funding
Corporation has any obligation to obtain a revenue ruling or other
authority as to the absence of adverse tax consequences arising from any
such event. Prospective investors are urged to consult their own tax
advisors as to the specific consequences to them of such deposit.
The Trustee
Bankers Trust Company will act as Trustee under the Indenture. As of
the date of the issuance of the Collateral Bonds, Bankers Trust Company
will also be Lease Indenture Trustee under each of the Lease Indentures
entered into in connection with the Transactions.
DESCRIPTION OF THE LEASE INDENTURES
The statements made under this caption are intended to summarize the
Lease Indentures as they relate to the Lessor Bonds; they do not purport to
be complete and are qualified in their entirety by reference to the Lease
Indentures, copies of which have been filed as exhibits to the Registration
Statement of which this Prospectus is a part. Each Lease Indenture is an
entirely separate indenture but contains substantially the same terms and
provisions as each other Lease Indenture. Unless the context requires
otherwise, in the following summary references to the Lease Indenture, the
Lease Indenture Estate, the Lease, the Lessor, the Owner Participant, the
Owner Trustee, the Lessor Bonds and the Pledged Lessor Bonds relate to each
Lease Indenture.
General
Lessor Bonds (including the Initial Lessor Bonds, Pledged Lessor Bonds
and other Lessor Bonds) may be issued under the Lease Indentures. The
Pledged Lessor Bonds will, at the direction of Funding Corporation, be
pledged and assigned to the Trustee for the benefit of the Holders of the
Securities (including the Collateral Bonds).
Lease Indenture Events of Default
The following are Lease Indenture Events of Default:
(a) any Lease Event of Default described in the following clauses of the
first paragraph in "Description of the Leases _ Lease Events of Default":
(i) clause (a)(x), except a failure of the Company to pay an amount which
constitutes an Excepted Payment or except in the case of a default in the
payment of Casualty Value, Special Casualty Value, or the payment of the
equity portion of Casualty Value or Special Casualty Value, where the
Owner Trustee has not rescinded or terminated the Lease or (ii) clause
(e) or (g);
(b) the rescission or termination of, or the taking of action by the
Owner Trustee or the Owner Participant, the effect of which would be to
rescind or terminate, the Lease;
(c) the exercise by the Owner Trustee or the Owner Participant of
certain remedies under the Lease, as a result of which the Company would
be obligated to pay liquidated damages, prior to the occurrence of any of
the events set forth in clause (b) above;
(d) any assignment, sublease or transfer by the Company of the Lease and
the other transaction documents in violation of the terms thereof;
(e) breach by the Company of the provisions of the related Participation
Agreement relating to the maintenance of its corporate existence and
relating to a merger by the Company into or consolidation of the Company
with another entity or the sale or transfer of all or substantially all
of the Company's assets by the Company (see "Other Agreements _
Participation Agreement");
(f)(x) failure by the Owner Trustee to make any payment in respect of
the principal of or premium, if any, or interest on the Lessor Bonds
within five business days after the same shall have become due (other
than by virtue of any failure by the Company to make any payment of rent
therefor); or (y) following the actual receipt by the Owner Participant
of proceeds of a partial draw upon a letter of credit in excess of the
amounts due to the Owner Participant at the time of such partial draw,
failure of such Owner Participant to cause such excess proceeds to be
delivered to the Lease Indenture Trustee within five business days after
the actual receipt of such proceeds;
(g)(x) failure by the Owner Trustee to perform or observe any covenant
or agreement in the Lease Indenture to be performed or observed by it
(other than any failure by the Owner Trustee to pay or cause to be paid
any payment of the principal of or premium, if any, or interest on the
Lessor Bonds when due), or (y) failure by the Owner Participant to
observe its covenant in the Participation Agreement not to create certain
liens on the Lease Indenture Estate or the trust estate and, in either
case, the continuation of such failure for a period of 30 days after
notice thereof has been given to the Owner Trustee, the Owner Participant
and the Company by the Lease Indenture Trustee or to the Lease Indenture
Trustee, the Company, the Owner Trustee and the Owner Participant by the
Holders of at least 25% in aggregate principal amount of the outstanding
Lessor Bonds of all series, considered as one class; provided, however,
that the continuation of such failure for a period of 30 days or more
after such notice has been so given (but in no event for a period which
is greater than one year after such notice has been given) shall not
constitute a Lease Indenture Event of Default if (i) such failure can be
remedied but cannot be remedied within such 30 days, (ii) the Owner
Trustee or the Owner Participant, as the case may be, is diligently
pursuing a remedy of such failure and (iii) such failure does not impair
in any material respect the mortgage and security interest created by the
Lease Indenture;
(h) any representation or warranty made by the Owner Trustee in the
Participation Agreement, or any representation or warranty made by the
Owner Participant in the Participation Agreement concerning liens against
the trust estate or the Lease Indenture Estate as a result of claims
against the Owner Participant unrelated to the Transactions shall prove
to have been incorrect in any material respect when such representation
or warranty was made or given and remains materially incorrect at the
time of discovery; provided, however, that such failure of such
representation or warranty to be correct shall not constitute a Lease
Indenture Event of Default if (i) the facts or circumstances making such
representation or warranty incorrect can be remedied or changed so that
such representation or warranty will henceforth be correct in all
material respects, (ii) the Owner Trustee or the Owner Participant, as
the case may be, is diligently pursuing such a remedy or change, (iii)
such remedy or change is, in fact, accomplished within a period of one
year from the time that the Owner Trustee or the Owner Participant, as
the case may be, has been notified of such misrepresentation or breach of
warranty and (iv) such facts or circumstances do not impair in any
material respect the mortgage and security interest created by the Lease
Indenture;
(i)(x) the Owner Trustee shall file any petition for dissolution or
liquidation of the trust created by the trust agreement or shall commence
a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or subsequently in effect, or the Owner Trustee shall
have consented to the entry of an order for relief with respect to the
trust in an involuntary case under any such law, or a receiver, custodian
or trustee (or other similar official) shall be appointed for the Owner
Trustee or shall take possession of any substantial part of its property
(other than at the instance of the Lease Indenture Trustee or the Holders
of Lessor Bonds), or the Owner Trustee shall make a general assignment
for the benefit of the trust's creditors, or shall enter into an
agreement of composition with the trust's creditors; or (y) there shall
be filed (other than at the instance of the Lease Indenture Trustee or
the Holders of Lessor Bonds) against the Owner Trustee an involuntary
petition in bankruptcy which results in an order for relief being entered
or, notwithstanding that an order for relief has not been entered, the
petition is not dismissed within 60 days after the date of the filing of
the petition, or there shall be filed (other than at the instance of the
Lease Indenture Trustee or the Holders of Lessor Bonds) under any Federal
or state law relating to bankruptcy, insolvency or relief of debtors any
petition against the Owner Trustee for reorganization, composition,
extension or arrangement with creditors which either (i) results in a
finding or adjudication of insolvency of the Owner Trustee or (ii) is not
dismissed within 60 days after the date of the filing of such petition;
(j)(x) the Owner Participant shall file any petition for dissolution or
liquidation of the Owner Participant, or shall commence a voluntary case,
under any applicable bankruptcy, insolvency or other similar law now or
subsequently in effect, or the Owner Participant shall have consented to
the entry of an order for relief in an involuntary case under any such
law, or shall fail generally to pay its debts as such debts become due
(within the meaning of the United States Bankruptcy Code, as amended), or
a receiver, custodian or trustee (or other similar official) shall be
appointed for the Owner Participant or shall take possession of any
substantial part of its property, or the Owner Participant shall make a
general assignment for the benefit of its creditors, or shall enter into
an agreement of composition with its creditors; or (y) there shall be
filed against the Owner Participant an involuntary petition in bankruptcy
which results in an order for relief being entered or, notwithstanding
that an order for relief has not been entered, the petition is not
dismissed within 60 days after the date of the filing of the petition, or
there shall be filed under any Federal or state law relating to
bankruptcy, insolvency or relief of debtors any petition against the
Owner Participant for reorganization, composition, extension or
arrangement with creditors which either (i) results in a finding or
adjudication of insolvency of the Owner Participant or (ii) is not
dismissed within 60 days after the filing of such petition and any such
event materially adversely affects the Holders of the Lessor Bonds; or
(k) after a Special Transfer has been effected and amounts payable to
the Owner Participant have been paid in full in accordance with the
Participation Agreement, any violation or breach of any covenant of the
Company concerning the Company's continuing obligation to pay rent under
the Lease or concerning its obligation to effectuate and evidence an
assumption as described in "Description of the Lease
Indentures_Assumption by the Company."
(Lease Indenture, Section 7.01)
Notice; Waiver; Acceleration and Remedies
The Lease Indenture Trustee, if it has knowledge of any Lease Indenture
Default or Lease Indenture Event of Default, is required to give notice
thereof (unless such Lease Indenture Default or Lease Indenture Event of
Default shall have been waived or cured) within 90 days thereof in writing
to the Holders of the outstanding Lessor Bonds of all series, the Owner
Trustee, the Owner Participant and the Company; provided that, except in
the case of a default in the payment of principal of or premium, if any, or
interest on any Lessor Bond, the Lease Indenture Trustee will be protected
in withholding such notice if in good faith it determines that the
withholding of such notice is in the interest of the Holders; and provided,
further, that in the case of a Lease Indenture Event of Default specified
in clause (g) above, no such notice will be given until at least 30 days
after the occurrence thereof. In the event the Lease Indenture Trustee has
knowledge of an Event of Loss, Deemed Loss Event or Financial Event, the
Lease Indenture Trustee shall give prompt notice thereof, and in any event,
within 90 days after occurrence thereof, to the Holders of the outstanding
Lessor Bonds. (Lease Indenture, Section 8.02) For all purposes of the Lease
Indenture, in the absence of actual knowledge of a Responsible Officer of
the Lease Indenture Trustee, the Lease Indenture Trustee will not be deemed
to have knowledge of any Lease Indenture Default or Lease Indenture Event
of Default (except the failure of the Company to pay any installment of
basic rent within 5 business days after the same has become due) unless
notified thereof in writing by any Holder, the Owner Trustee, the Owner
Participant or the Company. (Lease Indenture, Section 8.03)
The Holders of a majority in aggregate principal amount of the
outstanding Lessor Bonds of all series, considered as one class, may on
behalf of the Holders of all Lessor Bonds of all series waive any past
Lease Indenture Default or Lease Indenture Event of Default and its
consequences, except that only the Holders of all Lessor Bonds affected
thereby may waive a Lease Indenture Default or Lease Indenture Event of
Default (a) in the payment of the principal of or premium, if any, or
interest on such Lessor Bonds, or (b) in respect of a covenant or other
provision of the Lease Indenture which under the Lease Indenture cannot be
modified or amended without the consent of the Holder of each outstanding
Lessor Bond affected. (Lease Indenture, Section 7.09)
If a Lease Indenture Event of Default has occurred and is continuing, the
Lease Indenture Trustee may, and upon the written request of, and the
proffering of satisfactory indemnity by, the Holders of a majority in
aggregate principal amount of the outstanding Lessor Bonds of all series,
considered as one class, shall, declare the unpaid principal amount of all
outstanding Lessor Bonds, with accrued interest thereon, to be immediately
due and payable, but the Lease Indenture Trustee shall not make any such
declaration in the case of a Lease Indenture Event of Default which
resulted from a failure by the Company to make a payment of rent under the
Lease until the Owner Trustee and the Owner Participant have been given an
opportunity to cure such default as described below under "Rights of Lessor
to Cure and Purchase Lessor Bonds." (Lease Indenture, Sections 7.02, 7.16
and 8.03)
Upon the occurrence and during the continuance of a Lease Indenture Event
of Default, the Lease Indenture Trustee may, and upon the written request
of, and the proffering of satisfactory indemnity or security by, the
Holders of a majority in aggregate principal amount of the outstanding
Lessor Bonds of all series, considered as one class, shall, subject to the
Lessor's rights described under the following two paragraphs and under
"Rights of Lessor to Cure and Purchase Lessor Bonds" below, exercise any or
all of the rights and remedies available to it under the Lease Indenture
and applicable law, including (a) the institution of judicial proceedings,
either at law or in equity or otherwise, to protect its rights and those of
the Holders under the Lease Indenture or for foreclosure of the lien
thereof and (b) the sale in whole or in part of the Lease Indenture Estate.
(Lease Indenture, Sections 7.03 through 7.08 and Section 8.03) No Holder
shall have any right to pursue any remedy under the Lease Indenture unless
the Lease Indenture Trustee shall have been given written notice of a Lease
Indenture Event of Default, the Holders of at least 25% in principal amount
of all Lessor Bonds then outstanding shall have requested the Lease
Indenture Trustee to pursue a remedy, the Lease Indenture Trustee shall
have been offered satisfactory indemnity, the Lease Indenture Trustee shall
have failed to comply with such request within 60 days after receipt of
such request and the Lease Indenture Trustee shall not have received during
such 60 day period any direction inconsistent with such request from
Holders of a majority in principal amount of outstanding Lessor Bonds.
(Lease Indenture, Section 7.10)
Except in the case of Lease Indenture Events of Default (i) described in
clauses (f) through (k) under "Lease Indenture Events of Default" above and
(ii) occurring or continuing after a Special Transfer, an assumption of the
Lessor Bonds by the Company as described below under "_Assumption by the
Company" or any of certain drawings upon a letter of credit, and except as
described in the next paragraph, the exercise of remedies against the
Company under the Lease will be controlled by the Owner Trustee. In such
circumstances, however, the Owner Trustee will be required to consult with
the Lease Indenture Trustee as to any proposed exercise or pursuit of
remedies and the Lease Indenture Trustee will have the right to cause the
Owner Trustee to forbear from such action if the Lease Indenture Trustee
has determined that such action would have a material adverse effect on the
Holders of the Lessor Bonds. In addition, the Owner Trustee will not
exercise or pursue remedies in a manner which would unreasonably deprive
the Holders of the Lessor Bonds of a material right or remedy unless the
Owner Trustee is commensurately adversely affected. There could be
circumstances, therefore, in which amounts due on the Lessor Bonds are not
paid and the Lease Indenture Trustee is not able to direct the Owner
Trustee's pursuit of remedies against the Company under the Lease. (Lease
Indenture, Sections 7.03 and 7.17)
Although, as described above, the exercise of remedies will generally be
within the control of the Owner Trustee, the Lease Indenture Trustee will
have the right to sell the Lease Indenture Estate in foreclosure or similar
proceedings. However, if such sale occurs prior to or simultaneously with
the termination of the Lease, the Lease Indenture Trustee must have offered
to sell to the Owner Trustee the Lease Indenture Estate at a stated price
determined by the Lease Indenture Trustee. If the Owner Trustee does not,
within 60 days following receipt of such offer, elect to so purchase the
Lease Indenture Estate, the Lease Indenture Trustee may foreclose and sell
the Lease Indenture Estate within 180 days to any person (other than the
Lease Indenture Trustee or a Holder or Holders of more than 25% of the
outstanding Lessor Bonds (including, in each case, affiliates thereof) )
for not less than such stated price. In the event of a sale by the Lease
Indenture Trustee pursuant to a foreclosure or similar proceeding (other
than a sale to the Owner Trustee), the Lease Indenture Trustee will have
the right to terminate the Lease in connection with such sale subject,
however, to the Company's rights under the Lease. (See "Limitation on
Remedies" below.) (Lease Indenture, Section 7.17)
If a Lease Indenture Event of Default occurs and is continuing, and the
maturity of the Lessor Bonds has been accelerated, any sums held or
received by the Lease Indenture Trustee may be applied to reimburse the
Lease Indenture Trustee for any expense (to the extent not previously
reimbursed) incurred by it and to pay its fees and any other amounts due it
prior to any payments to Holders of the Lessor Bonds. (Lease Indenture,
Section 3.03)
In the event of a bankruptcy of the Owner Participant, it is possible
that, notwithstanding that the Undivided Interest is owned by the Owner
Trustee in trust, the Undivided Interest and the related Lease and Pledged
Lessor Bonds might become subject to bankruptcy proceedings. In such
event, payments under such Lease or on such Pledged Lessor Bonds might be
interrupted and the ability of the Lease Indenture Trustee to exercise its
remedies under the Lease Indenture might be restricted, although the Lease
Indenture Trustee would retain its status as a secured creditor in respect
of the Lease and the Undivided Interest.
Rights of Lessor to Cure and Purchase Lessor Bonds
The Lease Indenture provides that a Lease Indenture Event of Default is
to be deemed cured if such Lease Indenture Event of Default results from a
non-payment of rent under the Lease and the Owner Trustee or Owner
Participant has paid all principal of and interest on the Lessor Bonds due
(other than by acceleration) on the date such rent was payable within 15
days after receipt by the Owner Trustee of notice of such nonpayment.
However, such right of the Owner Trustee or Owner Participant to cure the
non-payment of rent is limited to not more than six basic rent payment
dates or two consecutive basic rent payment dates during the Lease term.
(Lease Indenture, Section 7.16)
If a Lease Indenture Event of Default has occurred and is continuing and
(a) the Lessor Bonds have been accelerated and (b) the Owner Trustee,
within 30 days after receiving notice thereof from the Lease Indenture
Trustee, has given written notice to the Lease Indenture Trustee of its
intention to purchase all the Lessor Bonds, then, upon receipt by the Lease
Indenture Trustee within 10 business days after such notice from the Owner
Trustee of an amount equal to the aggregate unpaid principal amount of and
interest on the Lessor Bonds then outstanding (as well as any interest on
overdue principal and, to the extent permitted by law, overdue interest),
each Holder of a Lessor Bond will be required to sell such Lessor Bond, and
its right, title and interest in and to the Lease Indenture and the Lease
Indenture Estate, to the Owner Trustee. (Lease Indenture, Section 7.16)
Limitation on Remedies
Notwithstanding any other provision of the Lease Indenture, so long as no
Lease Event of Default has occurred and is continuing, the Lease Indenture
Trustee may not take or cause to be taken any action (x) contrary to the
Company's rights under the Lease, including the right to quiet use,
enjoyment and possession of the Undivided Interest or (y) that would
require prepayment of any scheduled payment of rent thereunder. (Lease
Indenture, Section 7.20)
Assumption by the Company
Under certain circumstances and subject to the satisfaction of certain
conditions, the Company, or the Company and an Affiliate thereof jointly,
may elect, or may be required, to assume the obligations of the Owner
Trustee under the Lease Indenture and on all or a portion of the Lessor
Bonds. Upon such assumption, the Lease Indenture and the Lessor Bonds so
assumed will become direct obligations of the Company (and such Affiliate),
the Lease will terminate, the Undivided Interest of the Lessor in Unit 3
will be transferred to the Company (and/or any such Affiliate) and the
Owner Trustee will be released and discharged from all further obligations
and liabilities under the Lease Indenture and on the Lessor Bonds so
assumed. Although certain changes would be made to the Lease Indenture to
reflect the termination of the Lease, the lien on and security interest in
the Undivided Interest created by the Lease Indenture would not be affected
thereby. (Lease Indenture, Section 2.16)
Upon the occurrence of an Event of Loss, Deemed Loss Event, Financial
Event or Lease Event of Default, the Owner Participant can demand that the
Company pay the excess of Casualty Value (in the case of an Event of Loss
or Lease Event of Default) or Special Casualty Value (in the case of a
Deemed Loss Event or Financial Event, subject to certain exceptions) over
the principal of and accrued interest on the Lessor Bonds then outstanding.
(Participation Agreement, Sections 15 (a), (b) and (c) and Section 16(a))
At the time of the issuance of the Initial Lessor Bonds, the Company issued
and delivered to the Owner Participant a promissory note evidencing the
Company's obligation to pay such amounts. (Participation Agreement, Section
16(a)) In addition, upon the occurrence of any of such Events, the Owner
Participant can effect a Special Transfer of the beneficial interest in the
owner trust to the Company. (Participation Agreement, Section 15(d))
If an Event of Loss, Deemed Loss Event or Financial Event has occurred in
respect of which the Owner Participant has demanded payment as described
above or in response to which a Special Transfer has been effected, the
Company, in order to effectuate and evidence an assumption of the Owner
Trustee's obligations under the Lease Indenture and on the Lessor Bonds,
may, and upon the direction of the Lease Indenture Trustee (to be given at
the direction of the Holders of not less than 5% in aggregate principal
amount of the Lessor Bonds outstanding of all series, considered as one
class) or the Owner Trustee, shall promptly, commence and diligently pursue
all steps requisite to deliver to the Lease Indenture Trustee, among other
things, (a) a duly executed assumption agreement of the Company (and, if
applicable, any of its Affiliates), (b) an opinion of counsel as to, among
other things, compliance with the conditions of the assumption (including
the obtainment of any necessary governmental actions), (c) an indenture
supplemental to the Lease Indenture that, among other things, confirms the
release of the Owner Trustee and contains provisions amending the Lease
Indenture to delete references to the Lease and to reflect the fact that
the obligations of the Owner Trustee have been assumed by the Company (and,
if applicable, such Affiliate), (d) a certificate of responsible officers
of the Company (and, if applicable, such Affiliate) to the effect that (i)
to the best of such officers' knowledge, no Lease Indenture Default or
Lease Indenture Event of Default has occurred and is continuing, (ii) such
assumption is permitted by the provisions of the Company's (and, if
applicable, such Affiliate's) articles of incorporation and by-laws (or
similar corporate documents) and (iii) the Company (and, if applicable,
such Affiliate) is not insolvent at the time of such assumption and (e) a
certificate of a responsible officer of the Owner Trustee to the effect
that, to the best of such officer's knowledge, no Lease Indenture Default
or Lease Indenture Event of Default has occurred and is continuing (Lease
Indenture, Section 2.16); provided, however, that, upon the occurrence of a
Special Transfer, the Company, without further act, will be deemed to have
assumed the obligation, and will be obligated to pay the principal of and
premium, if any, and interest on the Lessor Bonds, notwithstanding (x) the
Lessor's coextensive obligation to pay the principal of and premium, if
any, and interest on the Lessor Bonds (which shall continue until the
documents listed above have been delivered to the Lease Indenture Trustee)
or (y) any provision of any transaction document to the contrary.
(Participation Agreement, Section 15(d)(4))
Upon satisfaction of the conditions and payment of the amounts described
in the preceding paragraph, the Lessor is required to transfer title to the
Undivided Interest to the Company as directed by the Company (or an
Affiliate of the Company), subject to the lien of the Lease Indenture.
(Lease, Sections 9(c) and (d))
If the Company makes the payments to the Owner Participant as described
above upon the occurrence of an Event of Loss, Deemed Loss Event, Financial
Event or Lease Event of Default, but has not yet delivered the documents
listed in the second preceding paragraph, then the Owner Participant must
make a Special Transfer. (Participation Agreement, Section 15(d))
Any of the following events will constitute "Events of Loss":
(a) a final shutdown of Unit 3 which could result from any of several
events, including, and in some cases, subject to certain grace periods,
certain NRC licensing problems with respect to Unit 3, direction by the
NRC or other governmental authority to suspend operation of Unit 3 for
reasons of radiological health and safety for a period exceeding or
reasonably expected (in the opinion of an independent expert) to exceed
24 consecutive months, cessation of operation of Unit 3 for such period
if resumption of operation would require concurrence of the NRC or other
governmental authority, the occurrence of certain Nuclear Incidents (as
defined in the Atomic Energy Act) with respect to Unit 3 as a result of
which Unit 3 ceases to operate for a period exceeding or reasonably
expected (in the opinion of an independent expert) to exceed 18
consecutive months, damage to Unit 3 and failure to restore Unit 3 within
the shorter of three years or the period from the occurrence of such
damage until the end of the Lease term, the destruction of Unit 3, or a
declaration by the NRC that an Extraordinary Nuclear Occurrence (as
defined in the Atomic Energy Act) has occurred with respect to Unit 3;
(b) a requisition of title of Unit 3 or the Undivided Interest or
certain shared facilities or the site of Unit 3 by a governmental
authority for a period of time which exceeds or is reasonably expected to
exceed the shorter of 60 months and the remaining Lease term, subject to
certain contest rights of the Company; or
(c) a requisition of the use of Unit 3 or the Undivided Interest or
certain shared facilities or the site of Unit 3 by a governmental
authority, other than a requisition of title, which would significantly
interfere with the use of Unit 3 or the Undivided Interest, and which
requisition is for a period of time which exceeds or is reasonably
expected to exceed the shorter of 60 months and the remaining Lease term,
subject to certain contest rights of the Company.
(Participation Agreement, Appendix A)
Any of the following events will constitute "Deemed Loss Events":
(a) the Lessor or Owner Participant becoming subject to adverse
regulation as a public utility solely as a result of the Transaction;
(b) certain changes and/or new interpretations by a governmental
authority regarding applicable law, including the Price-Anderson Act, the
Atomic Energy Act, the Nuclear Waste Act or NRC regulations, as a result
of which (i) the Lessor or Owner Participant would more likely than not
become liable or responsible in any capacity for payments owed in respect
of the nuclear waste fund or in respect of, among other things, the
handling or disposal of nuclear waste and other radioactive or hazardous
materials or (ii) the Lessor or the Owner Participant may be prohibited
from asserting the limitation on liability of lessors provided by the
1988 amendments to the Price-Anderson Act or is more likely than not to
be prohibited from asserting any other material right, protection or
defense available under applicable law as of the date of closing of the
Transactions with respect to civil or criminal actions brought in
connection with a nuclear incident;
(c) the Lessor or Owner Participant more likely than not being required
to become a licensee under the Atomic Energy Act or otherwise subject to
the Atomic Energy Act or otherwise subject to NRC or other significant
regulation relating to nuclear energy, environmental or safety matters
solely as a result of the Transaction; or
(d) any governmental action or change in applicable law the effect of
which is more likely than not to (i) cause the Lessor or Owner
Participant to become liable with respect to the decommissioning of Unit
3 or (ii) constitute an assertion that (x) the exercise of certain rights
of the Lessor or Owner Participant would constitute impermissible control
over Unit 3 or the licensees of Unit 3 or would violate certain NRC or
Atomic Energy Act regulations or (y) the acquisition or transfer of the
Undivided Interest would violate other provisions of applicable law.
(Participation Agreement, Appendix A)
Any of the following events will be deemed "Financial Events" if it
remains not cured following expiration of any applicable notice or cure
period (there being no such notice or cure period in the case of the events
described in clauses (f) and (g) below) and if the Company shall not have
timely provided the Owner Participant with a letter of credit:
(a) the Company shall have failed to maintain, as of the end of any
fiscal quarter, total equity capital (including preferred stock) at least
equal to 30% of the sum of total capitalization plus certain short-term
debt;
(b) the Company shall have failed to maintain, in respect of the twelve-
month period ending on the last day of any fiscal quarter, a fixed charge
coverage ratio of at least 1.50;
(c) except for certain permitted transactions, the Company shall have
sold, assigned, or otherwise disposed of any substantial part of its
assets other than in the ordinary course of business without the prior
approval of the Owner Participant, provided that the event described in
this clause (c) will not constitute a Financial Event if the Company has
delivered first mortgage bonds to the Owner Participant (see "Other
Agreements _ Participation Agreement");
(d) the Company shall have merged with or into or consolidated with or
into any other corporation or entity in violation of certain conditions
without the prior approval of the Owner Participant;
(e) the Company shall have created, assumed or suffered to exist liens
(except for certain permitted liens) upon its assets;
(f) subject to certain exceptions, the acceleration of certain
indebtedness of the Company for borrowed money or default in payment of
such indebtedness at maturity, if the total of all such indebtedness so
accelerated or defaulted exceeds $10,000,000;
(g) the occurrence of any of the events described in clause (e) under
"Description of the Leases_Lease Events of Default";
(h) certain events relating to termination of certain of the Company's
pension plans; or
(i) Entergy shall cease to own, directly or indirectly, all of the
common stock equity and all of the voting stock of the Company or its
permitted successors (other than preferred stock that has only limited
voting rights upon default in the payment of dividends).
In general, the cure periods in respect of Financial Events of the type
other than those described in clauses (f) and (g) above are 365 days.
(Participation Agreement, Appendix A)
The Company (or the Company and one of its Affiliates) may, at its
option, but is not required to, assume all or a portion of the Lessor Bonds
if it chooses to exercise any of certain purchase options described under
"Description of the Leases _ Purchase Option for Significant Expenditures"
or "_Periodic Purchase Option" or under "Other Agreements _ Participation
Agreement." Any such assumption would be conditioned upon the prior
delivery to the Lease Indenture Trustee of certain documents as described
under "_Assumption by the Company." (See Lease Indenture, Section 2.16(b);
Lease, Sections 13(f) and (g); and Participation Agreement, Section 16(d))
Defeasance
The Lessor Bonds of any series, or any portion of the principal amount
thereof, will, at or prior to the maturity thereof, be deemed to have been
paid for purposes of the Lease Indenture, and the entire indebtedness of
the Owner Trustee (or other obligor thereon) in respect thereof will be
deemed to have been satisfied and discharged, if there shall have been
irrevocably deposited with the Lease Indenture Trustee, in trust, either
(a) moneys in an amount which will be sufficient, or (b) Federal Securities
(as defined below), which do not contain provisions permitting the
redemption or other prepayment thereof at the option of the issuer thereof,
the principal of and the interest on which when due, without any regard to
reinvestment thereof, will provide moneys which, together with the moneys,
if any, deposited with or held by the Lease Indenture Trustee, will be
sufficient, to pay when due the principal of and premium, if any, and
interest due and to become due on such Lessor Bonds on and prior to the
maturity thereof. For this purpose, the term "Federal Securities" is
defined as direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America or certificates of an ownership interest in the principal of or
interest on such obligations. (Lease Indenture, Section 11.01)
Releases
The Lease Indenture Trustee will release from the lien of the Lease
Indenture any property subject to the lien thereof which is taken by any
governmental authority pursuant to a power of eminent domain or other right
to acquire such property (whether or not such taking constitutes an Event
of Loss) upon its receipt of, among other things, a written request from
the Owner Trustee or the Company requesting such release and the net
proceeds of any property so taken. (Lease Indenture, Section 13.01)
Subject to the following paragraph, the Owner Trustee or, with the Owner
Trustee's consent, the Company, may obtain the release from the lien of the
Lease Indenture of the Owner Trustee's interest in any component of Unit 3
the removal of which would not materially impair the operating capacity,
cost efficiency or value of Unit 3, and the Lease Indenture Trustee will
release from the lien of the Lease Indenture its interest in any such
component upon its receipt of, among other things, a written request from
the Owner Trustee or the Company requesting such release and a certificate
of an engineer or other expert (who in certain cases will be required to be
independent of the Owner Trustee and the Company and any Affiliate of
either thereof) certifying (x) the value of the property to be released and
(y) that, in the opinion of such expert, the proposed release will not
impair the security under the Lease Indenture in violation of the
provisions thereof. (Lease Indenture, Section 13.02)
In addition to the release provisions described above, the Owner Trustee
or, with the Owner Trustee's consent, the Company, may sell or otherwise
dispose of, free from the lien of the Lease Indenture and without obtaining
any release or other consent from the Lease Indenture Trustee, the Owner
Trustee's interest in any components of Unit 3 which have become obsolete
or otherwise permanently no longer useful for the operation of Unit 3. All
replacement components incorporated in Unit 3 will, to the extent of the
Owner Trustee's interest therein, immediately become subject to the lien of
the Lease Indenture. (Lease Indenture, Section 13.03)
Supplemental Indentures
Without the consent of the Holders of any Lessor Bonds, the Owner Trustee
and the Lease Indenture Trustee may enter into supplemental indentures for
the following purposes:
(a) to establish the form and terms of Lessor Bonds of any series;
(b) to evidence the succession of another bank or trust company to the
Owner Trustee and the assumption by any such successor of the covenants
of the Owner Trustee contained in the Lease Indenture and in the Lessor
Bonds or the appointment of a co-trustee pursuant to the terms of the
Trust Agreement;
(c) to evidence the succession of a new trustee or the appointment of a
co-trustee or a separate trustee under the Lease Indenture;
(d) to grant or confer upon the Lease Indenture Trustee for the benefit
of the Holders any additional rights, remedies, powers, authority or
security which may be lawfully so granted or conferred and which grant or
conferral is not contrary to or inconsistent with the Lease Indenture;
(e) to add to the covenants of the Owner Trustee for the benefit of the
Holders or to evidence the surrender of any right or power conferred in
the Lease Indenture upon the Owner Trustee;
(f) to convey, transfer and assign to the Lease Indenture Trustee, and
to subject to the lien of the Lease Indenture, additional properties or
assets, or to correct or amplify the description of any property at any
time subject to the lien of the Lease Indenture or to assure, convey and
confirm unto the Lease Indenture Trustee any property subject or required
to be subject to the lien of the Lease Indenture;
(g) to modify, eliminate or add to the provisions of the Lease Indenture
to the extent necessary to qualify or continue the qualification of the
Lease Indenture (including any supplemental indenture) under the Trust
Indenture Act, or under any similar federal statute subsequently enacted,
or to add to the Lease Indenture such other provisions as may be
expressly permitted by that Act;
(h) to permit or facilitate the issuance of Lessor Bonds in
uncertificated form;
(i) to change or eliminate any provision of the Lease Indenture;
provided, however, that if such change or elimination will adversely
affect the interests of the Holders of Lessor Bonds of any series, such
change or elimination will become effective with respect to such series
only when no Lessor Bond of such series remains outstanding;
(j) to evidence an assumption by the Company of the Lessor Bonds, and
the release of the Owner Trustee from its obligations thereon, and to
make the related changes in the Lease Indenture;
(k) to cure any ambiguity or to correct or supplement any provision in
the Lease Indenture which may be defective or inconsistent with any other
provision in the Lease Indenture; or
(l) to make any other provisions with respect to matters or questions
arising under the Lease Indenture, provided such action shall not
adversely affect the interests of the Holders of the Lessor Bonds in any
material respect.
(Lease Indenture, Section 10.01)
Subject to the foregoing paragraph, with the consent of the Holders of
not less than a majority in aggregate principal amount of the outstanding
Lessor Bonds of all series, considered as one class, the Owner Trustee may,
and the Lease Indenture Trustee shall, enter into supplemental indentures
for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, the Lease Indenture; provided that if
there is more than one series of Lessor Bonds outstanding and if a proposed
supplemental indenture directly affects the Holders of at least one, but
not all, of such series, then only the consent of a majority in aggregate
principal amount of the outstanding Lessor Bonds of all series so directly
affected, considered as one class, will be required; and provided, further,
that without the consent of the Holder of each outstanding Lessor Bond
directly affected thereby no such supplemental indenture may:
(a) change the stated maturity of the principal of, or any installment
of interest on, or the date or circumstances of payment of premium, if
any, on, any Lessor Bond, or reduce the principal amount thereof or the
interest thereon or any premium payable upon the redemption thereof, or
change the place of payment where, or the coin or currency in which, any
Lessor Bond or the premium, if any, or the interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment of principal or interest on or after the stated maturity thereof
(or, in the case of redemption, on or after the redemption date) or such
payment of premium, if any, on or after the date such premium becomes due
and payable or change the dates or amounts of payments to be made through
the operation of the sinking fund in respect of such Lessor Bonds;
(b) permit the creation of any lien prior to or, except with respect to
additional series of Lessor Bonds issued in accordance with the Lease
Indenture, equal to the lien of the Lease Indenture with respect to any
of the Lease Indenture Estate, or deprive any Holder of the benefit of
the lien of the Lease Indenture upon any part of the Lease Indenture
Estate for the security of its Lessor Bonds;
(c) reduce the percentage in principal amount of the outstanding Lessor
Bonds, the consent of whose Holders is required for any supplemental
indenture or for any waiver provided for in the Lease Indenture;
(d) modify the order of priorities in which distributions of income and
proceeds from the Lease Indenture Estate are to be made under the Lease
Indenture;
(e) modify the definitions of "Outstanding," "Lease Indenture Default"
or "Lease Indenture Event of Default";
(f) modify any of the above provisions or the provisions of the Lease
Indenture dealing with waivers of past defaults, except to increase the
percentage of the Holders whose consent is required for certain action or
to provide that certain other specified provisions of the Lease Indenture
cannot be modified or waived without the consent of the Holder of each
Lessor Bond affected thereby.
(Lease Indenture, Section 10.02)
Limitations on Amendments of Other Documents
The Lease Indenture Trustee, without the consent of the Holders of any
Lessor Bonds, (a) will, upon receipt of written instructions to such effect
from the Company and the Owner Trustee, consent to amendments of or
supplements to, or waivers of any provisions of, the Lease or any other
transaction document included in the Lease Indenture Estate and (b) may
join in the execution of amendments of or supplements to, or waivers of any
provisions of, the Participation Agreement, in each case for the purpose of
adding any provision to, or changing in any manner or waiving or
eliminating any provisions of, any such transaction document; provided,
however, that, without the consent of the Holders of not less than a
majority in aggregate principal amount of the outstanding Lessor Bonds of
all series, considered as one class, the Lease Indenture Trustee will not
consent to any such amendment, supplement or waiver which amends or waives
certain provisions of the Lease relating to, among other things, liens, the
right of the Company to assign or sublease its rights and obligations under
the Lease, certain Lease Events of Default or the exercise of remedies
under the Lease; provided, further, that, without the consent of the
Holders of the outstanding Lessor Bonds of all series, the Lease Indenture
Trustee will not consent to any such amendment, supplement or waiver which
will:
(1) amend or waive certain provisions of the Lease relating to, among
other things, the sufficiency of certain rental payments to provide funds
at least equal to scheduled amounts payable on the Lessor Bonds, the "net
lease" obligations of the Company thereunder and the Company's
unconditional obligation to make basic rental and certain other payments
under the Lease, the obligation of the Owner Trustee to redeem the Lessor
Bonds in the event of an obsolescence termination of the Lease by the
Company, or the Lease Event of Default occasioned by the failure of the
Company to pay basic rent when due;
(2) modify the definitions of "Lease Default" or "Lease Event of
Default"; or
(3) (A) release the Company from its obligation to pay basic rent,
Casualty Value, Special Casualty Value or any payment required to be made
by it pursuant to an exercise of remedies under the Lease or (B) reduce
the amount or change the timing of any payments of basic rent, Casualty
Value, Special Casualty Value or any payments required to be made by the
Company pursuant to an exercise of remedies under the Lease so that such
payments would be insufficient to pay the principal of, and interest on,
the outstanding Lessor Bonds of all series when due.
(Lease Indenture, Section 10.03)
Limitation of Liability
The Lessor Bonds will not be direct obligations of, or guaranteed by, the
Company, any Owner Participant, or any institution or individual acting as
Owner Trustee in its individual capacity. All payments to be made by the
Owner Trustee under the Lease Indenture or on the Lessor Bonds will be made
only from the Lease Indenture Estate or the income and proceeds received by
the Lease Indenture Trustee therefrom. Neither the Owner Participant, the
Lease Indenture Trustee nor the Owner Trustee in its individual capacity,
will be liable to any Holder for any amounts payable on any Lessor Bonds or
otherwise under the Lease Indenture. (Lease Indenture, Section 2.15)
Additional Bonds
The Lease Indenture permits the issuance of additional Lessor Bonds at
any time or from time to time, subject to certain conditions, for cash in
the original principal amount of such additional Lessor Bonds for the
following purposes: (a) refunding a previously issued series of Lessor
Bonds in whole or in part and providing funds for the payment of certain
expenses incurred in connection therewith and/or (b) providing funds for
all or any portion of the Owner Trustee's share of certain capital
improvements to Unit 3. (Lease Indenture, Section 2.05) All of the Lessor
Bonds issued and outstanding under the Lease Indenture will rank on a
parity with each other and will as to each other be secured equally and
ratably thereunder, without preference, priority or distinction of any
thereof over any other by reason of difference in time of issuance or
otherwise. (Lease Indenture. Section 2.03)
DESCRIPTION OF THE LEASES
The statements contained under this caption are intended to summarize the
Leases as they relate to the Collateral Bonds; they do not purport to be
complete and are qualified in their entirety by reference to the Leases,
copies of which have been filed as exhibits to the Registration Statement
of which this Prospectus is a part. Each Lease is an entirely separate
lease but contains substantially the same terms and provisions as each
other Lease. In the following summary, references to the Lease, the Lease
Indenture, the Owner Participant, the Undivided Interest, the Lessor and
the Lessor Bonds relate to each Lease.
Term and Rentals
The Lessor has acquired its Undivided Interest and has leased such
interest of the Company pursuant to the Lease, which has a term expiring on
July 1, 2017 unless earlier terminated or extended as described below.
Basic rent is required to be paid by the Company under the Lease in
immediately available funds on each January 2 and July 2, through July 2,
2017. (Lease, Sections 2(b) and 3(a)) The amount of basic rent payable
under the Lease on each basic rent payment date will be calculated to be at
least equal to the scheduled amount of principal of and interest then
payable on all Lessor Bonds then outstanding. (Lease, Section 3(g)) Each
payment of basic rent by the Company during such time as the Lease
Indenture is in effect will be made to the Lease Indenture Trustee and
applied first to the payment of principal and interest due from the Lessor
on the Lessor Bonds. Except in the case of an acceleration of Lessor Bonds
due to a continuing Lease Indenture Event of Default, the balance of any
payments of basic rent under the Lease, after payment of the scheduled
principal of and interest on the Lessor Bonds, will be distributed to the
Owner Trustee on behalf of the Owner Participant, as beneficial owner of
the trust which is the owner of the Undivided Interest. (Lease Indenture,
Sections 3.01, 3.03 and 3.06)
Net Lease
The obligations of the Company under the Lease are those of a lessee
under a "net lease", and the Company will be responsible under the Lease
for paying all insurance premiums, operating and maintenance costs and all
other similar costs associated with the Undivided Interest. Payments of
rent under the Lease by the Company are to be made without counterclaim,
set-off, defense, abatement, suspension or reduction except for certain
rights of set-off the exercise of which would not reduce the amount of rent
required to be paid by the Company to an amount insufficient to pay in full
the principal of, premium, if any, and interest on the Lessor Bonds then
due. (Lease, Section 4)
Capital Improvements
The Company may incur costs from time to time in connection with capital
improvements to Unit 3. Certain of such costs, based on the Owner
Trustee's proportionate interest in Unit 3, may be financed through a
supplemental financing. (See "Description of the Lease Indentures _
Additional Bonds.") In the event of such a supplemental financing, the
rent under the Lease will be increased to cover the additional debt
service. In addition, the Owner Participant may elect to make an
additional equity investment with respect to the cost of any capital
improvements on terms to be agreed upon. (Lease, Section 8(f))
Rights to Assign or Sublease
The Company is permitted to assign, sublease, encumber or transfer its
rights and obligations under the Lease and other documents related to the
Transactions subject to certain conditions, including that the Company
remain the primary obligor on the Lease. (Lease, Section 11)
Insurance
The Company is required under the Lease to carry and maintain, with
respect to the Undivided Interest, Unit 3 and the Unit 3 site, the
insurance described below:
(a) Provided that such insurance is commercially available at a
commercially reasonable cost, "all-risk" property insurance (excluding
flood and earthquake insurance) covering physical loss with respect to
Unit 3;
(b) Bodily injury and property damage liability insurance covering
claims arising out of the ownership, operation, maintenance, condition or
use of Unit 3; and
(c) Nuclear liability insurance.
With respect to each of the types of insurance described in (a) through
(c) above, the Company is required to maintain such insurance in such
amounts and with such terms as are consistent with the Company's normal
practice, and in any event in such amounts and with such terms as are
consistent with applicable law and prudent utility practice. The Company
is also required to maintain supplier's and transporter's insurance and
master workers policy coverages, in each case in amounts consistent with
prudent utility practice and applicable law.
In addition, subject to such insurance being commercially available at a
commercially reasonable cost, the Company is further required to maintain
replacement power insurance covering not less than 90 percent of the cost
of replacing power, as reasonably estimated by the Company in the event of
damage or destruction at the Unit 3 site. However, the Company shall not
be required to maintain such replacement power coverage if the Company
provides the Owner Participant with a letter of credit as described under
"Other Agreements _ Participation Agreement."
(Lease, Section 10)
Proceeds of property insurance received by the Lessor or the Company as a
result of the occurrence of an Event of Loss shall be applied in reduction
of the Company's obligation to make payment of the excess of Casualty Value
over the principal of and accrued interest on the Lessor Bonds to the Owner
Participant with the balance, if any, of such proceeds to be paid to the
Company, subject, however, to any priority allocation of such proceeds.
(Lease, Section 9(g)) In general, the Lease Indenture Trustee and the
Holders of the Lessor Bonds will have no rights in respect of the proceeds
of property insurance except for the assignment (to the extent, if any, of
amounts then due and owing in respect of the principal of and premium, if
any, and interest on the Lessor Bonds) by the Owner Trustee to the Lease
Indenture Trustee of the Owner Trustee's rights in respect of such proceeds
received as a result of the occurrence of an Event of Loss.
Purchase and Renewal Options at the End of the Lease Term
The Company has the option under the Lease to purchase at fair market
sales value the Lessor's Undivided Interest at the end of the term of the
Lease, or to renew the Lease for one or more periods of three years, at a
fair market rental value or, subject to receipt of a satisfactory appraisal
which will address certain tax matters, to renew the Lease at the end of
the initial Lease term at a fixed rate rental for a single period of at
least two years. (Lease, Sections 12 and 13) If the Company does not give
notice of its election to exercise the options to purchase the Undivided
Interest or renew the Lease not earlier than five but not later than two
years prior to the expiration of the Lease, the Lessor may, on at least one
year's prior written notice, terminate the Lease on the date specified in
the notice. Upon such termination, the Company must pay to the Lessor all
basic rent then due or accrued, together with any other amounts then
payable to the Owner Trustee, the Owner Participant and the Lease Indenture
Trustee. On or prior to such termination, the Lessor would be required to
deposit with the Lease Indenture Trustee cash in an amount equal to the
unpaid principal amount of all Lessor Bonds outstanding on such date, and
all premium, if any, and interest accrued or to accrue on and as of such
termination. (Lease, Section 14(c))
Purchase Option for Significant Expenditures
The Company has the option on any January 2 or July 2 on or after January
2, 2000 to terminate the Lease if the Company is planning or required to
make any significant expenditure for certain types of capital improvements
to Unit 3. On such January 2 or July 2, the Company must pay to the Lessor
an amount equal to the higher of the fair market sales value of the
Undivided Interest and Casualty Value determined as of such January 2 or
July 2 together with any other amounts then payable to the Owner Trustee,
the Owner Participant and the Lease Indenture Trustee and, assuming such
payment, the Lessor would be required to transfer the Undivided Interest to
the Company. If the Company has assumed all or a portion of the Lessor
Bonds then outstanding, such amount shall be reduced by the principal
amount of the Lessor Bonds so assumed. A "significant expenditure" is an
expenditure with respect to certain capital improvements to Unit 3 which
(i) for the period until and including September 28, 2009, shall have been
reasonably estimated by the Company to exceed $250,000,000 (as such amount
may be adjusted periodically in accordance with the Consumer Price Index)
and (ii) for the period from the day next succeeding the last day of the
period specified in clause (i) above until the end of the Lease term, shall
have been reasonably estimated by the Company to exceed $100,000,000 (as
such amount may be adjusted periodically in accordance with the Consumer
Price Index). (Lease, Section 13(f))
Periodic Purchase Option
The Company has the option on January 2 in each of the years 2000, 2005
and 2010 to terminate the Lease and to purchase the Undivided Interest. On
such January 2, the Company must pay to the Lessor an amount equal to the
higher of the fair market sales value of the Undivided Interest and
Casualty Value determined as of such January 2 together with any other
amounts then payable to the Owner Trustee, the Owner Participant and the
Lease Indenture Trustee. If the Company has assumed all or a portion of
the Lessor Bonds then outstanding, such amount shall be reduced by the
principal amount of the Lessor Bonds so assumed. (Lease, Section 13 (g))
Termination for Obsolescence
The Company has the option on any January 2 or July 2, on or after
January 2, 2000, to terminate the Lease if the Company's Board of Directors
determines that the Company's leasehold interest in the Undivided Interest
is uneconomic or obsolete for the Company's purposes. In such event, the
Lessor may elect to either retain the Undivided Interest or sell it to the
highest bidder. On the Lease termination date, if the Lessor has not
elected to retain the Undivided Interest, the Lessor will be required to
sell the Undivided Interest to the highest bidder (which may not be either
the Company or any Affiliate thereof) and the Company must pay to the
Lessor an amount equal to the excess, if any, of Special Casualty Value as
of the termination date over such net sale price, and any other amounts
then payable to the Owner Trustee, the Owner Participant and the Lease
Indenture Trustee; provided, however, that if the highest bid shall be less
than Special Casualty Value, the Lessee may reject the bid, in which case
no sale shall occur. If no such sale shall occur or if the Company shall
not have fulfilled its obligations in respect of such termination, the
Lease will continue in full force and effect. (Lease, Sections 14(a) and
14(b)) In the event of such a termination, the Lessor Bonds will be
redeemed. (Lease Indenture, Section 5.02(a))
Lease Events of Default
The following are Lease Events of Default:
(a) the Company shall fail to make or cause to be made, (x) any payment
of basic rent, Casualty Value, Special Casualty Value, or the payment of
the equity portion of Casualty Value or Special Casualty Value or any
other amount determined by reference to any of such amounts pursuant to
any of the transaction documents, within five business days after the
same shall become due or (y) any payment of supplemental rent (other than
Casualty Value, Special Casualty Value, or the payment of the equity
portion of Casualty Value or Special Casualty Value) including, without
limitation, any payments due under the Tax Indemnification Agreement,
within 20 days after the same shall become due or be demanded, as the
case may be; or
(b) the Company shall fail to perform or observe any covenant, condition
or agreement to be performed or observed by it under the Participation
Agreement relating to the maintenance of its corporate existence and
maintenance of certain of its material rights and franchises, and the
conditions under which it may merge, consolidate or dispose of all or
substantially all of its assets, or to comply with the return or the
assignment and sublease provisions of the Lease; or
(c) the Company shall fail to perform or observe any covenant, condition
or agreement (other than those referred to in clauses (a), (b), (f) and
(h) of this paragraph) to be performed or observed by it under the Lease
or any other transaction document (other than under the Tax
Indemnification Agreement or under the general tax indemnity provisions
of the Participation Agreement), and such failure shall continue for a
period of 30 days after there shall have been given to the Company by the
Lessor or the Owner Participant a notice specifying such failure and
requiring it to be remedied; provided, however, that the continuation of
such failure for a period of 30 days or more after such notice has been
so given (but in no event for a period which is greater than one year
after such notice has been given) shall not constitute a Lease Event of
Default if (a) such failure can be remedied but cannot be remedied within
such 30 days, (b) the Company is diligently pursuing a remedy of such
failure and (c) such failure does not impair in any material respect the
Company's ability to perform its obligations under any of the transaction
documents to which the Company is a party, or the Lessor's interest in
Unit 3 or the mortgage and security interest created by the Lease
Indenture; or
(d) any representation or warranty made by the Company in the Lease, any
other transaction document (other than the Tax Indemnification Agreement)
or any agreement, document or certificate delivered by the Company in
connection with the Transactions shall prove to have been incorrect in
any material respect when such representation or warranty was made or
given if such representation or warranty continues to be material and
remain materially incorrect at the time in question; provided, however,
that such failure of such representation or warranty to be correct shall
not constitute a Lease Event of Default if (i) the facts or circumstances
making such representation or warranty incorrect can be remedied or
changed so that such representation or warranty will thenceforth be
correct in all material respects, (ii) the Company is diligently pursuing
such a remedy or change, (iii) such remedy or change is, in fact,
accomplished within a period of one year from the time that the Company
has been notified or has knowledge of such misrepresentation or breach of
warranty and (iv) such facts or circumstances do not impair in any
material respect the Company's ability to perform its obligations under
any of the transaction documents to which the Company is a party or the
Lessor's interest in Unit 3 or the mortgage and security interest created
by the Lease Indenture; or
(e) (x) the Company shall (i) admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due, (ii) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of all or a
substantial part of its property, (iii) make a general assignment for the
benefit of its creditors, (iv) commence a voluntary case under the United
States Bankruptcy Code, (v) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or readjustment of debts, (vi) fail to
controvert in a timely and appropriate manner, or acquiesce in writing
to, any petition filed against it in an involuntary case under the United
States Bankruptcy Code, or (vii) take any corporate action for the
purpose of effecting any of the foregoing; or (y) a proceeding or case
shall be commenced, without the application or consent of the Company, in
any court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of the Company or of all or any
substantial part of its assets, or (iii) similar relief in respect of the
Company under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or readjustment of debts, and such proceeding
or case shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 or more days; or an order for
relief against the Company shall be entered in an involuntary case under
the United States Bankruptcy Code; or
(f) if the Company shall theretofore have provided a letter of credit to
the Owner Participant, the Company (A) shall fail, at any time, to
provide or maintain a letter of credit which complies with the terms and
conditions of the Participation Agreement, whether or not the Company has
used its best efforts to obtain and maintain such letter of credit or (B)
shall fail to provide a renewal or replacement letter of credit so
complying (l) by the tenth day prior to the stated termination date of an
existing letter of credit or (2) if the issuing bank of an existing
letter of credit shall have delivered notice, in accordance with the
terms thereof, that such existing letter of credit will be terminated
prior to its stated termination date, by the tenth day prior to the date
of such early termination; or
(g) the occurrence and continuance of an event of default under any
other lease, executed and delivered as of the same date as the Lease,
under which the Company is the lessee of an undivided interest in Unit 3,
and the declaration of such lease to be in default by any party thereto;
or
(h) any suspension, revocation or termination of the nuclear liability
insurance required to be maintained under the Lease; provided, however,
that such suspension, revocation or termination shall not constitute a
Lease Event of Default if the applicable insurer has failed to comply
with applicable notice termination provisions of the pertinent policy;
and provided, further, that the foregoing proviso shall cease to apply
upon the earlier of (x) five business days following receipt by the
Company of actual notice of such suspension, revocation or termination or
(y) the applicable termination date of such policy assuming that the
insurer had complied with its notice obligations under the pertinent
policy; or
(i) any material obligation of the Company under the Lease or any other
documents relating to the Transaction to which it is a party shall at any
time for any reason cease to be valid and binding on the Company, or
shall be declared to be null and void, or the validity or enforceability
thereof shall be contested by the Company or any governmental agency or
authority, or the Company shall assert that it has no further liability
or obligation under the Lease or any other document relating to the
Transactions to which it is a party; or
(j) final judgment for the payment of money in excess of $10,000,000
shall be rendered against the Company and the Company shall not have
discharged the same or provided for its discharge in accordance with its
terms or bonded the same or procured a stay of execution thereof within
60 days from the entry thereof; or
(k) the Company shall exercise, or commence any action or proceeding or
take any action seeking to exercise, any rights it may have under
Louisiana law to partition Unit 3.
(Lease, Section 15)
Remedies
Upon the occurrence and continuance of any Lease Event of Default, a
Lessor may exercise one or more of the remedies set forth in the Lease,
which include the following: (a) the Lessor may declare the Lease to be in
default or may terminate the Lease; (b) the Lessor may repossess the
Undivided Interest; (c) the Lessor may sell the Undivided Interest or any
part thereof; (d) the Lessor may hold, keep idle or lease to others all or
any part of the Undivided Interest; (e) the Lessor may demand any unpaid
rent plus, as liquidated damages, any of the following amounts which the
Lessor, in its sole discretion, shall specify: (i) an amount equal to the
excess of Casualty Value over the fair market rental value of the Undivided
Interest until the end of the remaining useful life of Unit 3 (discounted
to present value), (ii) an amount equal to the excess of Casualty Value
over the fair market sales value of the Undivided Interest, (iii) an amount
equal to the excess of the present value of all installments of basic rent
until the end of the Lease term over the present value of the fair market
rental value of the Undivided Interest until the end of such term, or (iv)
an amount equal to the highest of Casualty Value, such discounted fair
market rental value and such fair market sales value; and (f) if the Lessor
shall have sold all the Undivided Interest pursuant to clause (c) above,
the Lessor, in lieu of exercising its rights under clause (e) above may
demand that the Company pay to the Lessor, as liquidated damages, any
unpaid rent plus the amount of any deficiency between the sale proceeds and
Casualty Value together with interest on the amount of such rent and such
deficiency.
The remedies in the Lease are cumulative and in addition to any other
remedy available to the Lessor at law or in equity, and no exercise of any
remedy under the Lease will, except as specifically provided therein,
relieve the Company of any of its liabilities and obligations under the
Lease. (Lease, Section 16)
Quiet Enjoyment
The transaction documents provide that, unless a Lease Event of Default
has occurred and is continuing, the Company's use and possession of Unit 3,
including the Undivided Interest, shall not be interrupted by the Lessor or
any person claiming by, through or under the Lessor. (Lease, Section 6(a))
OTHER AGREEMENTS
The discussion of the Participation Agreements and Tax Indemnification
Agreements below is intended to merely summarize certain provisions of
those agreements as they relate to the Collateral Bonds and the
Transactions; it does not purport to be complete and is qualified in its
entirety by reference to those agreements, copies of which have been filed
as exhibits to the Registration Statement of which this Prospectus is a
part.
Participation Agreement
In each Participation Agreement the Company has agreed, among other
things, that it will at all times maintain its corporate existence and will
not consolidate with or merge into, or sell, transfer or otherwise dispose
of substantially all of its assets to, any person unless immediately after
giving effect to such transaction a number of conditions are met, including
the requirements that (a) the survivor be a corporation organized under the
laws of the United States of America, a State thereof or the District of
Columbia, (b) the survivor of such transaction assumes the obligations of
the Company under each of the other documents relating to the Transactions
to which the Company was a party, (c) such transaction does not permit the
early termination of any letter of credit prior to its scheduled expiration
date, (d) all governmental actions and corporate approvals have been
obtained for the transaction, (e) the transaction will not result in a
material violation of any provision of any agreement or financing
arrangement to which the Company is a party, and (f) the survivor delivers
to the Owner Participant, the Owner Trustee and the Lease Indenture Trustee
opinions and officers' certificates as to, among other things, compliance
with the transfer conditions above. (Participation Agreement, Section 9(b)
(3)) Reference is also made to the discussion above under "Description of
the Lease Indentures _ Assumption by the Company" for additional
restrictions in respect of certain mergers, consolidations or sales of
assets affecting the Company.
Pursuant to each Participation Agreement, the Company provided the Owner
Participant with financial support to secure the payment to the Owner
Participant of the equity portion of amounts payable by the Lessee under
the Lease and related documents in the form of a new series of first
mortgage bonds issued under the Company's first mortgage indenture. Upon
the occurrence of an Event of Loss, a Deemed Loss Event, a Financial Event
or a Lease Event of Default under the related Lease, an Owner Participant
would be entitled to demand payment on such first mortgage bonds in an
amount generally not exceeding Casualty Value less the aggregate principal
amount of and accrued interest on the related Lessor Bonds then
outstanding. The Holders of the Lessor Bonds (including the Trustee, as
holder of the Pledged Lessor Bonds) and Holders of the Collateral Bonds are
not entitled to the benefit of such first mortgage bonds. As an
alternative to the first mortgage bonds, the Company could supply such
financial support in the form of a letter of credit issued by a commercial
bank. Once a letter of credit has been provided to an Owner Participant,
the Company will be required to provide a letter of credit for such Owner
Participant for the remainder of the basic term of the related Lease. If a
letter of credit were about to expire or be terminated prior to the
scheduled expiration thereof, and the Company does not replace such letter
of credit with another letter of credit issued by an eligible bank, the
Company would have the right to purchase the related Undivided Interest
from the related Lessor, thereby terminating the related Lease, at a price
equal to the higher of fair market sales value and Casualty Value;
provided, however, that if the Company had assumed all or a portion of the
related Lessor Bonds then outstanding, the purchase price would be reduced
by the principal amount of such Lessor Bonds then outstanding.
(Participation Agreement, Section 16(d))
Subject to certain first refusal rights of the Company, any Owner
Participant may at any time assign, convey or otherwise transfer its
interest in, to and under any transaction document or its trust estate to a
person with a net worth at the time of such transfer of not less than $50
million or to a person whose obligations under the transaction documents
have been guaranteed by a person with such a net worth. The transferring
Owner Participant will, with certain limited exceptions, be released from
its obligations under the transaction documents and the transferee Owner
Participant shall succeed to such obligations and rights of the
transferring Owner Participant. (Participation Agreement, Section 14)
Tax Indemnification Agreement
Pursuant to separate Tax Indemnification Agreements for each Transaction
between the Company and the Owner Participant, the Company is obligated to
pay to the Owner Participant, among other things, amounts which, on an
after-tax basis, equal the amounts of additional federal income taxes
payable by the Owner Participant with respect to any current or prior
taxable year as a result of a Tax Loss and any interest, penalties or
additions to any tax imposed as a result of such Tax Loss or the contest
thereof. For purposes of each Tax Indemnification Agreement, "Tax Loss"
includes, subject to certain exceptions: (a) loss to the Owner Participant
of depreciation or analogous deductions with respect to the related
Undivided Interest or interest deductions with respect to the related
Lessor Bonds; (b) loss to the Owner Participant of foreign tax credits due
to the treatment of any item of income, gain, loss or deduction with
respect to the related Transaction as derived from, or allocable to,
foreign sources (in the case of either (a) or (b) as a result of, among
other things, (i) any act or failure to act by the Company, (ii) any
misrepresentation or breach of warranty or covenant in the transaction
documents by the Company, (iii) bankruptcy of the Company or any
disposition of the related Undivided Interest pursuant to the exercise of
remedies under the related Indenture or (iv) damage to or the taking of the
related Undivided Interest); or (c) unanticipated income of the Owner
Participant with respect to the related Undivided Interest.
PLAN OF DISTRIBUTION
The Prospectus Supplement relating to a series of Collateral Bonds will
set forth the terms of the offering of the Collateral Bonds, including the
names of underwriters, including Morgan Stanley & Co. Incorporated and
Citicorp Securities, Inc., the proceeds to Funding Corporation from such
sale, any items constituting underwriters' compensation, any initial public
offering price and any discounts or concessions allowed or reallowed to
dealers. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from
time to time. The Collateral Bonds will be acquired by the underwriters
for their own account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of each resale. Unless
otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase the Collateral Bonds will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase
all such Collateral Bonds if any are purchased; provided that the agreement
between the Company and the underwriters providing for the sale of the
Collateral Bonds may provide that under certain circumstances involving a
default of underwriters, less than all of the Collateral Bonds may be
purchased.
Each Prospectus Supplement relating to a particular offering of
Collateral Bonds will contain a statement (1) as to whether or not the
existence of a secondary market for such securities can be predicted and,
if such existence is predicted, as to the extent of such secondary market,
and (2) as to whether or not the underwriter or underwriters intend to make
a market in such securities.
Subject to certain conditions, the Company may agree to indemnify the
underwriter or underwriters and their controlling persons against certain
civil liabilities, including liabilities under the Securities Act of 1933,
as amended.
EXPERTS AND LEGALITY
The Company's balance sheet as of December 31, 1994 and the statements of
income, retained earnings, and cash flows and the related financial
statement schedule for the year ended December 31, 1994, incorporated by
reference in this Prospectus, have been incorporated by reference herein in
reliance on the reports of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of that firm as experts in accounting
and auditing.
The financial statements and the related financial statement schedule as
of December 31, 1993 and for each of the two years in the period ended
December 31, 1993, incorporated in this Prospectus by reference to the
Company's Annual Report on Form 10-K for the year ended December 31, 1994,
have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their reports dated February 11, 1994 (which reports expressed an
unqualified opinion and included an explanatory paragraph relating to the
Company's change in method of accounting for income taxes) also
incorporated by reference herein, and have been so included in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
Legal matters in connection with the issuance of the Collateral Bonds
will be passed upon for the Company by Monroe & Lemann (A Professional
Corporation), New Orleans, Louisiana, and Reid & Priest LLP, New York, New
York, and for the underwriters by Winthrop, Stimson, Putnam & Roberts, New
York, New York. In rendering such opinions, Reid & Priest LLP and
Winthrop, Stimson, Putnam & Roberts will rely upon the opinion of Monroe &
Lemann (A Professional Corporation) as to matters of Louisiana law, and
Monroe & Lemann (A Professional Corporation) will rely upon the opinion of
Reid & Priest LLP as to matters of New York law. Certain matters with
respect to the legality of the Lessor Bonds will be passed upon for the
Owner Trustee by Haight, Gardner, Poor & Havens, New York, New York, and by
Liskow & Lewis, New Orleans, Louisiana.
GLOSSARY
Certain capitalized terms used in this Prospectus and the accompanying
Prospectus Supplement have the following meanings and such meanings shall
apply to terms both singular and plural unless the context clearly requires
otherwise:
"Affiliate" means with respect to the Company any other person directly
or indirectly controlling or controlled by, or under direct or indirect
common control with, the Company. For purposes of this definition, the
term "control" (including the correlative meanings of the terms "controlled
by" and "under common control with"), as used with respect to any person,
shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management policies of such person, whether
through the ownership of voting securities or by contract or otherwise.
"Atomic Energy Act" means the Atomic Energy Act of 1954, as amended, and
regulations from time to time issued, published or promulgated pursuant
thereto.
"Casualty Value" means an amount specified in each Lease which the
Company must pay to the Lessor under such Lease in certain circumstances,
which amount is, in general and among other things, calculated to preserve
the net economic return of the related Owner Participant.
"Collateral Bonds" mean bonds offered by this Prospectus.
"Company" means Louisiana Power & Light Company.
"Deemed Loss Event" means any of the events described as a Deemed Loss
Event in each Lease upon the occurrence of which the Company must (subject
to certain conditions) acquire the beneficial interest of the related Owner
Participant and/or assume the related Lessor Bonds. (See "Description of
the Lease Indentures _ Assumption by the Company.")
"Event of Loss" means any of the events described as an Event of Loss in
each Lease upon the occurrence of which the Company must (subject to
certain conditions) acquire the beneficial interest of the Owner
Participant and/or assume the related Lessor Bonds. (See "Description of
the Lease Indentures _ Assumption by the Company.")
"Excepted Payment" means (i) any indemnity payment (including payments
under the Tax Indemnification Agreement) payable to the Owner Trustee or
the Owner Participant, (ii) any amount payable under any transaction
document to reimburse the Lessor or the Owner Participant for performing or
complying with any of the obligations of the Company under and as permitted
by any transaction document, (iii) any insurance proceeds or other payments
received with respect to an Event of Loss in excess of amounts then due and
owing to reimburse the Lease Indenture Trustee for any of its expenses and
to pay the reasonable remuneration of the Lease Indenture Trustee plus
amounts then due and owing in respect of the principal of and premium, if
any, and interest on all Lessor Bonds outstanding, (iv) any insurance
proceeds under liability policies, replacement power insurance policies and
insurance policies not required by the Lease, (v) any payment of the equity
portion of Casualty Value or Special Casualty Value in respect of an Event
of Loss, Deemed Loss Event or Financial Event, (vi) amounts payable to the
Owner Trustee in connection with the exercise by the Company of its option
to purchase the Undivided Interest during the term of the Lease (subject,
in any event, to the condition that the Company shall have assumed all of
the Lessor Bonds then outstanding and none of such Lessor Bonds are then to
be redeemed), (vii) if a letter of credit has been terminated or has
expired, the portion, if any, of Casualty Value or Special Casualty Value
(before taking into account the effect of certain drawings on such letter
of credit) equal to the amount by which Casualty Value, reduced by the
principal amount of and accrued interest on the outstanding Lessor Bonds,
exceeds the sum of all amounts drawn under such letter of credit and not
reinstated, (viii) any amount payable to the Owner Participant by any
transferee as the purchase price of the Owner Participant's interest in the
trust estate, (ix) the ongoing fees and expenses of the Owner Trustee under
the transaction documents and (x) any payments in respect of interest to
the extent attributable to payments referred to in clauses (i) through
(vii) above.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Financial Event" means any of the events described as a Financial Event
in each Lease upon the occurrence of which the Company must (subject to
certain conditions) acquire the beneficial interest of the related Owner
Participant and/or assume the related Lessor Bonds. (See "Description of
the Lease Indentures _ Assumption by the Company.")
"Funding Corporation" means W3A Funding Corporation, a Delaware
corporation.
"Holder", as used in "Description of the Collateral Bonds and the
Indenture," means the registered holder of Securities, as indicated on the
Security Register maintained under the Indenture, and, as used in
"Description of the Lease Indentures," means the registered holder of
Lessor Bonds under a Lease Indenture, as indicated on the Bond Register
maintained under such Lease Indenture.
"Indenture" means the Collateral Trust Indenture, among Funding
Corporation, the Company and the Trustee, as supplemented and amended,
pursuant to which the Collateral Bonds are issued.
"Initial Lessor Bonds" means Waterford 3 Secured Lease Obligation Bonds
issued in 1989 by the respective Lessors as three separate issues under
three separate Lease Indentures, each issue comprised of a series maturing
in 2005 and a series maturing in 2017.
"Lease" means each Facility Lease, dated as of September 1, 1989, as
supplemented, under which the Company leases an Undivided Interest in Unit
3 from a Lessor in connection with the Transactions. "Leases" means each
and every Lease.
"Lease Default" means an event or condition which, with the giving of
notice or lapse of time, or both, would constitute a Lease Event of
Default.
"Lease Event of Default" means an Event of Default as such term is
defined under a Lease. (See "Description of the Leases _ Lease Events of
Default.")
"Lease Indenture" means each Indenture of Mortgage and Deed of Trust,
dated as of September 1, 1989, as supplemented, between a Lessor and the
Lease Indenture Trustee, pursuant to which the Lessor Bonds are issued.
"Lease Indentures" means each and every Lease Indenture.
"Lease Indenture Default" means an event or condition which, with the
giving of notice or the lapse of time, or both, would constitute a Lease
Indenture Event of Default.
"Lease Indenture Estate" means the trust estate assigned, transferred and
pledged by a Lessor to the related Lease Indenture Trustee under its Lease
Indenture, for the ratable benefit of the holders of the Lessor Bonds
issued thereunder.
"Lease Indenture Event of Default" means an "Indenture Event of Default"
as defined in a Lease Indenture. (See "Description of the Lease Indentures
_ Lease Indenture Events of Default.")
"Lease Indenture Trustee" means each institution and/or individual acting
as an indenture trustee under each of the Lease Indentures. "Lease
Indenture Trustees" means each and every Lease Indenture Trustee.
"Lessor" means any institution and/or individual acting as Owner Trustee
under a trust agreement with an Owner Participant and as Lessor under a
Lease and which, in such capacity, has purchased an Undivided Interest in
Unit 3 as part of the Transactions. "Lessors" means each and every Lessor.
"Lessor Bonds" means the non-recourse bonds issued by a Lessor under its
Lease Indenture.
"NRC" means the Nuclear Regulatory Commission of the United States of
America or any successor agency.
"Nuclear Waste Act" means the Nuclear Waste Policy Act of 1982, as
amended, or any comparable successor law.
"Owner Participant" means a corporation which, in connection with the
Transactions, has acquired a beneficial interest in the owner trust which
is the owner and Lessor of an Undivided Interest.
"Owner Trustee" means each institution and/or individual acting as owner
trustee under a trust agreement with an Owner Participant in connection
with the Transactions.
"Participation Agreement" means each Participation Agreement, dated as of
September 1, 1989, as amended, entered into among the Company, Funding
Corporation, the Owner Participant, a Lessor, a Lease Indenture Trustee and
the Trustee, which relates to a Transaction and sets forth the terms and
conditions upon which a Transaction will be consummated. "Participation
Agreements" mean each and every Participation Agreement.
"Pledged Lessor Bonds" means the Lessor Bonds which are pledged by
Funding Corporation to Trustee as security for Securities (including the
Collateral Bonds).
"Price-Anderson Act" means the Price-Anderson Act (1957), as amended.
"Refinancing" means the series of transactions pursuant to which the
Initial Lessor Bonds will be refinanced.
"Responsible Officer" shall mean, with respect to the subject matter of
any covenant, agreement or obligation of any party contained in any
Transaction Document, the President, any Vice President, Assistant Vice
President, Account Officer, Treasurer, Assistant Treasurer or any other
officer who in the normal performance of his operational responsibility
would have knowledge of such matter and the requirements with respect
thereto.
"SEC" means Securities and Exchange Commission.
"Securities" means bonds, notes or other evidences of indebtedness which
may be issued under the Indenture.
"Special Casualty Value" means an amount specified in each Lease which
the Company must pay to the Lessor under such Lease in certain
circumstances, which amount is, in general and among other things,
calculated to preserve the net economic return of the related Owner
Participant.
"Special Transfer" means the assignment and transfer by an Owner
Participant of its beneficial interest in the related owner trust to the
Company or its designee upon the occurrence of an Event of Loss, a Deemed
Loss Event, Financial Event or a Lease Event of Default.
"Supplemental Financing" means the issuance of additional Lessor Bonds
under a Lease Indenture to finance the related Lessor's proportionate share
of capital improvements to Unit 3.
"Supplemental Indenture" means a supplemental indenture to the Indenture,
among Funding Corporation, the Company and the Trustee.
"Tax Indemnification Agreement" means each tax indemnification agreement
dated as of September 1, 1989, as amended, between the Company and an Owner
Participant.
"Transaction" means any of the three transactions pursuant to which the
Company sold the Undivided Interests in Unit 3 to the Lessors under three
separate owner trust agreements and leased back such interests pursuant to
three separate Leases. "Transactions" refers to all of such transactions.
"Trustee" means Bankers Trust Company, trustee under the Indenture.
"Undivided Interest" means any of the three undivided interests in Unit
3, which interests compose in aggregate an approximate 10.5% interest in
Unit 3 (as defined) (which is equivalent on a cost basis to an approximate
9.3% interest in Waterford 3) and each of which undivided interest was sold
by the Company to the Owner Trustee under three separate owner trust
agreements with the Owner Participant, and then leased back to the Company
on a long-term net lease basis.
"Unit 3" means Waterford 3, exclusive of certain transmission, pollution
control and other facilities, together with certain capital improvements
thereto.
"Waterford 3" means Unit No. 3 (nuclear) of the Waterford Steam Electric
Generating Station.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Filing Fees _ Securities and
Exchange Commission:
Registration Statement $111,216
Application - Declaration 2,000
*Rating Agencies' fees 100,000
*Trustees' fees 30,000
*Fees of Company's Counsel:
Monroe & Lemann (A Professional Corporation 25,000
Reid & Priest LLP 200,000
*Fees of Underwriters' Counsel 100,000
*Fees of Entergy Services, Inc. 50,000
*Accountants' fees 20,000
*Printing and engraving costs 75,000
*Miscellaneous expense (including blue-sky expense) 36,784
*Total Expenses $750,000
* Estimated
Item 15. Indemnification of Directors and Officers.
The Company has insurance covering its expenditures which might arise in
connection with its lawful indemnification of its directors and officers
for certain of their liabilities and expenses. Directors and officers of
the Company also have insurance which insures them against certain other
liabilities and expenses. The corporation laws of Louisiana permit
indemnification of directors and officers in a variety of circumstances,
which may include liabilities under the Securities Act of 1933, as amended
("Securities Act"), and, under the Company's Restated Articles of
Incorporation, as amended, its officers and directors may generally be
indemnified to the full extent of such laws.
Item 16. List of Exhibits*
1(a) _ Form of Underwriting Agreement among the
Company, Funding Corporation and the
Underwriters.
4(a) _ Form of Collateral Trust Indenture among
Funding Corporation, the Company and
Bankers Trust Company, as Trustee.
4(b) _ Form of Supplemental Indenture No. 1 to
Collateral Trust Indenture.
**4(c)-1 _ Indenture of Mortgage and Deed of Trust
No. 1 among the Owner Trustee, the
Company and Bankers Trust Company and
Stanley Burg as Indenture Trustee
("Indenture No. 1") (filed as Exhibit
4(a)-1 to Registration Statement No. 33-
30660).
**4(c)-2 _ Indenture of Mortgage and Deed of Trust
No. 2 among the Owner Trustee, the
Company and Bankers Trust Company of
California, National Association, and
Cecil D. Bobey as Indenture Trustee
("Indenture No. 2") (filed as Exhibit
4(a)-2 to Registration Statement No. 33-
30660).
**4(c)-3 _ Indenture of Mortgage and Deed of Trust
No. 3 among the Owner Trustee, the
Company and Security Pacific National
Trust Company (New York) and Kenneth T.
McGraw as Indenture Trustee ("Indenture
No. 3") (filed as Exhibit 4(a)-3 to
Registration Statement No. 33-30660).
**4(d)-1 _ Supplemental Indenture No. 1 to Indenture
No. 1 (filed as Exhibit A-2(b)(1) to Rule
24 Certificate in File No. 70-7653).
**4(d)-2 _ Supplemental Indenture No. 1 to Indenture
No. 2 (filed as Exhibit A-2(b)(2) to Rule
24 Certificate in File No. 70-7653).
**4(d)-3 _ Supplemental Indenture No. 1 to Indenture
No. 3 (filed as Exhibit A-2(b)(3) to Rule
24 Certificate in File No. 70-7653).
4(d)-4 _ Form of Supplemental Indenture No. 2 to
Lease Indenture.
**4(e)-1 _ Facility Lease No. 1 between the Owner
Trustee, as Lessor, and the Company, as
Lessee (filed as Exhibit 4(c)-1 to
Registration Statement No. 33-30660).
**4(e)-2 _ Facility Lease No. 2 between the Owner
Trustee, as Lessor, and the Company, as
Lessee (filed as Exhibit 4(c)-2 to
Registration Statement No. 33-30660).
**4(e)-3 _ Facility Lease No. 3 between the Owner
Trustee, as Lessor, and the Company, as
Lessee (filed as Exhibit 4(c)-3 to
Registration Statement No. 33-30660).
4(e)-4 _ Form of Lease Supplement No. 1 to
Facility Lease.
**4(f)-1 _ Participation Agreement No. 1 among the
Owner Participant, the Owner Trustee, the
Company and Bankers Trust Company and
Stanley Burg as Indenture Trustee (filed
as Exhibit 4(d)-1 to Registration
Statement No. 33-30660).
**4(f)-2 _ Participation Agreement No. 2 among the
Owner Participant, the Owner Trustee, the
Company and Bankers Trust Company of
California, National Association, and
Cecil D. Bobey as Indenture Trustee
(filed as Exhibit 4(d)-2 to Registration
Statement No. 33-30660).
**4(f)-3 _ Participation Agreement No. 3 among the
Owner Participant, the Owner Trustee, the
Company and Security Pacific National
Trust Company (New York) and Kenneth T.
McGraw as Indenture Trustee (filed as
Exhibit 4(d)-3 to Registration Statement
No. 33-30660).
4(f)-4 _ Form of Amendment No. 1 to Participation
Agreement.
**4(g)-1 _ Facilities Agreement No. 1 between the
Company and the Owner Trustee (filed as
Exhibit 4(e)-1 to Registration Statement
No. 33-30660).
**4(g)-2 _ Facilities Agreement No. 2 between the
Company and the Owner Trustee (filed as
Exhibit 4(e)-2 to Registration Statement
No. 33-30660).
**4(g)-3 _ Facilities Agreement No. 3 between the
Company and the Owner Trustee (filed as
Exhibit 4(e)-3 to Registration Statement
No. 33-30660)
**4(h)-1 _ Ground Lease No. 1 between the Company
and the Owner Trustee (filed as Exhibit
4(f)-1 to Registration Statement No. 33-
30660).
**4(h)-2 _ Ground Lease No. 2 between the Company
and the Owner Trustee (filed as Exhibit
4(f)-2 to Registration Statement No. 33-
30660).
**4(h)-3 _ Ground Lease No. 3 between the Company
and the Owner Trustee (filed as Exhibit
4(f)-3 to Registration Statement No. 33-
30660).
**4(i)-1 _ Tax Indemnification Agreement No. 1
between the Owner Participant and the
Company (filed as Exhibit 4(g)-1 to
Registration Statement No. 33-30660).
**4(i)-2 _ Tax Indemnification Agreement No. 2
between the Owner Participant and the
Company (filed as Exhibit 4(g)-2 to
Registration Statement No. 33-30660).
**4(i)-3 _ Tax Indemnification Agreement No. 3
between the Owner Participant and the
Company (filed as Exhibit 4(g)-3 to
Registration Statement No. 33-30660).
4(i)-4 _ Form of Amendment No. 1 to Tax
Indemnification Agreement.
**4(j) _ Ownership and Operating Agreement between
the Company and the Owner Trustee (filed
as Exhibit 4(h)-1 to Registration
Statement No. 33-30660).
4(k) _ Form of Refunding Agreement among Owner
Participant, Owner Trustee, Lease
Indenture Trustee and the Company.
5(a) _ Opinion of Reid & Priest LLP, counsel for
the Company.
5(b) _ Opinion of Monroe & Lemann (A
Professional Corporation), counsel for
the Company.
12 _ Company's Computation of Ratio of
Earnings to Fixed Charges.
23(a) _ Consent of Reid & Priest LLP (included in
Exhibit 5(a)).
23(b) _ Consent of Monroe & Lemann (A
Professional Corporation) (included in
Exhibit 5(b)).
23(c) _ Consent of Deloitte & Touche LLP is
contained herein at page II-8.
23(d) _ Consent of Coopers & Lybrand L.L.P. is
contained herein at page II-9.
24 _ A Power of Attorney is contained herein
at page II-6.
25(a) _ Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939 of
Bankers Trust Company, Trustee.
*Reference is made to a duplicate list of exhibits filed as part of this
Registration Statement, which list, prepared in accordance with Item 102
of Regulation S-T of the Securities and Exchange Commission, immediately
precedes the exhibits being filed with this Registration Statement.
**Incorporated herein by reference as indicated.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; (iii) to
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration statement; provided,
however, that (i) and (ii) do not apply if the information required to be
included in a post-effective amendment is contained in periodic reports
filed by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(5) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(6) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant, the registrant has been advised that in the
opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
<PAGE>
Exhibit 24
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears
below hereby appoints Gerald D. McInvale, William J. Regan, Jr., and
Laurence M. Hamric, and each of them severally, as his attorney-in-fact to
sign in his name and behalf, in any and all capacities stated below, and to
file with the Securities and Exchange Commission, any and all amendments,
including post-effective amendments, to this registration statement, and
the registrant hereby also appoints each such named person as its attorney-
in-fact with like authority to sign and file any such amendments in its
name and behalf.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3, and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of New Orleans, State of Louisiana, on the 29th day of February
1996.
LOUISIANA POWER & LIGHT COMPANY
By: /s/ John T. Cordaro
John J. Cordaro
President
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Edwin Lupberger Chairman of the February 29, 1996
Edwin Lupberger Board, Chief
Executive Officer
and Director
(Principal
Executive Officer)
/s/ Gerald D. McInvale Executive Vice
Gerald D. McInvale President, Chief February 29, 1996
Financial Officer,
and Director
(Principal
Financial Officer)
/s/ Louis E. Buck, Jr. Vice President,
Louis E. Buck, Jr. Chief Accounting February 29, 1996
Officer and
Assistant Secretary
(Principal
Accounting Officer)
/s/ Michael B. Bemis
Michael B. Bemis
/s/ John J. Cordaro
John J. Cordaro
/s/ Donald C. Hintz Directors February 29, 1996
Donald C. Hintz
/s/ Jerry D. Jackson
Jerry D. Jackson
/s/ Jerry L. Maulden
Jerry L. Maulden
<PAGE>
EXHIBIT 23(c)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Louisiana Power & Light Company on Form
S-3 of our reports dated February 11, 1994, appearing in the
Annual Report on Form 10-K of Louisiana Power & Light Company for
the year ended December 31, 1994 and to the references to us
under the heading "Experts and Legality" in the Prospectus, which
is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
New Orleans, Louisiana
February 28, 1996
<PAGE>
EXHIBIT 23(d)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement of Louisiana Power & Light Company on Form
S-3 of our reports dated February 21, 1995 on our audit of the
financial statements and financial statement schedule of
Louisiana Power & Light Company as of and for the year ended
December 31, 1994. We also consent to the reference to our firm
under the caption "Experts and Legality."
/s/ Coopers & Lybrand L.L.P.
New Orleans, Louisiana
February 22, 1996
Exhibit 1(a)
LOUISIANA POWER & LIGHT COMPANY
W3A FUNDING CORPORATION
$________ Waterford 3 Secured Lease Obligation Bonds, ____% Series due ____
$________ Waterford 3 Secured Lease Obligation Bonds, ____% Series due ____
UNDERWRITING AGREEMENT
__________ __, 1996
MORGAN STANLEY & CO. INCORPORATED
CITICORP SECURITIES, INC.
c/o MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036-8293
Ladies and Gentlemen:
Each of the undersigned, Louisiana Power & Light
Company (the "Company") and W3A Funding Corporation (the "Funding
Corporation"), hereby confirms its agreement with you, as
underwriters (the "Underwriters", which term, when the context
permits, shall also include any underwriters substituted as
hereinafter in Section 12 provided), as follows:
SECTION 1. Introduction. The Funding Corporation
proposes to issue and sell $_____________ in aggregate principal
amount of its Waterford 3 Secured Lease Obligation Bonds, ____%
Series due __________ __, ____ (the "Short Bonds") and
$__________ in aggregate principal amount of its Waterford 3
Secured Lease Obligation Bonds, ____% Series due _______ __, ____
(the "Long Bonds") (collectively, the "Bonds"; each of the Short
Bonds and the Long Bonds sometimes being referred to herein as a
"series" of Bonds) registered under the Registration Statement
(as defined herein). The Bonds will be issued under a Collateral
Trust Indenture dated as of ________ __, 1996, as supplemented by
Supplemental Indenture No. 1 thereto dated as of ________ __,
1996 (the "Supplemental Indenture"), among the Funding
Corporation, the Company and Bankers Trust Company, as trustee
(the "Trustee") (such Collateral Trust Indenture, as so
supplemented, the "Trust Indenture").
SECTION 2. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, each Underwriter shall
purchase from the Funding Corporation, at the time and place
herein specified, severally and not jointly, and the Funding
Corporation shall issue and sell to each of the Underwriters, the
following principal amounts of the Bonds at the price (equal to
the percentage of the principal amount thereof) indicated below[,
plus accrued interest thereon from _______ __, 1996 to the
Closing Date (as defined herein)]:
Short Bonds
Price: 100%
Name Principal Amount
Morgan Stanley & Co. Incorporated $
Citicorp Securities, Inc.
$
Long Bonds
Price: 100%
Name Principal Amount
Morgan Stanley & Co. Incorporated $
Citicorp Securities, Inc.
$
It is understood that the Underwriters will offer the
Bonds for sale as set forth in the Prospectus (as defined
herein). Neither series of the Bonds shall be purchased
hereunder unless both series are purchased.
Concurrently with such purchase, issuance and sale, the
Company will pay, or cause to be paid, to the Underwriters in
same day funds an underwriting commission of ____% of the
principal amount thereof ($_________) in respect of the Short
Bonds and an underwriting commission of ____% of the principal
amount thereof ($_______) in respect of the Long Bonds. The
Company acknowledges that the fees and expenses of counsel to the
Underwriters shall be included on the invoice of transaction
expenses to be delivered by First National Bank of Commerce, as
Owner Trustee (the "Owner Trustee"), on or prior to the Closing
Date, pursuant to Sections 3.01(a)(iii) and 3.01(b) of the
Refunding Agreements Nos. 2 and 3, dated as of ____________ __,
1996, among the Funding Corporation, the Company, the Owner
Participant named therein, the Owner Trustee, Bankers Trust
Company and Stanley Burg (the "Refunding Agreements"), and to be
paid by the Owner Trustee with funds provided by such Owner
Participant and from proceeds from the sale of the Bonds.
SECTION 3. Description of Bonds. The Bonds and the
Trust Indenture shall have the terms and provisions described in
the Prospectus, provided that subsequent to the date hereof and
prior to the Closing Date the form of the Trust Indenture
(including the Supplemental Indenture) may be amended by mutual
agreement among the Funding Corporation, the Company and the
Underwriters.
SECTION 4. Representations and Warranties of the
Company and the Funding Corporation. (a) The Company represents
and warrants to the several Underwriters, and covenants and
agrees with the several Underwriters, that:
(i) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the
State of Louisiana and has the necessary corporate power and
authority to conduct the business which it is described in
the Prospectus as conducting and to own and operate the
properties owned and operated by it in such business.
(ii) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (File No. 333-_____) for the
registration of $322,526,000 principal amount of the Bonds
under the Securities Act of 1933, as amended (the
"Securities Act"), and such registration statement has
become effective. The Company qualifies for use of Form S-3
for the registration of the Bonds. The prospectus forming a
part of such registration statement, at the time such
registration statement became effective, including all
documents incorporated by reference therein at that time
pursuant to Item 12 of Form S-3, is hereinafter referred to
as the "Basic Prospectus". In the event that (A) the Basic
Prospectus shall have been amended, revised or supplemented
prior to the time of effectiveness of this Underwriting
Agreement, including without limitation by any preliminary
prospectus supplement relating to the Bonds, or (B) the
Company shall have filed documents pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the time such
registration statement initially became effective and prior
to the time of effectiveness of this Underwriting Agreement,
which are deemed to be incorporated by reference in the
Basic Prospectus pursuant to Item 12 of Form S-3, the term
"Basic Prospectus" as used herein shall also mean such
prospectus as so amended, revised or supplemented and
reflecting such incorporation by reference. Such
registration statement in the form in which it became
effective and as it may have been amended by all amendments
thereto as of the time of effectiveness of this Underwriting
Agreement (including for these purposes as an amendment any
document incorporated by reference in the Basic Prospectus),
and the Basic Prospectus as it shall be supplemented to
reflect the terms of the offering and sale of the Bonds by a
prospectus supplement (the "Prospectus Supplement") to be
filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424"),
are hereinafter referred to as the "Registration Statement"
and the "Prospectus," respectively.
(iii) (A) After the time of effectiveness of this
Underwriting Agreement and during the time specified in
Section 7(d), the Company will not file any amendment to the
Registration Statement or supplement to the Prospectus, and
(B) between the time of effectiveness of this Underwriting
Agreement and the Closing Date, the Company will not file
any document which is to be incorporated by reference in, or
any supplement to, the Basic Prospectus, in either case,
without prior notice to the Underwriters and to Winthrop,
Stimson, Putnam & Roberts ("Counsel for the Underwriters"),
or any such amendment or supplement to which said Counsel
shall reasonably object on legal grounds in writing. For
purposes of this Underwriting Agreement, any document which
is filed with the Commission after the time of effectiveness
of this Underwriting Agreement and is incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3
shall be deemed a supplement to the Prospectus.
(iv) The Registration Statement, in the form in which
it (or the latest post-effective amendment thereto) became
effective, and the Trust Indenture, at such time, fully
complied, and the Prospectus, when delivered to the
Underwriters for their use in making confirmations of sales
of the Bonds and at the Closing Date, as it may then be
amended or supplemented, will fully comply, in all material
respects with the applicable provisions of the Securities
Act, the Trust Indenture Act of 1939, as amended (the
"TIA"), and the rules and regulations of the Commission
thereunder or pursuant to said rules and regulations did or
will be deemed to comply therewith. The documents
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, on the date first filed with the Commission
pursuant to the Exchange Act, fully complied or will fully
comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations
of the Commission thereunder or pursuant to said rules and
regulations did or will be deemed to comply therewith. On
the later of (A) the date the Registration Statement was
declared effective by the Commission under the Securities
Act and (B) the date that the Company's most recent Annual
Report on Form 10-K was filed with the Commission under the
Exchange Act (the date described in either clause (A) or (B)
is hereinafter referred to as the "Effective Date"), the
Registration Statement did not, and on the date that any
post-effective amendment to the Registration Statement
became or becomes effective, the Registration Statement, as
amended by any such post-effective amendment, did not or
will not, as the case may be, contain an untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading. At the time the Prospectus is
delivered to the Underwriters for their use in making
confirmations of sales of the Bonds and at the Closing Date,
the Prospectus, as it may then be amended or supplemented,
will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they are made, not misleading, and on said dates and
at such times, the documents then incorporated by reference
in the Prospectus pursuant to Item 12 of Form S-3, when read
together with the Prospectus, or the Prospectus, as it may
then be amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made,
not misleading. The foregoing representations and
warranties in this subsection (iv) shall not apply to
statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
by the Underwriters or on behalf of any Underwriter
specifically for use in connection with the preparation of
the Registration Statement or the Prospectus, as they may be
then amended or supplemented, or to any statements in or
omissions from the statements of eligibility on Form T-1 and
Form T-2, as they may then be amended, under the TIA filed
as exhibits to the Registration Statement.
(v) Each of (A) the Participation Agreements (as
defined in the Prospectus), (B) the Granting Clause
Documents (as defined in Appendix A to the Participation
Agreements), (C) the Trust Indenture, (D) the Refunding
Agreements, and (E) this Underwriting Agreement (the
documents described in clauses (A) through (D) above, as
they each may be amended or supplemented as of the Closing
Date, being collectively referred to herein as the
"Transaction Documents") has been or, as of the Closing
Date, will be duly authorized, executed and delivered by the
Company and, assuming the due authorization, execution and
delivery thereof by each other party thereto, constitutes a
legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except
as limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in
a proceeding in equity or at law) and, with respect to this
Underwriting Agreement, subject to any principles of public
policy limiting the right to enforce the indemnification
provisions contained herein.
(vi) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will
not result in a breach of any of the terms or provisions of,
or constitute a default under, the Trust Indenture, the
Granting Clause Documents or the Refunding Agreements or any
other indenture, mortgage, deed of trust or other agreement
or instrument to which the Company is now a party.
(vii) Except as set forth or contemplated in the
Prospectus, as it may be amended or supplemented, the
Company has obtained all material licenses, permits, and
other governmental or regulatory authorizations currently
required for the conduct of its business (including, without
limitation, the performance of its current obligations under
the Transaction Documents), and is in all material respects
complying therewith, and the Company is not aware of any
fact that would lead it to believe that any material
license, permit or other governmental or regulatory
authorization would not remain in effect or be renewed in
its ordinary course of business.
(viii) It is not necessary for the Funding Corporation
to register as an investment company pursuant to the
Investment Company Act of 1940, as amended, in order to
participate in the transactions contemplated by the
Prospectus.
(b) The Funding Corporation represents and warrants to
the several Underwriters that each of the Participation
Agreements, the Refunding Agreements, the Trust Indenture, this
Underwriting Agreement and the Bonds has been or, as of the
Closing Date, will be duly authorized, executed and delivered by
the Funding Corporation and, assuming the due authorization,
execution, authentication and delivery thereof by each other
party thereto, constitutes a legal, valid and binding obligation
of the Funding Corporation enforceable against it in accordance
with its terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and subject to
any principles of public policy limiting the right to enforce the
indemnification provisions contained herein.
SECTION 1. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Bonds of each series as soon after the
effectiveness of this Underwriting Agreement as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Bonds are to be offered to the public at the respective
initial public offering prices specified in the Prospectus
Supplement [plus accrued interest thereon from _________ __, 1996
to the Closing Date].
SECTION 2. Time and Place of Closing. Delivery of
the Bonds and payment of the purchase price therefor by wire
transfer or check or checks payable to the Funding Corporation in
same day funds shall be made at the offices of Reid & Priest LLP,
40 West 57th Street, New York, New York, at 10:00 A.M., New York
time, on _____________ __, 1996, or at such other time on the
same or such other day as shall be agreed upon by the Company and
Morgan Stanley & Co. Incorporated, or as may be established in
accordance with Section 12 hereof. The hour and date of such
delivery and payment are herein called the "Closing Date."
The Bonds shall be delivered to the Underwriters in
book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the Bonds
shall be in the form of one or more typewritten bonds in fully
registered form, in the aggregate principal amount of the Bonds,
and registered in the name of Cede & Co, as nominee of The
Depository Trust Company. The Company agrees to make the Bonds
available to the Underwriters for checking not later than
2:30 P.M., New York time, on the last business day preceding the
Closing Date at such place as may be agreed upon between Morgan
Stanley & Co. Incorporated and the Company, or at such other time
and/or date as may be agreed upon between Morgan Stanley & Co.
Incorporated and the Company.
SECTION 3. Covenants of the Funding Corporation and
the Company. Each of the Funding Corporation and the Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a copy of the Registration
Statement relating to the Bonds, as originally filed with
the Commission, and of all amendments or supplements thereto
relating to the Bonds, certified by an officer of the
Company to be in the form filed.
(b) The Company will deliver to the Underwriters as
many copies of the Prospectus (and any amendments or
supplements thereto) as the Underwriters may reasonably
request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant
to and in compliance with Rule 424 and will advise Morgan
Stanley & Co. Incorporated promptly of the issuance of any
stop order under the Securities Act with respect to the
Registration Statement or the institution of any proceedings
therefor of which the Funding Corporation or the Company
shall have received notice. Each of the Funding Corporation
and the Company will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt
removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are
required by law to deliver a prospectus, if any event
relating to or affecting the Company or the Funding
Corporation, or of which the Company shall be advised by the
Underwriters in writing, shall occur which in the Company's
opinion should be set forth in a supplement or amendment to
the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is
delivered to a purchaser of the Bonds, the Company will
amend or supplement the Prospectus by either (i) preparing
and filing with the Commission and furnishing to the
Underwriters a reasonable number of copies of a supplement
or supplements or an amendment or amendments to the
Prospectus, or (ii) making an appropriate filing pursuant to
Section 13, 14 or 15(d) of the Exchange Act which will
supplement or amend the Prospectus, so that, as supplemented
or amended, it will not contain an untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading. Unless such event relates solely
to the activities of the Underwriters (in which case the
Underwriters shall assume the expense of preparing any such
amendment or supplement), the expenses of complying with
this Section 7(d) shall be borne by the Company until the
expiration of nine months from the time of effectiveness of
this Underwriting Agreement and such expenses shall be borne
by the Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of
at least twelve months beginning after the "effective date
of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall
be in such form, and be made generally available to security
holders in such a manner so as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act
and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Company and the Funding Corporation will furnish such
proper information as may be lawfully required and otherwise
cooperate in qualifying the Bonds for offer and sale under
the blue sky laws of such jurisdictions as the Underwriters
may reasonably designate, provided, that neither the Funding
Corporation nor the Company shall be required to qualify as
a foreign corporation or dealer in securities, to file any
consents to service of process under the laws of any
jurisdiction, or to meet any other requirements deemed by it
to be unduly burdensome.
(g) The Company will, except as herein provided, pay or
cause to be paid all expenses and taxes (except transfer
taxes) in connection with (i) the preparation and filing of
the Registration Statement and any post-effective amendment
thereto, (ii) the printing, issuance and delivery of the
Bonds and the preparation, execution, printing and
recordation of the Trust Indenture, (iii) legal fees and
expenses relating to the qualification of the Bonds under
the blue sky laws of various jurisdictions in an amount not
to exceed $20,000, (iv) the printing and delivery to the
Underwriters of reasonable quantities of copies of the
Registration Statement, the Basic Prospectus, the
preliminary (and any supplemental) blue sky survey, any
preliminary prospectus supplement relating to the Bonds and
the Prospectus and any amendment or supplement thereto,
except as otherwise provided in paragraph (d) of this
Section 7, (v) fees of the rating agencies in connection
with the rating of the Bonds, (vi) fees (if any) of the
National Association of Securities Dealers, Inc. (the
"NASD") in connection with its review of the terms of the
offering and (vii) the procurement by the Underwriters of
same day funds for the payment of the purchase price for the
Bonds as required by Section 6 of this Underwriting
Agreement. Except as provided above, the Company shall not
be required to pay any amount for any expenses of the
Underwriters, except that, if this Underwriting Agreement
shall be terminated in accordance with the provisions of
Section 8, 9 or 13 hereof, the Company will reimburse the
Underwriters for (i) the reasonable fees and expenses of
Counsel for the Underwriters, and (ii) reasonable out-of-
pocket expenses, in an amount not exceeding in the aggregate
$15,000, incurred in contemplation of the performance of
this Underwriting Agreement. The Company shall not in any
event be liable to the Underwriters for damages on account
of loss of anticipated profits.
SECTION 4. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Bonds shall be subject to the accuracy on the date hereof and on
the Closing Date of the representations and warranties made
herein on the part of the Funding Corporation and the Company and
of any certificates furnished by the Funding Corporation and the
Company on the Closing Date and to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 5:30 p.m., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon
by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be
pending before, or, to the knowledge of the Funding
Corporation, the Company or the Underwriters, threatened by,
the Commission on the Closing Date; and the Underwriters
shall have received a certificate, dated the Closing Date
and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of each of the Funding Corporation
and the Company to the effect that no such stop order has
been or is in effect and that no proceedings for such
purpose are pending before, or, to the knowledge of the
Funding Corporation or the Company, respectively, threatened
by, the Commission.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, an
order or orders of the Commission under the Public Utility
Holding Company Act of 1935, as amended (the "Holding
Company Act"), authorizing the issuance and sale of the
Bonds on the terms set forth in, or contemplated by, this
Underwriting Agreement, the Trust Indenture and the
Prospectus.
(d) At the Closing Date, the Underwriters shall have
received from Monroe & Lemann (A Professional Corporation)
and Reid & Priest LLP, as counsel to the Company, and Reid &
Priest LLP, as counsel to the Funding Corporation, opinions,
dated the Closing Date, substantially in the forms set forth
in Exhibits A, B and C hereto, respectively, (i) with such
changes therein as may be agreed upon by the Company and the
Underwriters with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for
use in offering the Bonds, with changes therein to reflect
such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Winthrop, Stimson, Putnam & Roberts, Counsel
for the Underwriters, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit D hereto,
with such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received
from Coopers & Lybrand L.L.P., the Company's independent
certified public accountants (the "Accountants"), a letter
dated the date hereof and addressed to the Underwriters to
the effect that (i) they are independent certified public
accountants with respect to the Company within the meaning
of the Securities Act and the applicable published rules and
regulations thereunder; (ii) in their opinion, the financial
statements and financial statement schedules examined by
them and included or incorporated by reference in the
Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Securities Act
and the Exchange Act and the applicable published rules and
regulations thereunder; (iii) on the basis of performing the
procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements,
if any, included or incorporated by reference in the
Prospectus, a reading of the latest available interim
unaudited financial statements of the Company, the minutes
of the meetings of the Board of Directors of the Company,
the Executive Committee thereof, if any, and the stockholder
of the Company, since December 31, 1995 to a specified date
not more than five business days prior to the date of such
letter, and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily
reveal matters of significance with respect to the comments
made in such letter, and, accordingly, that the Accountants
make no representations as to the sufficiency of such
procedures for the purposes of the Underwriters), nothing
has come to their attention which caused them to believe
that, to the extent applicable, (A) the unaudited financial
statements of the Company (if any) included or incorporated
by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder; (B)
any material modifications should be made to said unaudited
financial statements for them to be in conformity with
generally accepted accounting principles; and (C) at a
specified date not more than five business days prior to the
date of the letter, there was any change in the capital
stock or long-term debt of the Company, or decrease in its
net assets, in each case as compared with amounts shown in
the most recent balance sheet incorporated by reference in
the Prospectus, except in all instances for changes or
decreases which the Prospectus discloses have occurred or
may occur, for declarations of dividends, for the repayment
or redemption of long-term debt, for the amortization of
premium or discount on long-term debt, for the redemption or
purchase of preferred stock for sinking fund purposes, for
any increases in long-term debt in respect of previously
issued pollution control, solid waste disposal or industrial
development revenue bonds, or for changes or decreases as
set forth in such letter, identifying the same and
specifying the amount thereof; and (iv) stating that they
have compared specific dollar amounts, percentages of
revenues and earnings and other financial information
pertaining to the Company (A) set forth in the Prospectus,
and (B) set forth in documents filed by the Company pursuant
to Section 13, 14 or 15(d) of the Exchange Act as specified
in Exhibit E hereto, in each case, to the extent that such
amounts, numbers, percentages and information may be derived
from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(g) At the Closing Date, the Underwriters shall have
received (i) certificates, dated the Closing Date and signed
by the President, a Vice President, the Treasurer or an
Assistant Treasurer of each of the Funding Corporation and
the Company, respectively, to the effect that (A) the
representations and warranties of the Funding Corporation
and the Company, as the case may be, contained herein are
true and correct, and (B) each of the Funding Corporation
and the Company has performed and complied with all
agreements and conditions in this Underwriting Agreement on
its part to be performed or complied with at or prior to the
Closing Date, (ii) a certificate, dated the Closing Date and
signed by the President, a Vice President, the Treasurer or
an Assistant Treasurer of the Company that since the most
recent date as of which information is given in the
Prospectus, there has not been any material adverse change
in the business, property or financial condition of the
Company and there has not been any material transaction
entered into by the Company, other than transactions in the
ordinary course of business, in each case other than as
referred to in, or contemplated by, the Prospectus as it may
then be amended or supplemented.
(h) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Trust Indenture
and the Supplemental Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than five days prior
to the Closing Date, the statements contained in the letter
delivered pursuant to Section 8(f) hereof.
(j) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received
from Deloitte & Touche LLP a letter, dated the date hereof,
and addressed to the Underwriters, with respect to certain
financial information contained in the Prospectus, as
mutually agreed to by the Underwriters and the Company.
(k) Between the date hereof and the Closing Date, no
Default (or an event which, with the giving of notice or the
passage of time or both, would constitute a Default) under
the Lease (as defined in the Prospectus), the Lease
Indenture (as defined in the Prospectus) or the Trust
Indenture shall have occurred.
(l) Between the date hereof and the Closing Date, no
other event shall have occurred with respect to or otherwise
affecting the Company, which, in the reasonable opinion of
the Underwriters, materially impairs the investment quality
of the Bonds.
(m) Prior to the Closing Date, the Underwriters shall
have received from the Company evidence reasonably
satisfactory to the Underwriters that the Bonds have
received ratings of _____ or higher from Moody's Investors
Service, Inc. and ______ or higher from Standard & Poor's
Ratings Group.
(n) Between the date hereof and the Closing Date,
neither Moody's Investors Service, Inc. nor Standard and
Poor's Ratings Group shall have lowered its rating of any of
the Company's debt securities in any respect.
(o) The Bonds shall, upon delivery to the Underwriters
in accordance with this Underwriting Agreement, be secured
by the Pledged Lessor Bonds (as defined in the Prospectus)
in accordance with the Trust Indenture; the conditions
precedent to a refunding, as set forth in the Participation
Agreement (including, without limitation, Sections 2(b) and
10(c) thereof) and the Refunding Agreements (including,
without limitation, Article 2 thereof), shall have been met
prior to the issuance and delivery of such notes, with none
of such conditions precedent having been waived by the
Funding Corporation, the Company or the Trustee without the
consent of the Underwriters.
(p) The opinions of counsel required to be delivered by
the first two sentences of Section 10(c)(5) of the
Participation Agreement as a condition precedent to a
refunding shall also be addressed and delivered to the
Underwriters, except for the opinions of Special Counsel,
NRC Counsel and Special Louisiana Counsel to the Owner
Participants, all as described and/or defined in the
Participation Agreement, it being understood that such
opinions of counsel may be confirmations by counsel of
opinions previously delivered by such counsel in connection
with the transactions described in or contemplated by the
Participation Agreement, provided that such confirmations of
opinions shall be dated the Closing Date, shall confirm the
previously delivered opinions as of the Closing Date, and
shall either be addressed to the Underwriters or shall state
that the Underwriters may rely upon the previously delivered
opinions, as so confirmed, as if addressed to them.
(q) The opinions of counsel required to be delivered to
the Trustee pursuant to Section 2.04(e) of the Trust
Indenture shall also be addressed and delivered to the
Underwriters.
(r) The Underwriters shall have received payment in
full of the underwriting commissions specified in Section 2
hereof.
(s) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and
substance to Counsel for the Underwriters.
(t) The Funding Corporation and the Company will
furnish the Underwriters with additional conformed copies of
such opinions, certificates, letters and documents as may be
reasonably requested.
If any of the conditions specified in this Section 8
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to the other party, except as otherwise provided in
paragraph (g) of Section 7 and in Section 11.
SECTION 5. Conditions of the Obligations of the
Funding Corporation and the Company. The obligations of the
Funding Corporation and the Company hereunder shall be subject to
the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the
Closing Date.
(b) At the Closing Date there shall be in full force
and effect an order or orders of the Commission under the
Holding Company Act authorizing the issuance and sale of the
Bonds on the terms set forth in or contemplated by this
Underwriting Agreement, the Trust Indenture and the
Prospectus.
In case any of the conditions specified in this Section
9 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Company upon notice thereof to the
Underwriters. Any such termination shall be without liability of
any party to the other party, except as otherwise provided in
paragraph (g) of Section 7 and in Section 11.
SECTION 6. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact required to be stated
therein or contained in the Registration Statement, as amended or
supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
an untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the time
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424), or in the Prospectus, as each
may be amended or supplemented, or the omission or alleged
omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that the indemnity agreement contained in this paragraph shall
not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was
made in reliance upon and in conformity with information
furnished herein or in writing to the Company by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424) or the Prospectus or any
amendment or supplement to any thereof or arising out of or based
upon statements in or omissions from the statements of
eligibility on Form T-1 and Form T-2 under the TIA filed as
exhibits to the Registration Statement; and provided further,
that the indemnity agreement contained in this subsection shall
not inure to the benefit of any Underwriter or to the benefit of
any person controlling any Underwriter on account of any such
losses, claims, damages, liabilities, expenses or actions arising
from the sale of the Bonds to any person in respect of any Basic
Prospectus or the Prospectus, as supplemented or amended,
furnished by an Underwriter to a person to whom any of the Bonds
were sold (excluding in both cases, however, any document then
incorporated or deemed incorporated by reference therein),
insofar as such indemnity relates to any untrue or misleading
statement or omission made in the Basic Prospectus or the
Prospectus but eliminated or remedied prior to the consummation
of such sale in the Prospectus, or any amendment or supplement
thereto, furnished pursuant to Section 7(d) hereof, respectively,
unless a copy of the Prospectus (in the case of such a statement
or omission made in the Basic Prospectus) or such amendment or
supplement (in the case of such a statement or omission made in
the Prospectus) (excluding, however, any document then
incorporated or deemed incorporated by reference in the
Prospectus or such amendment or supplement) is furnished by such
Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation (if it is made available to the
Underwriters prior to settlement of such sale).
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
an untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424), or in the Prospectus, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424) or the Prospectus, or any amendment or supplement
thereto.
(c) In case any action shall be brought, based upon the
Registration Statement, the Basic Prospectus or the Prospectus
(including amendments or supplements thereto), against any party
in respect of which indemnity may be sought pursuant to any of
the preceding paragraphs, such party (hereinafter called the
indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims which are the subject matter of such action,
suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 10 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Bonds or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from
the offering (after deducting underwriting discounts and
commissions but before deducting expenses) bear to the total
underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by any of the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 10(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 10(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 10(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 7. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 10 of, and the
representations and warranties and other agreements of the
Funding Corporation and the Company contained in, this
Underwriting Agreement shall remain operative and in full force
and effect regardless of (i) any investigation made by or on
behalf of any Underwriter or by or on behalf of the Funding
Corporation or the Company, or its directors or officers or any
of the other persons referred to in Section 10 hereof and (ii)
acceptance of and payment for the Bonds and (b) the indemnity and
contribution agreements contained in Section 10 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 8. Default of Underwriters. If any
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Bonds which it has
agreed to purchase and pay for hereunder, and the aggregate
principal amount of Bonds which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of the Bonds, the other
Underwriters shall be obligated to purchase the Bonds which such
defaulting Underwriter agreed but failed or refused to purchase;
provided that in no event shall the principal amount of Bonds
which any Underwriter has agreed to purchase pursuant to
Section 2 hereof be increased pursuant to this Section 12 by an
amount in excess of one-ninth of such principal amount of Bonds
without written consent of such Underwriter. If any Underwriter
shall fail or refuse to purchase Bonds and the aggregate
principal amount of Bonds with respect to which such default
occurs is more than one-tenth of the aggregate principal amount
of the Bonds, the Company shall have the right (a) to require the
non-defaulting Underwriters to purchase and pay for the
respective principal amounts of Bonds that they had severally
agreed to purchase hereunder, and, in addition, the principal
amount of Bonds that the defaulting Underwriter shall have so
failed to purchase up to a principal amount thereof equal to one-
ninth of the respective principal amount of Bonds that such non-
defaulting Underwriters have otherwise agreed to purchase
hereunder, and/or (b) to procure one or more others, members of
the NASD (or, if not members of the NASD, who are foreign banks,
dealers or institutions not registered under the Exchange Act and
who agree in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
principal amount of Bonds that such defaulting Underwriter had
agreed to purchase, or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the
foregoing clause (a). In the event the Company shall exercise
its rights under clause (a) and/or (b) above, the Company shall
give written notice thereof to the Underwriters within 24 hours
(excluding any Saturday, Sunday or legal holiday) of the time
when the Company learns of the failure or refusal of any
Underwriter to purchase and pay for its respective principal
amount of Bonds, and thereupon the Closing Date shall be
postponed for such period, not exceeding three business days, as
the Company shall determine. In the event the Company shall be
entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), the
Company shall be deemed to have elected to terminate this
Underwriting Agreement. In the absence of such election by the
Company, this Underwriting Agreement will, unless otherwise
agreed by the Company and the non-defaulting Underwriters,
terminate without liability on the part of any non-defaulting
party except as otherwise provided in paragraph (g) of Section 7
and in Section 11. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
SECTION 9. Termination. This Underwriting Agreement
shall be subject to termination by notice given by written notice
from Morgan Stanley & Co. Incorporated to the Company and the
Funding Corporation, if (a) after the execution and delivery of
this Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended on the New York Stock
Exchange by The New York Stock Exchange, Inc., the Commission or
other governmental authority, (ii) minimum or maximum ranges for
prices shall have been generally established on the New York
Stock Exchange by The New York Stock Exchange, Inc., the
Commission or other governmental authority, (iii) a general
moratorium on commercial banking activities shall have been
declared by either Federal or New York State authorities, or (iv)
there shall have occurred any material outbreak or escalation of
hostilities or any calamity or crisis that, in the judgment of
Morgan Stanley & Co. Incorporated, is material and adverse and
(b) in the case of any of the events specified in clauses (a) (i)
through (iv), such event singly or together with any other such
event makes it, in the reasonable judgment of Morgan Stanley &
Co. Incorporated, impracticable to market the Bonds. This
Underwriting Agreement shall also be subject to termination, upon
notice by Morgan Stanley & Co. Incorporated as provided above,
if, in the judgment of Morgan Stanley & Co. Incorporated, the
subject matter of any amendment or supplement (prepared by the
Company) to the Prospectus (except for information relating
solely to the manner of public offering of the Bonds by the
Underwriters or to the activity of the Underwriters) filed or
issued after the effectiveness of this Underwriting Agreement by
the Company shall have materially impaired the marketability of
the Bonds. Any termination hereof, pursuant to this Section 13,
shall be without liability of any party to any other party,
except as otherwise provided in paragraph (g) of Section 7 and in
Section 11.
SECTION 10. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully
executed copy thereof is delivered to the Company and to Morgan
Stanley & Co. Incorporated. This Underwriting Agreement may be
executed in any number of separate counterparts, each of which,
when so executed and delivered, shall be deemed to be an original
and all of which, taken together, shall constitute but one and
the same agreement. This Underwriting Agreement shall inure to
the benefit of each of the Company, the Funding Corporation, the
Underwriters and, with respect to the provisions of Section 10,
each director, officer and other persons referred to in Section
10, and their respective successors. Should any part of this
Underwriting Agreement for any reason be declared invalid, such
declaration shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and
effect as if this Underwriting Agreement had been executed with
the invalid portion thereof eliminated. Nothing herein is
intended or shall be construed to give to any other person, firm
or corporation any legal or equitable right, remedy or claim
under or in respect of any provision in this Underwriting
Agreement. The term "successor" as used in this Underwriting
Agreement shall not include any purchaser, as such purchaser, of
any Bonds from the Underwriters.
SECTION 11. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to Morgan Stanley & Co. Incorporated at the address
set forth at the beginning of this Underwriting Agreement (to the
attention of the General Counsel), if to the Company, shall be
mailed or delivered to it at 639 Loyola Avenue, New Orleans,
Louisiana 70113, Attention: Secretary, if to Entergy Services,
Inc., shall be mailed or delivered to it at 639 Loyola Avenue,
New Orleans, Louisiana 70113, Attention: Treasurer or, if to the
Funding Corporation, shall be mailed or delivered to it c/o
_________________________________________________, with a copy to
________________________________.
Very truly yours,
W3A FUNDING CORPORATION
By:
Name:
Title:
LOUISIANA POWER & LIGHT COMPANY
By:
Name:
Title:
Accepted as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
CITICORP SECURITIES, INC.
By: MORGAN STANLEY & CO. INCORPORATED
By:
Name:
Title:
<PAGE>
EXHIBIT A
[Letterhead of Monroe & Lemann]
______________, 1996
Morgan Stanley & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Stanley & Co. Incorporated
1285 Broadway
New York, New York 10036-8293
Ladies and Gentlemen:
We, together with Reid & Priest LLP, of New York, New
York, have acted as counsel for Louisiana Power & Light Company
(the "Company") in connection with the issuance and sale to you
pursuant to the Underwriting Agreement, effective __________ __,
1996 (the "Underwriting Agreement"), among W3A Funding
Corporation (the "Funding Corporation"), the Company and you, of
$____________ aggregate principal amount of the Funding
Corporation's Waterford 3 Secured Lease Obligation Bonds, _____%
Series due ____ and $___________ aggregate principal amount of
its Waterford 3 Secured Lease Obligation Bonds, _____% Series due
____ (collectively, the "Bonds"). The Bonds are being issued
pursuant to the Collateral Trust Indenture dated as of
___________ __, 1996, as amended by Supplemental Indenture No. 1
thereto, dated as of ___________ __, 1996 (the Collateral Trust
Indenture, as so amended, being hereinafter referred to as the
"Trust Indenture"), among the Funding Corporation, the Company
and Bankers Trust Company, as trustee (the "Trustee"). This
opinion is being rendered to you at the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Trust Indenture; (d) the Registration
Statement and Prospectus filed under the Securities Act; (e) the
records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Funding
Corporation and the execution and delivery by the Company of the
Trust Indenture and the Underwriting Agreement; and (f) the
proceedings before the Commission under the Holding Company Act
relating to the issuance and sale of the Bonds by the Funding
Corporation and the execution and delivery by the Company of the
Trust Indenture and the Underwriting Agreement. We have also
examined or caused to be examined such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to render this opinion. We have not examined
the Bonds, except specimens thereof, and we have relied upon a
certificate of the Trustee as to the authentication and delivery
thereof. Capitalized terms used herein and not otherwise defined
have the meanings ascribed to such terms in the Underwriting
Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Louisiana, has due corporate power and authority to conduct the
business which it is described as conducting in the Prospectus
and to own and operate the properties owned and operated by it in
such business and is duly qualified to conduct such business in
the State of Louisiana.
(2) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), and has been duly qualified under the TIA and
no proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(3) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(4) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"Selected Information Relating to the Collateral Bonds", "Certain
Terms of the Collateral Bonds", "Security and Source of Payment
for the Collateral Bonds", "Description of the Collateral Bonds
and the Indenture", "Description of the Lease Indentures",
"Description of the Leases" and "Other Agreements", insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(5) The execution, delivery and performance by the
Company of the Underwriting Agreement and the Trust Indenture and
the consummation of the transactions contemplated thereby (a)
will not violate any provision of the Company's Restated Articles
of Incorporation or By-Laws, each as amended, (b) will not
violate any provision of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in (except as contemplated by
the Trust Indenture) any of the assets of the Company pursuant to
the provisions of, any mortgage, indenture, contract, agreement
or other undertaking known to us (having made due inquiry with
respect thereto) to which the Company is a party or which
purports to be binding upon the Company or upon any of its
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of our
knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except
that various consents of, and filings with, governmental
authorities may be required to be obtained or made, as the case
may be, in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction).
(6) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the statements of eligibility on Form T-1 and Form T-2 filed as
exhibits to the Registration Statement, upon which we do not
pass) the TIA, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, such documents or portions thereof, on the day first
filed with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act, and
the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act; and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
(7) An appropriate order has been entered by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds and the execution, delivery and performance
by the Company of the Underwriting Agreement and the Trust
Indenture; to the best of our knowledge, said order is in full
force and effect; no further approval, authorization, consent or
other order of any governmental body including without limitation
the Nuclear Regulatory Commission (other than under the
Securities Act, which has been duly obtained, or in connection or
compliance with the provisions of the securities or blue sky laws
of any jurisdiction) is legally required to permit the issuance
and sale of the Bonds by the Funding Corporation pursuant to the
Underwriting Agreement; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance by the Company of its
obligations with respect to the Bonds or under the Trust
Indenture and the Underwriting Agreement.
(8) Assuming the capacity of the Owner Participant (as
defined in the Prospectus), the Owner Trustee and the Lease
Indenture Trustee (as defined in the Prospectus) to engage in the
transactions contemplated by the Lease Indenture (as defined in
the Prospectus) and the Transaction Documents, (a) the Pledged
Lessor Bonds (as defined in the Prospectus) are equally and
ratably secured by a lien on and security interest in (i) the
related Undivided Interest (as defined in the Prospectus) and
(ii) the rights of the Owner Trustee under the Transaction
Documents, including the right to receive all payments of Basic
Rent (as defined in Appendix A to the Participation Agreement)
and certain other payments made by the Company, subject to
certain exceptions (including, but not limited to, the creation
of liens in respect of moneys and securities not held by the
Lease Indenture Trustee), and (b) the execution by the Owner
Trustee and delivery to the Lease Indenture Trustee of the Lease
Indenture and the Transaction Documents, and the filings and/or
recordings heretofore effected, create a valid and perfected
first lien thereon and security interest therein (subject only to
Permitted Liens) in favor of Funding Corporation. The
description of the Indenture Estate contained in the Lease
Indenture is adequate under the laws of the State of Louisiana to
create the lien therein that the Lease Indenture purports to
create.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (4) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company and with the independent certified public accountants
of the Company who examined certain of the financial statements
included or incorporated by reference in the Registration
Statement. Our examination of the Registration Statement and the
Prospectus and our discussions did not disclose to us any
information which gives us reason to believe that the
Registration Statement, at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act and at
the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
We do not express any opinion or belief as to the financial
statements or other financial or statistical data included or
incorporated by reference in the Registration Statement, the
Prospectus or as to the statements of eligibility on Form T-1 and
Form T-2 filed as exhibits to the Registration Statement or as to
the information contained in the Prospectus Supplement under the
caption "Certain Terms of the Collateral Bonds--Book-Entry Only
System."
[We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct.] We are members of the Louisiana Bar
and do not hold ourselves out as experts on the laws of any other
state. We have examined the opinions of even date herewith
rendered to you by Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts, and we concur in the conclusions expressed
therein insofar as they involve questions of Louisiana law. As
to all matters of New York law, we have relied, with your
approval, upon the opinion of even date herewith addressed to you
by Reid & Priest LLP.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any other
person or for any other purpose without our prior written
consent, except that Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts may rely on this opinion as to all matters of
Louisiana law in rendering their opinions required to be
delivered under the Underwriting Agreement.
Very truly yours,
MONROE & LEMANN
(A Professional Corporation)
By:
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
______________, 1996
Morgan Stanley & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Stanley & Co. Incorporated
1285 Broadway
New York, New York 10036-8293
Ladies and Gentlemen:
We, together with Monroe & Lemann (A Professional
Corporation), of New Orleans, Louisiana, have acted as counsel
for Louisiana Power & Light Company (the "Company") in connection
with the issuance and sale to you pursuant to the Underwriting
Agreement, effective ____________ __, 1996 (the "Underwriting
Agreement"), among W3A Funding Corporation (the "Funding
Corporation"), the Company and you, of $___________ aggregate
principal amount of the Funding Corporation's Waterford 3 Secured
Lease Obligation Bonds, _____% Series due ____ and $___________
aggregate principal amount of its Waterford 3 Secured Lease
Obligation Bonds, _____% Series due ____ (collectively, the
"Bonds"). The Bonds are being issued pursuant to the Collateral
Trust Indenture, dated as of __________ __, 1996, as amended by
Supplemental Indenture No. 1, dated as of __________ __, 1996
(the Collateral Trust Indenture, as so amended, being hereinafter
referred to as the "Trust Indenture"), among the Funding
Corporation, the Company and Bankers Trust Company, as trustee
(the "Trustee"). This opinion is being rendered to you at the
request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Trust Indenture; (d) the Registration
Statement and Prospectus filed under the Securities Act; (e) the
records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Funding
Corporation and the execution and delivery by the Company of the
Trust Indenture and the Underwriting Agreement; and (f) the
proceedings before the Commission under the Holding Company Act
relating to the issuance and sale of the Bonds by the Funding
Corporation and the execution and delivery by the Company of the
Trust Indenture and the Underwriting Agreement. We have also
examined or caused to be examined such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to render this opinion. We have not examined
the Bonds, except specimens thereof, and we have relied upon a
certificate of the Trustee as to the authentication and delivery
thereof. Capitalized terms used herein and not otherwise defined
have the meanings ascribed to such terms in the Underwriting
Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), and has been duly qualified under the TIA, and
no proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(2) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"Selected Information Relating to the Collateral Bonds", "Certain
Terms of the Collateral Bonds", "Security and Source of Payment
for the Collateral Bonds", "Description of the Collateral Bonds
and the Indenture", "Description of the Lease Indentures",
"Description of the Leases" and "Other Agreements", insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The execution, delivery and performance by the
Company of the Underwriting Agreement and the Trust Indenture and
the consummation of the transactions contemplated thereby (a)
will not violate any provision of the Company's Restated Articles
of Incorporation or By-Laws, each as amended, (b) will not
violate any provision of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in (except as contemplated by
the Trust Indenture) any of the assets of the Company pursuant to
the provisions of, any mortgage, indenture, contract, agreement
or other undertaking known to us (having made due inquiry with
respect thereto) to which the Company is a party or which
purports to be binding upon the Company or upon any of its
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of our
knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except
that various consents of, and filings with, governmental
authorities may be required to be obtained or made, as the case
may be, in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction).
(5) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the statements of eligibility on Form T-1 and Form T-2 filed as
exhibits to the Registration Statement, upon which we do not
pass) the TIA, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, such documents or portions thereof, on the day first
filed with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act, and
the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act; and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
(6) An appropriate order has been entered by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds and the execution, delivery and performance
by the Company of the Trust Indenture and Underwriting Agreement;
to the best of our knowledge, said order is in full force and
effect; no further approval, authorization, consent or other
order of any governmental body including without limitation the
Nuclear Regulatory Commission (other than under the Securities
Act, which has been duly obtained, or in connection or compliance
with the provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and sale
of the Bonds by the Funding Corporation pursuant to the
Underwriting Agreement; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance by the Company of its
obligations with respect to the Bonds or under the Trust
Indenture and the Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and information included in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in paragraph (3)
above. In connection with the preparation by the Company of the
Registration Statement and the Prospectus, we have had
discussions with certain of the Company's officers and
representatives, with other counsel for the Company and with the
independent certified public accountants of the Company who
examined certain of the financial statements included or
incorporated by reference in the Registration Statement. Our
examination of the Registration Statement and the Prospectus and
our discussions did not disclose to us any information which
gives us reason to believe that the Registration Statement, at
the Effective Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule 424
under the Securities Act and at the date hereof, contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. We do not express any opinion or
belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus, as to the statements of
eligibility on Form T-1 and Form T-2 filed as exhibits to the
Registration Statement or as to the information contained in the
Prospectus Supplement under the caption "Certain Terms of the
Collateral Bonds--Book-Entry Only System."
[We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct.] We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. As to all matters of Louisiana law, we have relied upon
the opinion of even date herewith addressed to you of Monroe &
Lemann (A Professional Corporation). We have not examined into
and are not passing upon matters relating to title to property,
franchises or the lien of the Trust Indenture.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any other
person or for any other purpose without our prior written
consent, except that Monroe & Lemann (A Professional Corporation)
may rely on this opinion as to matters of New York law in
rendering its opinion required to be delivered under the
Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Reid & Priest LLP]
______________, 1996
Morgan Stanley & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Stanley & Co. Incorporated
1285 Broadway
New York, New York 10036-8293
Ladies and Gentlemen:
We have acted as special counsel to W3A Funding
Corporation ("Funding Corporation"), in connection with the
issuance and sale to you of $___________ aggregate principal
amount of its Waterford 3 Secured Lease Obligation Bonds, _____%
Series due ____ and $___________ of its Waterford 3 Secured Lease
Obligation Bonds, _____% Series due ____ (collectively, the
"Bonds"), pursuant to the Underwriting Agreement, effective
__________ __, 1996 (the "Underwriting Agreement"), among Funding
Corporation, Louisiana Power & Light Company ("LP&L") and you.
The Bonds are being issued pursuant to the Collateral Trust
Indenture, dated as of ________ __, 1996 (the "Original
Indenture"), as amended by Supplemental Indenture No. 1 (the
"Supplemental Indenture"), dated as of ___________ __, 1996 (the
Original Indenture, as so amended, being hereinafter referred to
as the "Trust Indenture"), among Funding Corporation, LP&L and
Bankers Trust Company, as Trustee (the "Trustee"). This opinion
is being rendered to you at the request of Funding Corporation.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) Funding Corporation's Certificate of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Trust Indenture; (d) the Registration
Statement and Prospectus filed under the Securities Act; (e) the
records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by Funding
Corporation and the execution and delivery by Funding Corporation
of the Trust Indenture and the Underwriting Agreement; and (f)
the proceedings before the Commission under the Holding Company
Act relating to the issuance and sale of the Bonds by Funding
Corporation, and the execution and delivery by Funding
Corporation of the Trust Indenture and the Underwriting
Agreement. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. We have not examined the Bonds, except specimens
thereof, and we have relied upon a certificate of the Trustee as
to the authentication and delivery thereof. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) Funding Corporation is duly organized and validly
existing as a corporation in good standing under the laws of the
State of Delaware and has due corporate power and authority to
own its properties and conduct its business as described in the
Prospectus.
(2) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of
Funding Corporation, has been duly and validly executed and
delivered by Funding Corporation, is a legal, valid and binding
instrument enforceable against Funding Corporation in accordance
with its terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and has been duly qualified
under the TIA, and no proceedings to suspend such qualification
have been instituted or, to our knowledge, threatened by the
Commission.
(3) Funding Corporation has executed such instruments
and complied with such other formalities as are required by the
Trust Indenture as a condition precedent to the creation and
issuance of the Bonds.
(4) The Bonds have been duly and validly authorized,
executed and issued by Funding Corporation and are legal, valid
and binding obligations of Funding Corporation enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), are entitled to
the benefit of the security afforded by the Trust Indenture.
(5) The Registration Statement has become, and on the
date hereof is, effective under the Securities Act, and to the
best of our knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings
for that purpose are pending or threatened under Section 8(d) of
the Act.
(6) An appropriate order has been entered by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds and the execution, delivery and performance
by Funding Corporation of the Trust Indenture and Underwriting
Agreement; to the best of our knowledge, said order is in full
force and effect; no further approval, authorization, consent or
other order of any governmental body (other than under the
Securities Act, which has been duly obtained, or in connection or
compliance with the provisions of the securities or blue sky laws
of any jurisdiction) is legally required to permit the issuance
and sale of the Bonds by the Funding Corporation pursuant to the
Underwriting Agreement; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance by the Funding Corporation of
its obligations with respect to the Bonds or under the Trust
Indenture and the Underwriting Agreement.
(7) It is not necessary for Funding Corporation to
register as an investment company pursuant to the Investment
Company Act of 1940, as amended, in order to participate in the
transactions contemplated by the Prospectus.
(8) The Underwriting Agreement has been duly
authorized, executed and delivered by Funding Corporation.
(9) The execution, delivery and performance by Funding
Corporation of the Underwriting Agreement, the Bonds or the Trust
Indenture and the consummation of the transactions contemplated
thereby (a) will not violate any provision of Funding
Corporation's Certificate of Incorporation or By-Laws, each as
amended, (b) will not violate any provision of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance on or security interest in (except as
contemplated by the Trust Indenture) any of the assets of Funding
Corporation pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to us
(having made due inquiry with respect thereto) to which Funding
Corporation is a party or which purports to be binding upon the
Company or upon any of its assets, and (c) will not violate any
provision of any law or regulation applicable to Funding
Corporation or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order, writ,
judgment or decree of any governmental instrumentality applicable
to Funding Corporation (except that various consents of, and
filings with, governmental authorities may be required to be
obtained or made, as the case may be, in connection or compliance
with the provisions of the securities or blue sky laws of any
jurisdiction).
(10) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"Selected Information Relating to the Collateral Bonds", "Certain
Terms of the Collateral Bonds", "Security and Source of Payment
for the Collateral Bonds", "W3A Funding Corporation",
"Description of the Collateral Bonds and the Indenture",
"Description of the Lease Indentures", "Description of the
Leases" and "Other Agreements", insofar as they purport to
constitute summaries of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects.
(11) No recordation, registration or filing of the
Original Indenture, the Supplemental Indenture or any other
supplemental indenture or instrument of further assurance is
necessary to make effective the lien intended to be created by
the Trust Indenture or fully to preserve and protect the rights
of the bondholders and the Trustee.
The opinion expressed in paragraph (11) above assumes
(x) the due authorization, execution and delivery of the Original
Indenture and the Supplemental Indenture by each of the parties
thereto (other than Funding Corporation) and that the same
constitute the legal, valid and binding agreements of such
parties, enforceable in accordance with their respective terms,
(y) that no property of the types described in the Granting
Clauses of the Original Indenture has been subjected to the lien
of the Trust Indenture, and (z) that the Trustee has obtained and
continues to retain possession of the Pledged Lessor Bonds (as
defined in the Prospectus). In connection with such opinion, we
note that each of the filings and recordings of the Original
Indenture and the Supplemental Indenture described in Schedule 1
to the Refunding Agreements has been made.
In rendering the opinions set forth above, we have not
passed upon and do not purport to pass upon the application of
any laws of any jurisdiction other than the Federal laws of the
United States, the law of the State of New York and the General
Corporation Law of the State of Delaware.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner or for any
other purpose by any other person without our prior written
consent, except that the Trustee, Funding Corporation and LP&L
are entitled to rely on this opinion as if addressed to them.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT D
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
______________, 1996
Morgan Stanley & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Stanley & Co. Incorporated
1285 Broadway
New York, New York 10036-8293
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $___________ in aggregate principal amount of
Waterford 3 Secured Lease Obligation Bonds, _____% Series due
____ and $___________ in aggregate principal amount of Waterford
3 Secured Lease Obligation Bonds, _____% Series due ____
(collectively, the "Bonds") issued by W3A Funding Corporation
(the "Funding Corporation") pursuant to the Underwriting
Agreement, effective __________ __, 1996 (the "Underwriting
Agreement"), among Funding Corporation, Louisiana Power & Light
Company ("LP&L") and you. The Bonds are being issued pursuant to
the Collateral Trust Indenture, dated as of ________ __, 1996, as
amended by Supplemental Indenture No. 1, dated as of ___________
__, 1996 (the Collateral Trust Indenture, as so amended, being
hereinafter referred to as the "Trust Indenture"), among Funding
Corporation, LP&L and Bankers Trust Company, as Trustee (the
"Trustee").
We are members of the Bar of the State of New York and,
for purposes of this opinion, do not hold ourselves out as
experts on the laws of any jurisdiction other than the State of
New York and the United States of America. We have, with your
consent, relied upon an opinion of even date herewith addressed
to you of Monroe & Lemann (A Professional Corporation) as to all
matters of Louisiana law related to this opinion. We have
reviewed said opinion and believe that it is satisfactory. We
have also reviewed the opinion of Reid & Priest LLP required by
Section 8(d) of the Underwriting Agreement, and we believe said
opinion to be satisfactory.
In our capacity as your counsel, we have examined such
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to render this opinion. As
to various questions of fact material to this opinion, we have
relied upon representations of the Company and the Funding
Corporation and statements in the Registration Statement
hereinafter mentioned. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us as originals, and the conformity to the originals
of the documents submitted to us as certified or photostatic
copies. We have not examined the Bonds, except specimens
thereof, and we have relied upon a certificate of the Trustee as
to the authentication and delivery thereof. We have not examined
into, and are expressing no opinion or belief as to matters
relating to, incorporation of the Company or the Funding
Corporation, titles to property, franchises or the liens of the
Trust Indenture or the Lease Indenture (as defined in the
Prospectus). Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, and is a legal, valid and binding instrument enforceable
against the Company in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), and is qualified under the TIA, and, to our
knowledge, no proceedings to suspend such qualification have been
instituted or threatened by the Commission.
(2) The Bonds are legal, valid and binding obligations
of the Funding Corporation, enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"Selected Information Relating to the Collateral Bonds", "Certain
Terms of the Collateral Bonds", "Security and Source of Payment
for the Collateral Bonds", "Description of the Collateral Bonds
and the Indenture", "Description of the Lease Indentures",
"Description of the Leases" and "Other Agreements", insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Funding Corporation and
the Company.
(5) An appropriate order has been issued by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds and, to the best of our knowledge, such
order is in full force and effect; and no further approval,
authorization, consent or other order of any governmental body
(other than under the Securities Act, which has been duly
obtained, or in connection or compliance with the provisions of
the securities or "blue sky" laws of any jurisdiction) is legally
required to permit the issuance and sale of the Bonds by the
Funding Corporation pursuant to the Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the statements of eligibility on Form T-1 and Form T-2 filed as
exhibits to the Registration Statement, upon which we do not
pass) the TIA, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, such documents or portions thereof, on the day first
filed with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act, and
the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act; and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose are pending or
threatened under Section 8(d) of the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and information included or incorporated by reference in
the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In the course of
the preparation by the Company of the Registration Statement and
the Prospectus, we have had discussions with certain officers,
employees and representatives of the Funding Corporation, the
Company and Entergy Services, Inc., with counsel for the Funding
Corporation and the Company and with your representatives. Our
review of the Registration Statement and the Prospectus, and our
discussions, did not disclose to us any information which gives
us reason to believe that the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that the Prospectus, at the time first filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or Prospectus, as to the statements of eligibility on
Form T-1 and Form T-2 filed as exhibits to the Registration
Statement or as to the information contained in the Prospectus
Supplement under the caption "Certain Terms of the Collateral
Bonds--Book-Entry Only System.".
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT E
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS PURSUANT TO
SECTION 8(f)(iv) OF THE UNDERWRITING AGREEMENT FOR INCLUSION IN
THE LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
Exhibit 4(a)
COLLATERAL TRUST INDENTURE
dated as of __________, 19__
AMONG
W3A FUNDING CORPORATION,
LOUISIANA POWER & LIGHT COMPANY
AND
BANKERS TRUST COMPANY
not in its individual capacity, but solely as Trustee
___________
Providing for the Issuance from Time to Time of
Securities To Be Issued in One or More Series
Issuance of Securities
in connection with the
Lease of Three Undivided Interests in
Unit No. 3 of the Waterford Steam
Electric Generating Station
St. Charles Parish, Louisiana
<PAGE>
W3A FUNDING CORPORATION
LOUISIANA POWER & LIGHT COMPANY
Reconciliation and tie between Indenture
dated as of October 1, 1994
and
Trust Indenture Act of 1939
Section
Section of Act of Indenture
310(a)(1) 9.09
(2) 9.09
(3) 9.15(b)(2)
(4)
Inapplicable
(5) 9.09
(b) 9.08,9.10
(c) 9.13
311(a) 9.13
(b) 9.13
(c)
Inapplicable
312(a) 10.01
(b) 10.01
(c) 10.01
313(a) 10.02
(b) 10.02
(c) 10.02
(d) 10.02
314(a) 10.02
(b) 5.06
(c)(1) 1.02
(2) 1.02
(3) 2.04(g)(i)
(d)(1) 5.11
(2) Inapplicable
(3) 2.04(g)(ii)
(e) 1.02
315(a) 9.01, 9.03
(b) 9.02
(c) 9.01
(d)(1) 9.01
(2) 9.01
(3) 9.01
(e) 8.10
316(a)(1)(A) 8.07
(B) 8.08
(2) Inapplicable
(a) (last sentence) 1.01
("Outstanding")
(b) 8.11
317(a)(1) 8.05(a)
(2) 8.05(d)
(b) 5.03
9.14(a)
318(a) 1.07
____________________
Bond: This reconciliation and tie shall not, for any purpose, be
deemed to constitute a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
RECITALS 1
GRANTING CLAUSES 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 1.01. Definitions 2
Section 1.02. Compliance Certificates and
Opinions 7
Section 1.03. Form of Documents Delivered to
Trustee 8
Section 1.04. Acts of Holders 8
Section 1.05. Notices, etc., to Trustee, Company
and LP&L 9
Section 1.06. Notices to Holders; Waiver 9
Section 1.07. Conflict with Trust Indenture Act 10
Section 1.08. Effect of Heading and Table of
Contents 10
Section 1.09. Successors and Assigns 10
Section 1.10. Separability Clause 10
Section 1.11. Benefits of Indenture 10
Section 1.12. Governing Law 10
Section 1.13. Legal Holidays 11
ARTICLE TWO
The Securities
Section 2.01. Form of Security to Be Established
by Series Supplemental Indenture 11
Section 2.02. Form of Trustee's Authentication 11
Section 2.03. Amount Unlimited; Issuable in
Series; Limitations on Issuance 11
Section 2.04. Authentication and Delivery of
Securities 13
Section 2.05. Form and Denominations 14
Section 2.06. Execution of Securities 14
Section 2.07. Temporary Securities 15
Section 2.08. Registration, Transfer and Exchange 15
Section 2.09. Mutilated, Destroyed, Lost and
Stolen Securities 16
Section 2.10. Payment of Interest; Interest
Rights Preserved 16
Section 2.11. Persons Deemed Owners 18
Section 2.12. Cancellation 18
Section 2.13. Dating of Securities; Computation
of Interest 18
Section 2.14. Source of Payments; Rights and
Liabilities of Lessors, Owner Participants and
Lease Indenture Trustees 18
Section 2.15. Application of Proceeds from the
Sale of Securities 18
Section 2.16. Principal Amount of Securities
Payable Without Presentment or Surrender. 19
ARTICLE THREE
Provisions as to Pledged Property
Section 3.01. Holding of Pledged Securities 19
Section 3.02. Disposition of Payments on Pledged
Property. 19
Section 3.03. Exercise of Rights and Powers Under
Pledged Lessor Bonds and Lease
Indentures 19
Section 3.04. Certain Actions in Case of Judicial
Proceedings 20
Section 3.05. Cash Held by Trustee Treated as a
Deposit 20
ARTICLE FOUR
Withdrawal of Collateral
Section 4.01. Withdrawal of Collateral 20
Section 4.02. Reassignment of Pledged Lessor
Bonds upon Payment 20
ARTICLE FIVE
Covenants
Section 5.01. Payment of Principal, Premium, if
any, and Interest 20
Section 5.02. Maintenance of Office or Agency 21
Section 5.03. Money for Security Payments to be
Held in Trust 21
Section 5.04. Maintenance of Corporate Existence 22
Section 5.05. Protection of Pledged Property. 22
Section 5.06. Opinions as to Pledged Property. 23
Section 5.07. Performance of Obligations 23
Section 5.08. Negative Covenants 23
Section 5.09. Annual Statement as to Compliance 24
Section 5.10. Delivery of Certificate of
Independent Public Accountant 24
Section 5.11. Delivery of Certificate of
Engineer, Appraiser or Other Expert 24
ARTICLE SIX
Redemption of Securities
Section 6.01. Applicability of Article 25
Section 6.02. Election to Redeem; Notice to
Trustee 25
Section 6.03. Selection by Trustee of Securities
to be Redeemed. 25
Section 6.04. Notice of Redemption. 26
Section 6.05. Securities Payable on Redemption
Date 27
Section 6.06. Securities Redeemed in Part. 27
ARTICLE SEVEN
Sinking Funds
Section 7.01. Applicability of Article 27
Section 7.02. Sinking Funds for Securities 28
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 8.01. Events of Default 28
Section 8.02. Acceleration of Maturity;
Rescission and Annulment 29
Section 8.03. Trustee's Power of Sale of Pledged
Property; Notice Required; Power to Bring
Suit 30
Section 8.04. Incidents of Sale of Pledged
Property 30
Section 8.05. Judicial Proceedings Instituted by
Trustee 31
Section 8.06. Holders May Demand Enforcement of
Rights by Trustee 33
Section 8.07. Control by Holders 33
Section 8.08. Waiver of Past Defaults 34
Section 8.09. Proceedings Instituted by Holder 34
Section 8.10. Undertaking To Pay Court Costs 34
Section 8.11. Right of Holders To Receive Payment
Not To Be Impaired 35
Section 8.12. Application of Moneys Collected by
Trustee 35
Section 8.13. Securities Held by Certain Persons
Not To Share in Distribution. 36
Section 8.14. Waiver of Appraisement, Valuation,
Stay, Right to Marshalling 36
Section 8.15. Remedies Cumulative; Delay or
Omission Not a Waiver 36
ARTICLE NINE
The Trustee
Section 9.01. Certain Duties and Responsibilities 37
Section 9.02. Notice of Defaults 37
Section 9.03. Certain Rights of Trustee 37
Section 9.04. Not Responsible for Recitals or
Issuance of Securities. 38
Section 9.05. May Hold Securities 38
Section 9.06. Funds May Be Held by Trustee or
Paying Agent 38
Section 9.07. Compensation and Reimbursement of
Trustee and Authorized Agents 39
Section 9.08. Disqualification; Conflicting
Interests 39
Section 9.09. Corporate Trustee Required;
Eligibility 39
Section 9.10 Resignation and Removal; Appointment
of Successor. 40
Section 9.11. Acceptance of Appointment by
Successor. 41
Section 9.12. Merger, Conversion, Consolidation
or Succession to Business. 41
Section 9.13. Preferential Collection of Claims
against any Obligor 41
Section 9.14. Authorized Agents 41
Section 9.15. Co-Trustee or Separate Trustee. 43
ARTICLE TEN
Holders' Lists and Reports
by Trustee and LP&L
Section 10.01. LP&L to Furnish Trustee Names and
Addresses of Holders. 44
Section 10.02. Reports by Trustee and LP&L 45
ARTICLE ELEVEN
Supplemental Indentures
Section 11.01. Supplemental Indentures Without
Consent of Holders. 45
Section 11.02. Supplemental Indenture With
Consent of Holders 46
Section 11.03. Documents Affecting Immunity or
Indemnity 47
Section 11.04. Election of Supplemental
Indentures 47
Section 11.05. Effect of Supplemental Indentures 47
Section 11.06. Conformity with Trust Indenture
Act 47
Section 11.07. Reference in Securities to
Supplemental Indentures. 48
ARTICLE TWELVE
Satisfaction and Discharge
Section 12.01. Satisfaction and Discharge of
Securities 48
Section 12.02. Satisfaction and Discharge of Indenture. 49
Section 12.03. Application of Trust Money 50
ARTICLE THIRTEEN
Meetings of Holders of Securities; Action without Meeting
Section 13.01.Purposes for Which Meetings May Be Called 50
Section 13.02. Call, Notice and Place of Meetings. 50
Section 13.03. Persons Entitled to Vote at
Meetings 51
Section 13.04. Quorum; Action. 51
Section 13.05. Attendance at Meetings;
Determination of Voting Rights;
Conduct and Adjournment of Meetings 52
Section 13.06. Counting Votes and Recording
Action of Meetings. 52
Section 13.07. Action Without Meeting 53
ARTICLE FOURTEEN
Liability of the Company Solely Corporate; No Liability of LP&L
Section 14.01. Liability of the Company Solely
Corporate. 53
Section 14.02. No Liability of LP&L 53
PARTIES 51
EXHIBIT A - Identification of Certain Documents and Parties
Thereto
<PAGE>
COLLATERAL TRUST INDENTURE
Collateral Trust Indenture, dated as of __________, 199_,
among W3A Funding Corporation, a Delaware corporation (the
"Company"), having its principal office and mailing address at
Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801, Louisiana Power & Light Company, a Louisiana
corporation ("LP&L"), having its principal office and mailing
address at 639 Loyola Avenue, New Orleans, Louisiana 70113 and
Bankers Trust Company, a New York banking corporation, not in its
individual capacity but solely as trustee (hereinafter called the
"Trustee") having its corporate trust office at Four Albany
Street, New York, New York 10006.
W I T N E S S E T H:
Whereas, the Company has duly authorized the creation of an
issue of its bonds, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture; and to
secure the Securities and to provide for the authentication and
delivery thereof by the Trustee, the Company has duly authorized
the execution and delivery of this Indenture; and
Whereas, all acts necessary to make this Indenture a valid
instrument for the security of the Securities, in accordance with
its and their terms, have been done;
Now, Therefore, This Indenture Witnesseth, that, to secure
the payment of the principal of and premium, if any, and interest
on all the Securities authenticated and delivered hereunder and
issued by the Company and outstanding, and the performance of the
covenants therein and herein contained, and in consideration of
the premises and of the covenants herein contained and of the
purchase of the Securities by the holders thereof, and of the sum
of one dollar ($1.00) paid to the Company by the Trustee at or
before the delivery hereof, the receipt whereof is hereby
acknowledged, the Company by these presents does grant, bargain,
sell, release, convey, assign, pledge, transfer, mortgage,
hypothecate and confirm unto the Trustee all and singular the
following (which collectively are hereinafter called the "Pledged
Property"), excluding, in any event, any moneys which are
specifically stated herein not to constitute part of the Pledged
Property, to wit:
RECITALS
All Pledged Lessor Bonds (as hereinafter defined) as shall
be actually pledged and assigned by the Company to the Trustee
pursuant to the Series Supplemental Indentures or other
supplemental indentures to be executed and delivered as provided
in this Indenture, together with the interest of the Company, if
any, in the Lease Indentures (as hereinafter defined) securing
said Pledged Lessor Bonds.
GRANTING CLAUSES
Any property, including cash, that may, from time to time,
hereafter be subjected to the lien and/or pledge hereof by the
Company or which, pursuant to any provision of this Indenture or
any Series Supplemental Indenture or other supplemental
indentures to be executed and delivered as provided in this
Indenture, may become subjected to the lien and/or pledge hereof;
and the Trustee is hereby authorized to receive the same at any
time as additional security hereunder. Such subjection to the
lien hereof of any such property as additional security may be
made subject to any reservations, limitations or conditions which
shall be set forth in a written instrument executed by the
Company and/or by the Trustee respecting the scope or priority of
such lien and/or pledge or the use and disposition of such
property or the proceeds thereof.
To Have and to Hold the Pledged Property unto the Trustee
and its successors and assigns forever subject to the terms of
this Indenture, including, without limitation, Section 12.01.
But In Trust, Nevertheless, for the equal and proportionate
benefit and security of the holders from time to time of all the
Securities authenticated and delivered hereunder and issued by
the Company and outstanding, without any priority of any one
Security over any other.
And Upon The Trusts and subject to the covenants and
conditions hereinafter set forth.
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act (as hereinafter defined), either directly or
by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles;
(4) all reference in this Indenture to designated
"Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this
Indenture; and
(5) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"Act", when used with respect to any Holder, has the
meaning specified in Section 1.04.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control", when used with
respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person acting as
Authenticating Agent hereunder pursuant to Section 9.14.
"Authorized Agent" means any Paying Agent or Security
Registrar or Authenticating Agent or other agent appointed by the
Trustee in accordance with this Indenture to perform any function
which this Indenture authorizes the Trustee or such agent to
perform.
"Board of Directors" means, when used with respect to the
Company, the board of directors of the Company and, when used
with respect to LP&L, the board of directors of LP&L, or, in
either case, any committee of that board duly authorized to act
for it hereunder.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company or
LP&L, as the case may be, to have been duly adopted by the Board
of Directors of such entity and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or
Sunday or other day on which banks in New Orleans, Louisiana, New
York, New York or the cities in which the Indenture Trustee's
Offices (as defined in the respective Lease Indentures) are
located, are authorized or obligated to be closed.
"Change" with respect to any instrument means any consent,
amendment, waiver, approval, notice or direction or the
execution, grant or giving of any thereof.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or if at any time after the execution of
this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor corporation
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor corporation.
"Company Request" or "Company Order" means a written
request or order, as the case may be, signed in the name of the
Company by its President or one of its Vice Presidents, and by
its Treasurer, Secretary, or one of its Assistant Treasurers or
Assistant Secretaries, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time corporate trust business
of the Trustee shall be administered, which at the date of this
Indenture is Four Albany Street, New York, New York 10006,
Attention: Corporate Trust & Agency Group_Public Utilities Group,
or such other office as may be designated by the Trustee to the
Company, LP&L and each Securityholder.
"Event of Default" has the meaning specified in Section
8.01.
"Extension Letter" means the Extension Letter, to be dated
the date of the original issuance of a series of Pledged Lessor
Bonds and addressed to the Trustee by the parties to the
Participation Agreement in accordance with which such series of
Pledged Lessor Bonds was issued, extending to the Trustee the
representations, warranties and covenants of such parties
referred to in Section 10(c)(8) of such Participation Agreement.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered in the Security Register.
"Indenture" means this instrument as originally executed
and as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof.
"Initial Interest Payment Date" with respect to any series
of Securities means the date of the Stated Maturity of the
initial installment of interest on Securities of such series.
"Installment Payment Amount", when used with respect to any
Security the principal of which is payable in installments
without presentment or surrender, means the amount of the
installment payment of principal due and payable on each
Installment Payment Date other than the Stated Maturity date
thereof.
"Installment Payment Date", when used with respect to any
Security the principal of which is payable in installments
without presentment or surrender, means each date on which an
installment payment of principal is due and payable on such
Security, as set forth in the Series Supplemental Indenture
creating the Securities of such series.
"LP&L" shall mean Louisiana Power & Light Company, a
Louisiana corporation, and its permitted successors and assigns.
"Lease" means each Lease identified in Exhibit A hereto, as
such Lease may be amended or supplemented from time to time
pursuant to the applicable provisions thereof; "Leases" means
each and every Lease.
"Lease Indenture" means each Lease Indenture identified in
Exhibit A hereto, as such Lease Indenture may be amended or
supplemented from time to time pursuant to the applicable
provisions thereof; "Lease Indentures" means each and every Lease
Indenture.
"Lease Indenture Estate" shall have the meaning set forth
in each Lease Indenture.
"Lease Indenture Trustee" means each Lease Indenture
Trustee identified in Exhibit A hereto, until a successor Lease
Indenture Trustee shall have become such pursuant to the
applicable provisions of the Lease Indenture to which such Lease
Indenture Trustee is a party, and thereafter "Lease Indenture
Trustee" means the successor Lease Indenture Trustee; "Lease
Indenture Trustees" means each and every Lease Indenture Trustee.
"Lease Payments" with respect to any Lease shall mean
amounts payable under such Lease in respect of (i) basic rent,
(ii) casualty value, (iii) special casualty value, (iv) any
amount determined by reference to casualty value or special
casualty value or (v) any other amounts payable in connection
with termination of such Lease, in each case as more fully
described in and assigned pursuant to the related Lease
Indenture; "Lease Payments" with respect to all Leases means the
aggregate of Lease Payments under any and all Leases.
"Lessor" or "Owner Trustee" means any Lessor or Owner
Trustee identified in Exhibit A hereto, until a successor shall
have become such pursuant to the applicable provisions of the
related Trust Agreement identified in such schedule, and
thereafter "Lessor" or "Owner Trustee" means such successor;
"Lessors" or "Owner Trustees" means each and every Lessor or
Owner Trustee.
"Lessor Bond" means any bond issued by a Lessor under a
Lease Indenture.
"Lien of this Indenture" or "lien hereof" means the lien
and security interest created by these presents, or created by
any concurrent or subsequent conveyance to the Trustee (whether
made by the Company or any other Person and whether pursuant to a
Series Supplemental Indenture or otherwise), or otherwise
created, making any property a part of the Pledged Property held
by the Trustee for the benefit of the Securities Outstanding
hereunder.
"Obligor", when used with reference to the Securities or
this Indenture, means LP&L and any successor to the obligations
of LP&L under a Lease, and does not include the Trustee, a Lease
Indenture Trustee, an Owner Trustee or an Owner Participant so
long as they have not assumed such obligations; provided,
however, that no reference to LP&L as an Obligor herein shall be
construed as implying any guaranty or assumption of the
Securities or the obligations represented thereby by LP&L.
"Officers' Certificate" means a certificate signed by the
President or any Vice President and the Treasurer, the Secretary,
any Assistant Treasurer or any Assistant Secretary of LP&L, any
Lessor or the Company, as the case may be, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel for
any Person either expressly referred to herein or otherwise
satisfactory to the Trustee which may include, without
limitation, counsel to the Company, any Lessor, any Lease
Indenture Trustee, any Owner Participant or LP&L, whether or not
such counsel is an employee of any of them.
"Outstanding," when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities or portions thereof deemed to have been
paid within the meaning of Section 12.01 hereof; and
(iii) Securities which have been paid pursuant to Section
2.09 or in exchange for or in lieu of which other
Securities have been issued, authenticated and delivered
pursuant to this Indenture, other than any Securities in
respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any
series, have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders, Securities owned by the Company
or LP&L, or any Affiliate of either thereof, unless such Persons
own all Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series, as the case may be,
shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so
disregarded; provided, however, that Securities 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 Securities and
that the pledgee is not the Company or LP&L, or any Affiliate of
either thereof.
"Owner Participant" means any Owner Participant identified
in Exhibit A hereto, until a transferee, successor or assignee
thereof shall have become such pursuant to the applicable
provisions of the Participation Agreement to which such Owner
Participant is a party, and thereafter "Owner Participant" means
such transferee, successor or assignee; "Owner Participants"
means each and every Owner Participant.
"Participation Agreement" means each Participation
Agreement identified in Exhibit A hereto as such Participation
Agreement may be amended from time to time pursuant to the
applicable provisions thereof; "Participation Agreements" means
each and every Participation Agreement.
"Paying Agent" means any Person acting as Paying Agent
hereunder pursuant to Section 9.14.
"Person" means any individual, partnership, corporation,
trust, unincorporated association or joint venture, a government
or any department or agency thereof, or any other entity.
"Place of Payment", when used with respect to the
Securities of any series, means the office or agency maintained
pursuant to Section 5.02 and such other place or places, if any,
where the principal of and premium, if any, and interest on the
Securities of such series are payable as specified in the Series
Supplemental Indenture setting forth the terms of the Securities
of such series.
"Pledged Lessor Bond" means each Lessor Bond identified in
a schedule to a Series Supplemental Indenture, as such Lessor
Bond may be amended or supplemented from time to time pursuant to
the applicable provisions thereof, of the related Lease Indenture
and of this Indenture; "Pledged Lessor Bonds" means each and
every Pledged Lessor Bond.
"Pledged Property" has the meaning set forth in the
Granting Clauses.
"Predecessor Securities" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; for the
purposes of this definition, any Security authenticated and
delivered under Section 2.09 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Principal Instruments" means the Pledged Lessor Bonds, the
Lease Indentures, the Participation Agreements and the Leases.
"Redeemed Securities" shall have the meaning specified in
Section 7.02.
"Redemption Date", when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture and the terms of such Security.
"Regular Record Date" for the Stated Maturity of any
installment of interest on the Securities of any series or for
the Installment Payment Date of any installment of principal of
the Securities and any series for which principal is payable from
time to time without presentation or surrender means the 15th day
(whether or not a Business Day) of the month preceding the month
in which such Stated Maturity or Installment Payment Date, as the
case may be, occurs, or any other date specified for such purpose
in the Series Supplemental Indenture setting forth the terms of
the Securities of such series.
"Responsible Officer" shall mean when used with respect to
the Trustee, any officer within the Corporate Trust Office of the
Trustee including any Vice President, Assistant Vice President,
Secretary, Assistant Secretary, Managing Director or any other
officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge
of and familiarity with the particular subject.
"Security" or "Securities" shall have the meaning set forth
in the recitals hereto.
"Security Register" has the meaning specified in Section
2.08.
"Security Registrar" means any Person acting as Security
Registrar hereunder pursuant to Section 9.14.
"LP&L Request" means a written request or order, signed in
the name of LP&L by its President or one of its Vice Presidents
or Assistant Vice Presidents and by its Treasurer or Secretary or
one of its Assistant Treasurers or Assistant Secretaries or any
authorized agent of LP&L, and delivered to the Trustee.
"Series Supplemental Indenture" means an indenture
supplemental to this Indenture, for the purpose of, among other
things, specifying, in accordance with Article Two hereof, the
form of the Securities of any series and/or for the purpose of,
among other things, subjecting to the Lien of this Indenture the
Pledged Lessor Bonds related to such series; "Series Supplemental
Indentures" means each and every Series Supplemental Indenture.
"Sinking Fund" has the meaning specified in Section 7.02.
"Sinking Fund Redemption Date" shall have the meaning
specified in Section 7.02.
"Sinking Fund Requirements" shall have the meaning
specified in Section 7.02.
"Special Record Date" for the payment of any defaulted
interest or any defaulted Installment Payment Amount means a date
fixed by the Trustee pursuant to Section 2.10.
"Stated Maturity", when used with respect to the principal
of any Security or any installment of interest thereon, means the
date specified in such Security as the fixed date on which such
principal or such installment of interest is due and payable;
provided, however, that, with respect to any Security the
principal of which is payable in installments without presentment
or surrender, Stated Maturity shall mean the date specified in
such Security as the fixed date on which the final payment of
principal of such Security is due and payable.
"Trust Indenture Act" or "TIA" means the Trust Indenture
Act of 1939 as in force at the date as of which this instrument
was executed, except as provided in Section 11.06.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company, any Lessor
or LP&L to the Trustee to take any action under any provision of
this Indenture, the Company, such Lessor or LP&L, as the case may
be, shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such
particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than certificates provided pursuant to Section 10.02
herein) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions therein relating thereto;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation
as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company, of
any Lessor or of LP&L may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company, of any Lessor or of LP&L, as the case
may be, stating that the information with respect to such factual
matters is in the possession of the Company, such Lessor or LP&L,
as the case may be, unless such counsel knows that the
certificate or opinion or representations with respect to such
matters are erroneous.
Any Opinion of Counsel stated to be based on the opinion of
other counsel shall be accompanied by a copy of such other
opinion.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be embodied in and
evidenced by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of Holders duly called and held in accordance with the
provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record, or both, are delivered to
the Trustee and, where it is hereby expressly required, to the
Company and to LP&L. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 9.01)
conclusive in favor of the Trustee, the Company and LP&L, if made
in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner
provided in Section 13.06.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the certificate
of any notary public or other officer of any jurisdiction
authorized to take acknowledgments of deeds or administer oaths
that the Person executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer.
If such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities
held by any Person, and the date or dates of holding the same,
shall be proved by the Security Register and the Trustee shall
not be affected by notice to the contrary.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any
Security shall bind the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof,
whether or not notation of such action is made upon such
Security.
(e) Until such time as written instruments shall have
been delivered with respect to the requisite percentage of
principal amount of Securities for the action contemplated by
such instruments, any such instrument executed and delivered by
or on behalf of the Holder of any Security may be revoked with
respect to any or all of such Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in
which such instrument was proven.
(f) Securities of any series authenticated and delivered
after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to
any action taken by such Act of Holders. If the Company shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to such
action may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
Section 1.05. Notices, etc., to Trustee, Company and LP&L.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(a) the Trustee by any Holder, by the Company, by LP&L
or by an Authorized Agent shall be sufficient for every
purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust
Office, or
(b) the Company by the Trustee, by any Holder, by LP&L
or by an Authorized Agent shall be sufficient for every
purpose hereunder if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first
paragraph of this instrument or at any other address
previously furnished in writing to the Trustee and LP&L by
the Company for such purpose, or
(c) LP&L by the Trustee, by any Holder, by the Company
or by an Authorized Agent shall be sufficient for every
purpose hereunder if in writing and mailed, first-class
postage prepaid, to LP&L addressed to it at the address of
its principal office specified in the first paragraph of
this instrument or at any other address previously
furnished in writing to the Trustee and the Company by LP&L
for such purpose.
Section 1.06. Notices to Holders; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given if in writing and mailed,
first-class postage prepaid, to each Holder affected by such
event, at such Holder's address as it appears in the Security
Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice to Holders, then such notification as shall be made
by overnight courier at the expense of the Company shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given.
Section 1.07. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required to be
included in this Indenture by, or is otherwise governed by, any
provision of the Trust Indenture Act, such required or governed
provision shall control; and if any provision hereof otherwise
conflicts with the Trust Indenture Act, the Trust Indenture Act
shall control.
Section 1.08. Effect of Heading and Table of Contents.
The Article and Section headings in this Indenture and the
Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 1.09. Successors and Assigns.
All covenants, agreements, representations and warranties
in this Indenture by the Company, LP&L and the Trustee, shall
bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and
assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed
or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, or the Holders of
Securities as expressly provided herein, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
This Indenture and each Security are being and will be
executed and delivered in the State of New York, shall be deemed
to be contracts made in such State and for all purposes shall be
construed in accordance with and governed by the laws of the
State of New York, except to the extent that laws of other
jurisdictions are mandatorily applicable.
Section 1.13. Legal Holidays.
In any case where any Redemption Date, Installment Payment
Date or the Stated Maturity of principal of or any installment of
interest on any Security, or any date on which any defaulted
interest or principal is proposed to be paid, shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or such Security) payment of interest and/or principal
and premium, if any, shall be due and payable on the next
succeeding Business Day with the same force and effect as if made
on or at such nominal Redemption Date, Stated Maturity,
Installment Payment Date or date on which the defaulted interest
or principal is proposed to be paid, and no interest shall accrue
on the amount so payable for the period from and after such
Redemption Date, Stated Maturity, Installment Payment Date or
date for the payment of defaulted interest or principal, as the
case may be.
ARTICLE TWO
The Securities
Section 2.01. Form of Security to Be Established by Series
Supplemental Indenture.
The Securities of each series shall be substantially in the
form (not inconsistent with this Indenture, including Section
2.05 hereof) established in the Series Supplemental Indenture
relating to the Securities of such series.
Section 2.02. Form of Trustee's Authentication.
The Trustee's certificate of authentication on all
Securities shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within mentioned Indenture.
________________________________________________
as Trustee
By______________________________________________
Authorized Officer
Dated
Section 2.03. Amount Unlimited; Issuable in Series; Limitations
on Issuance.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Series Supplemental
Indentures, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities) and the form or forms of Securities of
such series;
(2) any limit upon the aggregate principal amount of
the Securities of such series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of, transfer
of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 2.07, 2.08, 2.09, 6.06 or
11.07 and except for Securities which pursuant to Section
2.04 hereof, are deemed never to have been authenticated
and delivered hereunder);
(3) the date on which the principal of the Securities
of such series is payable and the date or dates on or as of
which the Securities of such series shall be dated, if
other than as provided in Section 2.13;
(4) the rate at which the Securities of such series
shall bear interest, or the method by which such rate shall
be determined, the date or dates from which such interest
shall accrue, the interest payment dates on which such
interest shall be payable and the Regular Record Date for
the determination of Holders to whom interest is payable;
and the basis of computation of interest, if other than as
provided in Section 2.13;
(5) if other than as provided in Section 5.02, the
place or places where (1) the principal of and premium, if
any, and interest on Securities of such series shall be
payable, (2) Securities of such series may be surrendered
for registration of transfer or exchange and (3) notices
and demands to or upon the Company in respect of the
Securities of such series and this Indenture may be served;
and, if such is the case, the circumstances under which the
principal of such Securities shall be payable without
presentment or surrender;
(6) the price or prices at which, the period or
periods within which, and the terms and conditions upon
which Securities of such series may be redeemed, in whole
or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem,
purchase or repay Securities of such series pursuant to any
sinking fund, installment payment or analogous provisions
or at the option of a Holder thereof and the price or
prices at which and the period or periods within which, and
the terms and conditions upon which, Securities of the
series shall be redeemed, purchased or repaid in whole or
in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
multiple thereof, the denominations in which Securities of
such series shall be issuable;
(9) any other terms of Securities of such series
(which terms shall not be inconsistent with the provisions
of this Indenture); and
(10) any trustees, authenticating or paying agents,
warrant agents, transfer agents or registrars with respect
to the Securities of such series.
Concurrently with the initial authentication and delivery
of the Securities of each series, the Company shall cause to be
delivered to the Trustee Lessor Bonds (a) issued as separate
series under one or more Lease Indentures, (b) payable as to
principal on such dates and in such amounts that on the Stated
Maturity of principal and each Sinking Fund Redemption Date or
Installment Payment Date of such Securities there shall be
payable on the Lessor Bonds an amount in respect of principal
equal to the principal amount of such Securities then to mature
or to be payable in installments of principal or be redeemed, (c)
bearing interest at the same rate and payable at the same times,
as the corresponding Securities of such series, (d) containing
provisions for redemption, including redemption premiums,
correlative to the provisions for redemption (other than pursuant
to a Sinking Fund) of the Securities of such series and (e)
registered in the name of the Trustee.
Section 2.04. Authentication and Delivery of Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
shall thereupon authenticate and deliver such Securities in accor
dance with such Company Order, without any further action (other
than as set forth in Section 2.04(b)) by the Company. Subject to
Section 9.14(b) hereof, no Security shall be secured by or
entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security
a certificate of authentication, in the form provided for herein,
executed manually by the Trustee and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to
such Securities, the Trustee (and, if applicable, the
Authenticating Agent) shall be entitled to receive, and (subject
to Section 9.01) shall be fully protected in relying upon:
(a) an executed Series Supplemental Indenture;
(b) an Officers' Certificate of the Company (i)
certifying as to resolutions of the Board of Directors of
the Company authorizing the execution and delivery by the
Company of such Series Supplemental Indenture and the
issuance of such Securities, (ii) certifying that all
conditions precedent under this Indenture to the Trustee's
(or, if applicable, the Authenticating Agent's)
authentication and delivery of such Securities have been
complied with and (iii) certifying that the terms of the
documents referred to in clauses (c) and (d) below are not
inconsistent with the terms of this Indenture as then and
theretofore supplemented;
(c) fully executed counterparts (but not the originals
thereof) of (i) the Lease Indentures under which were
issued the Pledged Lessor Bonds relating to the Securities
of such series and (ii) the Leases relating to such Pledged
Lessor Bonds;
delivered (i) to the Company in connection with its
purchase of the Pledged Lessor Bonds relating to the
Securities of such series, (ii) to the Owner Trustee and/or
the Lease Indenture Trustee in connection with the issuance
of such Pledged Lessor Bonds, and (iii) to the extent not
covered by such opinions, opinions of Counsel to the
Company or LP&L (x) to the effect that (1) the form or
forms and the terms of such Securities have been
established by a Series Supplemental Indenture as permitted
by Sections 2.01 and 2.03 in conformity with the provisions
of this Indenture, (2) such Securities, when authenticated
and delivered by the Trustee (or, if applicable, the
Authenticating Agent) and issued by the Company in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding
obligations of the Company, except to the extent that the
enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and
other similar laws now or hereafter in effect relating to
creditors' rights generally and (3) all requirements of the
laws of the States of New York and Louisiana and of the
General Corporation Law of the State of Delaware and of
this Indenture, in respect of the execution and delivery by
the Company of the Securities, have been complied with and
(y) concerning such other matters as the Trustee may
reasonably request;
(f) duly executed Extension Letters relating to the
Pledged Lessor Bonds; and
(g) in circumstances where the Pledged Lessor Bonds
relating to such series of Securities are executed and
delivered for the purposes described in Section 8(f) of the
Facility Lease, (i) a certificate of an independent public
Trustee (who shall not be an employee of the Company, or
LP&L or any Affiliate of either thereof) to the effect that
the principal amount of Securities to be authenticated does
not exceed the Undivided Interest Percentage (as defined in
such Lease Indenture) of total cost (including allowance
for funds used during construction, or any analogous
amount, to the extent permitted by generally accepted
accounting principles) of any related Capital Improvement
(as defined in such Lease Indenture) financed with the
proceeds of such Pledged Lessor Bonds and (ii) a
certificate of an engineer, appraiser or other expert (who
may be an officer or employee of LP&L and who shall not be
required to be independent, except as would be required by
Section 314(d)(3) of the Trust Indenture Act) to the effect
that the Undivided Interest Percentage of the fair value of
any such Capital Improvement as of its respective date of
incorporation or installation was not less than the
Undivided Interest Percentage of the total cost (including
allowance for funds used during construction, or any
analogous amount, to the extent permitted by generally
accepted accounting principles) of such Capital Improvement
as of the date financed with the proceeds of such Pledged
Lessor Bonds.
Receipt by the Trustee of the Officers' Certificate
referred to in clause (b) above shall be conclusively presumed
for all purposes of this Indenture to establish that the
documents referred to in such Officers' Certificate comply with
the requirements of this Indenture.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 2.12
together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits
hereof.
Section 2.05. Form and Denominations.
The Securities of each series shall be in registered form
and may have such letters, numbers or other marks of
identification and such legends or endorsements thereon as may be
required to comply with the rules of any securities exchange or
to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Board of Directors of
the Company or by the officers executing such Securities, as
evidenced by their execution thereof.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as
evidenced by their execution thereof.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided herein or in the Series Supplemental Indenture
setting forth the terms of the Securities of such series.
In the absence of any provision contained in any Series
Supplemental Indenture, the Securities are issuable only in
denominations of $1,000 and/or any integral multiple thereof.
Section 2.06. Execution of Securities.
The Securities shall be executed on behalf of the Company
by its President or one of its Vice Presidents, under its
corporate seal affixed thereto or reproduced thereon and attested
by its Secretary or one of its Assistant Secretaries. The
signature of any or all such officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time relevant to the authorization
thereof the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the
date of such Securities.
Section 2.07. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the
Trustee shall authenticate and deliver, temporary Securities of
such series which are printed, lithographed, typewritten,
photocopied or otherwise produced in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu
of which they are issued (with or without the recital of specific
redemption or sinking fund provisions) and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by
their execution thereof.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained for such
purpose at the Place of Payment for such series, without charge
to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series the Company shall
execute, and the Trustee shall authenticate and deliver in
exchange therefor, definitive Securities of such series of
authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such
series and of like tenor.
Section 2.08. Registration, Transfer and Exchange.
The Company shall cause to be kept at the office of the
Security Registrar a register in which, subject to such
reasonable regulations as the Company may prescribe, the Company
shall provide for the registration of Securities and of
registration of transfers and exchanges of Securities and, with
respect to Securities of any series the principal of which is
payable without presentation or surrender, the amount of the
unpaid principal amount of such Securities. This register and,
if there shall be more than one Security Registrar, the combined
registers maintained by all such Security Registrars, are herein
sometimes referred to as the "Security Register".
Upon surrender for registration of transfer of any Security
of any series at any office or agency maintained for such purpose
pursuant to Section 5.02, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series, of authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Securities of any series may
be exchanged for other Securities of the same series, of
authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be
exchanged at any office or agency maintained for such purpose
pursuant to Section 5.02. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
security and benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the
Security Registrar or any transfer agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company and Security Registrar or any
transfer agent, duly executed, by the Holder thereof or his
attorney duly authorized in writing.
Except as may be otherwise provided in the Series
Supplemental Indenture relating to the Securities of any series,
no service charge shall be made for any transfer or exchange of
Securities, but the Security Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of
Securities other than exchanges pursuant to Sections 2.07, 6.06
or 11.07 not involving any transfer.
Neither the Company, the Trustee nor the Security Registrar
shall be required (i) to execute and deliver, issue, register the
transfer of or exchange any Security of any series during a
period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of
such series selected for redemption under Section 6.02 or 7.02
and ending at the close of business on the day of such mailing or
(ii) to issue, register the transfer of or exchange any Security
so selected for redemption in whole or in part, except the
unredeemed portion of any Security selected for redemption in
part.
Section 2.09. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Trustee, the Company and
LP&L (a) evidence to their satisfaction of the ownership of and
the destruction, loss or theft of any Security and (b) such
security or indemnity as may be required by them to save any of
them and any agent of any of them harmless, then, in the absence
of notice to the Trustee, the Company or LP&L that such Security
has been acquired by a bona fide purchaser, the Company shall
execute, and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of
the same series, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen security is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith.
Every new Security issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the
security and benefits of this Indenture equally and
proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.10. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is
punctually paid or duly provided for, at any Stated Maturity of
an installment of interest shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest. At the option of the Company, payment of
interest on any Security may be made by check mailed to the
address of the Person entitled thereto as such address shall
appear in the Security Register or in such other manner as shall
be established in a Series Supplemental Indenture creating the
series of which such Security is a part.
Any Installment Payment Amount or any interest on any
Security of any series which is payable, but is not punctually
paid or duly provided for, at any Installment Payment Date or any
Stated Maturity of an installment of interest, as the case may
be, shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder
to the extent that the Company has elected to pay such defaulted
interest or principal as provided in clause (a) or (b) below:
(a) The Company may elect, which election shall be at
the direction of any Owner Trustee whose Pledged Lessor
Bond is in default in respect of the payment of interest or
principal and which is proposing to make payment of all or
part of such defaulted interest or principal, to make
payment of any defaulted interest or principal to the
Persons in whose names the Securities of such series in
respect of which interest is in default (or their
respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment
of such defaulted interest or principal, which shall be
fixed in the following manner. Such Owner Trustee shall
notify the Trustee and, if other than the Trustee, the
Paying Agent, in writing of the amount of defaulted
interest or principal proposed to be paid on each such
Security and the date of the proposed payment, and at the
same time there shall be deposited with the Trustee an
amount of money equal to the aggregate amount proposed to
be paid in respect of such defaulted interest or principal,
as the case may be, or there shall be made arrangements
satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to
such defaulted interest or principal as in this clause
provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such defaulted interest or
principal which shall be not more than 15 nor less than 10
days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify
the Company, LP&L and the Security Registrar of such
Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of
such defaulted interest or principal and the Special Record
Date therefor to be mailed, first-class postage prepaid, to
each Holder of such series at the address of such Holder as
it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed
payment of such defaulted interest or principal and the
Special Record Date therefor having been mailed as
aforesaid, such defaulted interest shall be paid to the
Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (b).
(b) The Company may make, or cause to be made, payment
of any defaulted Installment Payment Amount or any
defaulted interest in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Securities in respect of which such
principal or interest is in default may be listed, and upon
such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed
payment pursuant to this paragraph, such payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security, and each such
Security shall bear interest from whatever date shall be
necessary so that neither gain nor loss in interest shall result
from such registration of transfer, exchange or replacement.
Section 2.11. Persons Deemed Owners.
The Person in whose name any Security is registered shall
be deemed to be the owner of such Security for the purpose of
receiving payment of principal of and premium, if any, and
(subject to Section 2.10) interest on such Security and for all
other purposes whatsoever, whether or not such Security be
overdue, regardless of any notice to anyone to the contrary.
Section 2.12. Cancellation.
All Securities surrendered for payment, redemption, credit
against any Sinking Fund payment or registration of transfer or
exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee for cancellation. The
Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, or
which the Company shall not have issued, and all Securities so
delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All Securities canceled
by the Trustee shall be disposed of in accordance with the
customary practice of the Trustee, and the Trustee shall promptly
deliver a certificate of disposition to the Company, unless, by a
timely Company Order, the Company shall direct that canceled
Securities be disposed of otherwise. The Trustee shall promptly
deliver written evidence of any cancellation of a Security in
accordance with this Section 2.12 to the Company.
Section 2.13. Dating of Securities; Computation of Interest.
(a) Except as otherwise provided in the Series
Supplemental Indenture creating a series of Securities, each
Security of any series shall be dated the date of its
authentication.
(b) Except as otherwise provided in the Series
Supplemental Indenture creating a series of Securities, interest
on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
Section 2.14. Source of Payments; Rights and Liabilities of
Lessors, Owner Participants and Lease Indenture
Trustees.
Except as otherwise specifically provided in this
Indenture, all payments of principal and premium, if any, and
interest to be made in respect of the Securities or under this
Indenture shall be made only from Pledged Property or the income
and proceeds received by the Trustee therefrom. Each Holder, by
its acceptance of a Security shall be deemed to have agreed that
(a) it will look solely to the Pledged Property or the income and
proceeds received by the Trustee therefrom to the extent
available for distribution to such Holder as herein provided and
(b) none of any Owner Participant, any Owner Trustee, any Lease
Indenture Trustee or the Trustee is liable to any Holder or, in
the case of any Owner Participant, Owner Trustee or Lease
Indenture Trustee, to the Trustee for any amounts payable under
any Security or, except as provided herein with respect to the
Trustee, for any liability under this Indenture. No Owner
Participant, Owner Trustee or Lease Indenture Trustee shall have
any duty or responsibility under this Indenture or the Securities
to any Holder or to the Trustee.
Section 2.15. Application of Proceeds from the Sale of
Securities.
The Company shall pay, or cause to be paid, the proceeds of
the issuance and sale of the Securities of each series to each
Lease Indenture Trustee under a Lease Indenture under which
Pledged Lessor Bonds shall have been issued and delivered to the
Trustee in connection with the issuance of such Securities, for
the account of the related Owner Trustee which issued such
Pledged Lessor Bonds, each such Lease Indenture Trustee to
receive an amount equal to the aggregate principal amount of such
Pledged Lessor Bonds.
Section 2.16. Principal Amount of Securities Payable Without
Presentment or Surrender
All references in this Indenture to the principal amount of
any Security shall, when used with respect to Securities of any
series the principal of which is payable without presentation or
surrender, mean the unpaid principal amount thereof, except that,
for purposes of Sections 2.07, 2.08,2.09 and 6.06 of this
Indenture, principal amount shall, when used with respect to any
such Security, refer to the original principal amount thereof
prior to the payment of any Installment Payment Amounts.
Notwithstanding anything herein or in any Security to the
contrary, with respect to each Security of any series the
principal of which is payable without presentation or surrender,
the unpaid principal amount thereof recorded on the Security
Register shall be controlling as to the remaining unpaid
principal amount thereof.
ARTICLE THREE
Provisions as to Pledged Property
Section 3.01. Holding of Pledged Securities.
The Trustee is authorized in its discretion to cause to be
registered (as to principal) in its name, as Trustee, or in the
name of its nominee, any and all coupon bonds which it may
receive as part of the Pledged Property, or it may cause the same
to be exchanged for registered bonds without coupons of any
denomination. The Trustee is authorized in its discretion to
cause to be registered in its name, as Trustee, or in the name of
its nominee, any and all registered bonds which it may receive as
part of the Pledged Property, or may cause such registered bonds
to be exchanged for coupon bonds. The Company will deliver
promptly to the Trustee such documents, certificates and opinions
as the Trustee may reasonably request in connection with
subjection of any securities to the lien of this Indenture to the
extent contemplated hereby.
Section 3.02. Disposition of Payments on Pledged Property
Unless and until all Outstanding Securities have been paid
in full or provision for the payment of such Securities has been
made in accordance with this Indenture, the Trustee shall be
entitled to receive all principal, premium, if any, and interest
paid in respect of any Pledged Lessor Bonds and interest paid on
bonds or other obligations or indebtedness which may be subject
to the lien of this Indenture and shall apply the same to the
payment of the principal of and premium, if any, and interest on
the Securities when and as they become due and payable pursuant
to, and in accordance with, this Indenture. The Trustee shall
duly note on the schedules attached to the Pledged Lessor Bonds
or by other appropriate means all payments of principal, premium,
if any, and interest made on the Pledged Lessor Bonds.
Section 3.03. Exercise of Rights and Powers Under Pledged Lessor
Bonds and Lease Indentures.
The Trustee shall not take any action as the holder of the
Pledged Lessor Bonds to direct any Lease Indenture Trustee in any
respect or to vote any Pledged Lessor Bond or any portion thereof
except as specified in this Section. The Trustee shall give
notice to the Holders of the occurrence of any event of default
or default under any Lease Indenture, and of every Event of Loss
or Deemed Loss Event or Financial Event occurring under a Lease
(as such terms are therein defined), but only to the extent the
same shall actually be known by a Responsible Officer. The
Trustee may, at any time, and shall, upon the written request of
any Lease Indenture Trustee made to the Trustee to give any
direction or to vote its interest in the Pledged Lessor Bonds,
request from Holders directions as to (a) whether or not to
direct such Lease Indenture Trustee to take or refrain from
taking any action which holders of Pledged Lessor Bonds have the
option to direct and (b) how to vote any Pledged Lessor Bond if a
vote has been called for with respect thereon. In addition, any
Holder may at any time request the Trustee to direct, or to
participate in the direction of, any action under any Lease
Indenture to the extent that the Trustee may do so under such
Lease Indenture. Upon receiving from Holders any written
directions as to the taking or the refraining from taking, of any
action, or the voting of any Pledged Lessor Bond, the Trustee
shall specify to the related Lease Indenture Trustee the
principal amount of the Pledged Lessor Bond which is in favor of
the action or vote, the principal amount of the Pledged Lessor
Bond which is opposed to the action or vote, and the principal
amount of the Pledged Lessor Bond which is not taking any
position for the action or vote. Such principal amounts shall be
determined by allocating to the total principal amount of the
Pledged Lessor Bonds with respect to which direction is to be
given the proportionate principal amount of Securities taking
corresponding positions or not taking any position, based on the
aggregate principal amount of Outstanding Securities.
Section 3.04. Certain Actions in Case of Judicial Proceedings.
In case all or any part of the property of any Lessor or
any other Person which may be deemed an obligor in respect of the
Pledged Lessor Bonds shall be sold at any judicial or other
involuntary sale, the Trustee shall receive any portion of the
proceeds of such sale payable in respect of the Pledged Property,
and such proceeds shall be held as provided in Section 3.05.
Section 3.05. Cash Held by Trustee Treated as a Deposit.
Any and all cash held by the Trustee under any provision of
this Indenture shall be treated by the Trustee, until required to
be paid out hereunder, as a deposit, in trust, without any
liability for interest.
ARTICLE FOUR
Withdrawal of Collateral
Section 4.01. Withdrawal of Collateral.
Except as provided in Section 4.02, none of the Pledged
Property shall be subject to withdrawal unless and until all
Outstanding Securities have been paid in full or provision for
such payment has been made in accordance with the terms of this
Indenture and the Trustee shall have received the documents and
opinions required by Section 4.02 or Article Twelve.
Section 4.02. Reassignment of Pledged Lessor Bonds upon Payment.
Upon receipt of payment in full of the principal of and
premium, if any, and interest on any Pledged Lessor Bond held by
the Trustee, the Trustee shall deliver to the Company said
Pledged Lessor Bond and any instrument of transfer or assignment
necessary to reassign to the Company said Pledged Lessor Bond and
the interest of the Company, if any, in the Lease Indenture
relating thereto; provided, however, that nothing herein
contained shall prevent the Trustee from presenting any Pledged
Lessor Bond to the related Lease Indenture Trustee for final
payment in accordance with the applicable provisions of the
related Lease Indenture.
ARTICLE FIVE
Covenants
Section 5.01. Payment of Principal, Premium, if any, and
Interest.
The Company shall duly and punctually pay, or cause to be
paid, the principal of and premium, if any, and interest on the
Securities in accordance with the terms of the Securities and
this Indenture, subject, however, to Section 2.14 hereof.
Section 5.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The
City of New York, and in such other Places of Payment as shall be
specified for the Securities of any series, an office or agency
where Securities may be presented or surrendered for payment of
principal, premium, if any, and interest, where Securities may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of
Securities and this Indenture may be served. The Corporate Trust
Office is hereby initially designated as one such office or
agency. The Company will give prompt written notice to the
Trustee of the location, and of any change in the location, of
each such office or agency and prompt notice to the Holders in
the manner specified in Section 1.06. If at any time the Company
shall fail to maintain any such office or agency, or shall fail
to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served by the Corporate Trust Office, and the Company hereby
appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or
more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 1.06, of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 5.03. Money for Security Payments to be Held in Trust.
All moneys deposited with the Trustee or with any Paying
Agent for the purpose of paying the principal of or premium (if
any) or interest on Securities shall be deposited and held in
trust for the benefit of the Holders of the Securities entitled
to such principal, premium (if any) or interest, subject to the
provisions of this Indenture. Moneys so deposited and held in
trust shall not be a part of the Pledged Property but shall
constitute a separate trust fund for the benefit of the Holders
of the relevant Securities.
The Company may at any time direct any Paying Agent to pay
to the Trustee all sums held in trust by such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent, and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent in
trust for the payment of the principal of or premium, if any, or
interest on any Security and remaining unclaimed for two years
(or such lesser period as may be required by law to give effect
to this provision) after such principal, premium or interest has
become due and payable shall be paid to the Company on Company
Request (to the extent such monies shall have been deposited by
the Company) or to any other Person on its written request (to
the extent such monies shall have been deposited by such other
Person), and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company or such
other Person, as the case may be, for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make
any such repayment, shall, at the expense of the Company or, to
the extent such monies are to be paid to another Person, such
other Person, cause to be published once, in an Authorized
Newspaper in The City of New York and each other city, if any, in
which a Place of Payment is located, notice that such money
remains unclaimed and that, after a date specified herein, which
shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid
to the Company or such other Person. As used herein, "Authorized
Newspaper" means a newspaper, in an official language of the
country of publication or in the English language, customarily
published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in The
City of New York and each other city, if any, in which a Place of
Payment is located. In case by reason of the suspension of
publication of any Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice as
herein provided, then such notification as shall be given with
the approval of the Trustee shall constitute sufficient notice.
Section 5.04. Maintenance of Corporate Existence.
The Company, at its own cost and expense, will do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises,
except as otherwise specifically permitted in this Indenture,
provided, however, that the Company shall not be required to
preserve any right or franchise if the Board of Directors of the
Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and that the loss thereof will not have any material adverse
effect on the Holders of the Securities.
Section 5.05. Protection of Pledged Property
The Company and LP&L will from time to time execute and
deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of
further assurance and other instruments as shall be necessary to
(i) make more effective the pledge and assignment
hereunder of all or any portion of the Pledged Property,
(ii) maintain or preserve the lien of this Indenture or
carry out more effectively the purposes hereof,
(iii) perfect, publish notice of or protect the validity of
any grant made or to be made by this Indenture,
(iv) enforce any of the Securities, or
(v) preserve and defend title to any Securities or other
instrument included in the Pledged Property and the rights
of the Trustee, and of the Holders, in such Securities or
other instrument against the claims of all persons and
parties.
Each of the Company and LP&L hereby designates the Trustee its
agent and attorney-in-fact to execute any financing statement,
continuation statement or other instrument required pursuant to
this Section.
Section 5.06. Opinions as to Pledged Property
Promptly after the execution and delivery of this Indenture
and of each Series Supplemental Indenture or other supplemental
indenture or other instrument of further assurance, the Company
shall furnish to the Trustee such Opinion or Opinions of Counsel
as the Trustee may reasonably request stating that, in the
opinion of such Counsel, this Indenture and all such Series
Supplemental Indentures, other supplemental indentures and other
instruments of further assurance have been properly recorded,
filed, re-recorded and re-filed to the extent necessary to make
effective the lien intended to be created by this Indenture, and
reciting the details of such action or referring to prior
Opinions of Counsel in which such details are given, and stating
that all financing statements and continuation statements have
been executed and filed that are then necessary fully to preserve
and protect the rights of the Holders and the Trustee, or stating
that, in the opinion of such Counsel, no such action is necessary
to make such lien effective.
On or before May 1, in each calendar year, beginning with
the first calendar year commencing more than three months after
the date of authentication and delivery of any Securities, the
Company shall furnish to the Trustee such Opinion or Opinions of
Counsel as are reasonably satisfactory to the Trustee, either
stating that, in the opinion of such Counsel, such action has
been taken with respect to the recording, filing, re-recording
and re-filing of this Indenture, any Series Supplemental
Indenture and any other requisite documents and with respect to
the execution and filing of any financing statements and
continuation statements as is then necessary to maintain the lien
and security interest created by this Indenture with respect to
the Pledged Property and reciting the details of such action or
stating that, in the opinion of such Counsel, no such action is
then necessary to maintain such lien and security interest. Such
Opinion or Opinions of Counsel shall also describe the recording,
filing, re-recording and re-filing of this Indenture, any Series
Supplemental Indenture and any other requisite documents and the
execution and filing of and financing statements and continuation
statements that will, in the opinion of such Counsel, be required
to maintain the lien of this Indenture with respect to the
Pledged Property until in the following calendar year.
Section 5.07. Performance of Obligations.
Neither the Company nor LP&L will take or omit to take any
action the taking or omission of which would release any Person
from any of such Person's covenants or obligations under
instruments included in the Pledged Property, or which would
result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effective
ness of, any such instrument, except as expressly provided in
this Indenture or such instrument.
Section 5.08. Negative Covenants.
During such time as any Security issued hereunder is
Outstanding, the Company will not:
(a) sell, transfer, exchange or otherwise dispose of
any portion of the Pledged Property except as expressly
permitted by this Indenture;
(b) (i) engage in any business or activity (A) other
than in connection with, or relating to, the issuance of
Securities pursuant to this Indenture and application of
the proceeds thereof as herein provided or (B) which would
cause the Company to be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended
or (ii) amend Article Third, Fourth or Sixth of its
Certificate of Incorporation as in effect on the date of
execution and delivery of this Indenture; notwithstanding
the foregoing, however, the Company may, with respect to
the Securities of one or more series enter into credit or
liquidity support facilities (including, but without
limitation, bank letters of credit, bank lines of credit,
surety bonds and bonds of insurance);
(c) issue bonds, notes or other evidences of
indebtedness other than (A) Securities issued hereunder or
(B) evidences of indebtedness permitted by clause (b)
above;
(d) assume or guarantee any indebtedness of any
Person;
(e) dissolve or liquidate in whole or in part;
(f) take any action which would (i) permit the
validity or effectiveness of this Indenture or the pledge
and assignment of any of the Pledged Property to be
impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any
covenant or obligation under this Indenture, (ii) permit
any lien, charge, security, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or
extend to or otherwise arise upon or burden the Pledged
Property or any part thereof or any interest therein or the
proceeds thereof or (iii) permit the lien of this Indenture
not to constitute a valid first priority security interest
in the Pledged Property; or
(g) institute any proceedings to be adjudicated a
bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against it, or file a
petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other
applicable federal or state law or law of the District of
Columbia, or consent to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the
Company or any substantial part of its property, or make an
assignment for the benefit of its creditors, or admit in
writing its inability to pay its debts generally as they
become due, or take any corporate action in furtherance of
the foregoing.
Section 5.09. Annual Statement as to Compliance.
(a) Each of LP&L and the Company shall deliver to the
Trustee, not less often than annually, a brief certificate from
its principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of its
compliance with all conditions and covenants under this
Indenture. For purposes of this paragraph (a), such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
(b) Each of LP&L and the Company shall deliver to the
Trustee, promptly after having obtained knowledge thereof,
written notice of any Event of Default under Section 8.01 or
event which with the giving of notice or lapse of time, or both,
would become an Event of Default.
Section 5.10. Delivery of Certificate of Independent Public
Accountant.
LP&L shall cause to be delivered to the Trustee any
certificate of an independent certified public accountant (who
shall not be an employee of the Company, LP&L or any Affiliate of
either of them) delivered to any Lease Indenture Trustee pursuant
to Section 11.01(a) of any Lease Indenture.
Section 5.11. Delivery of Certificate of Engineer, Appraiser or
Other Expert.
In connection with any release from the security and other
interest created by any Lease Indenture of a portion of the Lease
Indenture Estate (as defined in such Lease Indenture) pursuant to
Section 13.01 and 13.02 of such Lease Indenture, at its own
expense LP&L shall cause to be delivered to the Trustee a
certificate of an engineer, appraiser or other expert as to the
fair value of any portion of the Lease Indenture Estate to be
released from the lien of such Lease Indenture and such
certificate shall state that in the opinion of the Person making
the same the proposed release will not impair the security under
such Lease Indenture in contravention of the provisions thereof.
If the fair value of the portion of the Lease Indenture Estate to
be released and all other portions of the Lease Indenture Estate
released since the commencement of the then current calendar
year, as set forth in the certificate required pursuant to this
Section 5.11, is 10% or more of the aggregate principal amount of
Securities at the time Outstanding, such certificate shall be
made by an independent engineer, appraiser or other expert;
provided, however, that a certificate of an independent engineer,
appraiser or other expert shall not be required in the case of
any release of portions of the Lease Indenture Estate if the fair
value thereof as set forth in the certificate or opinion required
by this Section 5.11 is less than $25,000 or less than 1% of the
aggregate principal amount of Securities at the time Outstanding.
ARTICLE SIX
Redemption of Securities
Section 6.01. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity of principal shall be redeemable in accordance
with their terms and (except as otherwise specified in the Series
Supplemental Indenture creating such series) in accordance with
this Article.
Section 6.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
otherwise than through a Sinking Fund shall be evidenced by a
Company Order. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), deliver to the Trustee a
Company Order specifying such Redemption Date and the series and
principal amount of Securities to be redeemed. In the case of
any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an
election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with
such restriction or condition. The election by LP&L to terminate
a Lease pursuant to Section 13(f) or (g) or Section 14 thereof,
or Section 16(d)(5) of the related Participation Agreement, shall
constitute an election by the Company to redeem Securities (but
shall not relieve the Company of its obligation hereunder to
deliver to the Trustee the Company Order herein provided for)
subject, however, except in the case of a termination pursuant to
Section 14 of such Lease, to the right of LP&L to assume the
Lessor Bonds related to such Lease on the Lease termination date,
in which event there shall be no redemption of Securities solely
as a consequence of such termination.
Section 6.03. Selection by Trustee of Securities to be Redeemed
(a) If any Lease is to be terminated pursuant to Section
13(f) or (g) or Section 14 thereof, or Section 16(d)(5) of the
related Participation Agreement, and all Lessor Bonds issued
under the related Lease Indenture are to be prepaid, the Company
shall redeem Securities which (i) are of the series corresponding
to the series of Pledged Lessor Bonds to be so prepaid and (ii)
have amounts of principal payable on Stated Maturities and
Sinking Fund Redemption Dates or Installment Payment Dates which
correspond to the amounts and dates for the payment of the
principal of such Pledged Lessor Bonds plus any accrued interest
to the Redemption Date, such redemption of Securities to be made
on the date on which such Lessor Bonds are to be so prepaid.
(b) If less than all the Securities are to be redeemed
otherwise than as contemplated in subsection (a) of this Section
6.03 and otherwise than through a Sinking Fund, the particular
Securities to be redeemed shall be selected from the series and
Stated Maturities, and in the principal amounts, designated to
the Trustee in the Company Order required by Section 6.02.
(c) Subject to the provisions of subsections (a) and (b)
of this Section 6.03, if less than all the Securities of any
series are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by lot in
such manner as shall provide for the selection for redemption of
portions (equal to the minimum authorized denomination for
Securities of such series or any integral multiple thereof) of
the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for
Securities of such series except as otherwise specified in the
Series Supplemental Indenture creating such series; provided,
however, that if the Company, LP&L or an Affiliate or nominee of
either thereof shall be the Holder of Securities of any series to
be redeemed through a Sinking Fund, the Trustee, if so directed
in a Company Order or LP&L Order, as the case may be, shall first
select such Securities for redemption. Any such Company Order or
LP&L Order shall state that such redemption is in accordance with
Section 9(b)(3)(iv) of each Participation Agreement.
If more than one Lease is to be terminated pursuant to
Section 13(f) or (g) or Section 14 thereof, or Section 16(d)(5)
of the related Participation Agreement, and the Lessor Bonds
relating to each such Lease are to be prepaid on the same date,
the Trustee shall separately designate the Securities to be
redeemed in respect of each such Lease termination.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
Section 6.04. Notice of Redemption
Notice of redemption (including Sinking Fund redemption)
shall be given in the manner provided in Section 1.06 to the
Holders of Securities to be redeemed not less than 20 nor more
than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any
series are to be redeemed, the identification of the
particular Securities to be redeemed, including the series
and Stated Maturity of principal, and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price, and
(f) that the redemption is pursuant to the operation
of a Sinking Fund, if such is the case.
With respect to any notice of redemption of Securities
otherwise than through a Sinking Fund, unless, upon the giving of
such notice, such Securities shall be deemed to have been paid in
accordance with Section 12.01, such notice shall state that such
redemption shall be conditional upon the receipt by the Trustee,
on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and
interest on such Securities and that if such money shall not have
been so received, such notice shall be of no force or effect and
the Company shall not be required to redeem such Securities. In
the event that such notice of redemption contains such a
condition and such money is not so received, the redemption shall
not be made and within a reasonable time thereafter notice shall
be given, in the manner in which the notice of redemption was
given, that such money was not so received and such redemption
was not required to be made.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a
condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
Section 6.05. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and
the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities or portions thereof shall
cease to bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security or
portion thereof shall be paid at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however,
that any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
2.10.
Section 6.06. Securities Redeemed in Part
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of
the same series, of any authorized denomination requested by such
Holder and of like tenor and in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE SEVEN
Sinking Funds
Section 7.01. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series
except as otherwise specified in the Series Supplemental
Indenture creating the Securities of such series.
Section 7.02. Sinking Funds for Securities.
Any Series Supplemental Indenture may provide for a sinking
fund for the retirement of the Securities of the series created
thereby (herein called a "Sinking Fund") in accordance with which
the Company will be required to redeem on the dates set forth
therein (hereinafter called "Sinking Fund Redemption Dates")
Securities of principal amounts set forth therein (hereinafter
called "Sinking Fund Requirements").
If there shall have been a redemption, otherwise than
through a Sinking Fund, of less than all the Securities of a
series to which a Sinking Fund is applicable (such redeemed
Securities being hereinafter called the "Redeemed Securities"),
the Sinking Fund Requirements relating to the Securities of such
series for each Sinking Fund Redemption Date thereafter shall be
deemed to have been satisfied to the extent of an amount equal to
the quotient resulting from the division of (A) the product of
(w) the principal amount of the Redeemed Securities and (x) such
Sinking Fund Requirement by (B) the sum of (y) the aggregate
principal amount of Securities of such series then Outstanding
(after giving effect to such redemption) and (z) the principal
amount of such Redeemed Securities; provided, however, that the
remaining Sinking Fund Requirements determined as set forth in
this paragraph shall be rounded to the nearest integral multiple
of the minimum authorized denomination for Securities of such
series, subject to necessary adjustment so that the aggregate
principal amount of such satisfaction of Sinking Fund
Requirements shall be equal to the aggregate principal amount of
such Redeemed Securities, such adjustment to such Sinking Fund
Requirements to be made in the inverse order of the respective
Sinking Fund Redemption Dates corresponding thereto and;
provided, further, that, notwithstanding the provisions of the
foregoing proviso, any such adjustment shall be made in a manner
such that, after giving effect thereto, the provisions of clause
(b) of the last paragraph of Section 2.03 hereof shall continue
to be complied with.
Particular Securities to be redeemed through a Sinking Fund
shall be selected in the manner provided in Section 6.03, and
notice of such redemption shall be given in the manner provided
in Section 6.04.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 8.01. Events of Default.
"Events of Default", wherever used herein, means any one of
the following events:
(a) failure to pay any interest on any Security when
it becomes due and payable, and the continuation of such
failure for a period of 10 days; or
(b) failure to pay principal of or premium, if any, on
any Security when it becomes due and payable, whether at
its Stated Maturity of principal, on any applicable
Redemption Date or Installment Payment Date or at any other
time, and the continuation of such failure for a period of
10 days; or
(c) failure on the part of either the Company or LP&L
to perform or observe any covenant or agreement herein to
be performed or observed by it, and the continuation of
such failure for a period of 30 days after notice thereof
shall have been given to the Company or LP&L, as the case
may be, by the Trustee, or to the Company or LP&L, as the
case may be, and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Securities,
specifying such failure and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder; provided, however, that the continuation of such
failure for a period of 30 days or more after such notice
has been so given (but in no event for a period which is
greater than one year after such notice has been given)
shall not constitute an Event of Default if (i) such
failure can be remedied but cannot be remedied within such
30 days, (ii) the Company or LP&L, as the case may be, is
diligent in pursuing a remedy of such failure and (iii)
such failure does not impair in any respect the lien and
security interest created hereby; or
(d) the occurrence of an "Event of Default" under any
Lease Indenture; or
(e) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the
Federal Bankruptcy Act or any other applicable federal or
state law or law of the District of Columbia, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any
substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuation of
any such decree or order unstayed and in effect for a
period of 75 consecutive days; or
(f) the institution by the Company of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
the Federal Bankruptcy Code or any other applicable federal
or state law or law of the District of Columbia, or the
consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or
of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such
action.
Section 8.02. Acceleration of Maturity; Rescission and
Annulment.
Upon the occurrence of an Event of Default, (a) if such
Event of Default is one referred to in clause (a), (b), (c), (e)
or (f) of Section 8.01, the Trustee may, and upon the direction
of the Holders of not less than a majority in principal amount of
the Securities Outstanding, shall, and (b) if such Event of
Default is the one referred to in clause (d) of Section 8.01
(including without limitation an event of default under any Lease
which has resulted in an Event of Default referred to in clause
(a) or (b) of Section 8.01) under circumstances in which the
related Pledged Lessor Bonds have been declared immediately due
and payable, the Trustee, shall declare the principal of all the
Securities to be due and payable immediately, by a notice in
writing to the Company and LP&L, and upon any such declaration
such principal shall become immediately due and payable; provided
that no such declaration shall be made (and no action under
Section 8.03 or 8.05 shall be taken) in cases in which the Event
of Default is one referred to in clause (a) or (b) of Section
8.01 which resulted directly from a failure of LP&L to make any
payment of rent under any Lease until such time as the Lessor
under such Lease has been given the opportunity to exercise its
rights under Section 7.16 of the related Lease Indenture.
At any time after such a declaration of acceleration has
been made and before any sale of the Pledged Property, or any
part thereof, shall have been made pursuant to any power of sale
as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Securities Outstanding, by
written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) there shall have been paid to or deposited with
the Trustee a sum sufficient to pay
(A) all overdue installments of interest on all
Securities,
(B) the principal of and premium, if any, on any
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the
respective rates provided in the Securities for late
payments of principal or premium,
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of
interest at the respective rates provided in the
Securities for late payments of interest, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel, and
(2) all Events of Default, other than the non-payment
of the principal of Securities which have become due solely
by such acceleration, have been cured or waived as provided
in Section 8.08.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
If a declaration of acceleration shall have been rescinded
and annulled as provided in the next preceding paragraph, and if,
prior to such rescission and annulment, the maturity of the
Pledged Lessor Bonds issued under any Lease Indenture had been
accelerated as a result of an "Event of Default" thereunder, the
Trustee, as the holder of such Pledged Lessor Bonds, shall direct
the Lease Indenture Trustee under such Lease Indenture to rescind
and annul such acceleration of such Pledged Lessor Bonds and to
terminate any proceedings to enforce remedies under such Lease
Indenture and the related Lease.
Section 8.03. Trustee's Power of Sale of Pledged Property;
Notice Required; Power to Bring Suit.
If an Event of Default shall have occurred and be
continuing, subject to the provisions of Sections 8.06 and 8.07
and the proviso to the first paragraph of Section 8.02, the
Trustee, by such officer or agent as it may appoint, may:
(1) sell, to the extent permitted by law, without
recourse, for cash or credit or for other property, for
immediate or future delivery, and for such price or prices
and on such terms as the Trustee in its discretion may
determine, the Pledged Property as an entirety, or in any
such portions as the Holders of a majority in aggregate
principal amount of the Securities then Outstanding shall
request by an Act of Holders, or, in the absence of such
request, as the Trustee in its discretion shall deem
expedient in the interest of the Securityholders, at public
or private sale; and/or
(2) proceed by one or more suits, actions or
proceedings at law or in equity or otherwise or by any
other appropriate remedy to enforce payment of the
Securities or Pledged Lessor Bonds, or to foreclose this
Indenture or to sell the Pledged Property under a judgment
or decree of a court or courts of competent jurisdiction,
or by the enforcement of any such other appropriate legal
or equitable remedy, as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce
any of its rights or powers or any of the rights or powers
of the Holders.
ln the event that the Trustee shall deem it advisable to
sell any or all of the Pledged Property in accordance with the
provisions of this Section, the Company and LP&L agree that if
registration of any such Pledged Property shall be required, in
the opinion of counsel for the Trustee, under the Securities Act
of 1933, as amended, or other applicable law, and regulations
promulgated thereunder, and if LP&L shall not effect, or cause to
be effected, such registration promptly, the Trustee may sell any
such Pledged Property at a private sale, and no Person shall
attempt to maintain that the prices at which such Pledged
Property is sold are inadequate by reason of the failure to sell
at public sale, or hold the Trustee liable therefor.
Section 8.04. Incidents of Sale of Pledged Property.
Upon any sale of all or any part of the Pledged Property
made either under the power of sale given under this Indenture or
under judgment or decree in any judicial proceedings for
foreclosure or otherwise for the enforcement of this Indenture,
the following shall be applicable:
(1) Securities Due and Payable. The principal of and
premium, if any, and accrued interest on the Securities, if
not previously due, shall immediately become and be due and
payable.
(2) Trustee Appointed Attorney of Company to Make
Conveyances. The Trustee is hereby irrevocably appointed
the true and lawful attorney of the Company, in its name
and stead, to make all necessary deeds, bills of sale and
instruments of assignment, transfer or conveyance of the
property thus sold, and for that purpose the Trustee may
execute all such documents and instruments and may
substitute one or more persons with like power. The
Company hereby ratifies and confirms all that its said
attorneys, or such substitute or substitutes, shall
lawfully do by virtue hereof.
(3) Company to Confirm Sales and Conveyances. If so
requested by the Trustee or by any purchaser, the Company
shall ratify and confirm any such sale or transfer by
executing and delivering to the Trustee or to such
purchaser or purchasers all proper deeds, bills of sale,
instruments of assignment, conveyance or transfer and
releases as may be designated in any such request.
(4) Holders and Trustee May Purchase Pledged Property.
Any Holder or the Trustee may bid for and purchase any of
the Pledged Property and, upon compliance with the terms of
sale, may hold, retain, possess and dispose of such Pledged
Property in his or its own absolute right without further
accountability.
(5) Purchaser at Sale May Apply Securities to Purchase
Price. Any purchaser at any such sale may, in paying the
purchase price, deliver any of the Securities then
Outstanding in lieu of cash and apply to the purchase price
the amount which shall, upon distribution of the net
proceeds of such sale, after application to the costs of
the action and any other sums which the Trustee is
authorized to deduct under this Indenture, be payable on
such Securities so delivered in respect of principal,
premium, if any, and interest. In case the amount so
payable on such Securities shall be less than the amount
due thereon, duly executed and authenticated Securities
shall be delivered in exchange therefor to the Holder
thereof for the balance of the amount due on such
Securities so delivered by such Holder.
(6) Receipt of Trustee Shall Discharge Purchaser. The
receipt of the Trustee or of the officer making such sale
under judicial proceedings shall be a sufficient discharge
to any purchaser for his purchase money, and, after paying
such purchase money and receiving such receipt, such
purchaser or his personal representative or assigns shall
not be obliged to see to the application of such purchase
money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(7) Sale To Divest Rights of Company in Property Sold.
Any such sale shall operate to divest the Company of all
right, title, interest, claim and demand whatsoever, either
at law or in equity or otherwise, in and to the Pledged
Property so sold, and shall be a perpetual bar both at law
and in equity or otherwise against the Company, and its
successors and assigns, and any and all persons claiming or
who may claim the Pledged Property sold or any part thereof
from, through or under the Company, or its successors and
assigns.
(8) Application of Moneys Received upon Sale. Any
moneys collected by the Trustee upon any sale made either
under the power of sale given by this Indenture or under
judgment or decree in any judicial proceedings for
foreclosure or otherwise for the enforcement of this
Indenture, shall be applied as provided in Section 8.12.
Section 8.05. Judicial Proceedings Instituted by Trustee.
(a) Trustee May Bring Suit. If there shall be a failure
to make payment of the principal of any Security at its Stated
Maturity or upon Sinking Fund redemption, declaration of accelera
tion or otherwise,or if there shall be a failure to pay the
premium, if any, or interest on any Security when the same
becomes due and payable, then the Trustee, if any such failure
shall continue for 15 days, in its own name, and as trustee of an
express trust, shall be entitled, and empowered subject to the
proviso to the first paragraph of Section 8.02, to institute any
suits, actions or proceedings at law, in equity or otherwise, for
the collection of the sums so due and unpaid on the Securities,
and may prosecute any such claim or proceeding to judgment or
final decree, and may enforce any such judgment or final decree
and collect the moneys adjudged or decreed to be payable in any
manner provided by law, whether before or after or during the
pendency of any proceedings for the enforcement of the Lien of
this Indenture, or of any of the Trustee's rights or the rights
of the Security holders under this Indenture, and such power of
the Trustee shall not be affected by any sale hereunder or by the
exercise of any other right, power or remedy for the enforcement
of the provisions of this Indenture or for the foreclosure of the
lien hereof.
(b) Trustee May Recover Unpaid Indebtedness after Sale of
Pledged Property. In the case of a sale of the Pledged Property
and of the application of the proceeds of such sale to the
payment of the indebtedness secured by this Indenture, the
Trustee in its own name, and as trustee of an express trust,
shall be entitled and empowered, by any appropriate means, legal,
equitable or otherwise, to enforce payment of, and to receive all
amounts then remaining due and unpaid upon, all or any of the
Securities, for the benefit of the Holders thereof, and upon any
other portion of the indebtedness remaining unpaid, with interest
at the rates specified in the respective Securities on the
overdue principal of, and premium, if any, and (to the extent
that payment of such interest is legally enforceable) on the
overdue installments of interest.
(c) Recovery of Judgment Does Not Affect Lien of this
Indenture or Other Rights. No recovery of any such judgment or
final decree by the Trustee and no levy of any execution under
any such judgment upon any of the Pledged Property, or upon any
other property, shall in any manner or to any extent affect the
Lien of this Indenture upon any of the Pledged Property, or any
rights, powers or remedies of the Trustee, or any liens, rights,
powers or remedies of the Holders, but all such liens, rights,
powers and remedies shall continue unimpaired as before.
(d) Trustee May File Proofs of Claim; Appointment of
Trustee as Attorney-in-Fact in Judicial Proceedings. The Trustee
in its own name, or as trustee of an express trust, or as
attorney-in-fact for the Holders, or in any one or more of such
capacities (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand for the payment of overdue
principal, premium, if any, or interest), shall be entitled and
empowered to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and of the Holders (whether such claims be
based upon the provisions of the Securities or of this Indenture)
allowed in any equity, receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial
proceedings relative to the Company or any obligor on the
Securities (within the meaning of the TIA), the creditors of the
Company or any such obligor, the Pledged Property or any other
property of the Company or any such obligor, and any receiver,
assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and in the event
that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel (it being agreed
by the parties hereto that such amounts shall be considered
administrative expenses for the purposes of any bankruptcy
proceeding). The Trustee is hereby irrevocably appointed (and
the successive respective Holders of the Securities, by taking
and holding the same, shall be conclusively deemed to have so
appointed the Trustee) the true and lawful attorney-in-fact of
the respective Holders, with authority to (i) make and file in
the respective names of the Holders (subject to deduction from
any such claims of the amounts of any claims filed by any of the
Holders themselves), any claim, proof of claim or amendment
thereof, debt, proof of debt or amendment thereof, petition or
other document in any such proceedings and to receive payment of
any amounts distributable on account thereof, (ii) execute any
such other papers and documents and to do and perform any and all
such acts and things for and on behalf of such Holders, as may be
necessary or advisable in order to have the respective claims of
the Trustee and of the Holders against the Company or any such
obligor, the Pledged Property or any other property of the
Company or any such obligor allowed in any such proceeding and
(iii) receive payment of or on account of such claims and debt;
provided, however, that nothing contained in this Indenture shall
be deemed to give to the Trustee any right to accept or consent
to any plan of reorganization or otherwise by action of any
character in any such proceeding to waive or change in any way
any right of any Securityholder. Any moneys collected by the
Trustee under this Section shall be applied as provided in
Section 8.12.
(e) Trustee Need Not Have Possession of Securities. All
rights of action and of asserting claims under this Indenture or
under any of the Securities enforceable by the Trustee may be
enforced by the Trustee without possession of any of such
Securities or the production thereof at the trial or other
proceedings relative thereto.
(f) Suit To Be Brought for Ratable Benefit of Holders.
Any suit, action or other proceeding at law, in equity or
otherwise which shall be instituted by the Trustee under any of
the provisions of this Indenture shall be for the equal, ratable
and common benefit of all the Holders, subject to the provisions
of this Indenture.
(g) Trustee May Be Restored to Former Position and Rights
in Certain Circumstances. In case the Trustee shall have
proceeded to enforce any right under this Indenture by suit,
foreclosure or otherwise and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then in every such case, the
Company, LP&L and the Trustee shall be restored without further
act to their respective former positions and rights hereunder,
and all rights, remedies and powers of the Trustee shall continue
as though no such proceedings had been taken.
Section 8.06. Holders May Demand Enforcement of Rights by
Trustee.
If an Event of Default shall have occurred and shall be
continuing, the Trustee shall, upon the written request of the
Holders of a majority in aggregate principal amount of the
Securities then Outstanding and upon the offering of security or
indemnity as provided in Section 9.03(e), but subject in all
cases to the provisions of Section 3.03 and the proviso to the
first paragraph of Section 8.02, proceed to institute one or more
suits, actions or proceedings at law, in equity or otherwise, or
take any other appropriate remedy, to enforce payment of the
principal of or premium (if any) or interest on the Securities or
Pledged Lessor Bonds or to foreclose this Indenture or to sell
the Pledged Property under a judgment or decree of a court or
courts of competent jurisdiction or under the power of sale
herein granted, or take such other appropriate legal, equitable
or other remedy, as the Trustee, being advised by counsel, shall
deem most effectual to protect and enforce any of the rights or
powers of the Trustee or the Securityholders, or, in case such
Securityholders shall have requested a specific method of enforce
ment permitted hereunder, in the manner requested, provided that
such action shall not be otherwise than in accordance with law
and the provisions of this Indenture, and the Trustee, subject to
such indemnity provisions, shall have the right to decline to
follow any such request if the Trustee in good faith shall
determine that the suit, proceeding or exercise of the remedy so
requested would involve the Trustee in personal liability or
expense.
Section 8.07. Control by Holders.
The Holders of not less than a majority in principal amount
of the Outstanding Securities shall have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power
conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Section 8.08. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities may on behalf of the Holders of all
the Securities waive any past default hereunder and its
consequences, except that only the Holders of all Securities
affected thereby may waive a default
(1) in the payment of the principal of or premium, if
any, or interest on such Securities or
(2) in respect of a covenant or provision hereof which
under Article Eleven cannot be modified or amended without
the consent of the Holder of each Outstanding Security
affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 8.09. Proceedings Instituted by Holder.
A Holder shall not have the right to institute any suit,
action or proceeding at law or in equity or otherwise for the
foreclosure of this Indenture, for the appointment of a receiver
or for the enforcement of any other remedy under or upon this
Indenture, unless:
(1) such Holder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the Securities then Outstanding shall have
requested the Trustee in writing to institute such action,
suit or proceeding and shall have offered to the Trustee
indemnity as provided in Section 9.03(e);
(3) the Trustee shall have refused or neglected to
institute any such action, suit or proceeding for 60 days
after receipt of such notice, request and offer of
indemnity; and
(4) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
Outstanding Securities.
It is understood and intended that no one or more of the
Holders shall have any right in any manner whatever hereunder or
under the Securities to (i) surrender, impair, waive, affect,
disturb or prejudice the Lien of this Indenture on any property
subject thereto or the rights of the Holders of any other
Securities, (ii) obtain or seek to obtain priority or preference
over any other such Holder or (iii) enforce any right under this
Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all the Holders subject to
the provisions of this Indenture.
Section 8.10. Undertaking To Pay Court Costs.
All parties to this Indenture, and each Holder by his
acceptance of a Security, shall be deemed to have agreed that any
court may in its discretion require, in any suit, action or
proceeding for the enforcement of any right or remedy under this
Indenture, or in any suit, action or proceeding against the
Trustee for any action taken or omitted by it as Trustee
hereunder, the filing by any party litigant in such suit, action
or proceeding of an undertaking to pay the costs of such suit,
action or proceeding, and that such court may, in its discretion,
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, action or proceeding,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided, however, that the
provisions of this Section shall not apply to (a) any suit,
action or proceeding instituted by the Trustee, (b) any suit,
action or proceeding instituted by any Holder or group of Holders
holding in the aggregate more than 10% in aggregate principal
amount of the Securities then Outstanding or (c) any suit, action
or proceeding instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or interest on
any of the Securities, on or after the respective due dates
expressed therein.
Section 8.11. Right of Holders To Receive Payment Not To Be
Impaired.
Anything in this Indenture to the contrary notwithstanding,
the right of any Holder of any Security to receive payment of the
principal of and premium, if any, and interest on such Security,
on or after the respective due dates expressed in such Security
(or, in case of redemption, on the Redemption Date fixed for such
Security), or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
Section 8.12. Application of Moneys Collected by Trustee.
Any moneys collected or to be applied by the Trustee
pursuant to this Article, together with any other moneys which
may then be held by the Trustee under any of the provisions of
this Indenture as security for the Securities (other than moneys
at the time required to be held for the payment of specific
Securities at their Stated Maturities or at a time fixed for the
redemption thereof) shall be applied in the following order from
time to time, on the date or dates fixed by the Trustee and, in
the case of a distribution of such moneys on account of
principal, premium, if any, or interest upon presentation of the
several Outstanding Securities, and stamping thereon of payment,
if only partially paid, and upon surrender thereof, if fully
paid:
First: to the payment of all taxes, assessments or
liens prior to the Lien of this Indenture, except those
subject to which any sale shall have been made, all
reasonable costs and expenses of collection, including the
reasonable costs and expenses of handling the Pledged
Property and of any sale thereof pursuant to the provisions
of this Article and of the enforcement of any remedies
hereunder or under any Lease Indenture, and to the payment
of all amounts due the Trustee or any predecessor Trustee
under Section 9.07, or through the Trustee by any Holder or
Holders;
Second: in case the principal of the Outstanding
Securities or any of them shall not have become due, to the
payment of any interest in default, in the order of the
maturity of the installments of such interest, with
interest at the rates specified in the respective
Securities in respect of overdue payments (to the extent
that payment of such interest shall be legally enforceable)
on the overdue installments thereof;
Third: in case the principal of any of but not all the
Outstanding Securities shall have become due at their
Stated Maturities, on a Redemption Date or otherwise, first
to the payment of accrued interest in the order of the
maturity of the installments thereof with interest at the
respective rates specified in the Securities in respect of
payments on overdue principal, premium, if any, and (to the
extent that payment of such interest shall be legally
enforceable) on overdue installments of interest, and next
to the payment of the principal of all Securities then due;
Fourth: in case the principal of all the Outstanding
Securities shall have become due at their Stated
Maturities, by declaration, on a Redemption Date or
otherwise, to the payment of the whole amount then due and
unpaid upon the Securities then Outstanding for principal,
premium, if any, and interest, together with interest at
the respective rates specified in the Securities in respect
of overdue payments on principal, premium, if any, and (to
the extent that payment of such interest shall be legally
enforceable) on overdue installments of interest; and
Fifth: in case the principal of all the Securities
shall have become due at their Stated Maturities, by
declaration, upon redemption or otherwise, and all of such
Securities shall have been fully paid, together with all
interest (including any interest on overdue payments) and
premium, if any, thereon, any surplus then remaining shall
be paid to the Company, its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same, or
as a court of competent jurisdiction may direct;
provided, however, that all payments to be made pursuant to this
Section shall be made ratably to the persons entitled thereto,
without discrimination or preference.
Section 8.13. Securities Held by Certain Persons Not To Share in
Distribution
Any Securities actually known to a Responsible Officer of
the Trustee to be owned or held by, or for the account or benefit
of, the Company, LP&L, or any Affiliate of either thereof shall
not be entitled to share in any payment or distribution provided
for in this Article until all Securities held by other Persons
have been paid in full and all amounts owing to the Trustee
(including without limitation, fees and expenses of its counsel)
pursuant to the Indenture or otherwise have been paid in full.
Section 8.14. Waiver of Appraisement, Valuation, Stay, Right to
Marshalling.
To the extent it may lawfully do so, each of the Company
and LP&L, for itself and for any Person who may claim through or
under it, hereby:
(1) agrees that neither it nor any such Person will
set up, plead, claim or in any manner whatsoever take
advantage of, any appraisement, valuation, stay, extension
or redemption laws, now or hereafter in force in any
jurisdiction, which may delay, prevent or otherwise hinder
(i) the performance or enforcement or foreclosure of this
Indenture, (ii) the sale of any of the Pledged Property or
(iii) the putting of the purchaser or purchasers thereof
into possession of such property immediately after the sale
thereof:
(2) waives all benefit or advantage of any such laws;
(3) waives and releases all rights to have the Pledged
Property marshalled upon any foreclosure, sale or other
enforcement of this Indenture; and
(4) consents and agrees that all the Pledged Property
may at any such sale be sold by the Trustee as an entirety.
Section 8.15. Remedies Cumulative; Delay or Omission Not a
Waiver.
Every remedy given hereunder to the Trustee or to any of
the Holders shall not be exclusive of any other remedy or
remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise. The
Trustee may exercise all or any of the powers, rights or remedies
given to it hereunder or which may now or hereafter be given by
statute, law, or equity or otherwise, in its absolute discretion.
No course of dealing between the Company or LP&L and the Trustee
or the Holders or any delay or omission of the Trustee or of any
Holder to exercise any right, remedy or power accruing upon any
Event of Default shall impair any such right, remedy or power or
shall be construed to be a waiver of any such Event of Default or
of any right of the Trustee or of the Holders or acquiescence
therein, and, subject to the provisions of Section 8.07, every
right, remedy and power given by this Article to the Trustee or
to the Holders may be exercised from time to time and as often as
may be deemed expedient by the Trustee or by the Holders.
ARTICLE NINE
The Trustee
Section 9.01. Certain Duties and Responsibilities.
(a) The Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an
indenture trustee in the Trust Indenture Act.
(b) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(c) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 9.02. Notice of Defaults.
In addition to its obligation to give notice to Holders as
provided in Section 3.03, the Trustee shall give the Holders
notice of default hereunder in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default
shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 8.01(c)
no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
Section 9.03. Certain Rights of Trustee.
Subject to the provisions of Section 9.01 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in
reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company or LP&L
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or a LP&L Request or LP&L
Order, in the case of a request or direction of either the
Company or LP&L, as the case may be, and any resolution of
the Board of Directors of the Company or LP&L may be
sufficiently evidenced by a Board Resolution of the Company
or LP&L, as the case may be;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officers'
Certificate of the Company or LP&L;
(d) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities which may
be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company or LP&L,
personally or by agent or attorney at the sole cost and
expense of the Company or LP&L, as the case may be;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, custodians or
nominees and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent,
attorney, custodian or nominee appointed with due care by
it hereunder;
(h) the Trustee shall not be charged with knowledge of
any Event of Default with respect to the Securities of any
series for which it is acting as Trustee unless either (i)
a Responsible Officer of the Trustee assigned to the
Corporate Trust & Agency Group of the Trustee (or any
successor division or department of the Trustee) shall have
actual knowledge of the Event of Default or (ii) written
notice of such Event of Default shall have been given to
the Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities; and
(i) In the event that the Trustee is also acting as
Paying Agent or Security Registrar hereunder, the rights
and protections afforded to the Trustee pursuant to this
Article Nine shall also be afforded to such Paying Agent or
Security Registrar.
Section 9.04. Not Responsible for Recitals or Issuance of
Securities
The recitals contained herein and in the Securities, except
the certificates of authentication, shall not be taken as the
statements of the Trustee, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture, the Pledged Property or the Securities, except that
the Trustee hereby represents and warrants that this Indenture
has been executed and delivered by one of its officers who is
duly authorized to execute and deliver such document on its
behalf. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 9.05. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar, any
Authenticating Agent or any other agent of the Company or LP&L,
in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 9.08 and 9.13, may
otherwise deal with the Company and LP&L with the same rights it
would have if it were not Trustee, Paying Agent, Security
Registrar or such other agent.
Section 9.06. Funds May Be Held by Trustee or Paying Agent.
Any monies held by the Trustee or the Paying Agent
hereunder as part of the Pledged Property may, until paid out by
the Trustee or the Paying Agent as herein provided, be carried by
the Trustee or the Paying Agent on deposit with itself, and
neither the Trustee nor the Paying Agent shall have any liability
for interest upon any such monies.
Section 9.07. Compensation and Reimbursement of Trustee and
Authorized Agents.
Each of the Company and LP&L shall be liable, jointly and
severally, to:
(a) pay, or cause to be paid, to each of the Trustee
and any Authorized Agent (or any co-trustee or additional
trustee contemplated by Section 9.15 hereof) from time to
time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a
trustee of an express trust);
(b) reimburse, or cause to be reimbursed, each of the
Trustee and any Authorized Agent (or any co-trustee or
additional trustee contemplated by Section 9.15 hereof)upon
its request for all expenses, disbursements and advances
incurred or made by it in accordance with any provision of
this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its own negligence, willful misconduct or
bad faith; and
(c) indemnify, or cause to be indemnified, each of the
Trustee, any predecessor Trustee and any Authorized Agent
(or any co-trustee or additional trustee contemplated by
Section 9.15 hereof)for, and hold it harmless against, any
loss, liability or expense incurred without negligence,
willful misconduct or bad faith on its part, arising out of
or in connection with the acceptance or administration of
this trust or the performance of its duties hereunder,
including the costs and expenses of defending itself
against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to
the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust under Section
12.03.
Section 9.08. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture.
Section 9.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be:
(a) a corporation organized and doing business under
the laws of the United States of America, any State or
Territory thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State
authority, or
(b) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a
corporation or other Person organized and doing business
under the laws of a foreign government, authorized under
such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 or the
U.S. Dollar equivalent of the applicable foreign currency
and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination
applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. No obligor upon the Securities or person directly or
indirectly controlling, controlled by, or under common control
with such obligor shall serve as Trustee upon such Securities.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article.
Section 9.10 Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 9.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company and LP&L. If an instrument of
acceptance by a successor Trustee shall not have been delivered
to the Company, LP&L and the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment
of a successor Trustee.
(c) The Trustee may be removed at any time by an Act of
the Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee, the Company and LP&L.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 9.08
after written request therefor by any Owner Trustee, the
Company, LP&L or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
9.09 and shall fail to resign after written request
therefor by any Lessor or by any such Securityholder, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) LP&L, acting after consultation with
the Company, may remove the Trustee by Board Resolution or (ii)
subject to Section 8.10, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, LP&L, acting after consultation with the
Company, shall promptly appoint by Board Resolution a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the
Company, LP&L and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the
successor Trustee appointed by LP&L. If no successor Trustee
shall have been so appointed by LP&L, acting after consultation
with the Company, or by the Holders, and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Securities as their
names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee and the address
of its Corporate Trust Office.
(g) No Trustee under the Indenture shall be personally
liable for any action or omission of any successor Trustee.
Section 9.11. Acceptance of Appointment by Successor
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company, LP&L and to the retiring
Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on
request of any Owner Trustee, the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 9.07. Upon request of any such
successor Trustee, LP&L and the Company shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 9.12. Merger, Conversion, Consolidation or Succession to
Business
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate agency or corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenti
cated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 9.13. Preferential Collection of Claims against any
Obligor.
If the Trustee shall be or become a creditor of any obligor
(within the meaning of the Trust Indenture Act) upon the
Securities, the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against such obligor.
Section 9.14. Authorized Agents.
(a) There shall at all times hereunder be a Paying Agent
authorized by the Company to pay the principal of and premium, if
any, and interest on any Securities and a Security Registrar for
the purpose of registration of transfer and exchange of
Securities. The Trustee is hereby initially appointed as Paying
Agent and Security Registrar hereunder.
The Company may appoint one or more Paying Agents. Any
Paying Agent (other than one simultaneously serving as the
Trustee) from time to time appointed hereunder shall execute and
deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of
principal of and premium, if any, and interest on
Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee within five days thereafter
notice of any default by any obligor upon the Securities in
the making of any such payment of principal, premium, if
any, or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
Notwithstanding any other provision of this Indenture, any
payment required to be made to or received or held by the Trustee
may, to the extent authorized by written instructions of the
Trustee, be made to or received or held by a Paying Agent in the
Borough of Manhattan, The City of New York, for the account of
the Trustee.
(b) In addition, at any time when any of the Securities
remain Outstanding the Trustee may appoint an Authenticating
Agent or Agents with respect to the Securities of one or more
series which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon original
issuance, exchange, registration of transfer or partial
redemption thereof or pursuant to Section 2.09, and Securities so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder (it being understood that
wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent). If an appointment of an Authenticating
Agent with respect to the Securities of one or more series shall
be made pursuant hereto, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_______________________________________
As Trustee
By____________________________________
As Authenticating Agent
By____________________________________
Authorized Signatory
(c) Any Authorized Agent shall be (i) acceptable to the
Company and LP&L, (ii) a bank or trust company, (iii) a
corporation organized and doing business under the laws of the
United States or of any State, Territory or the District of
Columbia, with a combined capital and surplus of at least
$50,000,000, and (iv) authorized under such laws to exercise
corporate trust powers, subject to supervision or examination by
federal or state authorities. If such Authorized Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such Authorized Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authorized
Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authorized Agent shall resign
immediately in the manner and with the effect specified in this
Section.
(d) Any corporation into which any Authorized Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, consolidation or
conversion to which any Authorized Agent shall be a party, or any
corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent
hereunder, if such successor corporation is otherwise eligible
under this Section, without the execution or filing of any paper
or any further act on the part of the parties hereto or such
Authorized Agent or such successor corporation.
(e) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, LP&L and the
Company. The Company may, and at the request of the Trustee or
LP&L shall, at any time, terminate the agency of any Authorized
Agent by giving written notice of termination to such Authorized
Agent and to the Trustee. Upon the resignation or termination of
an Authorized Agent or in case at any time any such Authorized
Agent shall cease to be eligible under this Section (when, in
either case, no other Authorized Agent performing the functions
of such Authorized Agent shall have been appointed), the Company
shall promptly appoint one or more qualified successor Authorized
Agents approved by the Trustee and LP&L to perform the functions
of the Authorized Agent which has resigned or whose agency has
been terminated or who shall have ceased to be eligible under
this Section. The Company shall give written notice of any such
appointment to all Holders as their names and addresses appear on
the Security Register. In the event that an Authorized Agent
shall resign or be removed, or be dissolved, or if the property
or affairs of such Authorized Agent shall be taken under the
control of any state or federal court or administrative body
because of bankruptcy or insolvency, or for any other reason, and
the Company shall not have appointed such Authorized Agent's
successor or successors, the Trustee shall ipso facto be deemed
to be such Authorized Agent for all purposes of this Indenture
until the Company appoints a successor or successors to such
Authorized Agent.
Section 9.15. Co-Trustee or Separate Trustee
(a) If at any time or times it shall be necessary or
prudent in order to conform to any law of any jurisdiction in
which property shall be held subject to the lien hereof, or the
Trustee shall be advised by counsel satisfactory to it that it is
so necessary or prudent in the interest of Holders, or the
Holders of a majority in principal amount of Outstanding
Securities shall in writing so request, the Trustee, the Company
and LP&L shall execute and deliver all instruments and agreements
necessary or proper to constitute another bank or trust company
or one or more Persons approved by the Trustee either to act as
co-trustee or co-trustees of all or any part of the Pledged
Property jointly with the Trustee originally named herein or any
successor or successors, or to act as separate trustee or
trustees of all or any such property. In the event LP&L and the
Company shall have not joined in the execution of such
instruments and agreements within 10 days after the receipt of a
written request from the Trustee so to do, or in case an Event of
Default shall have occurred and be continuing, the Trustee may
act under the foregoing provisions of this Section without the
concurrence of LP&L or the Company; and LP&L and the Company each
hereby appoint the Trustee its agent and attorney to act for it
under the foregoing provisions of this Section in either of such
contingencies.
(b) Every additional trustee hereunder shall, to the
extent permitted by law, be appointed and act, and such
additional trustee and its successors shall act, subject to the
following provisions and conditions, namely:
(1) the Securities shall be authenticated and
delivered, and all powers duties, obligations and rights
conferred upon the Trustee in respect of the custody,
control and management of moneys, papers or securities,
shall be exercised, solely by the Trustee, unless otherwise
expressly permitted by the terms hereof;
(2) all rights, powers, duties and obligations
conferred or imposed upon the Trustee (other than those
referred to in the preceding clause (1)), shall be
conferred or imposed upon and exercised or performed by the
Trustee and such additional trustee or trustees jointly,
except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by
such additional trustee or trustees;
(3) no power given hereby to, or which it is provided
hereby may be exercised by, any such additional trustee or
trustees, shall be exercised hereunder by such additional
trustee or trustees, except jointly with, or with the
consent in writing of, the Trustee, anything herein
contained to the contrary notwithstanding;
(4) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee
hereunder; and
(5) LP&L, the Company and the Trustee, at any time, by
an instrument in writing, executed by them jointly, may
remove any such additional trustee, and in that case, by an
instrument in writing executed by them jointly, may appoint
a successor or successors to such additional trustee or
trustees, as the case may be, anything herein contained to
the contrary notwithstanding; provided, however, that if
LP&L, the Company and the Trustee remove any such
additional trustee which has been appointed at the request
of the Holders pursuant to clause (a) above, then such
parties shall appoint a successor or successors to such
additional trustee so removed unless the Holders of a
majority in principal amount of Outstanding Securities
shall have agreed in writing that no such successor or
successors need be appointed. In the event that LP&L and
the Company shall not have joined in the execution of any
such instrument within 10 days after the receipt of a
written request from the Trustee to do so, the Trustee
shall have the power to remove any such additional trustee
and to appoint a successor additional trustee without the
concurrence of LP&L and the Company, each hereby appointing
the Trustee its agent and attorney to act for it in such
connection in such contingency. In the event that the
Trustee alone shall have appointed an additional trustee or
trustees or co-trustee or co-trustees as above provided, it
may at any time, by an instrument in writing, remove any
such additional trustee or co-trustee, the successor to any
such trustee or co-trustee so removed, to be appointed by
LP&L, the Company and the Trustee, or by the Trustee alone,
as hereinbefore in this Section provided.
ARTICLE TEN
Holders' Lists and Reports
by Trustee and LP&L
Section 10.01. LP&L to Furnish Trustee Names and Addresses of
Holders
Semiannually, not later than March 31 and September 30 in
each year, commencing March 31, 199_ and at such other times as
the Trustee may request in writing, LP&L shall furnish or cause
to be furnished to the Trustee information as to the names and
addresses of the Holders, and the Trustee shall preserve such
information and similar information received by it in any other
capacity and afford to the Holders access to information to
preserve by it, all to such extent, if any, and in such manner as
shall be required by the Trust Indenture Act; provided, however,
that so long as the Trustee is the sole Security Registrar, or is
otherwise furnished a copy of the Security Register, no such list
need be furnished by LP&L.
Section 10.02. Reports by Trustee and LP&L.
If required by Section 313 (a) of the Trust Indenture Act,
within thirty days after December 1 in each year commencing
December 1, 199_, the Trustee shall transmit to the Holders and
the Commission a report with respect to any events described in
Section 313(a) of the Trust Indenture Act, in such manner and to
the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders and the Commission, and LP&L shall
file with the Trustee and transmit to the Holders, such other
information, reports and other documents, if any, at such times
and in such manner, as shall be required by the Trust Indenture
Act.
ARTICLE ELEVEN
Supplemental Indentures
Section 11.01. Supplemental Indentures Without Consent of
Holders
Without the consent of the Holders of any Securities, LP&L,
when authorized by a Board Resolution, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto (a "Series Supplemental Indenture" in the
case of item (a) below), in form satisfactory to the Trustee, for
any of the following purposes:
(a) to establish the form and terms of Securities of
any series of Securities permitted by Sections 2.01 and
2.03; or
(b) to evidence the succession of another corporation
to LP&L and the assumption by any such successor of the
covenants of LP&L herein contained, or to evidence the
succession of another corporation to the Company and the
assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(c) to evidence the succession of a new trustee
hereunder or a co-trustee or separate trustee pursuant to
Section 9.15 hereof;
(d) to add to the covenants of the Company or LP&L,
for the benefit of the Holders of the Securities, or to
evidence the surrender of any right or power herein
conferred upon the Company or LP&L; or
(e) to convey, transfer and assign to the Trustee, and
to subject to the Lien of this Indenture, with the same
force and effect as though included in the Granting Clauses
hereof, additional Pledged Lessor Bonds or additional
properties or assets, and to correct or amplify the
description of any property at any time subject to the Lien
of this Indenture or to assure, convey and confirm unto the
Trustee any property subject or required to be subject to
the Lien of this Indenture; or
(f) to permit or facilitate the issuance of Securities
in uncertificated form; or
(g) to change or eliminate any provision of this
Indenture; provided, however, that if such change or
elimination shall adversely affect the interests of the
Holders of Securities of any series, such change or
elimination shall become effective with respect to such
series only when no Security of such series remains
Outstanding; or
(h) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture, provided such action shall not
adversely affect the interest of the Holders of the
Securities in any material respect.
Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the date of the execution and
delivery of this Indenture or at any time thereafter shall be
amended and:
(x) if any such amendment shall require one or
more changes to any provisions hereof or the
inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such
changes or incorporate such provisions by reference
or otherwise, this Indenture shall be deemed to have
been amended so as to conform to such amendment to
the Trust Indenture Act, and the Company, LP&L and
the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to
evidence such amendment hereof; or
(y) if any such amendment shall permit one or
more changes to, or the elimination of, any
provisions hereof which, at the date of the execution
and delivery hereof or at any time thereafter, are
required by the Trust Indenture Act to be contained
herein or are contained herein to reflect any
provisions of the Trust Indenture Act as in effect at
such date, this Indenture shall be deemed to have
been amended to effect such changes or elimination,
and the Company, LP&L and the Trustee may, without
the consent of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
Section 11.02. Supplemental Indenture With Consent of Holders.
With the consent of the Holders of not less than a majority
in aggregate principal amount of the Securities of all series
then Outstanding under this Indenture, considered as one class,
by Act of said Holders delivered to the Company, LP&L and the
Trustee, the Company and LP&L, when authorized by a Board
Resolution, may, and the Trustee, subject to Sections 11.03 and
11.04, shall, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this
Indenture; provided, however, that if there shall be Securities
of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all
series so directly affected, considered as one class, shall be
required; and provided, further, that no such supplemental
indenture shall, without the consent of the Holder of each
Outstanding Security or coupon of each series directly affected
thereby:
(a) change the Stated Maturity of the principal of, or
any installment of interest on, or any Installment Payment
Date, or the dates or circumstances of payment of premium,
if any, on, any Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon
the redemption thereof, or change the place of payment
where, or the coin or currency in which, any Security or
the premium, if any, or the interest thereon is payable, or
impair the right to institute suit for the enforcement of
any such payment of principal or interest on or after the
Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date) or such payment of premium,
if any, on or after the date such premium becomes due and
payable or change the dates or the amounts of payments to
be made through the operation of a Sinking Fund or through
installment payments of principal in respect of such
Securities, or
(b) permit the creation of any lien prior to or,
except with respect to additional series of Securities
issued in accordance with the terms of this Indenture, pari
passu with the Lien of this Indenture with respect to any
of the Pledged Property, or terminate the Lien of this
Indenture on any Pledged Property (except in each case as
permitted by, and pursuant to, Article Four) or deprive any
Holder of the security afforded by the Lien of this
Indenture, or
(c) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is
required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of
Section 13.04 for quorum or voting, or
(d) modify any of the provisions of this Section or
Section 8.08, except to increase any percentage or
percentages referred to in this Section or to provide that
certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of
each Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
Upon receipt by the Trustee of Board Resolutions of the
Company and LP&L and such other documentation as the Trustee may
reasonably require and upon the filing with the Trustee of
evidence of the Act of said Holders, the Trustee shall join in
the execution of such supplemental indenture or other instrument,
as the case may be, subject to the provisions of Sections 11.03
and 11.04.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 11.03. Documents Affecting Immunity or Indemnity.
If in the opinion of the Company or the Trustee any
document required to be executed by it pursuant to the terms of
Section 11.02 affects any interest, right, duty, immunity or
indemnity in favor of the Company or the Trustee under this
Indenture or any of the Participation Agreements, the Company or
the Trustee, as the case may be, may in its discretion decline to
execute such document.
Section 11.04. Election of Supplemental Indentures.
In executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall receive, and (subject to Section 9.01) shall be
fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized
or permitted by this Indenture.
Section 11.05. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall, subject to the provisions of this Article, be bound
thereby.
Section 11.06. Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the TIA as then in
effect.
Section 11.07. Reference in Securities to Supplemental
Indentures
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and
shall if required by any Owner Trustee, the Company or LP&L, bear
a notation in form approved by such Lessor, the Company, LP&L and
the Trustee as to any matter provided for in such supplemental
indenture; and, in such case, suitable notation may be made upon
Outstanding Securities after proper presentation and demand. If
any Owner Trustee, the Company or LP&L shall so determine, new
Securities so modified as to conform, in the opinion of such
Owner Trustee, the Company, LP&L and the Trustee, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE TWELVE
Satisfaction and Discharge
Section 12.01. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the principal
amount thereof, shall, prior to the Stated Maturity of principal
thereof, be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect
thereof shall be deemed to have been satisfied and discharged:
(a) if the Company shall have irrevocably deposited
with the Trustee, in trust, money in an amount which shall
be sufficient to pay when due the principal of and premium,
if any, and interest due and to become due on such
Securities or portions thereof on and prior to the Stated
Maturity of principal thereof or upon redemption or each
principal Installment Payment Date; or
(b) if the Pledged Lessor Bonds, of the series
corresponding to the series of which such Security or
Securities are a part, shall be deemed to have been paid in
accordance with Section 11.01(a) of the Lease Indenture or
Lease Indentures under which such Pledged Lessor Bonds were
issued;
provided, however, that, in case of redemption of Securities, the
notice requisite to the validity of such redemption shall have
been given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee:
(x) if any such deposit of money shall have been made
prior to the Stated Maturity of principal or Redemption
Date of such Securities, a Company Order stating that such
money shall be held by the Trustee, in trust, as provided
in Section 12.03, and
(y) if such Pledged Lessor Bonds are so deemed to have
been paid, a copy of each certificate or opinion delivered
to the Lease Indenture Trustees pursuant to Section
11.01(a) of the related Lease Indentures.
Upon satisfaction of the aforesaid conditions with respect
to any Security or Securities or portion thereof, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that such Security or Securities or portions thereof are deemed
to have been paid for all purposes of this Indenture and that the
entire indebtedness of the Company in respect thereof is deemed
to have been satisfied and discharged.
If payment at Stated Maturity of principal of less than all
of the Securities of any series is to be provided for in the
manner and with the effect provided in this Section, the Trustee
shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 6.03 for selection
for redemption of less than all the Securities of a series.
In the event that Securities which shall be deemed to have
been paid as provided in this Section do not mature and are not
to be redeemed within the sixty (60) day period commencing with
the date of the deposit with the Trustee of moneys, or the date
on which Pledged Lessor Bonds are deemed to have been paid, as
the case may be, the Company shall, as promptly as practicable,
give a notice, in the same manner as a notice of redemption with
respect to such Securities, to the Holders of such Securities to
the effect that such Securities are deemed to have been paid and
the circumstances thereof.
Notwithstanding the satisfaction and discharge of any
Securities as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 2.07, 2.08,
2.09, 5.02, 5.03, 9.07 and 9.14 and this Article Twelve shall
survive.
Section 12.02. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i) all Securities theretofore authenticated
and delivered (other than (A) Securities which have
been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.09 and (B)
Securities deemed to have been paid in accordance
with Section 12.01) have been delivered to the
Trustee for cancellation; or
(ii) all Securities not theretofore delivered
to the Trustee for cancellation shall be deemed to
have been paid in accordance with Section 12.01;
(b) all other sums due and payable hereunder have been
paid; and
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture have been complied with.
Upon satisfaction of the aforesaid conditions, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
the satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company, LP&L and
the Trustee under Sections 2.07, 2.08, 2.09, 5.02, 5.03, 9.07 and
9.14 and this Article Twelve shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to or upon the order of the Company, any and all money,
securities and other property then held by the Trustee for the
benefit of the Holders of the Securities other than money held by
the Trustee pursuant to Section 12.03 and the Pledged Lessor
Bonds.
Section 12.03. Application of Trust Money
The money deposited with the Trustee pursuant to Section
12.01 shall not be withdrawn or used for any purpose other than,
and shall be held in trust for, the payment of the principal of
and premium, if any, and interest on the Securities or portions
of principal amount thereof in respect of which such deposit was
made, all subject, however, to the provisions of Section 5.03;
provided, however, that, if not then needed for such purpose,
such money shall, to the extent practicable, be invested in
direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States of America or certificates of an ownership interest in the
principal of or interest on any of such obligations, in any case
maturing at such times and in such amounts as shall be sufficient
to pay when due the principal of and premium, if any, and
interest due and to become due on such Securities or portions
thereof on and prior to the Stated Maturity, Installment Payment
Dates or Redemption Date thereof, and so long as there shall not
have occurred and be continuing an Event of Default, interest
earned from such investment shall be paid over to or upon the
order of the Company as received by the Trustee, less any fees
and expenses of the Trustee (including without limitation the
fees and expenses of its counsel) incurred in connection
therewith free and clear of any trust, lien or pledge under this
Indenture; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default, any
moneys held by the Trustee in accordance with this Section on the
Stated Maturity, Installment Payment Dates or Redemption Date of
all such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest then due on such
Securities shall be paid over to or upon the order of the Company
less any fees and expenses of the Trustee (including without
limitation the fees and expenses of its counsel) incurred in
connection therewith free and clear of any trust, lien or pledge
under this Indenture.
ARTICLE THIRTEEN
Meetings of Holders of Securities; Action without Meeting
Section 13.01. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all,
series, may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
Section 13.02. Call, Notice and Place of Meetings
(a) The Trustee may at any time call a meeting of Holders
of Securities of one or more, or all, series for any purpose
specified in Section 13.01, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the Company and
LP&L, at any other place. Notice of every such meeting, setting
forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given
to the Company, LP&L, each Owner Trustee, each Owner Participant
and the Holders, in the manner provided in Sections 1.05 and 1.06
and, in the case of each Owner Trustee or Owner Participant, in
the manner specified in Section 19 of the Participation
Agreement, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series by the Company, by LP&L or by the Holders of 33% in
aggregate principal amount of all of such series, considered as
one class, for any purpose specified in Section 13.01, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the
Company, LP&L or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, The City of New
York, or in such other place as shall be determined or approved
by the Company and LP&L, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more,
or all, series shall be valid without notice if the Holders of
all Outstanding Securities of such series are present in person
or by proxy and if representatives of the Company, LP&L and the
Trustee are present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding Securities of
such series, or by such of them as are not present at the meeting
in person or by proxy, and by the Company, LP&L and the Trustee.
Section 13.03. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, a Person shall be (a)
a Holder of one or more Outstanding Securities of such series or
(b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company, LP&L, any Owner Trustee
and any Owner Participant and their respective counsel.
Section 13.04. Quorum; Action
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series with
respect to which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a quorum for
a meeting of Holders of Securities of such series: provided,
however, that if any action is to be taken at such meeting which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series,
considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding
Securities of such series, considered as one class, shall
constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of
such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting.
Except as provided by Section 13.05(e), notice of the reconvening
of any adjourned meeting shall be given as provided in Section
13.02(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by Section 11.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series with
respect to which such meeting shall have been called, considered
as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series, considered as one
class, may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such series,
considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section
shall be binding on all the Holders of Securities of the series
with respect to which such meeting shall have been held, whether
or not present or represented at the meeting.
Section 13.05. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities may
be in person or by proxy; and, to the extent permitted by law,
any such proxy shall remain in effect and be binding upon any
future Holder of the Securities with respect to which it was
given unless and until specifically revoked by the Holder or
future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities in
regard to proof of the holding of such Securities and of the
appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 1.04 and the
appointment of any proxy shall be proved in the manner specified
in Section 1.04. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section
1.04 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company, LP&L or by Holders of
Securities as provided in Section 13.02(b), in which case the
Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series represented at the meeting,
considered as one class.
(d) At any meeting each Holder of a Security or proxy
shall be entitled to one vote for each $1,000 principal amount of
Securities held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section 13.02 at
which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of all series represented at the
meeting, considered as one class; and the meeting may be held as
so adjourned without further notice.
Section 13.06. Counting Votes and Recording Action of Meetings
The vote upon any resolution submitted to any meeting of
Holders of Securities shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities or of
their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities, of the series with
respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports in quadruplicate of all votes cast at the meeting. A
record, a least in quadruplicate, of the proceedings of each
meeting of Holders of Securities shall be prepared by the
secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as
provided in Section 13.02 and, if applicable, Section 13.04.
Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to each of the Company and LP&L, and another
to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters
therein stated.
Section 13.07. Action Without Meeting
In lieu of a vote of Holders of Securities at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders of Securities by written
instruments as provided in Section 1.04.
ARTICLE FOURTEEN
Liability of the Company Solely Corporate; No Liability of LP&L
Section 14.01. Liability of the Company Solely Corporate
No recourse shall be had for the payment of the principal
of or premium, if any, or interest on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect
thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under this Indenture, against
any incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any predecessor or
successor corporation (either directly or through the Company or
a predecessor or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations of the Company, and
that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or director,
past, present or future, of the Company or of any predecessor or
successor corporation, either directly or indirectly through the
Company or any predecessor or successor corporation, because of
the indebtedness hereby authorized or under or by reason of any
of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom
or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issuance of the Securities.
Section 14.02. No Liability of LP&L.
In no event shall any provision of this Indenture or the
Securities constitute a guaranty or assumption by LP&L of the
Securities or the indebtedness represented thereby (it being
understood that, in accordance with Section 2.16 of each Lease
Indenture, LP&L may assume, or be deemed to have assumed, the
Pledged Lessor Bonds).
_____________
This instrument may be executed in any number of
counterparts, each of which when so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
<PAGE>
In Witness Whereof, the parties have caused this Indenture
to be duly executed as of the day and year first above written.
W3A Funding Corporation
By
Title: Vice President
<PAGE>
Louisiana Power & Light Company
By
Title: Vice President and Treasurer
<PAGE>
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By
Title: Vice President
<PAGE>
State of New York )
) ss.:
County of New York )
Personally appeared before me, the undersigned authority in
and for the said county and state, on this __th day of
______________, within my jurisdiction, the within named
____________, who acknowledged that he is a Vice President of W3A
Funding Corporation, a Delaware corporation, and that for and on
behalf of the said corporation, and as its act and deed, he
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
/s/
Notary Public
My Commission Expires:
<PAGE>
State of Louisiana )
) ss.:
Parish of Orleans )
Personally appeared before me, the undersigned authority in
and for the said parish and state, on this __th day of
______________, within my jurisdiction, the within named
________________, who acknowledged that he is a _________________
of Louisiana Power & Light Company, a Louisiana corporation, and
that for and on behalf of the said corporation, and as its act
and deed, he executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
/s/
Notary Public
My Commission Expires:
<PAGE>
State of New York )
) ss.:
County of New York )
Personally appeared before me, the undersigned authority in
and for the said county and state, on this __th day of
_______________, within my jurisdiction, the within named
____________________, who acknowledged that he is a __________ of
BANKERS TRUST COMPANY, a New York banking corporation, and that
for and on behalf of the said corporation, and as its act and
deed,he executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
/s/
Notary Public
My Commission Expires:
<PAGE>
State of New York )
) ss.:
County of New York )
Personally appeared before me, the undersigned authority in
and for the said county and state, on this __th day of
_____________, within my jurisdiction, the within named
, who acknowledged that he is a ____________ of BANKERS TRUST
COMPANY, a New York banking corporation, Trustee under the above
and foregoing instrument, and that for and on behalf of the said
corporation, and as its act and deed in said capacity as Trustee
and its having been duly authorized so to do, he executed the
above and foregoing instrument, after first having been duly
authorized by said corporation so to do.
/s/
Notary Public
My Commission Expires:
<PAGE>
EXHIBIT A
IDENTIFICATION OF CERTAIN DOCUMENTS
AND PARTIES THERETO
PART I
Lease _ Facility Lease No. 1, dated as of September 1,
1989, as amended and supplemented, between LP&L and the Owner
Trustee, as Lessor (a "Lessor").
Lease Indenture _ Indenture of Mortgage and Deed of Trust
No. 1, dated as of September 1, 1989, as amended and supplemented
("Lease Indenture No. 1"), between the Owner Trustee and Bankers
Trust Company and Stanley Burg, as trustees (together, a "Lease
Indenture Trustee").
Owner Trustee _ First National Bank of Commerce as trustee
under Trust Agreement No. 1, dated as of September 1, 1989, with
ESSL 2, Inc. (the "Owner Participant").
Participation Agreement _ Participation Agreement No. 1,
dated as of September 1, 1989, among the Owner Participant, First
National Bank of Commerce, individually and as Owner Trustee,
Bankers Trust Company and Stanley Burg, individually and as
Indenture Trustee, and LP&L.
PART II
Lease _ Facility Lease No. 2, dated as of September 1,
1989, as amended and supplemented, between LP&L and the Owner
Trustee, as Lessor (a "Lessor").
Lease Indenture _ Indenture of Mortgage and Deed of Trust
No. 2, dated as of September 1, 1989, as amended and supplemented
("Lease Indenture No. 2"), between the Owner Trustee and Bankers
Trust Company of California, National Association, and Cecil D.
Bobey, as trustees (together, a "Lease Indenture Trustee").
Owner Trustee _ First National Bank of Commerce as trustee
under Trust Agreement No. 2, dated as of September 1, 1989, with
ESSL 2, Inc. (the "Owner Participant").
Participation Agreement _ Participation Agreement No. 2,
dated as of September 1, 1989, among the Owner Participant, First
National Bank of Commerce, individually and as Owner Trustee,
Bankers Trust Company of California, National Association, and
Cecil D. Bobey, individually and as Indenture Trustee, and LP&L.
PART III
Lease - Facility Lease No. 3, dated as of September 1,
1989, as amended and supplemented, between LP&L and the Owner
Trustee, as Lessor (a "Lessor").
Lease Indenture - Indenture of Mortgage and Deed of Trust
No. 3, dated as of September 1, 1989, as amended and supplemented
("Lease Indenture No. 3"), between the Owner Trustee and Security
Pacific National Trust Company (New York) and Kenneth T. McGraw,
as trustee (together, a "Lease Indenture Trustee").
Owner Trustee - First National Bank of Commerce as trustee
under Trust Agreement No. 3, dated as of September 1, 1989, with
ESSL 2, Inc. (an "Owner Participant").
Participation Agreement - Participation Agreement No. 3,
dated as of September 1, 1989, among the Owner Participant, First
National Bank of Commerce, individually and as Owner Trustee,
Security Pacific National Trust Company (New York) and Kenneth T.
McGraw, individually and as Indenture Trustee, and LP&L.
Exhibit 4(b)
SUPPLEMENTAL INDENTURE NO. 1
dated as of __________, 19__
to
COLLATERAL TRUST INDENTURE
dated as of __________, 19__
among
W3A FUNDING CORPORATION,
LOUISIANA POWER & LIGHT COMPANY
and
BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Trustee
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, dated as of __________,
19__, among W3A Funding Corporation, a Delaware corporation (the
"Company"), LOUISIANA POWER & LIGHT COMPANY, a Louisiana
corporation ("LP&L"), and BANKERS TRUST COMPANY, a New York
banking corporation, not in its individual capacity but solely as
trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Company and LP&L have heretofore executed
and delivered to the Trustee a Collateral Trust Indenture, dated
as of __________ __, 199_ (the "Original Indenture"), to provide
for the issuance from time to time of the Company's bonds, notes
or other evidences of indebtedness to be issued in one or more
series (the "Securities"); and
WHEREAS, Sections 2.03 and 11.01 of the Original
Indenture provide, among other things, that the Company, LP&L and
the Trustee may enter into indentures supplemental to the
Original Indenture for, among other things, the purpose of
establishing the form and terms of Securities of any series as
permitted by said Sections 2.03 and 11.01; and
WHEREAS, the Company and LP&L (a) desire the issuance
by the Company of [two] series of Securities to be designated as
hereinafter provided and (b) have requested the Trustee to enter
into this Supplemental Indenture No. 1 for the purpose of
establishing the form and terms of the Securities of such series
(said Original Indenture, as supplemented by this Supplemental
Indenture No. 1, being hereinafter called the "Indenture"); and
WHEREAS, all action on the part of the Company and LP&L
necessary to authorize the execution and delivery of this
Supplemental Indenture No. 1 and the issuance of the aforesaid
Securities has been duly taken; and
WHEREAS, all acts and things necessary to make the
Securities of the series herein created and established, when
executed by the Company and authenticated and delivered by the
Trustee as provided in the Original Indenture, the valid, binding
and legal obligations of the Company, and to constitute these
presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed, and the
execution of this Supplemental Indenture No. 1 and the creation
and issuance under the Indenture of such Securities have in all
respects been duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 1
WITNESSETH:
That in order to establish the form and terms of and to
authorize the authentication and delivery of the Securities of
the series herein created and established, and in consideration
of the acceptance of such Securities by the holders thereof and
of the sum of one dollar duly paid to the Company by the Trustee
at the execution of these presents, the receipt whereof is hereby
acknowledged, the Company and LP&L each covenant and agree with
the Trustee, for the equal and proportionate benefit of the
respective holders from time to time of the Securities, as
follows:
ARTICLE ONE
THE BONDS
SECTION 1.01. Terms of the Bonds.
There are hereby created and established two separate
series of Securities designated, respectively, "Waterford 3
Secured Lease Obligation Bonds, ____% Series due ____"
(hereinafter sometimes called the "Series ____ Bonds") and
"Waterford 3 Secured Lease Obligation Bonds, ____% Series due
____" (hereinafter sometimes called the "Series ____ Bonds" ).
The Series ____ Bonds and the Series ____ Bonds are hereinafter
sometimes referred to, collectively, as the "Bonds". The Bonds
of each series shall be issued in the aggregate principal
amounts, shall bear interest at the rates per annum and shall
have the Stated Maturities of principal set forth below:
Original Interest Final
Principal Amount Rate Maturity
Series ____ Bonds $ %
Series ____ Bonds %
$
The Series ____ Bonds and the Series ____ Bonds shall be
substantially in the form of Exhibit A hereto. The interest on
the Bonds of each series of Bonds shall be due and payable as and
from the most recent interest payment date to which interest has
been paid or duly provided for or, with respect to any Bond
issued prior to the first interest payment date, the date of
original issuance thereof, semiannually on _________ and
_________ in each year (commencing ______________), until the
principal amount of the Bonds of such series is paid in full or
duly provided for. Payment of the principal of and premium, if
any, and interest on each Bond shall be made to the Holder
thereof upon presentation and surrender thereof at the corporate
trust office of any Paying Agent, except that payments of
interest and Installment Payment Amounts on such Bond, other than
such amounts payable on the Stated Maturity thereof, shall be
made without presentation or surrender thereof, by check drawn
upon the Paying Agent and mailed to the address of the Holder of
such Bond at the close of business on the Regular Record Date for
such payment (except as provided in Section 2.16 of the Original
Indenture in the case of a defaulted interest or Installment
Payment Amount payment) as such address shall appear in the
Security Register and except that if such Holder shall be a
securities depositary, such payment may be made by such other
means in lieu of check as shall be agreed upon by the Lessee, the
Trustee and such Holder.
SECTION 1.02. Installment Payments of Principal.
(a) Installment Payments. On each Installment Payment
Date set forth below, the Company shall pay an installment of
principal of each Bond of each series equal in amount to the
Installment Payment Percentage set forth below for such
Installment Payment Date multiplied by the Original Principal
Amount (as hereinafter defined) of such Bond. "Original
Principal Amount", when used with respect to the Bonds of either
series, means the principal amount identified as such on the face
of such Bond.
Installment Installment Payment Percentage
Payment Date
Series ____ Series ____
Bonds Bonds
(b) Certain Adjustments to Installment Payments and
Stated Maturity. (i) The principal amount of Bonds of either
series to be paid in installments on Installment Payment Dates
and at Stated Maturity for such series may be adjusted (a
"Payment Adjustment") and at Stated Maturity at the direction of
the Company, such adjustment to be correlative, as to amounts and
dates, to any adjustment to the principal amortization schedule
of the Pledged Lessor Bonds of the corresponding series issued
under any Lease Indenture pursuant to Section 6.03 of
Supplemental Indenture No. 2 to such Lease Indenture; provided,
however, that (A) no Payment Adjustment shall be made by the
Company which will increase or decrease the average life of the
Bonds of any series (calculated in accordance with generally
accepted financial practice) from the date of initial issuance by
more than 6 months and (B) the Company shall elect to make such
adjustment upon (and only upon) the direction of the Owner
Trustee in accordance with Section 2(c) of the Participation
Agreement. If the Company shall elect to make the foregoing
adjustment, the Company shall deliver to the Trustee and LP&L at
least 30 days prior to the first payment date proposed to be
affected by such adjustment, a Company Request (A) stating that
the Company has elected to make a Payment Adjustment as
contemplated in this Section, (B) setting forth a revised
maturity and Installment Payment Percentage Schedule applicable
to the Bonds of each series as to which a Payment Adjustment is
to be made, (C) attaching a copy of the revised principal
schedule or schedules for the Pledged Lessor Bonds of the
corresponding series, and (D) attaching calculations showing that
(x) the average life of the Bonds of the affected series will not
be reduced or increased except as permitted by this
subsection (b), (y) the aggregate principal amount of the Pledged
Lessor Bonds identified on Schedule 1 hereto equals the aggregate
principal amount of the Bonds and (z) the principal amortization
schedules of such Pledged Lessor Bonds are such as to provide
funds sufficient to repay in full, as and when due, the principal
of the Bonds as and when scheduled to become due, whether upon
payment of applicable Installment Payment Amounts on Installment
Payment Dates or at Stated Maturity. The Trustee may conclusively
rely on such Company Request and shall have no duty with respect
to the calculations referred to in the foregoing clause (D),
other than to make them available for inspection by any Holder of
Bonds at the Corporate Trust Office upon reasonable notice and
during business hours. The Trustee shall, at the expense of
LP&L, send to each Holder of Bonds of the series in respect of
which a Payment Adjustment has been made at least 20 days before
the first payment date to be affected thereby, by first class
mail, a copy of a schedule of principal amounts of Bonds to be
repaid after giving effect to such Payment Adjustment.
(ii) In the event that there shall have been any
partial redemption of the Bonds of either series (other than
pursuant to principal installment payments), each Installment
Payment Amount for each Bond of a series subsequent to such
redemption shall be reduced by (i) in the case of a partial
redemption pursuant to Section 1.05 hereof, an amount equal to
the amount obtained by multiplying such Installment Payment
Amount as in effect prior to such redemption by a fraction of
which the numerator shall be the aggregate principal amount of
Bonds of such series redeemed pursuant to such partial
redemption, and the denominator shall be the aggregate unpaid
principal amount of Bonds of such series Outstanding immediately
prior to such redemption and (ii) in the case of a partial
redemption pursuant to Section 1.03 hereof, an amount such that
the aggregate of all principal installment payments to be made on
the Bonds of such series on the relevant Installment Payment Date
shall be equal to the amount of principal of the Pledged Lessor
Bonds to be paid on such date under the remaining Lease
Indenture, any such reduction to be made on a pro rata basis, as
nearly as practicable, among the Holders of the Bonds of such
series.
SECTION 1.03. Redemption upon Lease Termination.
If any Lease is to be terminated pursuant to
Section 13(f) or (g) or Section 14 thereof, or Section 16(d)(5)
of the related Participation Agreement, and all Lessor Bonds
issued under the related Lease Indenture are to be prepaid,
Bonds, equal in principal amount to the Pledged Lessor Bonds
issued under such Lease Indenture shall be redeemed, on the date
on which such Lessor Notes are to be prepaid, at a Redemption
Price equal to the unpaid principal amount thereof plus accrued
interest to the Redemption Date, all subject, however, except in
the case of a termination pursuant to Section 14 of such Lease,
to the right of LP&L to assume such Lessor Bonds in which event
there shall be no redemption of Bonds as a consequence of such
termination.
SECTION 1.04. Sinking Fund Redemption.
There shall be no Sinking Fund for the retirement of
the Bonds of either series.
SECTION 1.05. Other Redemption.
The Bonds of each series shall be subject to redemption, at
the option of the Company, in whole at any time or in part from
time to time, at the Redemption Price of 100% of the unpaid
principal amount of the Bonds to be so redeemed, plus accrued
interest, if any, thereon to the Redemption Date, plus, if such
redemption is made prior to the applicable Premium Termination
Date, the Make-Whole Premium, if any. "Make-Whole Premium" shall
mean, with respect to the principal amount of any Bond to be
redeemed on any Redemption Date, the amount which the Investment
Banker determines as of the third Business Day prior to such
Redemption Date to equal the product obtained by multiplying (a)
the excess, if any, of (i) the sum of the present values of all
the remaining scheduled payments of principal and interest from
the Redemption Date to maturity of such Bond, computed on a semi-
annual basis by discounting such payments on each January 2 and
July 2 at a rate equal to the Treasury Rate, based on a 360-day
year of twelve 30-day months, over (ii) the aggregate unpaid
principal amount of such Bond plus any accrued but unpaid
interest thereon by (b) a fraction the numerator of which shall
be the principal amount of such Bond to be redeemed on such
Redemption Date and the denominator of which shall be the
aggregate unpaid principal amount of such Bond; provided that the
aggregate unpaid principal amount of such Bond for the purpose of
clauses (a)(ii) and (b) of this definition shall be determined
after deducting the principal installment, if any, due on such
Redemption Date. "Premium Termination Date" means _________ for
a Series __ Bond and _______ for a Series __ Bond. "Investment
Banker" shall mean an independent investment banking institution
of national standing appointed by LP&L or, if the Trustee does
not receive notice of such appointment at least ten days prior to
a scheduled Redemption Date or if an event of default under any
Lease shall have occurred and be continuing, appointed by the
Owner Trustee. "Treasury Rate" shall mean, with respect to each
Bond to be redeemed, a per annum rate (expressed as a semiannual
equivalent and as a decimal and, in the case of United States
Treasury bills, converted to a bond equivalent yield) determined
to be the per annum rate equal to the semiannual yield to
maturity of United States Treasury securities maturing on the
Average Life Date of such Bond, as determined by interpolation
between the most recent weekly average yields to maturity for two
series of United States Treasury securities (A) one maturing as
close as possible to, but earlier than, the Average Life Date of
such Bond and (B) the other maturing as close as possible to, but
later than, the Average Life Date of such Bond, in each case as
published in the most recent H.15(519) (or, if a weekly average
yield to maturity for United States Treasury securities maturing
on the Average Life Date of such Bond is reported in the most
recent H.15(519), as published in H.15(519)). H.15(519) means
"Statistical Release H.15(519), Selected Interest Rates," or any
successor publication, published by the Board of Governors of the
Federal Reserve System. The most recent H.15(519) means the
latest H.15(519) which is published prior to the close of
business on the third business day prior to the applicable
Redemption Date. "Average Life Date" shall mean, with respect to
any Bond to be redeemed, the date which follows the redemption
date by a period equal to the Remaining Weighted Average Life of
such Bond. "Remaining Weighted Average Life" shall mean, with
respect to any Bond to be redeemed, the number of days equal to
the quotient obtained by dividing (A) the sum of the products
obtained by multiplying (1) the amount of each remaining
principal payment on such Bond by (2) the number of days from and
including the redemption date, to but excluding the scheduled
payment date of such principal payment by (B) the unpaid
principal amount of such Bond.
Section 1.06. Selection by Trustee of Bonds to be
Redeemed.
Subject to the provisions of subsection (a) and (b) of
Section 6.03 of the Original Indenture, if fewer than all of the
Bonds of either series are to be redeemed, the particular Bonds
of such series to be redeemed shall be selected not more than 45
days prior to the Redemption Date by the Trustee by prorating, as
nearly as practicable, the principal amount of such Bonds to be
redeemed among the Holders of such Bonds.
ARTICLE TWO
PLEDGE OF LESSOR BONDS
Section 2.01. Pledge of Lessor Bonds.
To secure the payment of the principal of and premium,
if any, and interest on all the Securities from time to time
Outstanding under the Indenture, and the performance of the
covenants therein and herein contained, the Company by these
presents does grant, bargain, sell, release, convey, assign,
transfer, mortgage, hypothecate, pledge, confirm to the Trustee
and create a security interest in favor of the Trustee, for the
benefit of the Holders, in the Lessor Bonds identified on
Schedule 1 hereto (herein referred to as the "Pledged Lessor
Bonds"), to be held by the Trustee, in trust, for the uses and
purposes, and subject to the covenants and conditions, set forth
in the Original Indenture.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.01. Execution as Supplemental Indenture.
This Supplemental Indenture No. 1 is executed and shall
be construed as an indenture supplemental to the Original
Indenture and, as provided in the Original Indenture, this
Supplemental Indenture No. 1 forms a part thereof.
SECTION 3.02. Definitions.
Capitalized terms used which are not defined herein
shall have the meanings ascribed thereto in the Original
Indenture.
SECTION 3.03. Counterpart Execution.
This Supplemental Indenture No. 1 may be executed in
any number of counterparts and by each of the parties hereto or
thereto on separate counterparts, all such counterparts together
constituting but one and the same instrument.
SECTION 3.02. Governing Law.
This Supplemental Indenture No. 1 is being and will be
executed and delivered in the State of New York, shall be deemed
to be a contract made in such State and for all purposes shall be
construed in accordance with and governed by the laws of the
State of New York, except to the extent that laws of other
jurisdictions are mandatorily applicable.
IN WITNESS WHEREOF, the Company, LP&L and the Trustee
have caused this Supplemental Indenture No. 1 to be duly executed
as of the day and year first above written.
W3A FUNDING CORPORATION
By
Title: Vice President
LOUISIANA POWER & LIGHT COMPANY
By
Title: Vice President
BANKERS TRUST COMPANY, not in its
individual capacity but solely
as Trustee
By
Title: Vice President
<PAGE>
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said county and state, on this ____ day
of ____________, within my jurisdiction, the within named
_____________, who acknowledged that he is a Vice President of
W3A Funding Corporation, a Delaware corporation, and that for and
on behalf of the said corporation, and as its act and deed, he
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
___________________________________
Notary Public
My Commission Expires:
__________________________
<PAGE>
STATE OF LOUISIANA )
)ss.:
PARISH OF ORLEANS )
Personally appeared before me, the undersigned
authority in and for the said parish and state, on this ____ day
of _____________, within my jurisdiction, the within named
___________, who acknowledged that he is a ______________________
_________ of LOUISIANA POWER & LIGHT COMPANY, a Louisiana
corporation, and that for and on behalf of the said corporation,
and as its act and deed, he executed the above and foregoing
instrument, after first having been duly authorized by said
corporation so to do.
___________________________________
Notary Public
My Commission Expires:
__________________________
<PAGE>
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said county and state, on this ____ day
of ________________, within my jurisdiction, the within named
________________, who acknowledged that he is a Vice President of
BANKERS TRUST COMPANY, a New York banking corporation, and that
for and on behalf of the said corporation, and as its act and
deed, he executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
___________________________________
Notary Public
My Commission Expires:
__________________________
<PAGE>
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said county and state, on this ____ day
of _______________, within my jurisdiction, the within named
________________, who acknowledged that he is a Vice President of
BANKERS TRUST COMPANY, a New York banking corporation, Trustee
under the above and foregoing instrument, and that for and on
behalf of the said corporation, and as its act and deed in said
capacity as Trustee and its having been duly authorized so to do,
he executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
___________________________________
Notary Public
My Commission Expires:
__________________________
<PAGE>
SCHEDULE 1
PLEDGED LESSOR BONDS
Lessor Bonds Issued Under Lease Indenture No. 1
Principal Interest
Series Number Amount Rate Maturity
R-1A
R-1B
Lessor Bonds Issued Under Lease Indenture No. 2
Principal Interest
Series Number Amount Rate Maturity
R-2A
R-2B
Lessor Bonds Issued Under Lease Indenture No. 3
Principal Interest
Series Number Amount Rate Maturity
R-3A
R-3B
<PAGE>
EXHIBIT A
FORM OF BOND
[FRONT]
NUMBER
R-
________________________
WATERFORD 3
SECURED LEASE OBLIGATION BOND,
% SERIES DUE
INTEREST RATE MATURITY DATE CUSIP
%
REGISTERED HOLDER:
ORIGINAL PRINCIPAL AMOUNT: DOLLARS
W3A Funding Corporation, a Delaware corporation
(hereinafter called the "Company", which term includes any
successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to the
Registered Holder named above, or registered assigns, the unpaid
portion of the Original Principal Amount (stated above) in
installments on each Installment Payment Date as set forth on the
reverse hereof with the final installment due and payable on the
Maturity Date (stated above) and to pay interest (computed on the
basis of a 360-day year consisting of twelve 30-day months) on
the principal amount remaining unpaid from time to time from the
most recent interest payment date to which interest has been paid
or duly provided for or, if this Bond is dated prior to
__________, the date of the original issuance of Bonds of this
series, semiannually on __________ and __________ in each year,
commencing __________, at the Interest Rate (stated above) per
annum, until the principal hereof is paid in full or made
available for payment. The interest or Installment Payment
Amount so payable shall, as provided in such Indenture, be paid
to the person in whose name this Bond (or one or more Predecessor
Securities, as defined in such Indenture) is registered at the
close of business on the Regular Record Date (all capitalized
terms used herein and not defined herein shall have the meanings
ascribed to them in the Indenture referred to on the reverse
hereof) for such interest or installment of principal, which
shall be the __________ (with respect to a __________ interest
payment date) or __________ (with respect to a __________
interest payment date), as the case may be (whether or not a
Business Day), next preceding such interest payment date or
Installment Payment Date. Any such interest or Installment
Payment Amount not so punctually paid or duly provided for shall
forthwith cease to be payable to the Registered Holder on such
Regular Record Date, and may be paid to the person in whose name
this Bond (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment
of such defaulted interest or defaulted installment to be fixed
by the Trustee (as defined on the reverse hereof), notice of
which shall be given to the Holders of the Bonds not less than
10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Bonds may be
listed, and upon such notice as may be required by such exchange,
all as more fully provided in such Indenture. Payment of the
principal of, and premium, if any, and interest on this Bond
shall be made upon presentation and surrender hereof at the
Corporate Trust Office of the Trustee in such coin or currency of
the United States of America as at the time of payment is legal
tender for payment of debts, except that payment of interest and
Installment Payment Amounts (other than that payable on the
Stated Maturity hereof) shall be made, without presentation or
surrender hereof, by check mailed to the address of the Holder
entitled thereto as such address shall appear in the Security
Register and except that if such Holder shall be a securities
depositary, such payment shall be made by such means in lieu of
check as shall be agreed upon by LP&L (as hereinafter defined),
the Trustee and such Holder.
As provided in the Indenture, in any case where any
Redemption Date, Installment Payment Date or the Stated Maturity
of principal of or any installment of interest on any bond, or
any date on which any defaulted interest or principal is proposed
to be paid, shall not be a Business Day, then (notwithstanding
any other provision of the Indenture or this Bond) payment of
interest and/or principal and premium, if any, shall be due and
payable on the next succeeding Business Day with the same force
and effect as if made on or at such nominal Redemption Date,
Stated Maturity, Installment Payment Date or date on which the
defaulted interest or principal is proposed to be paid and no
interest shall accrue on the amount so payable for the period
from and after such Redemption Date, Stated Maturity, Installment
Payment Date or date for the payment of defaulted interest or
principal, as the case may be.
Reference is hereby made to the further provisions of
this Bond set forth on the reverse hereof which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee by manual signature, this Bond shall
not be entitled to any benefit under such Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Bond to
be duly executed under its corporate seal.
Dated:
W3A FUNDING CORPORATION
By
Vice President
Attest
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture
, as Trustee
By
Authorized Officer
Dated __________________________
<PAGE>
[BACK]
W3A FUNDING CORPORATION
WATERFORD 3
SECURED LEASE OBLIGATION BOND,
% SERIES DUE
This Bond is one of an authorized issue of Securities
of the Company known as its "Secured Lease Obligation Bonds,
% Series due " (the "Bonds"). The Bonds are issued under and
secured by a Collateral Trust Indenture, dated as of ________
(the "Original Indenture"), among the Company, Louisiana Power &
Light Company, a Louisiana corporation ("LP&L"), and Bankers
Trust Company, not in its individual capacity but solely as
trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), as supplemented by
Supplemental Indenture No. 1, dated as of __________, among such
parties (together, and as thereafter amended in accordance with
its terms, the "Indenture"). The Indenture permits the issuance
of additional series of Securities for the purposes and as
provided therein. All Bonds are secured equally and ratably with
one another and with any other Securities of the Company issued
under the Indenture, as amended or supplemented. Reference is
hereby made to the Indenture and any supplements or amendments
thereto for a description of the nature and extent of the
Securities issued thereunder, the property assigned, pledged and
transferred thereunder and the respective rights of the Holders
of the Bonds and of the Trustee and the Company in respect of
such security and the terms upon which the Bonds are and are to
be authenticated and delivered. The Holder of this Bond, by its
acceptance hereof, is deemed to have consented and agreed to all
the terms and provisions of the Indenture.
The unpaid principal of and premium, if any, and
interest on this Bond are payable from and secured by the assets
subject to the lien of the Indenture and the income and proceeds
received by the Trustee therefrom and all payments of principal,
premium, if any, and interest shall be made in accordance with
the terms of the Indenture.
The Indenture provides that certain promissory bonds
("Pledged Lessor Bonds") are subject to the lien of the Indenture
and that additional Pledged Lessor Bonds, as and when issued, can
be made subject to the lien of the Indenture pursuant to
Indenture supplements. The Pledged Lessor Bonds subject to the
lien of the Indenture on the date of the initial issuance of
Bonds were issued by First National Bank of Commerce, as owner
trustee under each of Trust Agreement No. 1, Trust Agreement
No. 2 and Trust Agreement No. 3 (each, a "Trust Agreement" and,
together, the "Trust Agreements"), each such Trust Agreement with
the institutional investor party thereto (each such institutional
investor, an "Owner Participant"). Such Pledged Lessor Bonds
were issued under either Indenture of Mortgage and Deed of Trust
No. 1, or Indenture of Mortgage and Deed of Trust No. 2 or
Indenture of Mortgage and Deed of Trust No. 3, each such
indenture between an owner trustee, as owner trustee and lessor
(a "Lessor") and Bankers Trust Company and Stanley Burg, not in
their individual capacities but solely as Corporate Indenture
Trustee and Individual Indenture Trustee, respectively, (each of
such indentures, as it was executed and delivered and as
thereafter amended in accordance with its terms, being herein
called a "Lease Indenture" and each trustee thereunder being
herein called a "Lease Indenture Trustee"). Reference is made to
each Lease Indenture for a description of the nature and extent
of property assigned, pledged, transferred and mortgaged
thereunder and the rights of the holders of Pledged Lessor Bonds.
Except as expressly provided in a Lease Indenture, all payments
of principal, premium, if any, and interest to be made on a
Pledged Lessor Bond issued under such Lease Indenture will be
made only from the assets subject to the lien of such Lease
Indenture or the income and proceeds received by the Lease
Indenture Trustee therefrom, including, in the case of each Lease
Indenture, the rights of the Lessor which is a party thereto to
receive basic rentals and certain other payments under a Facility
Lease with LP&L relating to an undivided interest in certain
assets constituting part of Unit No. 3 of the Waterford Steam
Electric Generating Station (each of such Facility Leases, as it
was executed and delivered and as thereafter amended in
accordance with its terms being herein called a "Lease"), which
basic rentals and other payments will be at least sufficient to
provide for the scheduled payments of the principal of and
interest on each Pledged Lessor Note issued under such Lease
Indenture. Each Holder of this Bond, by its acceptance hereof,
is deemed to have agreed (x) that it will look solely to the
assets subject to the lien of the Indenture or the income or
proceeds received by the Trustee therefrom, to the extent
available for distribution to the Holder hereof as provided in
the Indenture, and (y) that none of any Owner Participant, any
Lessor, any Lease Indenture Trustee or the Trustee is liable to
the Holder hereof or, in the case of any Owner Participant,
Lessor or Lease Indenture Trustee, to the Trustee, for any
amounts payable on this Bond, or, except as provided in the
Indenture with respect to the Trustee, for any liability under
the Indenture.
With certain exceptions as therein provided, the
supplementation of the Indenture for the purpose of adding any
provisions thereto, or changing in any manner or eliminating any
of the provisions thereof, will require the consent of the
Holders of not less than a majority in aggregate unpaid principal
amount of all Securities of all series at the time Outstanding
under the Indenture considered as one class; provided, however,
that if there shall be Securities of more than one series
Outstanding under the Indenture and if a proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series,
then the consent only of the Holders of a majority in aggregate
unpaid principal amount of the Outstanding Securities of all
series so directly affected, considered as one class, shall be
required. The Indenture also contains provisions permitting the
Holders of not less than a majority in unpaid principal amount of
the Securities at the time Outstanding, on behalf of the Holders
of all of the Securities, to waive certain past defaults under
the Indenture and their consequences. Any such consent or waiver
by the Holder of this Bond shall be conclusive and binding upon
such Holder and upon all future Holders of this Bond and of any
Bond issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Bond.
On each Installment Payment Date set forth below, the
Company shall pay an installment of principal of this Bond equal
(subject to adjustment as hereinafter described) in amount to the
Installment Payment Percentage set forth below for such
Installment Payment Date multiplied by the Original Principal
Amount stated on the face of this Bond.
Installment Installment Outstanding
Payment Date Payment Percentage Balance Factor
The "Outstanding Balance Factor" as used in the foregoing table
is for descriptive purposes only, and, unless there has been a
partial redemption or a default or another installment payment
adjustment, when multiplied by the Original Principal Amount of
this Bond, represents the remaining unpaid principal amount of
this Bond as of the Installment Payment Date indicated after
payment of the principal installment on such date.
As provided in the Indenture, the stated maturity and
the amount of installment payments of principal for the Bonds may
be adjusted, subject to certain restrictions, at the discretion
of the Company in connection with certain recalculations of basic
rent pursuant to either of the Leases; provided, however, that no
payment adjustment shall be made by the Company which will
increase or decrease the average life of the Bonds of any series
(calculated in accordance with generally accepted financial
practice) from the date of initial issuance by more than 6
months.
In the event of any partial redemption of Bonds (other
than pursuant to the aforementioned principal installment
payments) the amount of each installment payment of principal to
be paid thereafter pursuant to the installment payment schedule
indicated above and at stated maturity shall be adjusted in
accordance with the Indenture.
Notwithstanding anything to the contrary set forth
herein or in the Indenture, the unpaid principal amount hereof
recorded on the Security Register maintained by the Security
Registrar shall be controlling as to the remaining unpaid
principal amount hereof.
If any Lease is to be terminated pursuant to
Section 13(f) or (g) or Section 14 thereof, or Section 16(d)(5)
of the related Participation Agreement, and all Lessor Bonds
issued under the related Lease Indenture are to be prepaid,
Bonds, equal in principal amount to the Pledged Lessor Bonds
issued under such Lease Indenture, shall be redeemed, on the date
on which such Lessor Bonds are to be prepaid, at a redemption
price equal to the unpaid principal amount thereof plus accrued
interest to the Redemption Date, all subject, however, except in
the case of a termination pursuant to Section 14 of such Lease,
to the right of LP&L to assume such Lessor Bonds in which event
there shall be no redemption of Bonds as a consequence of such
termination.
The Bonds of this series shall be subject to
redemption, at the option of the Owner Trustee, in whole at any
time or in part from time to time, at the Redemption Prices of
100% of the unpaid principal amount of such Bonds to be so
redeemed, plus accrued interest, if any, thereon to the date
fixed for redemption, plus the Make-Whole Premium, if any, for
the Bonds calculated as provided in the Indenture.
In the event that any of the Bonds are called for
redemption, notice shall be given to the Holders in accordance
with Section 6.04 of the Original Indenture not less than 20 nor
more than 60 days prior to the redemption date.
With respect to any notice of redemption of Bonds (and
not with respect to installment payments of principal payable on
Installment Payment Dates) unless, upon the giving of such
notice, such Bonds shall be deemed to have been paid in
accordance with the provisions of the Indenture, such notice
shall state that such redemption shall be conditional upon the
receipt by the Trustee, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and
premium, if any, and interest on such Bonds and that if such
money shall not have been so received such notice shall be of no
force or effect and the Company shall not be required to redeem
such Securities. In the event that such notice of redemption
contains such a condition and such money is not so received, the
redemption shall not be made.
Bonds (or portions thereof as aforesaid) for which
redemption and payment provision is made in accordance with the
Indenture shall thereupon cease to be entitled to the lien of the
Indenture and shall cease to bear interest from and after the
date fixed for redemption.
If an Event of Default shall occur, the unpaid
principal of this Bond may become or be declared due and payable
in the manner and with the effect provided in the Indenture.
This Bond is transferable by the Holder hereof in
person or by attorney authorized in writing, at the Corporate
Trust Office of the Security Registrar (or if such office is not
in the Borough of Manhattan, The City of New York, at either such
office or an office to be maintained in such Borough). Upon
surrender for registration of transfer of this Bond, the Company
shall execute, and the Trustee (or any Authenticating Agent)
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Bonds of the same
series, of authorized denominations and of like tenor and
aggregate principal amount.
The Bonds are issuable only as registered Bonds without
coupons in denominations of $1,000 and/or any integral multiple
thereof. As provided in and subject to the provisions of the
Indenture, Bonds may be exchanged for other Bonds of the same
series, of authorized denominations, and of like tenor and
aggregate principal amount, upon surrender at any office
maintained for such purpose pursuant to the Indenture.
No service charge will be made to any Holder of Bonds
for any such transfer or exchange but the Security Registrar may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The person in whose name this Bond is registered shall
be deemed to be the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes whether or
not this Bond be overdue, regardless of any notice to anyone to
the contrary.
As provided in the Indenture, the Indenture and the
Bonds shall be construed in accordance with and governed by the
laws of the State of New York.
Exhibit 4(d)-4
SUPPLEMENTAL INDENTURE NO. 2
dated as of _______ __, 199_
to
INDENTURE OF MORTGAGE AND
DEED OF TRUST NO. [2/3]*
dated as of September 1, 1989,
as supplemented,
between
FIRST NATIONAL BANK OF COMMERCE,
not in its individual capacity
but solely as Owner Trustee under Trust Agreement No. [2/3],
dated as of September 1, 1989, with
the Owner Participant,
and
BANKERS TRUST COMPANY,
as successor Corporate Indenture Trustee,
and
STANLEY BURG,
as successor Individual Indenture Trustee
Original Indenture Recorded On September 27,
1989 in Book No. _____, Page ____ as Entry No. _____
in the Conveyance Records of
St. Charles Parish, Louisiana
_______________________________
* Assumes that current indenture trustees under Indentures of
Mortgage and Deeds of Trust Nos. 2 and 3 will be replaced by
Bankers Trust Co. and S. Burg, which henceforth would act as
sole indenture trustee under all three original indentures.
Supplemental Indenture No. 2 to original indenture no. 1 would
be substantially identical to this form, except that the
existing trustee and co-trustee (Bankers Trust Co. and S.
Burg) would continue.
<PAGE>
Supplemental Indenture No. 2, dated as of ________ __, 199_, to
Indenture of Mortgage and Deed of Trust No. [2/3], dated as of
September 1, 1989 (the "Original Indenture"; the Original
Indenture, as supplemented by Supplemental Indenture No. 1, dated
as of September 1, 1989, and by this Supplemental Indenture No.
2, and as it may be further supplemented or amended from time to
time by all other indentures supplemental thereto, being
hereinafter referred to as the "Indenture"), between First
National Bank of Commerce, a national banking association having
its principal office and mailing address at 210 Baronne Street,
New Orleans, Louisiana 70112, not in its individual capacity,
except as otherwise expressly provided in the Indenture, but
solely as the Owner Trustee (such term and all other capitalized
terms used herein and not defined herein having the respective
meanings specified in Appendix A to the Original Indenture as
modified by Schedule A-1 thereto, a copy of which Schedule A-1
being attached hereto as Exhibit C), Bankers Trust Company, a New
York banking corporation, as successor in interest under the
Indenture to [First Trust Company of California, National
Association, as successor Corporate Indenture Trustee to Bankers
Trust Company of California, National Association/BankAmerica
National Trust Company (formerly Security Pacific National Trust
Company (New York))/] (the "Corporate Indenture Trustee" and, for
all purposes of the Indenture except as may be required pursuant
to Section 7.03(c) of the Original Indenture, the "Indenture
Trustee"), and Stanley Burg, as successor in interest under the
Indenture to [Lisa D. Jones, as successor Individual Indenture
Trustee to Cecil D. Bobey/Ralph A. Marinello, as successor
Individual Indenture Trustee to Kenneth T. McGraw] (the
"Individual Indenture Trustee" and, solely as may be required
pursuant to Section 7.03(c) of the Original Indenture, the
"Indenture Trustee"), each having its principal office and
mailing address at Four Albany Street, New York, New York 10006,
Attention: Corporate Trust and Agency_Public Utilities Group.
WITNESSETH:
Whereas, the Owner Trustee and the Lessee executed and
delivered to the Indenture Trustee the Original Indenture and
Supplemental Indenture No. 1 pursuant to which the Owner Trustee
issued the Initial Series Bonds;
Whereas, Section 1.03 of Supplemental Indenture No. 1 provides
that the Initial Series Bonds may be subject to redemption, on
and after July 2, 1994, at the option of the Owner Trustee, in
whole at any time or in part from time to time, at the Redemption
Prices set forth therein;
Whereas, the original Indenture Trustee and the successor
Indenture Trustee have executed and delivered, and the Owner
Trustee and the Lessee have acknowledged and accepted, an
instrument in substantially the form of Exhibit B hereto, under
which the original Indenture Trustee has resigned its appointment
as Indenture Trustee and the successor Indenture Trustee has
accepted its appointment as successor Indenture Trustee,
effective upon the effectiveness of this Supplemental Indenture
No. 2;
Whereas, the Owner Trustee desires to issue Additional Bonds to
or upon the order of Funding Corporation as an integral step in
the refunding of the Initial Series Bonds and to enter into this
Supplemental Indenture No. 2 to establish the terms, conditions,
designations and forms of such Additional Bonds;
Whereas, the parties hereto further desire to enter into this
Supplemental Indenture No. 2 in order to evidence the succession
of the new Indenture Trustee and to amend the Indenture in a
number of respects in light of the execution and delivery of the
Collateral Trust Indenture and the issuance by Funding
Corporation of Collateral Bonds in connection with the refunding
of the Initial Series Bonds;
Whereas, Section 10.01 of the Original Indenture provides that,
without the consent of the Holders of any Bonds, the parties
thereto at any time and from time to time may enter into one or
more supplements to the Original Indenture in order to establish
the form and terms of Bonds of any series permitted by Sections
2.01 and 2.04 of the Original Indenture, to evidence the
succession of a new trustee or co-trustee under the Indenture,
and (subject to the limitations provided therein) to change or
eliminate any provision of the Indenture;
Whereas, all action on the part of the Owner Trustee necessary
to authorize the execution and delivery of this Supplemental
Indenture No. 2 and the issuance of the aforesaid Bonds has been
duly taken; and
Whereas, all acts and things necessary (x) to make the Bonds of
the series herein created and established, when executed by the
Owner Trustee and authenticated and delivered by the Indenture
Trustee as provided in the Original Indenture, the legal, valid
and binding obligations of the Owner Trustee and (y) to
constitute these presents a valid and binding supplemental
indenture and agreement according to its terms have been done and
performed, and the execution of this Supplemental Indenture No. 2
and the creation and issuance under the Indenture of such Bonds
have in all respects been duly authorized;
Now, Therefore, in order to establish the form and terms, and
to authorize the authentication and delivery, of the Bonds of the
series herein created and established, and in consideration of
the premises, of the purchase of such Bonds by the Holders
thereof and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Owner
Trustee covenants and agrees with the Indenture Trustee, for the
equal and proportionate benefit of the respective Holders from
time to time of the Bonds, as follows:
ARTICLE ONE
Amendments to Indenture
Section 1.01. Amendments.
(a) The Indenture is hereby amended by deleting the Lessee
as a party thereto and the "Reconciliation and Tie" included
therewith. The Indenture is hereby further amended in the
following respects:
(b) Article One is amended as follows:
(1) Section 1.01 is deleted and the following inserted
in lieu thereof:
"Section 1.01. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided herein or
unless the context otherwise requires:
(a) capitalized terms used herein and not
defined herein have the respective meanings specified
in Appendix A hereto as modified by Schedule A-1
thereto, and the rules of construction specified in
such Appendix are applicable to this Indenture; and
(b) all accounting terms not otherwise
defined herein have the meanings assigned to them in
accordance with generally accepted accounting
principles."
(2) Paragraph (a) of Section 1.04 is deleted and the
following inserted in lieu thereof:
"(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by
Holders shall be embodied in and evidenced by one or
more instruments of substantially similar tenor, signed
by such Holders in person or by an agent duly appointed
in writing. Except as herein otherwise expressly
provided, such action shall become effective when such
instrument or instruments are delivered to the
Indenture Trustee and, where it is hereby expressly
required, to the Owner Trustee and the Lessee. Such
instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this
Indenture and, subject to Section 8.01, conclusive in
favor of the Indenture Trustee, the Owner Trustee and
the Lessee."
(3) Section 1.05 is deleted and the following inserted
in lieu thereof:
"Section 1.05. Notices, etc. to Indenture Trustee,
Lessee, Owner Trustee and Owner Participant. Any request,
demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or
filed with:
(a) the Indenture Trustee by any Holder, by
the Owner Trustee or by the Lessee shall be sufficient
for every purpose hereunder if in writing and mailed,
first-class postage prepaid, to the Indenture Trustee
addressed to it at the address of the Corporate Trust
Office; or
(b) the Owner Trustee by the Indenture
Trustee, by any Holder or by the Lessee shall be
sufficient for every purpose hereunder if in writing
and mailed, first-class postage prepaid, to the Owner
Trustee addressed to it at the address of its principal
office specified in the first paragraph of this
instrument or at any other address previously furnished
in writing to the Indenture Trustee and the Lessee by
the Owner Trustee for such purpose; or
(c) the Lessee by the Indenture Trustee, by
any Holder or by the Owner Trustee shall be sufficient
for every purpose hereunder if in writing and mailed,
first-class postage prepaid, to the Lessee addressed to
it at the address of its principal office specified in
the first paragraph of this instrument or at any other
address previously furnished in writing to the
Indenture Trustee and the Owner Trustee by the Lessee
for such purpose; or
(d) the Owner Participant by the Indenture
Trustee, by any Holder or by the Lessee shall be
sufficient for every purpose hereunder if in writing
and mailed, first-class postage prepaid, to the Owner
Participant addressed to it at its address specified in
Section 17 of the Participation Agreement or at any
other address previously furnished in writing to the
Lessee or the Indenture Trustee for such purpose."
(4) The text of Section 1.07 is deleted and the
caption "[Reserved]" is inserted in lieu of the existing caption,
"Conflict with Trust Indenture Act."
(5) Section 1.13 is deleted and the following inserted
in lieu thereof:
"Section 1.13. Legal Holidays. In the event that any
payment to be made hereunder or in respect of the Bonds of
any series is stated to be due on a day that is not a
Business Day, then such payment shall be due and payable on
the next succeeding Business Day with the same force and
effect as if made on the date on which such payment was
stated to be due, and no interest shall accrue for the
period from and after such stated due date."
(c) Article Two is amended as follows:
(1) Paragraph (b) of Section 2.02 is deleted and the
following inserted in lieu thereof:
"(b) No Bond shall be secured by or entitled
to any benefit under this Indenture or be valid or
obligatory for any purpose hereunder unless there
appears on such Bond a certificate of authentication,
substantially in the form provided above, executed
manually by the Indenture Trustee by an Authorized
Officer thereof, and such certificate upon any Bond
shall be conclusive evidence, and the only evidence,
that such Bond has been duly authenticated and
delivered hereunder."
(2) Section 2.04(b) is deleted and the following
inserted in lieu thereof:
"(b) The Bonds may be issued in one or more
series. The terms, conditions, designations and forms
of the Bonds of any series shall be consistent with the
provisions of this Indenture and shall be established
in the Series Supplemental Indenture creating the Bonds
of such series."
(3) Section 2.05(a)(3) is amended by deleting the text
"(or, if applicable, the Authenticating Agent)" from clause (A)
thereof.
(4) Section 2.06 is deleted and the following inserted
in lieu thereof:
"Section 2.06. Form and Denominations. The Bonds of
any series shall be issued only in fully registered form and
in denominations of original principal amount of $500,000 or
greater, unless otherwise provided in the Series
Supplemental Indenture creating the Bonds of such series."
(5) Section 2.08 is deleted and the following inserted
in lieu thereof:
"Section 2.08. Restrictions on Transfer Resulting from
Federal Securities Laws and ERISA; Legend.
(a) If not prohibited by the Securities Act,
each Bond of any series shall be delivered to the
initial Holder thereof without registration of such
Bond under the Securities Act and without qualification
of this Indenture under the Trust Indenture Act. Prior
to any transfer of any such Bond, in whole or in part,
to any Person other than the Collateral Trust Trustee,
the Holder thereof shall furnish to the Lessee, the
Indenture Trustee, the Owner Participant and the Owner
Trustee either (i) a written representation and
warranty of such Holder to the effect that the
transferee of such Bond and all Persons to which such
Bond shall have been offered are "accredited investors"
or "qualified institutional buyers" within the meaning
of Regulation D or Rule 144A, respectively (or, in each
case, any successor thereto) under the Securities Act,
or (ii) an opinion of counsel to the effect that such
transfer will not violate the registration requirements
of the Securities Act or require the qualification of
this Indenture under the Trust Indenture Act.
Such written representation and warranty and
opinion of counsel, as well as counsel rendering any
such opinion, shall be reasonably satisfactory to the
Lessee, the Indenture Trustee, the Owner Participant
and the Owner Trustee. All Bonds issued hereunder from
time to time without registration thereof under the
Securities Act shall in each case be endorsed with a
legend reading substantially as follows:
This Bond has not been registered under
the Securities Act of 1933, as amended, and may
not be transferred, sold or offered for sale in
violation of such Act.
(b) Prior to any transfer, in whole or in
part, of any Bond issued hereunder without registration
thereof under the Securities Act to any Person other
than the Collateral Trust Trustee, the Holder thereof
shall furnish to the Lessee, the Indenture Trustee, the
Owner Participant and the Owner Trustee a written
representation and warranty to the effect that neither
the transfer of such Bond to, nor the ownership of such
Bond by, such transferee will cause such transferee, or
any such Person, to be engaged in a "prohibited
transaction", as defined in section 406 of ERISA or
section 4975 of the Code, which is not at such time
subject to an exemption contained in ERISA or in the
rules, regulations, releases or bulletins adopted
thereunder."
(6) Section 2.09 is deleted and the following inserted
in lieu thereof:
"Section 2.09. Registration, Transfer and Exchange.
(a) The Indenture Trustee on behalf of the Owner Trustee
shall maintain at the Corporate Trust Office a register
("Bond Register") for the purpose of registration, and
registration of transfer and exchange, of the Bonds by
series in which shall be entered the names and addresses of
the owners of such Bonds and the principal amounts and
serial or other identifying numbers of the Bonds owned by
such Persons. Unless otherwise provided in respect of the
Bonds of a particular series, the Indenture Trustee is
hereby appointed transfer agent and registrar for the Bonds
of all series.
(b) A Holder of a Bond intending to register the
transfer of any Outstanding Bond held by such Holder
(including any transfer in the form of a pledge or
assignment) or to exchange any Outstanding Bond held by such
Holder for a new Bond or Bonds of the same series shall
surrender such Outstanding Bond at the Corporate Trust
Office, duly endorsed and accompanied by the written request
of such Holder or of its attorney duly authorized in writing
(in each case with signatures guaranteed) in form and
substance reasonably satisfactory to the Indenture Trustee,
for the registration of such Bond in the name of any
transferee (including any pledgee or assignee in the case of
a transfer in the form of a pledge or assignment) or for the
issuance of a new Bond or Bonds of the same series,
specifying the authorized denomination or denominations of
any new Bond or Bonds to be issued and the name and address
and taxpayer identification number of the Person or Persons
in whose name or names the Bond or Bonds are to be
registered (either as pledgee or assignee or as owner).
Promptly upon receipt by the Indenture Trustee of the
foregoing and satisfaction of the requirements of paragraph
(d) hereof and Section 2.08, the Indenture Trustee shall
register such Bond or Bonds in the name or names of the
Person or Persons specified in the written request and, if a
new Bond or Bonds are to be issued, the Owner Trustee shall
execute and the Indenture Trustee shall authenticate and
deliver such new Bond or Bonds of the same series, in the
same aggregate principal amount and dated the same date as
the Outstanding Bond surrendered, in the authorized
denomination or denominations specified in the written
request. The Indenture Trustee shall make a notation on
each new Bond of the amount of all payments of principal
theretofore made on the predecessor Bond or Bonds and the
date to which interest on such predecessor Bond or Bonds has
been paid.
(c) Except as otherwise specified in the Series
Supplemental Indenture creating the Bonds of a particular
series, the Indenture Trustee shall not be required to
register transfers or exchanges of the Bonds of any series
on any date fixed for the payment of principal of or
interest on the Bonds of such series or during the fifteen
days preceding any such date.
(d) As a condition to registration of transfer or
exchange of any Bond, the Indenture Trustee and the Owner
Trustee may charge the Holder thereof for any stamp taxes or
governmental charges required to be paid with respect to
such registration of transfer or exchange.
(e) All Bonds issued upon any registration of transfer
or exchange of Bonds shall be the valid obligations of the
Owner Trustee evidencing the same debt, and entitled to the
same security and benefits under this Indenture, as the
Bonds surrendered upon such registration of transfer or
exchange.
(f) All Bonds surrendered to the Indenture Trustee for
registration of transfer or exchange or for payment in full
(whether at the scheduled final maturity thereof, upon
redemption or otherwise) shall be canceled by it; and no
Bonds shall be issued in lieu thereof except as expressly
permitted hereunder. Subject to any Applicable Law to the
contrary, the Indenture Trustee shall destroy canceled Bonds
held by it in accordance with its customary practices in
effect from time to time and deliver a certificate of
destruction to the Owner Trustee. If the Owner Trustee
shall acquire any of the Bonds, such acquisition shall not
operate as a redemption of or the satisfaction of the
indebtedness represented by such Bonds unless and until the
same shall be delivered to the Indenture Trustee for
cancellation.
(g) The Bond Register shall at all reasonable times be
open for inspection by any Holder. Upon receipt of a
written request by any Holder, by the Owner Trustee or by
the Lessee, the Indenture Trustee shall furnish such Person,
at its expense, with a list of the names and addresses of
all Holders entered on the Bond Register, indicating the
series, principal amount and serial or other identifying
number of each Bond held by each such Holder."
(7) Paragraphs (a) and (b) of Section 2.10 are deleted
and the following inserted in lieu thereof:
"(a) If (i) any mutilated Bond is
surrendered to the Indenture Trustee, or the
Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of
any Bond, and (ii) there is delivered to the
Indenture Trustee evidence to its satisfaction of
the ownership and authenticity thereof, and such
security or indemnity as may be required by it to
save it and the Owner Trustee harmless (provided,
however, that if the Holder of such Bond is the
Collateral Trust Trustee, the unsecured written
undertaking thereof, in its individual capacity,
to indemnify the Indenture Trustee and the Owner
Trustee shall constitute sufficient security and
indemnity for such purposes), then, in the absence
of notice to the Indenture Trustee that such Bond
has been acquired by a bona fide purchaser, the
Owner Trustee shall execute and the Indenture
Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Bond, a new Bond of the
same series, in the same original principal amount
and bearing an identification number not
contemporaneously outstanding. The Indenture
Trustee shall make a notation on each such new
Bond of (i) the aggregate amount of all payments
of principal theretofore made on the Bond so
mutilated, destroyed, lost or stolen and (ii) the
date to which interest on such predecessor Bond
has been paid.
(b) [Reserved]"
(8) Section 2.11 is deleted and the following inserted
in lieu thereof:
"Section 2.11. Payments. Except as otherwise
specified in the Series Supplemental Indenture creating the
Bonds of a particular series, the principal of and premium,
if any, and interest on each Bond shall be payable at the
Corporate Trust Office in immediately available funds in
such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of
public and private debts; provided, however, that if so
requested in writing by the Holder of any Bond, all amounts
(other than the final payment) payable with respect to such
obligation shall be paid by crediting the amount to be
distributed to such Holder to an account maintained by it
with the Indenture Trustee or by the Indenture Trustee
transferring such amount by wire transfer of immediately
available funds as soon as practicable but in any event no
later than the close of business on the date of receipt
(assuming the Indenture Trustee has received such funds
prior to 1:00 p.m., New York City time, on the same day) to
such other bank in the United States having an account with
a Federal Reserve Bank, as shall have been specified in such
notice, for credit to the account of such Holder maintained
at such bank, any such credit or transfer pursuant to this
Section to be in immediately available funds, without any
presentment or surrender of such Bond; provided further,
however, that any final payment on any such Bond shall be
made only against presentment and surrender thereof at the
Corporate Trust Office."
(9) The text of Section 2.12 following the caption
"Persons Deemed Owners" is deleted and the following inserted in
lieu thereof:
"The Owner Trustee and the Indenture Trustee shall
deem the Person in whose name any Bond is registered in
the Bond Register as the absolute owner of such Bond
for the purpose of receiving payment of all amounts
payable with respect to such Bond and for all other
purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to
the contrary."
(10) The following section is added to the end of
Article Two:
"Section 2.17. Certain Adjustments to Sinking Fund or
Amortization Schedules. The sinking fund or principal
amortization schedules, as the case may be, and stated
maturity of the Outstanding Bonds of any series may be
adjusted at the discretion of the Owner Trustee under the
circumstances and subject to the conditions set forth in
paragraphs (b) and (c) of Section 2 of the Participation
Agreement; provided, however, that no such adjustment to the
sinking fund or the principal amortization schedules or
stated maturity of the Outstanding Bonds of any series shall
(x) cause the average life of the Bonds of such series
(measured from the date of initial issuance thereof and
calculated in accordance with generally accepted financial
practice) to be decreased or increased by more than six
months, or (y) extend the final maturity of the Bonds of
such series. If it elects to make such an adjustment, the
Owner Trustee shall deliver to the Indenture Trustee and the
Lessee, at least 30 days prior to the first payment date
proposed to be affected by such adjustment, an Officers'
Certificate of the Owner Trustee, prepared by the Owner
Participant and the Lessee, (x) stating that the Owner
Trustee has elected to make such adjustment, (y) attaching
the revised payment schedules for each of the Outstanding
Bonds, and (z) attaching calculations showing that the
average life of the Outstanding Bonds of the series affected
thereby shall not be decreased or increased except as
permitted by this Section. The Indenture Trustee may
conclusively rely on such Owner Trustee certificate and
shall have no duty with respect to the calculations referred
to in the foregoing clause (z), other than to make such
Owner Trustee's certificate available for inspection by each
Holder of Outstanding Bonds of the series affected thereby
at the Corporate Trust Office upon reasonable notice.
Promptly after receipt of such Owner Trustee certificate,
and in any event at least twenty (20) days prior to the
first payment date proposed to be affected thereby, the
Indenture Trustee shall send to each Holder of Outstanding
Bonds of the series affected thereby, in the manner provided
in Section 1.06, a copy of a revised payment schedule for
such Bond after giving effect to such adjustment."
(d) Article Three is amended as follows:
(1) The following is added to the end of paragraph (d)
of Section 3.01:
"; provided, however, that if the
Indenture Trustee has been directed by any Holder
or Holders to make payments by wire transfer
pursuant to Section 2.11, any amounts received by
the Indenture Trustee after 1:00 p.m., New York
City time, may be distributed on the following
Business Day."
(2) The following new section is added to Article
Three:
"Section 3.08. Application of Payments. In
the case of each Bond, each payment on account of
principal thereof or interest thereon or premium, if
any, with respect thereto shall be applied: first, to
the payment of accrued but unpaid interest (including
interest on overdue principal and, to the extent
permitted by law, on overdue interest) on such Bond to
the date of such payment; second, to the payment of the
premium, if any, due with respect to such Bond; third,
to the payment of the principal amount of such Bond
then due and payable other than by virtue of
acceleration; and fourth, the balance remaining, if
any, to the payment of the principal amount of such
Bond remaining unpaid. The amounts paid pursuant to
the preceding clause "fourth" shall be applied to the
installments of principal of such Bond in the reverse
order of their normal maturity."
(e) Article Four is amended as follows:
(1) Section 4.03 is amended in the following respects:
(A) The reference in the first sentence of paragraph (a) to
"or with any Paying Agent" is deleted; (B) paragraph (b) is
deleted; and (C) paragraph (c) is deleted and the following
inserted in lieu thereof:
"(b) [Reserved]"
(c) Any money deposited with the Indenture
Trustee in trust for the payment of the principal of,
and premium, if any, and interest on, any Bond and
remaining unclaimed for three years (or such lesser
period as may be required by law to give effect to this
provision) after such principal, premium, if any, or
interest has become due and payable shall be paid to
the Owner Trustee on Owner Trustee Request (to the
extent such moneys shall have been deposited by the
Owner Trustee) or to any other Person on its written
request (to the extent such moneys shall have been
deposited by such other Person); and the Holder of such
Bond shall thereafter, as an unsecured general
creditor, look only to the Owner Trustee or such other
Person, for payment thereof, and all liability of the
Indenture Trustee with respect to such money shall
thereupon be discharged."
(2) Section 4.04 is deleted and the following inserted
in lieu thereof:
"Section 4.04 [Reserved]"
(3) Paragraph (a) of Section 4.06 is deleted and the
following inserted in lieu thereof:
"(a) Pursuant to Section 9(b)(2) of the
Participation Agreement, the Lessee has covenanted to
maintain the priority of the Lien created by this
Indenture. The Indenture Trustee shall, at the request
and expense of the Lessee as provided in the
Participation Agreement (and upon receipt of the form
of document so to be executed), execute and deliver to
the Lessee and the Lessee shall file, if not already
filed, such financing statements or other documents and
such continuation statements or other documents with
respect to financing statements or other documents
previously filed relating to the Lien created by this
Indenture as may be necessary to protect, perfect and
preserve such Lien. At any time and from time to time,
upon the request of the Lessee or the Indenture
Trustee, at the expense of the Lessee as provided in
the Participation Agreement (and upon receipt of the
form of document so to be executed), the Owner Trustee
shall promptly and duly execute and deliver any and all
such further instruments and documents as the Lessee or
the Indenture Trustee may reasonably request in order
for the Indenture Trustee to obtain the full benefits
of the Lien created or intended to be created hereby
and of the rights and powers herein granted. Upon the
reasonable instructions (which instructions shall be
accompanied by the form of document to be filed) at any
time and from time to time of the Lessee or the
Indenture Trustee, the Owner Trustee shall execute and
file any financing statement (and any continuation
statement with respect to any such financing
statement), any certificate of title or any other
document, in each case relating to the Liens created by
this Indenture, as may be specified in such
instructions. In addition, the Indenture Trustee and
the Owner Trustee shall execute such continuation
statements with respect to financing statements and
other documents relating to the Lien created by this
Indenture as may be reasonably specified from time to
time in written instructions of any Holder (which
instructions may, by their terms, be operative only at
a future date and which shall be accompanied by the
form of such continuation statement or other document
so to be filed)."
(4) Section 4.09 is deleted and the following inserted
in lieu thereof:
"Section 4.09. Notices of Default. The Owner Trustee
shall give to the Indenture Trustee, promptly after having
obtained knowledge thereof, notice in the manner provided in
Section 1.05 of any Indenture Default or Indenture Event of
Default."
(5) The first eight words of Section 4.10 following
the caption "Performance of Obligations" are deleted and the
following inserted in lieu thereof:
"The Owner Trustee shall not"
(6) Section 4.12 is deleted and the following inserted
in lieu thereof:
"Section 4.12 [Reserved]"
(f) Article Five is amended as follows:
(1) The following is added to the end of Section
5.01:
"This Article does not apply to
installment payments of principal of the Bonds of
any series as contemplated in Section 6.03."
(2) Subparagraph (5) of Section 5.05(b) is deleted and
the following inserted in lieu thereof:
"(5) if such Bonds are to be redeemed in
full, the place or places where such Bonds are to
be surrendered for payment of the Redemption
Price, and"
(3) The second sentence of Section 5.06 is deleted and
the following inserted in lieu thereof:
"Upon surrender of any such Bond for
redemption in accordance with such notice, such
Bond or portion thereof shall be paid at the
Redemption Price, together with accrued interest,
if any, to the Redemption Date."
(4) Section 5.07 is deleted and the following inserted
in lieu thereof:
"Section 5.07. Bonds Redeemed in Part. Any Bond which
is to be redeemed only in part may be surrendered at the
Corporate Trust Office (with, if the Owner Trustee or
Indenture Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Owner Trustee and the Indenture Trustee duly executed by,
the Holder thereof or his attorney duly authorized in
writing), and the Lessee shall cause to be prepared, the
Owner Trustee shall execute, and the Indenture Trustee shall
authenticate and deliver to the Holder of such Bond, without
service charge, a new Bond or Bonds of the same series, in
any authorized denomination requested by such Holder and in
an aggregate unpaid principal amount equal to and in
exchange for the unredeemed portion of the principal of the
Bond so surrendered."
(g) Article Six is deleted and the following inserted in
lieu thereof:
"ARTICLE SIX
Sinking Funds; Installment Payments
Section 6.01. Applicability of Article. The
provisions of this Article shall apply (x) to any sinking
fund established for the retirement of the Bonds of a
particular series and (y) to the Bonds of any series the
principal of which is subject to amortization in
installments.
Section 6.02. Sinking Funds. (a) Any Series
Supplemental Indenture may provide for a sinking fund for
the retirement of the Bonds of the series created thereby (a
"Sinking Fund"), in accordance with which the Owner Trustee
shall be required to redeem on the respective dates
specified in or pursuant to such Series Supplemental
Indenture (any such date, a "Sinking Fund Redemption Date")
corresponding principal amounts of the Bonds of such series
(any such corresponding amount, a "Sinking Fund
Requirement").
(b) If there shall have been a redemption, otherwise
than pursuant to a Sinking Fund, of less than all the Bonds
of a series to which a Sinking Fund is applicable (such
redeemed Bonds being hereinafter called the "Redeemed
Bonds"), the Sinking Fund Requirements applicable to the
Bonds of such series for each Sinking Fund Redemption Date
thereafter shall be deemed to have been satisfied to the
extent of an amount equal to the quotient resulting from the
division of (1) the product of (A) the principal amount of
the Redeemed Bonds and (B) such Sinking Fund Requirement by
(2) the sum of (C) the aggregate principal amount of Bonds
of such series then Outstanding (after giving effect to such
redemption) and (D) the principal amount of such Redeemed
Bonds; provided, however, that the remaining Sinking Fund
Requirements determined as set forth in this paragraph shall
be rounded to the nearest integral multiple of $1,000,
subject to further necessary adjustment so that the
aggregate principal amount of such satisfaction of Sinking
Fund Requirements shall be equal to the aggregate principal
amount of such Redeemed Bonds, such adjustment to such
Sinking Fund Requirements to be made in the inverse order of
the respective Sinking Fund Redemption Dates corresponding
thereto.
(c) Particular Bonds to be redeemed pursuant to a
Sinking Fund shall be selected in the manner provided in
Section 5.04, and notice of such redemption shall be given
in the manner provided in Section 5.05.
Section 6.03. Installment Payments. (a) Any Series
Supplemental Indenture may provide for the amortization of
the principal amount of the Bonds of the series created
thereby through installment payments of the principal of
each Bond of such series, in accordance with which the Owner
Trustee shall be required to pay on the respective dates
specified in or pursuant to such Series Supplemental
Indenture (any such date, an "Amortization Date")
corresponding installments of principal of each Bond of such
series (any such installment payment of principal, an
"Amortization Requirement").
(b) If there shall have been a redemption (any
installment payment pursuant to this Section 6.03 not being
considered for such purpose a redemption) of less than all
the Bonds of a series subject to installment payments as
contemplated in this Section (such redeemed Bonds being
hereinafter called the "Redeemed Bonds"), the Amortization
Requirements applicable to the Bonds of such series for each
Amortization Date thereafter shall be deemed to have been
satisfied to the extent of an amount equal to the quotient
resulting from the division of (1) the product of (A) the
principal amount of the Redeemed Bonds and (B) such
Amortization Requirement by (2) the sum of (C) the aggregate
principal amount of Bonds of such series then Outstanding
(after giving effect to such redemption) and (D) the
principal amount of the Redeemed Bonds; provided, however,
that the remaining Amortization Requirements determined as
set forth in this paragraph shall be rounded to the nearest
integral multiple of $1,000, subject to further necessary
adjustment so that the aggregate principal amount of such
satisfaction of Amortization Requirements shall be equal to
the aggregate principal amount of such Redeemed Bonds, such
adjustment to such Amortization Requirements to be made in
the inverse order of the respective Amortization Dates
corresponding thereto. In connection with any such
adjustments to the Amortization Requirements, the Owner
Trustee shall deliver to the Indenture Trustee, not later
than 30 days prior to the next Amortization Date following
such partial redemption, a revised schedule, prepared by the
Lessee and approved by the Owner Participant, setting forth
the Amortization Requirements for the Bonds commencing with
the first Amortization Date following such partial
redemption. The Indenture Trustee may conclusively rely on
such revised schedule and shall have no duty with respect to
the adjustments set forth therein, other than to make such
revised schedule available for inspection by the Holders of
the Bonds affected thereby."
(h) Article Eight is amended as follows:
(1) Section 8.01 is deleted and the following inserted
in lieu thereof:
"Section 8.01. Certain Duties and Responsibilities;
Standard of Care. (a) The Indenture Trustee shall perform
such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Indenture Trustee. No provision of this Indenture shall
require the Indenture Trustee to expend or risk its own
funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers hereunder, if it
shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(b) The Indenture Trustee shall not be liable
hereunder except for its own willful misconduct or gross
negligence. The foregoing notwithstanding, if an Indenture
Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct
of his own affairs.
(c) In the absence of bad faith on its part:
(1) the Indenture Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture
Trustee and conforming to the requirements of this
Indenture; provided, however, that in the case of any
such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the
Indenture Trustee, the Indenture Trustee shall be under
a duty to examine the same to determine whether they
conform to the requirements of this Indenture; and
(2) the Indenture Trustee shall not be
liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Bonds of
all series, considered as one class, relating to (A)
the time, method and place of conducting any proceeding
for any remedy available to the Indenture Trustee under
this Indenture or (B) the exercise by it of any trust
or power conferred upon it under this Indenture.
(d) Whether or not herein expressly so provided, every
provision of this Indenture relating to the conduct or
affecting the liability of, or affording protection to, the
Indenture Trustee shall be subject to the provisions of this
Section."
(2) Section 8.03 following the caption "Certain Rights
of Indenture Trustee" is deleted and the following inserted in
lieu thereof:
"Except as otherwise provided in Section 8.01:
(a) the Indenture Trustee may rely and shall
be protected in acting or refraining from acting in
reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to
have been signed or presented by the proper party or
parties;
(b) any request or direction of the Owner
Trustee mentioned herein shall be sufficiently
evidenced by an Owner Trustee Request or Owner Trustee
Order and any request of the Lessee shall be
sufficiently evidenced by a Lessee Request or Lessee
Order;
(c) whenever in the administration of this
Indenture the Indenture Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Indenture Trustee (unless other evidence be herein
specifically prescribed) shall be entitled to reserve
and may, in the absence of bad faith on its part, rely
upon an Officers' Certificate of the Owner Trustee;
(d) the Indenture Trustee may consult with
counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance
thereon;
(e) the Indenture Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this
Indenture, except to the extent that such Holders shall
have offered to the Indenture Trustee security or
indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it
in compliance with such request or direction; provided,
however, that if the Holder of such Bonds is the
Collateral Trust Trustee, the unsecured written
undertaking thereof, in its individual capacity, to
indemnify the Indenture Trustee shall constitute
sufficient security and indemnity for such purposes;
(f) the Indenture Trustee shall not be bound
to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other
paper or document, but the Indenture Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Indenture Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Owner Trustee, personally or by agent or attorney;
(g) the Indenture Trustee may at any time
request written instructions from the Holders of the
Bonds with respect to any interpretation of this
Indenture or any action to be taken or not to be taken
hereunder and, except as otherwise contemplated in
Section 2.11, may withhold any action under this
Indenture until it shall have received such written
instructions from the Holders of a majority in
aggregate principal amount of the Outstanding Bonds of
all series, considered as one class, evidenced by an
Act of such Holders;
(h) the Indenture Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or, by or through agents or
attorneys appointed by it in writing and acceptable to
the Owner Trustee and the Lessee, indirectly, and the
Indenture Trustee shall not be responsible for any
misconduct or negligence on the part of any such
authorized agent or attorney appointed with due care by
it and as otherwise hereinabove provided;
(i) the Indenture Trustee shall not be
personally liable, in the case of entry by it upon the
Indenture Estate, for debts, contracts or liabilities
or damages incurred in the management or operation of
the Indenture Estate; and
(j) for all purposes of this Indenture, the
Indenture Trustee shall not be deemed to have knowledge
of the occurrence of any Indenture Default or Indenture
Event of Default unless either (1) notice thereof shall
have been given to the Indenture Trustee in the manner
provided in Section 1.05 or (2) a Responsible Officer
of the Corporate Indenture Trustee shall have actual
knowledge of the occurrence thereof; provided, however,
that the Indenture Trustee shall be deemed to have
knowledge of any failure of the Lessee to pay any
installment of Basic Rent within five Business Days
after the same has become due."
(3) The text of Section 8.05 following the caption
"Indenture Trustee and Authorized Agents May Hold Bonds" is
deleted and the following inserted in lieu thereof:
"The Indenture Trustee and any agent appointed by
the Indenture Trustee or Owner Trustee in accordance
with this Indenture, in its individual or any other
capacity, may become the owner or pledgee of Bonds and,
subject to Sections 8.08 and 8.13, may otherwise deal
with the Owner Trustee with the same rights it would
have if it were not Indenture Trustee or such agent."
(4) Section 8.06 is amended in the following respects: (A)
the reference in the caption to "or Paying Agent" is deleted; (B)
the respective references in paragraph (a) to "or the Paying
Agent" and "nor the Paying Agent" are deleted; and (C) the
reference in paragraph (b) to "or the Paying Agent" is deleted.
(5) Section 8.07 is deleted and the following inserted in
lieu thereof:
"Section 8.07. Compensation and Reimbursement. (a) The
Owner Trustee shall:
(1) pay, or cause to be paid, to the
Indenture Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(2) reimburse, or cause to be reimbursed,
the Indenture Trustee upon its request for all
expenses, disbursements and advances incurred or made
by it in accordance with any provision of this
Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or
advance as may be attributable to its own negligence,
willful misconduct or bad faith; and
(3) indemnify, or cause to be indemnified,
each of the Indenture Trustee and any predecessor
Indenture Trustee (and their respective directors,
officers, agents and employees) for, and hold it
harmless against, any loss, liability or expense
incurred without gross negligence, willful misconduct
or bad faith on its part, arising out of or in
connection with the acceptance or administration of
this trust or the performance of its duties hereunder,
including the costs and expenses of defending itself
against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
(b) As security for the performance of the obligations
of the Owner Trustee under this Section, the Indenture
Trustee shall have a Lien prior to the Bonds upon all funds
and other property held or collected by it as part of the
Indenture Estate.
(c) The provisions of paragraph (a) apply equally to
any agent appointed by the Indenture Trustee or Owner
Trustee hereunder in accordance with the provisions hereof."
(6) Section 8.08 is deleted and the following inserted in
lieu thereof:
"Section 8.08 [Reserved]"
(7) The text of Section 8.09 following the caption is
deleted and the following inserted in lieu thereof:
"There shall at all times be an Indenture Trustee
hereunder that is a corporation organized and doing
business under the laws of the United States or any
jurisdiction thereof, authorized under such laws to
exercise corporate trust powers, having a combined
capital and surplus of at least $25,000,000, and
subject to supervision or examination by federal or
state or other local authority. If at any time the
Indenture Trustee ceases to remain eligible in
accordance with the provisions of this Section, it
shall resign immediately in the manner and with the
effect hereinafter specified in this Article."
(8) Paragraphs (d) and (e) of Section 8.10 are deleted and
the following inserted in lieu thereof:
"(d) if at any time:
(1) the Indenture Trustee ceases to remain
eligible under Section 8.09 and fails to resign after
written request therefor by the Owner Trustee or by any
Holder who has been a bona fide holder of a Bond for at
least six months, or
(2) the Indenture Trustee has become
incapable of acting or has been adjudged a bankrupt or
insolvent or a receiver of the Indenture Trustee or of
its property has been appointed or any public officer
has taken charge or control of the Indenture Trustee or
of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Owner Trustee,
acting after consultation with the Lessee, may remove
the Indenture Trustee or (y) subject to Section 7.11,
any Holder who has been a bona fide Holder of a Bond
for at least six months may, on behalf of himself and
all others similarly situated, petition any court of
competent jurisdiction for the removal of the Indenture
Trustee and the appointment of a successor Indenture
Trustee.
(e) If the Indenture Trustee resigns, is
removed or becomes incapable of acting, or if a vacancy
occurs in the office of Indenture Trustee for any
cause, the Owner Trustee, acting after consultation
with the Lessee, shall promptly appoint a successor
Indenture Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence
of such vacancy, a successor Indenture Trustee has been
appointed by Act of the Holders of not less than a
majority in aggregate principal amount of the
Outstanding Bonds of all series, considered as one
class, delivered to the Lessee, the Owner Trustee and
the retiring Indenture Trustee, the successor Indenture
Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor
Indenture Trustee and supersede the successor Indenture
Trustee appointed by the Lessee. If no successor
Indenture Trustee has been so appointed by the Owner
Trustee, acting after consultation with the Lessee, or
by the Holders, and has accepted appointment in the
manner hereinafter provided, any Holder who has been a
bona fide Holder of a Bond for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee."
(9) Section 8.13 is deleted and the following inserted in
lieu thereof:
"Section 8.13. [Reserved]"
(10) Section 8.14 is deleted and the following inserted in
lieu thereof:
"Section 8.14. [Reserved]"
(11) Section 8.15 is amended in the following respects:
(A) Paragraph (a) is deleted and the following
inserted in lieu thereof:
"(a) If at any time or times it shall be
necessary or prudent in order to conform to any law of
any jurisdiction in which property shall be held
subject to the Lien hereof, or the Indenture Trustee
shall be advised by counsel, satisfactory to it, that
it is so necessary or prudent in the interest of the
Holders, or the Holders of a majority in aggregate
principal amount of the Outstanding Bonds of all
series, considered as one class, shall by Act of such
Holders so request, the Indenture Trustee and the Owner
Trustee shall execute and deliver all instruments and
agreements necessary or proper to constitute another
bank or trust company or one or more Persons approved
by the Indenture Trustee either to act as co-trustee or
co-trustees of all or any part of the Indenture Estate
jointly with the Indenture Trustee originally named
herein or any successor or successors or to act as
separate trustee or trustees of all or any such
property. In the event the Owner Trustee shall not
have joined in the execution of such instruments and
agreements within ten days after the receipt of a
written request from the Indenture Trustee so to do, or
in case an Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee may
act under the foregoing provisions of this Section
without the concurrence of the Owner Trustee, and the
Owner Trustee hereby appoints the Indenture Trustee its
agent and attorney to act for it under the foregoing
provisions of this Section in either of such
contingencies."
(B) Subparagraph (b)(5) is deleted and the following
inserted in lieu thereof:
"(5) the Owner Trustee and the Indenture
Trustee, at any time, by an instrument in writing,
executed by them jointly, may remove any such
additional trustee or trustees and, in that case, by an
instrument in writing executed by them jointly, may
appoint a successor or successors to such additional
trustee or trustees, anything herein to the contrary
notwithstanding; provided, however, that if the Owner
Trustee and the Indenture Trustee remove any such
additional trustee which has been appointed at the
request of the Holders pursuant to subsection (a) of
this Section, then such parties shall appoint a
successor or successors to such additional trustee so
removed unless the Holders of a majority in aggregate
principal amount of the Outstanding Bonds of all
series, considered as one class, shall have agreed in
writing that no such successor or successors need be
appointed. In the event that the Owner Trustee shall
not have joined in the execution of any such instrument
within ten days after the receipt of a written request
from the Indenture Trustee to do so, the Indenture
Trustee shall have power to remove any such additional
trustee and to appoint a successor additional trustee
without the concurrence of the Owner Trustee, the
latter hereby appointing the Indenture Trustee its
agent and attorney to act for it in such connection in
such contingency. In the event that the Indenture
Trustee alone shall have appointed an additional
trustee or trustees as above provided, it may at any
time, by an instrument in writing, remove any such
additional trustee or trustees, the successor to any
such additional trustee so removed to be appointed by
the Owner Trustee and the Indenture Trustee, or by the
Indenture Trustee alone, as hereinbefore in this
Section provided."
(i) Article Nine is deleted and the following inserted in
lieu thereof:
"ARTICLE NINE
[Reserved]"
(j) Article Ten is amended as follows:
(1) Section 10.01 is amended in the following
respects:
(A) the text preceding subparagraphs (a) through (l)
is amended to delete the text "the Lessee,";
(B) subparagraph (b) is deleted and the following
inserted in lieu thereof:
"(b) to evidence the succession of another
bank or trust company to the Owner Trustee, and the
assumption by any such successor of the covenants of
the Owner Trustee herein and in the Bonds contained, or
to evidence the appointment of a co-trustee pursuant to
the terms of the Trust Agreement;"
(C) subparagraph (e) is deleted and the following
inserted in lieu thereof:
"(e) to add to the covenants of the Owner
Trustee for the benefit of the Holders or to evidence
the surrender of any right or power herein conferred
upon the Owner Trustee;"
(D) subparagraph (g) is deleted and the following
inserted in lieu thereof:
"(g) to modify, eliminate or add to the
provisions of this Indenture to such extent as shall be
necessary to qualify or continue the qualification of
this Indenture (including any Series Supplemental
Indenture) under the Trust Indenture Act, or under any
similar federal statute hereafter enacted, or to add to
this Indenture such other provisions as may be
expressly permitted by the Trust Indenture Act;"
(2) Section 10.02 is amended in the following
respects:
(A) Paragraph (a) is amended by deleting from the
phrase "the Owner Trustee and the Lessee may" in the
text preceding the first proviso the words "and the
Lessee"; and
(B) the text ", or reduce the requirements of
Section 12.04 for quorum or voting" at the end of
subparagraph (a)(3) is deleted.
(3) Section 10.08 is deleted and the following
inserted in lieu thereof:
"Section 10.08. [Reserved]"
(4) Section 10.09 is amended by deleting (A) the
references in the first sentence thereof to,
respectively, "or the Lessee" and "and the Lessee", and
(B) the reference in the second sentence thereof to "or
the Lessee", together with the text ", the Lessee".
(k) Article Eleven is amended as follows:
(1) Paragraph (a) of Section 11.01 is amended by
deleting clause (z) thereof.
(2) Paragraph (e) of Section 11.01 is deleted and the
following inserted in lieu thereof:
"(e) Notwithstanding the satisfaction and
discharge of any Bonds as hereinabove provided, the
respective obligations of the Owner Trustee and the
Indenture Trustee in respect of such Bonds under
Sections 2.09, 2.10, 4.03 and 8.07 and this Article
shall survive."
(3) Paragraph (c) of Section 11.02 is deleted and the
following inserted in lieu thereof:
"(c) Notwithstanding the satisfaction and
discharge of any Bonds as hereinabove provided, the
respective obligations of the Owner Trustee and the
Indenture Trustee in respect of such Bonds under
Sections 2.09, 2.10, 4.03 and 8.07 and this Article
shall survive."
(l) Article Twelve is deleted and the following inserted in
lieu thereof:
"ARTICLE TWELVE
[Reserved]"
(m) Appendix A to the Indenture is hereby amended as set
forth in Schedule A-1 attached hereto.
ARTICLE TWO
Terms Of
The Refunding Bonds
Section 2.01 The Refunding Bonds.
(a) There are hereby created and established two separate
series of Additional Bonds designated, respectively, "Waterford 3
Secured Lease Obligation Bonds, % Series [B/C] due ____" (the
"Series [B/C] ____ Bonds") and "Waterford 3 Secured Lease
Obligation Bonds, % Series [B/C] due ____" (the "Series
[B/C] ____ Bonds"; and, together with the Series [B/C] ____
Bonds, the "Refunding Bonds"). The Refunding Bonds of each
series shall be issued in the aggregate principal amounts, shall
bear interest at the rates per annum and shall have the final
maturities set forth below:
Original
Principal Interest Final
Amount Rate Maturity
Series [B/C] Bonds $ % ______ __,
Series [B/C] Bonds $ ______ __,
The Series [B/C] ____ Bonds and the Series [B/C] Bonds
shall be substantially in the forms of Exhibits A-1 and A-2
hereto, respectively.
(b) Each Refunding Bond shall bear interest on the
principal amount thereof from time to time outstanding from the
Issue Date designated thereon until paid in full at the rate of
interest set forth therein, which interest shall be payable on
_________ 2, 199_ and on each ____ 2 and ____ 2 thereafter to and
including the final maturity date thereof, unless paid in full
prior to such date as provided herein and in the Refunding Bond.
(c) The original principal amount of each Refunding Bond
shall be payable in installments on the dates and in the amounts
set forth in Schedule 1 attached thereto, as such Schedule may be
adjusted from time to time in accordance with the provisions of
the Indenture and of such Refunding Bond. Installments of
principal of and premium, if any, and interest on each Refunding
Bond shall be due and payable on the payment dates specified in
Schedule 1 attached thereto.
(d) Each Refunding Bond shall be subject to redemption as
set forth in such Refunding Bond. There shall not be a Sinking
Fund for the Refunding Bonds of either series.
ARTICLE THREE
Miscellaneous
Section 3.01 Execution as Supplemental Indenture.
This Supplemental Indenture No. 2 is executed and shall be
construed as an indenture supplemental to the Indenture and, as
provided in the Original Indenture, this Supplemental Indenture
No. 2 forms a part thereof.
Section 3.02 Counterpart Execution.
This Supplemental Indenture No. 2 may be executed in any
number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 3.03 Concerning the Owner Trustee.
Anything herein to the contrary notwithstanding, all and
each of the agreements and obligations herein made or undertaken
on the part of the Owner Trustee are made or undertaken not as
personal agreements by the Owner Trustee in its individual
capacity for the purpose or with the intention of binding it
personally, but are made or undertaken solely for the purpose of
binding only the Trust Estate, and this Supplemental Indenture
No. 2 is executed and delivered by the Owner Trustee in its
individual capacity solely in the exercise of the powers
expressly conferred upon it as trustee under the Trust Agreement;
and no personal liability or responsibility is assumed hereunder
by or shall at any time be enforceable against the Owner Trustee
or any successor in trust or the Owner Participant on account of
any agreements hereunder of the Owner Trustee, either express or
implied, all such personal liability, if any, being expressly
waived by the Indenture Trustee and the Holders and by all
Persons claiming by, through or under the Indenture Trustee and
the Holders; provided, however, that the Owner Trustee, in its
individual capacity, shall be liable hereunder for its own gross
negligence or willful misconduct. If a successor owner trustee
is appointed in accordance with the terms of the Trust Agreement,
such successor owner trustee shall,without any further act,
succeed to all the rights, duties, immunities and obligations of
the Owner Trustee hereunder, and its predecessor owner trustee
and the Owner Trustee in its individual capacity shall be
released from all further duties and obligations hereunder,
without prejudice to any claims against the Owner Trustee in its
individual capacity or the Owner Trustee for any default by the
Owner Trustee in its individual capacity or the Owner Trustee,
respectively, in the performance of its obligations hereunder
prior to such appointment.
<PAGE>
In Witness Whereof, the parties hereto have caused this
Supplemental Indenture No. 2 to be duly executed by their
respective officers thereunto authorized, and their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
Attest:
First National Bank of Commerce, not
in its individual capacity,
except as otherwise expressly
provided in the Indenture, but
solely as Owner Trustee
[Seal]
By:
Name:
Title:
Attest:
Bankers Trust Company, as
successor Corporate Indenture
Trustee
[Seal]
By:
Name:
Title:
Stanley Burg,
as successor Individual Indenture Trustee
<PAGE>
ACKNOWLEDGMENT
State Of )
) ss.:
County Of )
On this ___ day of _________, 199_, before me, the
undersigned Notary Public, duly commissioned and qualified within
the State and County aforesaid, and in the presence of the
undersigned competent witnesses, personally came and appeared
____________, to me personally known, who being by me duly sworn
did say that ____ is a ________________________________ of First
National Bank of Commerce, a national banking association, the
Owner Trustee referred to in the foregoing instrument, that the
seal affixed to the foregoing instrument is the seal of said
national banking association, that said instrument was signed and
sealed on behalf of said association by authority of its Board of
Directors and that ____ acknowledged said instrument to be the
free act and deed of said national banking association.
[signature of appearer]
WITNESSES:
Notary Public
My Commission Expires:
<PAGE>
ACKNOWLEDGMENT
State Of )
) ss.:
County Of )
On this ___ day of _________, 199_, before me, the
undersigned Notary Public, duly commissioned and qualified within
the State and County aforesaid, and in the presence of the
undersigned competent witnesses, personally came and appeared
___________, to me personally known, who being by me duly sworn
did say that _____ is a ______________ of Bankers Trust Company,
a New York banking corporation, successor Corporate Indenture
Trustee under the foregoing instrument, that the seal affixed to
the foregoing instrument is the seal of said corporation, that
said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors and that _____
acknowledged said instrument to be the free act and deed of said
corporation.
[signature of appearer]
WITNESSES:
Notary Public
My Commission Expires:
<PAGE>
ACKNOWLEDGMENT
State Of )
) ss.:
County Of )
On this ___ day of _________, 199_, before me, the
undersigned Notary Public, duly commissioned and qualified within
the State and County aforesaid, and in the presence of the
undersigned competent witnesses, personally came and appeared
Stanley Burg to me personally known, who being by me duly sworn
did say that he is the successor Individual Indenture Trustee
under the foregoing instrument and that in his capacity as such
he executed the foregoing instrument.
[signature of appearer]
WITNESSES:
Notary Public
My Commission Expires:
<PAGE>
EXHIBIT C
TO
SUPPLEMENTAL INDENTURE NO. 2
[Schedule A-1 to Appendix A (Definitions)]
<PAGE>
EXHIBIT A-1
TO
SUPPLEMENTAL INDENTURE NO. 2
FORM OF REFUNDING BOND
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN
VIOLATION OF SUCH ACT
WATERFORD 3 SECURED LEASE
OBLIGATION BOND, __% SERIES [B/C]
DUE ____
(DUE __________ 2, ____)
Issue Date: ________
No. R-__
FOR VALUE RECEIVED, FIRST NATIONAL BANK OF COMMERCE,
not in its individual capacity, but solely as trustee ("Owner
Trustee") under Trust Agreement No. [2/3], dated as of September
1, 1989, with ESSL 2, Inc. (the "Owner Participant"), hereby
promises to pay to _______________________, or registered
assigns, the principal sum of _________________________________
DOLLARS ($________), such payment to be made in the amounts and
on the dates specified in Schedule 1 hereto, as such Schedule 1
may be revised in accordance herewith, and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months)
on the aggregate amount of such principal sum remaining unpaid
from time to time from the date of issuance of this Bond until
due and payable, semiannually in arrears on ________ 2 and
________ 2 in each year, commencing ________ 2, 199_, at the rate
of _____% per annum, until the principal amount hereof is paid in
full.
Capitalized terms used in this Bond and not defined
herein have the respective meanings ascribed thereto in
Supplemental Indenture No. 2 to the Original Indenture (as
hereinafter defined).
In the event that any payment to be made hereunder is
stated to be due on a day that is not a Business Day, then such
payment shall be due and payable on the next succeeding Business
Day with the same force and effect as if made on the date on
which such payment was stated to be due, and no interest in
respect of such payment shall accrue for the period from and
after such stated due date.
All payments of principal, premium, if any, and
interest to be made by the Owner Trustee hereon and under the
Indenture of Trust and Deed of Mortgage No. [2/3], dated as of
September 1, 1989 (the "Original Indenture"), as supplemented by
Supplemental Indenture No. 1, dated as of September 1, 1989, and
Supplemental Indenture No. 2, dated as of October 1, 1994 (the
Original Indenture as so supplemented, and as it may be further
amended or supplemented from time to time in accordance with the
provisions thereof, being hereinafter referred to as the
"Indenture"), between the Owner Trustee and Bankers Trust Company
and Stanley Burg, as successor Corporate and Individual Indenture
Trustee, respectively (together, the "Indenture Trustee"), shall
be made only from the Indenture Estate and the Trust Estate, and
the Indenture Trustee shall have no obligation for the payment
thereof except to the extent that the Indenture Trustee shall
have sufficient income or proceeds from the Indenture Estate to
make such payments in accordance with the terms of Article Three
of the Indenture. The Holder hereof, by its acceptance of this
Bond, shall be deemed to have agreed that such Holder will look
solely to the Trust Estate and the income and proceeds from the
Indenture Estate to the extent available for distribution to the
Holder hereof as above provided, and that neither the Owner
Participant nor, except as otherwise expressly provided in the
Indenture, the Owner Trustee nor the Indenture Trustee is or
shall be personally liable to the Holder hereof for any amounts
payable under this Bond or for any performance to be rendered
under the Indenture or any other Transaction Document or for any
liability thereunder; provided, however, that in the event that
the Lessee, or the Lessee and an Affiliate thereof, shall have
assumed all the obligations of the Owner Trustee hereunder and
under the Indenture in accordance with Section 2.16 of the
Indenture, the Holder hereof, by its acceptance hereof, is deemed
further to have agreed that all payments to be made hereunder and
otherwise under the Indenture shall be made by the Lessee (or the
Lessee and such Affiliate, as the case may be) and from the
Indenture Estate, and in such event the Holder hereof will look
solely to the Indenture Estate and the Lessee (and, if
applicable, such Affiliate) for such payment.
All principal, premium, if any, and interest in respect
of this Bond shall be payable in immediately available funds in
such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public
and private debts upon presentation of this Bond at the Corporate
Trust Office or as otherwise contemplated by and in accordance
with Section 2.11 of the Indenture.
In the manner and to the extent provided in Section
2.17 of the Indenture, Schedule 1 hereto may be adjusted at the
discretion of the Owner Trustee in connection with certain
recalculations of Basic Rent pursuant to the Facility Lease.
In the event of any partial redemption of this Bond
(the installment payments of principal in accordance with
Schedule 1 hereto not being considered for such purpose a
redemption), the installment payments of principal on this Bond
thereafter shall be adjusted in the manner provided in Section
6.03(b) of the Indenture.
The Holder hereof, by its acceptance of this Bond,
agrees that each payment received by it hereunder shall be
applied in the manner provided in Section 3.08 of the Indenture.
The Holder of this Bond, by its acceptance hereof, further agrees
that it will duly note by appropriate means all payments made to
it of principal of, premium, if any, and interest on this Bond,
and that it will not in any event transfer or otherwise dispose
of this Bond unless and until all such notations have been duly
made and the other requirements of the Indenture have been
complied with.
This Bond is one of the Bonds referred to in the
Indenture. The Indenture permits the issuance of additional
series of Bonds, and the several series may be for varying
aggregate principal amounts and may have different maturity
dates, interest rates, redemption provisions and other terms.
The properties of the Owner Trustee included in the Indenture
Estate are pledged to the Indenture Trustee to the extent
provided in the Indenture as security for the payment of the
principal of and premium, if any, and interest on this Bond and
all other Bonds issued and outstanding from time to time under
the Indenture. Reference is hereby made to the Indenture for a
complete statement of the rights of the Holders of, and the
nature and extent of the security for, this Bond and of the
rights of, and the nature and extent of the security for, the
Holders of the other Bonds and of certain rights of the Owner
Trustee, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and
conditions the Holder hereof agrees by its acceptance of this
Bond.
This Bond is subject to purchase by the Owner Trustee
as provided in Section 7.16 of the Indenture. This Bond is also
subject to redemption in full, at the unpaid principal amount
hereof plus accrued interest to the date fixed for redemption, in
the event of the termination of the Facility Lease pursuant to
Section 13(f) or (g) or Section 14 thereof, or Section 16(d)(5)
of the Participation Agreement, subject, however, except in the
case of a termination pursuant to Section 14 of the Facility
Lease, to the right of the Lessee (or the Lessee and an Affiliate
thereof, as the case may be) to assume this Bond in accordance
with Section 2.16 of the Indenture (in which event there shall be
no redemption of this Bond as a consequence of such termination).
In addition, this Bond may be redeemed, in whole or in
part, at any time at the redemption price of 100% of the unpaid
principal amount of this Bond to be so redeemed, together with
interest accrued to the date fixed for redemption, plus the
Lessor Bond Make-Whole Premium, if any. "Lessor Bond Make-Whole
Premium" shall mean an amount equal to the "Make-Whole Premium"
due on such redemption date on the Refunding Collateral Bonds (as
defined in the Indenture of the series correlative to this Bond
which are in an unpaid principal amount equal to the unpaid
principal to be so redeemed on this Bond.
If an Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Bond and
any other Bonds, together with all accrued but unpaid interest
hereon and thereon, may, subject to certain rights of the Owner
Trustee and the Owner Participant contained or referred to in the
Indenture, be declared or may become due and payable in the
manner and with the effect provided in the Indenture.
The obligation of the Owner Trustee to pay the
principal of and premium, if any, and interest on this Bond, and
the lien of the Indenture or the Indenture Estate, is subject to
being legally discharged prior to the maturity of this Bond upon
the deposit with the Indenture Trustee of cash or certain
securities sufficient to pay this Bond when due in accordance
with the terms of the Indenture.
There shall be maintained at the Corporate Trust Office
a register for the purpose of registering transfers and exchanges
of this and the other Bonds in the manner provided in the
Indenture. Subject to the legend at the head of this Bond and
satisfaction of the conditions provided in Section 2.09(b) of the
Indenture, this Bond is transferable upon surrender hereof for
registration of transfer at the Corporate Trust Office. The
Owner Trustee and the Indenture Trustee shall treat the person in
whose name this Bond is registered as the absolute owner hereof
for the purpose of receiving all payments of the principal of and
premium, if any, and interest on this Bond and for all other
purposes whatsoever, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by notice to the contrary.
This Bond shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the Owner Trustee has caused this
Bond to be duly executed as of the date hereof.
FIRST NATIONAL BANK OF COMMERCE, not in
its individual capacity but solely
as Owner Trustee
By: _______________________________
Title:
This Bond is one of the Waterford 3 Secured Lease
Obligation Bonds, _____% Series [B/C] Due ___________ referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as
Corporate Indenture Trustee
Dated:__________________ By: _______________________________
Title:
<PAGE>
SCHEDULE 1
TO
EXHIBIT A-1
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Date Principal Amount Payable Principal Balance
<PAGE>
EXHIBIT A-2
TO
SUPPLEMENTAL INDENTURE NO. 2
FORM OF REFUNDING BOND
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN
VIOLATION OF SUCH ACT
WATERFORD 3 SECURED LEASE
OBLIGATION BOND, __% SERIES [B/C]
DUE ____
(DUE __________ 2, ____)
Issue Date: ________
No. R-__
FOR VALUE RECEIVED, FIRST NATIONAL BANK OF COMMERCE,
not in its individual capacity, but solely as trustee ("Owner
Trustee") under Trust Agreement No. [2/3], dated as of September
1, 1989, with ESSL 2, Inc. (the "Owner Participant"), hereby
promises to pay to _______________________, or registered
assigns, the principal sum of _________________________________
DOLLARS ($________), such payment to be made in the amounts and
on the dates specified in Schedule 1 hereto, as such Schedule 1
may be revised in accordance herewith, and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months)
on the aggregate amount of such principal sum remaining unpaid
from time to time from the date of issuance of this Bond until
due and payable, semiannually in arrears on ________ 2 and
________ 2 in each year, commencing ________ 2, 199_, at the rate
of _____% per annum, until the principal amount hereof is paid in
full.
Capitalized terms used in this Bond and not defined
herein have the respective meanings ascribed thereto in
Supplemental Indenture No. 2 to the Original Indenture (as
hereinafter defined).
In the event that any payment to be made hereunder is
stated to be due on a day that is not a Business Day, then such
payment shall be due and payable on the next succeeding Business
Day with the same force and effect as if made on the date on
which such payment was stated to be due, and no interest in
respect of such payment shall accrue for the period from and
after such stated due date.
All payments of principal, premium, if any, and
interest to be made by the Owner Trustee hereon and under the
Indenture of Trust and Deed of Mortgage No. [2/3], dated as of
September 1, 1989 (the "Original Indenture"), as supplemented by
Supplemental Indenture No. 1, dated as of September 1, 1989, and
Supplemental Indenture No. 2, dated as of October 1, 1994 (the
Original Indenture as so supplemented, and as it may be further
amended or supplemented from time to time in accordance with the
provisions thereof, being hereinafter referred to as the
"Indenture"), between the Owner Trustee and Bankers Trust Company
and Stanley Burg, as successor Corporate and Individual Indenture
Trustee, respectively (together, the "Indenture Trustee"), shall
be made only from the Indenture Estate and the Trust Estate, and
the Indenture Trustee shall have no obligation for the payment
thereof except to the extent that the Indenture Trustee shall
have sufficient income or proceeds from the Indenture Estate to
make such payments in accordance with the terms of Article Three
of the Indenture. The Holder hereof, by its acceptance of this
Bond, shall be deemed to have agreed that such Holder will look
solely to the Trust Estate and the income and proceeds from the
Indenture Estate to the extent available for distribution to the
Holder hereof as above provided, and that neither the Owner
Participant nor, except as otherwise expressly provided in the
Indenture, the Owner Trustee nor the Indenture Trustee is or
shall be personally liable to the Holder hereof for any amounts
payable under this Bond or for any performance to be rendered
under the Indenture or any other Transaction Document or for any
liability thereunder; provided, however, that in the event that
the Lessee, or the Lessee and an Affiliate thereof, shall have
assumed all the obligations of the Owner Trustee hereunder and
under the Indenture in accordance with Section 2.16 of the
Indenture, the Holder hereof, by its acceptance hereof, is deemed
further to have agreed that all payments to be made hereunder and
otherwise under the Indenture shall be made by the Lessee (or the
Lessee and such Affiliate, as the case may be) and from the
Indenture Estate, and in such event the Holder hereof will look
solely to the Indenture Estate and the Lessee (and, if
applicable, such Affiliate) for such payment.
All principal, premium, if any, and interest in respect
of this Bond shall be payable in immediately available funds in
such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public
and private debts upon presentation of this Bond at the Corporate
Trust Office or as otherwise contemplated by and in accordance
with Section 2.11 of the Indenture.
In the manner and to the extent provided in Section
2.17 of the Indenture, Schedule 1 hereto may be adjusted at the
discretion of the Owner Trustee in connection with certain
recalculations of Basic Rent pursuant to the Facility Lease.
In the event of any partial redemption of this Bond
(the installment payments of principal in accordance with
Schedule 1 hereto not being considered for such purpose a
redemption), the installment payments of principal on this Bond
thereafter shall be adjusted in the manner provided in Section
6.03(b) of the Indenture.
The Holder hereof, by its acceptance of this Bond,
agrees that each payment received by it hereunder shall be
applied in the manner provided in Section 3.08 of the Indenture.
The Holder of this Bond, by its acceptance hereof, further agrees
that it will duly note by appropriate means all payments made to
it of principal of, premium, if any, and interest on this Bond,
and that it will not in any event transfer or otherwise dispose
of this Bond unless and until all such notations have been duly
made and the other requirements of the Indenture have been
complied with.
This Bond is one of the Bonds referred to in the
Indenture. The Indenture permits the issuance of additional
series of Bonds, and the several series may be for varying
aggregate principal amounts and may have different maturity
dates, interest rates, redemption provisions and other terms.
The properties of the Owner Trustee included in the Indenture
Estate are pledged to the Indenture Trustee to the extent
provided in the Indenture as security for the payment of the
principal of and premium, if any, and interest on this Bond and
all other Bonds issued and outstanding from time to time under
the Indenture. Reference is hereby made to the Indenture for a
complete statement of the rights of the Holders of, and the
nature and extent of the security for, this Bond and of the
rights of, and the nature and extent of the security for, the
Holders of the other Bonds and of certain rights of the Owner
Trustee, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and
conditions the Holder hereof agrees by its acceptance of this
Bond.
This Bond is subject to purchase by the Owner Trustee
as provided in Section 7.16 of the Indenture. This Bond is also
subject to redemption in full, at the unpaid principal amount
hereof plus accrued interest to the date fixed for redemption, in
the event of the termination of the Facility Lease pursuant to
Section 13(f) or (g) or Section 14 thereof, or Section 16(d)(5)
of the Participation Agreement, subject, however, except in the
case of a termination pursuant to Section 14 of the Facility
Lease, to the right of the Lessee (or the Lessee and an Affiliate
thereof, as the case may be) to assume this Bond in accordance
with Section 2.16 of the Indenture (in which event there shall be
no redemption of this Bond as a consequence of such termination).
In addition, this Bond may be redeemed, in whole or in
part, at any time at the redemption price of 100% of the unpaid
principal amount of this Bond to be so redeemed, together with
interest accrued to the date fixed for redemption, plus the
Lessor Bond Make-Whole Premium, if any. "Lessor Bond Make-Whole
Premium" shall mean an amount equal to the "Make-Whole Premium"
due on such redemption date on the Refunding Collateral Bonds (as
defined in the Indenture) of the series correlative to this Bond
which are in an unpaid principal amount equal to the unpaid
principal to be so redeemed on this Bond.
If an Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Bond and
any other Bonds, together with all accrued but unpaid interest
hereon and thereon, may, subject to certain rights of the Owner
Trustee and the Owner Participant contained or referred to in the
Indenture, be declared or may become due and payable in the
manner and with the effect provided in the Indenture.
The obligation of the Owner Trustee to pay the
principal of and premium, if any, and interest on this Bond, and
the lien of the Indenture or the Indenture Estate, is subject to
being legally discharged prior to the maturity of this Bond upon
the deposit with the Indenture Trustee of cash or certain
securities sufficient to pay this Bond when due in accordance
with the terms of the Indenture.
There shall be maintained at the Corporate Trust Office
a register for the purpose of registering transfers and exchanges
of this and the other Bonds in the manner provided in the
Indenture. Subject to the legend at the head of this Bond and
satisfaction of the conditions provided in Section 2.09(b) of the
Indenture, this Bond is transferable upon surrender hereof for
registration of transfer at the Corporate Trust Office. The
Owner Trustee and the Indenture Trustee shall treat the person in
whose name this Bond is registered as the absolute owner hereof
for the purpose of receiving all payments of the principal of and
premium, if any, and interest on this Bond and for all other
purposes whatsoever, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by notice to the contrary.
This Bond shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the Owner Trustee has caused this
Bond to be duly executed as of the date hereof.
FIRST NATIONAL BANK OF COMMERCE, not in
its individual capacity but solely
as Owner Trustee
By: _______________________________
Title:
This Bond is one of the Waterford 3 Secured Lease
Obligation Bonds, _____% Series [B/C] Due ___________ referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as
Corporate Indenture Trustee
Dated:__________________ By: _______________________________
Title:
<PAGE>
SCHEDULE 1
TO
EXHIBIT A-2
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Date Principal Amount Payable Principal Balance
Exhibit 4(e)-4
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE AS
SUPPLEMENTED BY THIS LEASE SUPPLEMENT NO. 1 HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF, THE
INDENTURE TRUSTEE UNDER INDENTURE OF MORTGAGE AND DEED OF TRUST
NO. [1/2/3], DATED AS OF SEPTEMBER 1, 1989, AS SUPPLEMENTED.
THIS LEASE SUPPLEMENT NO. 1 HAS BEEN EXECUTED IN SEVERAL
COUNTERPARTS. SEE SECTION 3(c) OF THIS LEASE SUPPLEMENT NO. 1
FOR INFORMATION CONCERNING THE RIGHTS OF HOLDERS OF VARIOUS
COUNTERPARTS HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART.
LEASE SUPPLEMENT NO. 1
dated as of ____________, 19__
to
FACILITY LEASE NO. [1/2/3]
dated as of September 1, 1989
between
FIRST NATIONAL BANK OF COMMERCE,
not in its individual capacity, but solely as Owner Trustee under
Trust Agreement No. [1/2/3], dated as of September 1, 1989,
with the Owner Participant,
Lessor
and
LOUISIANA POWER & LIGHT COMPANY,
Lessee
Original Facility Lease Recorded on
[September 28, 1989] at __________
<PAGE>
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE AS
SUPPLEMENTED BY THIS LEASE SUPPLEMENT NO. 1 HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF, THE
INDENTURE TRUSTEE UNDER INDENTURE OF MORTGAGE AND DEED OF TRUST
NO. [1/2/3], DATED AS OF SEPTEMBER 1, 1989, AS SUPPLEMENTED.
THIS LEASE SUPPLEMENT NO. 1 HAS BEEN EXECUTED IN SEVERAL
COUNTERPARTS. SEE SECTION 3(c) OF THIS LEASE SUPPLEMENT NO. 1 FOR
INFORMATION CONCERNING THE RIGHTS OF HOLDERS OF VARIOUS
COUNTERPARTS HEREOF.
THIS COUNTERPART IS THE ORIGINAL COUNTERPART.
INDENTURE TRUSTEE'S RECEIPT
Receipt of this Original Counterpart is acknowledged.
BANKERS TRUST COMPANY
Indenture Trustee as Aforesaid
By
Authorized Officer
LEASE SUPPLEMENT NO. 1
dated as of ____________, 19__
to
FACILITY LEASE NO. [1/2/3]
dated as of September 1, 1989
between
FIRST NATIONAL BANK OF COMMERCE,
not in its individual capacity, but solely as Owner
Trustee under Trust Agreement No. [1/2/3], dated as
of September 1, 1989, with the Owner Participant,
Lessor
and
LOUISIANA POWER & LIGHT COMPANY,
Lessee
Original Facility Lease Recorded on
[September 28, 1989] at _________________
<PAGE>
THIS LEASE SUPPLEMENT NO. 1, dated as of __________,
19__ ("Lease Supplement No. 1"), to FACILITY LEASE NO. [1/2/3],
dated as of September 1, 1989 (the "Facility Lease"), between
FIRST NATIONAL BANK OF COMMERCE, a national banking association,
not in its individual capacity but solely as Corporate Owner
Trustee (the "Lessor"), under the Trust Agreement (such term, and
all other capitalized terms used herein without definition, being
defined as provided in Section 1 below), and LOUISIANA POWER &
LIGHT COMPANY, a Louisiana corporation (the "Lessee"),
W I T N E S S E T H:
WHEREAS, the Lessee and the Lessor have heretofore
entered into the Facility Lease providing for the lease by the
Lessor to the Lessee of the Undivided Interest; and
WHEREAS, the Lessee, the Lessor, the Owner Participant,
the Funding Corporation, Collateral Trust Trustee and the
Indenture Trustee have entered into a Refunding Agreement No. [
], dated as of ___________, 199___, providing for the issuance by
the Owner Trustee of Additional Bonds, including Refunding Bonds
("Lessor Bonds") to refund the Outstanding Initial Series Bonds
and to pay certain other costs incurred in connection therewith;
and
WHEREAS, the Owner Trustee and the Indenture Trustee
have entered into Supplemental Indenture No. 2, dated as of
_______, 199_, to the Lease Indenture creating the "Lessor Bonds"
for such purpose and establishing the terms, conditions and
designations of such Lessor Bonds; and
WHEREAS, Section 3(e) of the Facility Lease provides
for an adjustment to Basic Rent and to the Value Schedules in
order to preserve the Net Economic Return in the event, among
other things, of the issuance of the Lessor Bonds;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and
not otherwise defined herein or in the recitals shall have the
meanings assigned to such terms in Appendix A to the Facility
Lease.
SECTION 2. Amendments; Schedules.
(a) Section 3(d)(ii) of the Facility Lease is hereby
amended by replacing the words "sinking fund" with "payment".
(b) Section 3(e)(ii) of the Facility Lease is hereby
amended by adding thereto after the words "Participation
Agreement" the following:
or if the expenses paid
by the Lessor in connection with
the issuance of any Additional
Bonds or Collateral Bonds are not
equal to the amounts set forth in
the Pricing Assumptions
(c) Section 22 of the Facility Lease is hereby amended
by adding a new paragraph (k) thereto as follows:
(k) Personal
Property. The Lessee and the
Lessor agree for purposes of this
Lease that it is their intent that,
to the extent permitted by
Applicable Law, the Undivided
Interest and every part thereof
shall be considered as personal and
not real property.
(d) As of the date first written above and until and
unless further amended, Schedules 1 through 5 of the Facility
Lease are hereby amended as follows:
(i) Schedule 1 to the Facility Lease entitled
"Basic Rent Percentages" is deleted in its entirety and is hereby
replaced with Schedule 1 hereto.
(ii) Schedule 2 to the Facility Lease entitled
"Schedule of Casualty Values" is deleted in its entirety and is
hereby replaced with Schedule 2 hereto.
(iii) Schedule 3 to the Facility Lease entitled
"Schedule of Special Casualty Values" is deleted in its entirety
and is hereby replaced with Schedule 3 hereto.
(iv) Schedule 4 to the Facility Lease entitled
"Schedule of Net Casualty Values" is deleted in its entirety and
is hereby replaced with Schedule 4 hereto.
(v) Schedule 5 to the Facility Lease entitled
"Schedule of Net Special Casualty Values" is deleted in its
entirety and is hereby replaced with Schedule 5 hereto.
(e) Schedule U3S to the Facility Lease is attached
hereto.
(f) Appendix A to the Facility Lease is hereby amended
as set forth in Schedule A-1 to Appendix A attached hereto.
SECTION 3. Miscellaneous.
(a) Counterpart Execution. This Lease Supplement No.
1 may be executed in any number of counterparts and by each of
the parties hereto or thereto on separate counterparts, all such
counterparts together constituting but one and the same
instrument.
(b) Execution as Lease Supplement. This Lease
Supplement No. 1 is executed and shall be construed as a
supplement and amendment to the Facility Lease and shall form a
part thereof. On and from the delivery of this Lease Supplement
No. 1, any reference in any Transaction Document to the Facility
Lease shall be deemed to refer to the Facility Lease as
supplemented and amended by this Lease Supplement No. 1.
(c) Original Counterpart. The single executed original
of this Lease Supplement No. 1 marked "THIS COUNTERPART IS THE
ORIGINAL COUNTERPART" and containing the receipt of the
Indenture Trustee thereon shall be the "Original" of this Lease
Supplement No. 1. To the extent that the Facility Lease, as
supplemented by this Lease Supplement No. 1, constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as
in effect in any applicable jurisdiction, no security interest in
the Facility Lease, as so supplemented, may be created or
continued through the transfer or possession of any counterparts
of the Facility Lease and supplements thereto other than the
"Originals" of any thereof.
IN WITNESS WHEREOF, each of the parties hereto has
caused this Lease Supplement No. 1 to be duly executed by an
officer thereunto duly authorized, as of the date set forth
above.
FIRST NATIONAL BANK OF COMMERCE,
not in its individual capacity but
solely as Owner Trustee
ATTEST:
By:
Name:
[SEAL] Title: Vice President
LOUISIANA POWER & LIGHT COMPANY
ATTEST:
By:
[SEAL] Name:
Title:
<PAGE>
ACKNOWLEDGMENT
STATE OF LOUISIANA )
) ss.:
PARISH OF ________________ )
On this ______ day of _______________, 199__, before me, the
undersigned Notary Public, duly commissioned and qualified within
the State and County aforesaid, and in the presence of the
undersigned competent witnesses, personally came and appeared
________________________, to me personally known, who being by me
duly sworn did say that [he] is a Vice President and Trust
Officer of FIRST NATIONAL BANK OF COMMERCE, a national banking
association, Owner Trustee under the Trust Agreement, and that
the seal affixed to the foregoing instrument is the seal of said
national banking association and that said instrument was signed
and sealed on behalf of said national banking association by
authority of its Board of Directors and that [he] acknowledged
said instrument to be the free act and deed of said national
banking association.
[signature of appearer]
WITNESSES:
Notary Public
My Commission Expires:
<PAGE>
ACKNOWLEDGMENT
STATE OF LOUISIANA )
) ss.:
PARISH OF ________________ )
On this ______ day of _______________, 199__, before me, the
undersigned Notary Public, duly commissioned and qualified within
the State and County aforesaid, and in the presence of the
undersigned competent witnesses, personally came and appeared
________________________, to me personally known, who being by me
duly sworn did say that [he] is the Treasurer of LOUISIANA POWER
& LIGHT COMPANY, a Louisiana corporation, and that the seal
affixed to the foregoing instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed on
behalf of said corporation by authority of its Board of Directors
and that [he] acknowledged said instrument to be the free act and
deed of said corporation.
[signature of appearer]
WITNESSES:
Notary Public
My Commission Expires:
<PAGE>
Schedule 1
BASIC RENT PERCENTAGES
<PAGE>
Schedule 2
SCHEDULE OF CASUALTY VALUES
<PAGE>
Schedule 3
SCHEDULE OF SPECIAL CASUALTY VALUES
<PAGE>
Schedule 4
SCHEDULE OF NET CASUALTY VALUES
<PAGE>
Schedule U3S
<PAGE>
Appendix A
Exhibit 4(f)-4
AMENDMENT NO. 1
dated as of ______ __, 199_
to
PARTICIPATION AGREEMENT NO. [1/2/3]
dated as of September 1, 1989
among
ESSL 2, INC.,
as Owner Participant
W3A FUNDING CORPORATION,
as Funding Corporation
FIRST NATIONAL BANK OF COMMERCE,
as Owner Trustee
BANKERS TRUST COMPANY,
as [successor] Corporate Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. [1/2/3],
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and as Collateral Trust Trustee
under Collateral Trust Indenture
dated as of _________________, 199__
with the Lessee and Funding Corporation,
STANLEY BURG,
as [successor] Individual Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. [1/2/3],
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and
LOUISIANA POWER & LIGHT COMPANY,
as Lessee
<PAGE>
THIS AMENDMENT NO. 1, dated as of _____ ___, 199_ ("PA
Amendment No. 1"), to PARTICIPATION AGREEMENT NO. [1/2/3], dated
as of September 1, 1989, among ESSL 2, Inc., as Owner Participant
(such term and all other capitalized terms used herein and not
defined herein having the respective meanings specified in
Appendix A to the Participation Agreement, as modified by
Schedule A-1 thereto), W3A FUNDING CORPORATION, as Funding
Corporation, FIRST NATIONAL BANK OF COMMERCE, not in its
individual capacity but solely as Owner Trustee, BANKERS TRUST
COMPANY, as [successor] Corporate Indenture Trustee under the
Indenture and as Collateral Trust Trustee under the Collateral
Trust Indenture, STANLEY BURG, not in his individual capacity but
solely as [successor] Individual Indenture Trustee under the
Indenture, and LOUISIANA POWER & LIGHT COMPANY, as Lessee.
W I T N E S S E T H:
WHEREAS, the parties to this PA Amendment No. 1, other
than Funding Corporation and the Collateral Trust Trustee, are
parties to Participation Agreement No. [1/2/3], dated as of
September 1, 1989 (the "Participation Agreement"), among the
Owner Participant, the Owner Trustee, the Corporate Indenture
Trustee, the Individual Indenture Trustee and the Lessee; and
WHEREAS, the Initial Series Bonds were issued by the
Owner Trustee in connection with the acquisition of the Undivided
Interest; and
WHEREAS, Section 2(b) of the Participation Agreement
provides for a refunding of outstanding Bonds upon the
satisfaction of the conditions set forth in Sections 2 and 10(c)
of the Participation Agreement and Section 2.05 of the Indenture;
and
WHEREAS, the Lessee, the Owner Participant, the Owner
Trustee, Funding Corporation, the Indenture Trustee and the
Collateral Trust Trustee have entered into the Refunding
Agreement, dated as of ________ __, 199_, providing for the
issuance by the Owner Trustee of Additional Bonds, including
Refunding Bonds, to provide funds to redeem the Outstanding
Initial Series Bonds and to pay certain other costs incurred in
connection therewith; and
WHEREAS, the Lessee and the Owner Participant have
agreed for the Owner Participant to make an additional equity
investment and to cause the refinancing of the Outstanding
Initial Series Bonds through the issuance of Additional Bonds
(including Refunding Bonds) and Collateral Bonds in amounts
sufficient to finance certain transaction expenses associated
with the refinancing and the premium on the Initial Series Bonds,
and accordingly have agreed that the refunding contemplated by
the Refunding Agreement will require certain amendments to the
Transaction Documents; and
WHEREAS, the parties hereto wish (x) to amend the
Participation Agreement to provide for the utilization of Funding
Corporation in connection with the refunding of Bonds, and (y) to
effect the refunding of the Outstanding Initial Series Bonds
through a refunding transaction in which, among other things,
Funding Corporation will issue Collateral Bonds to the public and
will apply a portion of the proceeds thereof as a Refunding Loan
for the account of the Owner Trustee for the refunding in whole
of the Outstanding Initial Series Bonds, such loan to be
evidenced by Additional Bonds issued by the Owner Trustee to or
upon the order of Funding Corporation;
WHEREAS, Basic Rent and the Value Schedules, as set
forth in Lease Supplement No. 1, have been adjusted to take into
effect, among other things, the additional Tax Assumptions set
forth in TIA Amendment No. 1 and the additional Pricing
Assumptions set forth in Schedule 2 hereto;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE ONE
AMENDMENTS
Section 1.01. Amendments.
(a) The Participation Agreement is hereby amended by adding
Funding Corporation and the Collateral Trust Trustee as parties
thereto. The Participation Agreement is further amended in the
following respects:
(b) The first sentence of Section 1 is deleted and the
following inserted in lieu thereof:
"For the purposes hereof, capitalized terms used
herein shall have the meanings assigned to such terms
in Appendix A hereto as modified by Schedule A-1
thereto."
(c) Section 2 is amended as follows:
(1) Paragraphs (b), (c) and (d) are deleted and the
following inserted in lieu thereof:
"(b) Refunding of Bonds. (1) Subject to satisfaction
of the conditions set forth in this Section 2 and Section
10(c), Section 2.05 of the Indenture and the terms of the
Refunded Bonds (as defined below), the Lessee shall have the
right to request the Owner Trustee to, and upon any such
request the Owner Trustee shall, take such steps as may be
necessary to refund in whole or in part any Bonds then
Outstanding (the "Refunded Bonds"), including the issuance
on any Refunding Date of one or more series of Additional
Bonds (any such Additional Bonds with respect to which the
proceeds are used to refund the Refunded Bonds being
hereinafter referred to as the "Refunding Bonds") to or upon
the order of Funding Corporation in an aggregate principal
amount equal to such Refunded Bonds; provided, however, that
unless the Owner Participant shall have consented thereto,
the Lessee shall not exercise the right granted in this
Section 2(b) on more than six occasions. In addition,
subject to the terms of the Indenture and Section 10(c), the
Lessee may require the Owner Trustee to issue Additional
Bonds and to use the proceeds thereof to finance (x) all
fees, expenses, disbursements and costs (including legal and
other professional fees and expenses) incurred by the Owner
Participant, the Owner Trustee, the Indenture Trustee and
the Collateral Trust Trustee (to the extent that the Lessee
is liable therefor pursuant to Section 13(c)) in connection
with any refunding pursuant to this Section 2(b)[,][and] (y)
all fees, expenses, disbursements and costs incurred by the
Lessee in connection with any such refunding pursuant to
this Section 2(b), including, without limitation, the costs
of preparing any related underwriting agreement and
registration statement, all filing fees relating to any such
registration statement, the fees, expenses and disbursements
of counsel to any underwriters of the Additional Bonds,
rating agency fees, and the fees and commissions of the
underwriters of such Additional Bonds (including the
Refunding Bonds) [and (z) any premium payable on the
Refunded Bonds].
(2) Subject to satisfaction of the conditions set
forth in this Section 2 and Section 10(c) and Section 2.04
of the Collateral Trust Indenture, the Lessee shall have the
right to request Funding Corporation to issue Collateral
Bonds in connection with the issuance of Additional Bonds
pursuant to this Section 2(b), and upon such request, on any
Refunding Date, Funding Corporation shall issue and sell
Collateral Bonds and lend a portion of the proceeds thereof
for the account of the Owner Trustee in an amount (a
"Refunding Loan") equal to the aggregate principal amount of
the related Additional Bonds, provided, however, that unless
the Owner Participant shall have consented thereto, the
Lessee shall not exercise the right granted in this
Section 2(b) on more than six occasions. Funding
Corporation shall pay the proceeds of any Refunding Loan
directly to the Indenture Trustee in immediately available
funds at the Corporate Trust Office. The Owner Trustee's
obligation to repay a Refunding Loan shall be evidenced by
one or more Additional Bonds, issued to or upon the order of
Funding Corporation and pledged to the Collateral Trust
Trustee as security for the related Collateral Bonds, which
Additional Bonds shall be in an aggregate principal amount
equal to the Refunding Loan, shall bear interest at the rate
per annum, and shall be payable as set forth in, or
determined under, the Indenture. Not less than three
Business Days prior to the Refunding Date, Funding
Corporation shall deliver to the Owner Participant and the
Lessee a certificate setting forth the information necessary
to complete the Additional Bond or Bonds to be issued in
exchange for such Refunding Loan (including any schedule or
schedules thereto). Upon such delivery, and upon approval
by the Lessee and the Owner Participant of the terms
thereof, the Owner Participant and the Lessee shall cause
the form of each such Additional Bond to be completed and
forwarded to the Owner Trustee for execution. Anything
herein to the contrary notwithstanding, the Lessee shall be
under no obligation whatsoever to utilize Funding
Corporation or cause the issuance of Collateral Bonds in
connection with any refundings contemplated by this Section
2(b).
(3) The refundings contemplated by this Section 2(b)
shall be effected at the request of the Lessee given in
writing to the Owner Participant at least 20 Business Days
prior to the Refunding Date; provided, however, that (i) no
such request shall be made or refunding shall occur while an
Event of Default shall have occurred and be continuing, (ii)
except as contemplated in Sections 3(d), 3(e) and 3(f) of
the Facility Lease, Net Economic Return shall not be
adversely affected thereby (or appropriate adjustments shall
have been made or shall be made on the Refunding Date
pursuant to Sections 3(e) and 3(f) of the Facility Lease to
preserve Net Economic Return), and (iii) any modifications
of the Transaction Documents (after giving effect to any
adjustments pursuant to clause (ii) above) shall not, in the
opinion of the Owner Participant's Special Tax Counsel,
adversely affect the tax benefits contemplated by the Owner
Participant in entering into the transactions contemplated
by this Participation Agreement and the other Transaction
Documents; and provided, further, that any notice of
refunding given by the Lessee to the Owner Participant as
contemplated by this sentence shall be revocable by the
Lessee and shall be sufficient if such notice sets forth an
approximate date on which a particular refunding is to
occur; and provided, further, that the Lessee shall give the
Owner Participant at least three Business Days' irrevocable
notice prior to the Refunding Date of those terms of the
Additional Bonds which the Lessee may determine as provided
below. Subject to the conditions of this Section 2(b) and
Section 10(c), the Owner Participant agrees to cooperate
with the Lessee in order to accomplish the refundings
requested by the Lessee.
(4) In setting the terms of the Additional Bonds
issued in connection with a refunding (including the
Refunding Bonds), the Lessee, in its sole discretion, may
determine the number of tranches of debt, the interest rates
applicable thereto (reflective of actual market conditions)
and the final maturities thereof (which shall be no later
than July 2, 2017) and, based on such determination, the
Owner Participant shall determine the principal amount, the
sinking fund or amortization schedules and the average life
applicable to all tranches of such Additional Bonds
(provided that unless the Lessee shall have consented
thereto the aggregate average life of all such Additional
Bonds, together with the other Bonds which shall remain
Outstanding, shall not vary from the aggregate average life
reflected in the sinking fund schedule for the Initial
Series Bonds by more than 18 months), so as to minimize the
net present value of the Basic Rent payments by the Lessee
over the Basic Lease Term, discounted on a semi-annual basis
at an annual interest rate of 11 percent, while preserving
Net Economic Return.
(c) Reoptimization. Upon the occurrence of a Tax Law
Change of the type referred to in subclause (C) of Section
3(e)(v) of the Facility Lease or any Tax Rate Change (and in
addition to the reoptimization of any of the sinking fund or
amortization schedules for the Bonds in connection with a
refunding pursuant to Section 2(b)), subject to the
satisfaction of the conditions set forth in Section 10(c)
and this Section 2, the Owner Trustee, at the written
request of the Lessee (with copies to be given to the Owner
Participant and the Indenture Trustee), in the case of a Tax
Law Change of the type referred to in this subsection (c),
or at the written request of the Owner Participant (with
copies to be given to the Lessee and the Indenture Trustee),
in the case of a Tax Rate Change, given within two years
after the date of such Tax Law Change or Tax Rate Change, as
the case may be, shall reoptimize or cause the
reoptimization of the sinking fund or amortization schedules
for the Bonds of any series to the extent not inconsistent
with the provisions, if any, of the Indenture and such Bonds
and in accordance with, and in the manner contemplated by,
Section 3 of the Facility Lease. Upon the receipt from the
Owner Participant of the reoptimized sinking fund or
amortization schedule for such Bonds and the other
information referred to in Article Six of the Indenture,
together with verification thereof if requested by the
Lessee pursuant to Section 3(f)(ii) of the Facility Lease,
the Owner Trustee shall deliver to the Indenture Trustee an
Owner Trustee Request pursuant to said Article Six. The
Owner Trustee, the Indenture Trustee, the Collateral Trust
Trustee and Funding Corporation may rely on any reoptimized
sinking fund or amortization schedules and other information
furnished by the Owner Participant.
(d) Cooperation. Subject to the applicable conditions
to their obligations herein provided, each of the Lessee,
the Owner Trustee, the Owner Participant and Funding
Corporation agrees that it will cooperate in connection with
any refunding or reoptimization contemplated herein and
enter into such additional agreements and such supplements
or amendments to or consents under the Transaction Documents
as may reasonably be requested to effectuate the
transactions contemplated in connection with any such
refunding or reoptimization."
(d) The following is added to the end of Section 6(b):
"(6) No-Petition Agreement. Following the issuance of
any Additional Bonds to or upon the order of Funding
Corporation and prior to the 181st day following the payment
in full of such Bonds and the discharge of the Collateral
Trust Indenture in accordance with its terms, the Owner
Participant agrees that it will not file a petition, or join
in the filing of a petition, seeking reorganization,
arrangement, adjustment or composition of, or in respect of,
Funding Corporation under the Bankruptcy Code or any other
applicable Federal or state law or the law of the District
of Columbia."
(e) Section 7(b) is amended as follows:
(1) The introductory text of Section 7(b) is deleted and
the following inserted in lieu thereof:
"(b) Agreements of FNBC and the Owner Trustee. FNBC
agrees, in its individual capacity as set forth in clauses
(1), (3), (4) (as to FNBC) and (6), (7) and (8) (as to
FNBC), and the Owner Trustee agrees as set forth in clauses
(2) and (4) (as to the Owner Trustee) and (5), (6), (7) and
(8) (as to the Owner Trustee) below, that:"
(2) The following is added to the end of Section 7(b):
"(8) No-Petition Agreement. Following the issuance of
any Additional Bonds to or upon the order of Funding
Corporation and prior to the 181st day following the payment
in full of such Bonds and the discharge of the Collateral
Trust Indenture, in accordance with its terms, each of FNBC
and the Owner Trustee agrees that it will not file a
petition, or join in the filing of a petition, seeking
reorganization, arrangement, adjustment or composition of,
or in respect of, Funding Corporation under the Bankruptcy
Code or any other applicable Federal or state law or the law
of the District of Columbia."
(f) The following is added to the end of Section 8(b):
"(3) No-Petition Agreement. Following the issuance of
any Additional Bonds to or upon the order of Funding
Corporation and prior to the 181st day following the payment
in full of such Bonds and the discharge of the Collateral
Trust Indenture in accordance with its terms, each of the
Corporate Indenture Trustee and the Individual Indenture
Trustee agrees that it will not file a petition, or join in
the filing of a petition, seeking reorganization,
arrangement, adjustment or composition of, or in respect of,
Funding Corporation under the Bankruptcy Code or any other
applicable Federal or state law or the law of the District
of Columbia."
(g) The following is added immediately following Section 8:
"SECTION 8A. Representations, Warranties and Agreements of
Funding Corporation.
(a) Representations and Warranties. Funding Corporation
represents and warrants that:
(1) Due Organization. Funding Corporation is a
corporation duly organized and validly existing in good
standing under the laws of the State of Delaware and has the
corporate power and authority to carry on its business as
presently conducted, own its properties, and enter into and
perform its obligations under this Participation Agreement
and each other Transaction Document to which it is, or is to
become on or before the Refunding Date, a party. Funding
Corporation has not failed to qualify to do business or be
in good standing in any jurisdiction where failure to so
qualify or be in good standing would materially and
adversely affect its ability to perform any of its
obligations under this Participation Agreement or any
Transaction Document to which it is, or is to become on or
before the Refunding Date, a party.
(2) Due Authorization; Enforceability. The execution,
delivery and performance by Funding Corporation of this
Participation Agreement and each other Transaction Document
to which it is, or is to become on or before the Refunding
Date, a party have been duly authorized by all necessary
corporate action on the part of Funding Corporation and do
not require the consent or approval of the stockholders of
Funding Corporation. Each of this Participation Agreement
and each other Transaction Document to which it is, or is to
become on or before the Refunding Date, a party has been
duly executed and delivered by Funding Corporation and
constitutes a legal, valid and binding agreement of Funding
Corporation enforceable against it in accordance with its
terms.
(3) No Violation. Neither the execution, delivery or
performance by Funding Corporation of this Participation
Agreement or the other Transaction Documents to which it is
a party, nor the consummation by Funding Corporation of the
transactions contemplated hereby and thereby, nor compliance
by Funding Corporation with the provisions hereof and
thereof, conflicts or will conflict with, or results or will
result in the breach of any provision of, the Certificate of
Incorporation or By-Laws of Funding Corporation or any
indenture, mortgage or agreement to which Funding
Corporation is a party or by which it or its property is
bound, or contravenes any Federal, Delaware or New York law
applicable to it or requires any Governmental Action with
respect to Funding Corporation under any Federal, Delaware
or New York law applicable to it. Funding Corporation is
not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment
Company Act.
(4) No Other Business. Except as contemplated by this
Participation Agreement and the other Transaction Documents,
Funding Corporation has not engaged in any business or
activity of any type or kind whatsoever.
(5) Investment Representations. Funding Corporation
will acquire each Bond to be acquired by it hereunder and
under the Indenture solely for purposes of pledging such
Bond to the Collateral Trust Trustee to secure Collateral
Bonds issued from time to time under the Collateral Trust
Indenture. Funding Corporation understands that no Bond to
be acquired by it hereunder or under the Indenture will have
been registered under the Securities Act and that each such
Bond will bear the legend set forth in Section 2.08 of the
Indenture.
(6) ERISA. Funding Corporation will not acquire any
Bond with the "plan assets" (within the meaning of
regulations of the United States Department of Labor) of any
"employee benefit plan" within the meaning of Section 3(3)
of ERISA or any "plan" within the meaning of Section
4975(e)(1) of the Code.
(b) Agreements. Funding Corporation agrees that:
(1) Transfers of Bonds. Any transfer or assignment of
any Bond acquired by it or of all or any part of Funding
Corporation's interest hereunder or under any other
Transaction Document shall be effected in compliance with
the registration requirements of the Securities Act, or
pursuant to an exemption therefrom, and on the express
condition that the transferee, assignee or participant shall
agree to be bound by the terms and provisions hereof and
thereof. Funding Corporation will not sell, exchange or
transfer any Bond to any other Person (other than to the
Collateral Trust Trustee) unless such transferee delivers to
the Lessee, the Owner Participant, the Owner Trustee and the
Indenture Trustee a representation and warranty (and an
opinion of counsel satisfactory to each such Person) to the
effect that neither the transfer of such Bond to, nor the
ownership of such Bond by, such transferee will cause such
transferee, or any such Person, to be engaged in a
"prohibited transaction", as defined in Section 406 of ERISA
or Section 4975 of the Code, which is not at such time
subject to an exemption contained in ERISA or in the rules,
regulations, releases or bulletins adopted thereunder.
(2) Redemption of Collateral Bonds. Except as
provided in the Transaction Documents, Funding Corporation
will not refinance or optionally redeem any Collateral Bond
issued in connection with any Bond without the consent of
the Lessor and Lessee.
(3) Quiet Enjoyment. Funding Corporation acknowledges
Section 6(a) of the Facility Lease.
(4) No Other Business. During such time as any Bond
acquired by it is Outstanding and held by the Collateral
Trust Trustee as security for its obligations, Funding
Corporation will not (i) engage in any business or activity
other than in connection with the Transaction Documents, or
(ii) amend or engage in any activity or take any action not
permitted by Article THIRD, FOURTH or SIXTH of its
Certificate of Incorporation, as in effect on the date of
execution and delivery hereof, without, in each case, the
consent of the Lessee, the Owner Participant, the Owner
Trustee and the Indenture Trustee.
(c) Agreements with the Indenture Trustee. Funding
Corporation hereby (i) acknowledges and agrees that, in
connection with this Participation Agreement, the Indenture
Trustee shall have the benefits and protections of Article
Eight of the Indenture and (ii) agrees that, to the extent
it becomes a Holder, in the event of a conflict between the
provisions of this Participation Agreement and the
Indenture, the Indenture Trustee shall, as between the
Indenture Trustee and Funding Corporation, be fully
protected in relying on the express terms of the Indenture.
(h) The following is added immediately following Section
8A:
"SECTION 8B. Representations and Warranties of Collateral
Trust Trustee.
Collateral Trust Trustee represents and warrants that:
(1) Due Organization. Collateral Trust Trustee is
duly organized and validly existing in good standing under
the laws of the state of New York and has the power and
authority and legal right to enter into and perform its
obligations under the Collateral Trust Indenture, this
Participation Agreement, the Refunding Agreement and each
other Transaction Document to which it is, or is to become
on or before the Refunding Date, a party.
(2) Due Authorization. The execution, delivery and
performance by Collateral Trust Trustee of the Collateral
Trust Indenture, this Participation Agreement, the Refunding
Agreement and each other Transaction Document to which
Collateral Trust Trustee is, or is to become on or before
the Refunding Date, a party have been, or on or before the
Refunding Date will have been, duly authorized by all
necessary corporate action of Collateral Trust Trustee and
each has been, or on or before the Refunding Date will have
been, duly executed and delivered by Collateral Trust
Trustee and do not and will not require the consent or
approval of any stockholder or any trustee or holder of any
of its indebtedness or other obligations, except such as
have been, or on or before the Refunding Date will have
been, duly obtained, given or accomplished.
(3) Execution; Authentication of Bonds. (i) Each of
the Collateral Trust Indenture, this Participation
Agreement, the Refunding Agreement and each other
Transaction Document to which Collateral Trust Trustee is,
or is to become on or before the Refunding Date, a party has
been, or on or before the Refunding Date will have been,
duly executed and delivered by Collateral Trust Trustee and
constitutes, or upon execution and delivery thereof will
constitute, the legal, valid and binding agreement of
Collateral Trust Trustee, enforceable against Collateral
Trust Trustee in accordance with its terms; and (ii) each
officer of Collateral Trust Trustee who shall authenticate
any Refunding Collateral Bond to be issued pursuant to the
Collateral Trust Indenture shall be, at the time of such
authentication, an Authorized Officer.
(4) No Violation. None of the execution and delivery
by Collateral Trust Trustee of the Collateral Trust
Indenture, this Participation Agreement, the Refunding
Agreement or any other Transaction Document, the
authentication by the Collateral Trust Trustee of any
Refunding Collateral Bond, the consummation by Collateral
Trust Trustee of the transactions contemplated hereby or
thereby, and the compliance by Collateral Trust Trustee with
the provisions hereof or thereof, contravenes or will
contravene any Applicable Law governing Collateral Trust
Trustee's banking or trust powers, or contravenes or results
in a breach of, or constitutes a default under, Collateral
Trust Trustee's Articles of Incorporation or By-laws or
similar organizational documents, or requires any
Governmental Action under any Federal law or law of its
state of organization, except such as has been, or on or
before the Refunding Date will have been, duly obtained,
given or accomplished."
(i) Section 9 is amended as follows:
(1) 9(a)(5) is amended by deleting clause (ii) of the first
paragraph thereof and inserting the following in lieu thereof:
"(ii) as, on or before any Refunding Date or Reoptimization
Date, in the case of Governmental Actions required in
connection with the issuance of Bonds and Collateral Bonds
on any such date, will have been duly obtained, given or
accomplished, with true copies thereof delivered to the
Owner Participant and the Indenture Trustee;"
(2) Section 9(b)(1) is amended by adding the words "and the
Collateral Trust Trustee" after the words "the Owner Trustee" in
the first parenthetical thereof.
(3) Section 9(b)(2) is amended by adding the words "the
Collateral Trust Trustee" immediately after the words "Owner
Participant" after each place where the words "Owner Participant"
appear.
(4) Section 9(b)(3) is amended by (A) deleting subparagraph
(iv) and inserting the following in lieu thereof:
"(iv) Bonds and Collateral Bonds. The Lessee will
not, nor will it permit any of its Affiliates to, acquire
any of the Bonds or Collateral Bonds without the written
consent of the Owner Participant; provided, however, that
the Lessee may purchase Bonds or Collateral Bonds without
such consent so long as (A) the amount of Bonds or
Collateral Bonds held at any time by the Lessee (and any
Affiliates) does not exceed 25% in aggregate principal
amount of the Bonds or Collateral Bonds, as the case may be,
outstanding, (B) no such Bonds or Collateral Bonds are so
acquired prior to 18 months following the date of the
initial authentication and delivery of the Collateral Bonds,
and (C) the Lessee shall have notified the Indenture Trustee
or Collateral Trust Trustee, as the case may be, that it
holds such Bonds or Collateral Bonds and, in determining
whether or not the Holders of the requisite principal amount
of the Bonds or Collateral Bonds outstanding under the
Indenture or Collateral Trust Indenture, or the outstanding
Bonds or Collateral Bonds of any series, have given any
request, demand, authorization, direction, notice, consent
or waiver under the Indenture or Collateral Trust Indenture
or whether or not a quorum is present at a meeting of
holders, all such Bonds and Collateral Bonds shall be
disregarded and deemed not outstanding."
and (B) adding the following to the end thereof:
"(xviii) No-Petition Agreement. Following the issuance of
any Additional Bonds to or upon the order of Funding
Corporation and prior to the 181st day following the payment
in full of such Bonds and the discharge of the Collateral
Trust Indenture in accordance with its terms, the Lessee
agrees that it will not file a petition, or join in the
filing of a petition, seeking reorganization, arrangement,
adjustment or composition of, or in respect of, Funding
Corporation under the Bankruptcy Code or any other
applicable Federal or state law or the law of the District
of Columbia."
(j) Section 10(c) is amended as follows:
(1) The introductory text of Section 10(c) is deleted and
the following inserted in lieu thereof:
"(c) Conditions to Refunding or Reoptimization. In
addition to the limitations set forth in Section 2(b) or
2(c), as the case may be, the obligation of the Owner
Participant and, if Funding Corporation is being utilized in
connection therewith, Funding Corporation to participate in
a refunding or reoptimization of any Outstanding Bonds shall
be subject to the fulfillment on or before the applicable
Refunding Date or Reoptimization Date of the following
conditions precedent (but in the case of a reoptimization,
only the conditions specified in clauses (3), (5), (6) and
(8) below) (each instrument, document, certificate, opinion
or other writing to be in form and substance satisfactory to
the Owner Participant and, if applicable, Funding
Corporation):"
(2) Paragraph (2) of Section 10(c) is deleted and the
following inserted in lieu thereof:
"(2) Bonds and Collateral Bond Transactions. (A) If
Funding Corporation is being utilized in connection with
such refunding, Funding Corporation shall have received
proceeds from the sale of Refunding Collateral Bonds in an
amount sufficient to make the Refunding Loan; (B) the
Indenture Trustee shall have received (x) the proceeds from
the sale of Refunding Bonds or, if Funding Corporation is
being utilized in connection with such refunding, the
proceeds of the Refunding Loan, in either case in an amount
sufficient to provide for payment in full of the principal
of, premium, if any, and interest on the Refunded Bonds,
together with any other amounts then due and owing pursuant
to the Indenture and (y) from the Lessee (as a special
payment of Basic Rent, if the Refunding Date shall be a date
other than January 2 or July 2 of any year), an amount equal
to the accrued interest on the Refunded Bonds from, and
including, the later of the date thereof or the date to
which interest thereon shall have been paid to, but
excluding, the applicable Refunding Date; (C) the Owner
Trustee shall have received the Bonds to be executed by it
in accordance with Section 2(b) of this Participation
Agreement together with instructions from the Owner
Participant to execute and deliver the same, and the Owner
Trustee shall have executed, and the Indenture Trustee shall
have authenticated and delivered, the Refunding Bonds; and
(D) if Funding Corporation is being utilized in connection
with such refunding, the Collateral Trust Trustee, as
pledgee of such Refunding Bonds issued to or upon the order
of Funding Corporation, shall have accepted the applicable
supplemental indenture to the Collateral Trust Indenture
subjecting such Refunding Bonds to the lien thereof."
(3) Paragraph (4) of Section 10(c) is deleted and the
following inserted in lieu thereof:
"(4) Registration Statement. If the Additional Bonds
or Refunding Collateral Bonds will be sold in a public
offering, the Owner Participant and the Owner Trustee shall
have received an Officers' Certificate of the Lessee, dated
the applicable Refunding Date, to the effect that, on the
date it becomes effective and on the Refunding Date, the
Registration Statement relating to such Additional Bonds or
Collateral Bonds did not and does not contain any untrue
statement of a material fact or omit to state a material
fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not
misleading."
(4) Paragraph (5) of Section 10(c) is deleted and the
following inserted in lieu thereof:
"(5) Opinions of Counsel. If Funding Corporation is
being utilized in connection with such refunding, the Owner
Participant, the Owner Trustee and the Indenture Trustee
shall have received a favorable opinion of Reid & Priest
LLP, as counsel for Funding Corporation, dated the Refunding
Date or Reoptimization Date, as the case may be, and
addressed to the Owner Participant, Owner Trustee, and the
Indenture Trustee, addressing such matters relating to the
transactions in connection with the Refunding Bonds to be
issued on such date, or, in the case of a reoptimization,
the adjustments to the sinking fund or amortization
schedules of Outstanding Bonds to take place on such date,
as the Owner Participant, the Owner Trustee or the Indenture
Trustee may reasonably request. The Owner Participant, the
Owner Trustee and the Indenture Trustee shall have received
favorable opinions of the Owner Participant's Special
Counsel, Owner Trustee's Counsel, Owner Participant's
Special Louisiana Counsel, Lessee's Counsel and Lessee's
Special Counsel, each dated the applicable Refunding Date or
Reoptimization Date, and addressing such matters relating to
the transactions in connection with the Refunding Bonds to
be issued on such date, or, in the case of a reoptimization,
the adjustments to the sinking fund or amortization
schedules of Outstanding Bonds to take place on such date,
as the Owner Participant, the Owner Trustee or the Indenture
Trustee may reasonably request. The Owner Participant shall
have also received an opinion of Owner Participant's Special
Tax Counsel, dated the applicable Refunding Date or
Reoptimization Date, and addressed to the Owner Participant,
that the issuance of the Refunding Bonds to be issued and
the consummation of the other transactions to be consummated
on such date shall not result in any adverse tax
consequences to the Owner Participant. Notwithstanding the
foregoing provisions of this Section 10(c)(5), on any
Reoptimization Date which is not a Refunding Date, the
opinions of Owner Trustee's Counsel and Owner Participant's
Special Louisiana Counsel" shall not be required.
(5) Paragraph (6) of Section 10(c) is amended by inserting
the words "or Collateral Bond" immediately after the word "Bond".
(6) Paragraphs (7) and (8) of Section 10(c) are deleted and
the following inserted in lieu thereof:
"(7) Receipt of Documents. The Owner Participant and
the Owner Trustee shall have received copies of, and shall
be entitled to rely upon, all documents, certificates,
agreements and opinions furnished by or on behalf of the
Lessee and, if applicable, Funding Corporation pursuant to
the Underwriting Agreement. If Funding Corporation is being
utilized in connection with such refunding, Funding
Corporation and the Collateral Trust Trustee shall have
received copies of all documents previously delivered to the
Indenture Trustee pursuant to Section 10(a).
(8) Representations and Warranties. In the case of
Funding Corporation, the representations and warranties of
the Owner Participant, FNBC and the Owner Trustee, and the
Lessee set forth in subclauses (1) through (4) and (9) of
Section 6(a), subclauses (1) through (10) of Section 7(a),
and subclauses (1) through (5), (10), (11), (12), (15), (16)
and (19) of Section 9(a), respectively, shall be true and
correct on and as of the applicable Refunding Date with the
same effect as though made on and as of such applicable
Refunding Date (with all references to the Closing Date in
such representations and warranties being deemed to refer to
the applicable Refunding Date); in the case of the Owner
Participant, the representations and warranties of FNBC and
the Owner Trustee, Funding Corporation, if applicable, and
the Lessee set forth in Sections 7(a), 8A(a) and subclauses
(1) through (6), (15), (16) and (19) of Section 9(a),
respectively, shall be true and correct on and as of the
applicable Refunding Date with the same force and effect as
though made on and as of such Refunding Date (with all
references to the Closing Date being deemed to refer to the
applicable Refunding Date); the Owner Participant and, if
Funding Corporation is being utilized in connection with
such refunding, Funding Corporation shall have received
appropriate certificates, dated the Refunding Date, to such
effect (and, with respect to paragraph (3) above, from the
Lessee); and the Owner Participant, FNBC and the Owner
Trustee, the Indenture Trustee, the Lessee and, if
applicable, Funding Corporation shall provide such
additional representations and warranties as of the
applicable Refunding Date as the Owner Participant or
Funding Corporation shall reasonably request.
(9) Satisfaction of Underwriting Agreement Conditions.
The conditions to the obligations of Funding Corporation or
the Owner Trustee, as the case may be, under the related
Underwriting Agreement shall have been met or waived by
Funding Corporation or the Owner Trustee, as the case may
be."
(k) Section 12 is amended as follows:
(1) The first paragraph of Section 12(a) is amended by
(A) deleting clause (i) and inserting the following in lieu
thereof:
"(i) Unit 3, the Undivided Interest, the Unit 3
Site, the Waterford Plant or the Waterford Plant Site
or any part of any thereof, the Operating Agreement,
the issuance or payment of the Bonds or the Collateral
Bonds, this Participation Agreement or any other
Transaction Document or Underwriting Agreement
(including, without limitation, the performance,
nonperformance or enforcement of any of the obligations
and terms hereunder or thereunder),"
; (B) deleting subclause (E) from the parenthetical
immediately preceding the proviso and inserting the
following in lieu thereof:
"(E) any claim of any Indemnitee incurred in the
administration of this Participation Agreement or any
other Transaction Document and not paid as Transaction
Expenses or Refunding Expenses or included in Facility
Cost and, if not included in Transaction Expenses or
Refunding Expenses, the reasonable fees and
disbursements of counsel and other professionals
incurred in connection therewith."
; (C) deleting clause (3) in the proviso and inserting the
following in lieu thereof:
"(3) for any Transaction Expense to be paid by the
Owner Trustee pursuant to Section 13(a) or Refunding
Expenses to be paid by the Owner Trustee pursuant to
the Refunding Agreement,"
; and (D) deleting clause (5) in the proviso and inserting
the following in lieu thereof:
"(5) in the case of the Indenture Trustee, the
Collateral Trust Trustee or Funding Corporation, for
any Claim based upon an untrue statement or alleged
untrue statement or omission or alleged omission in the
Registration Statement or any document or agreement in
connection with the sale of Additional Bonds or
Collateral Bonds which is based upon information
furnished to the Lessee or its agents by such party
expressly for use therein,"
(2) The second paragraph of Section 12(a) is amended by
deleting the second sentence and inserting the following in lieu
thereof:
"Nothing contained in this Participation Agreement
shall be construed as constituting a guaranty by the
Lessee of the principal of or premium, if any, or
interest on the Bonds or the Collateral Bonds or of the
residual value or useful life of the Undivided
Interest."
(3) Section 12(b)(1) is amended by deleting clauses (iv)
through (vii) in the second paragraph thereof and inserting the
following in lieu thereof:
"(iv) the Transaction Documents or the issuance,
refunding or refinancing of the Bonds or the Collateral
Bonds pursuant to the Indenture or the Collateral Trust
Indenture, or any other document executed and delivered
in connection with the consummation or confirmation of
the transactions contemplated by the Transaction
Documents or any Indemnitee's interest in any of the
foregoing, or the execution, issuance, delivery,
acquisition or subsequent transfer of any of the
foregoing (other than with respect to a reoptimization
of the Bonds at the request of the Owner Participant
pursuant to Section 2(c)), (v) the Indenture Estate or
the property, or the income or other proceeds received
with respect to the property, held by the Indenture
Trustee under the Indenture, (vi) Franchise Taxes
imposed on the Owner Participant or the Lessor to the
extent provided in Section 12(b)(3), (vii) any Taxes
imposed on Funding Corporation, or (viii) otherwise
with respect to or in connection with the transactions
contemplated by the Transaction Documents."
(4) Section 12(b)(2) is amended by (a) adding the words "or
Refunding Expenses" immediately after the words "Transaction
Expenses" in clause (xi) thereof, and (b) by substituting "," for
the word "or" between "Lessor" and "Indenture Trustee" and by
adding "or the Collateral Trust Trustee" after "Indenture
Trustee" in clause (vi) thereof.
(5) The following is added to the end of Section 12:
"(e) Funding Corporation. Section 12(b)(2)
and (5) shall not apply to any Tax imposed on Funding
Corporation or the trust estate under the Collateral
Trust Indenture."
(l) Paragraph (c) of Section 13 is deleted and the
following inserted in lieu thereof:
"(c) Post-Closing Expenses. The Lessee will pay (in
addition to any amounts payable by it pursuant to Section
13(b)), as Supplemental Rent, (i) the ongoing fees,
expenses, disbursements, administrative costs and other
costs (including legal, accounting, pricing and other
professional fees and expenses) of or incurred by the Owner
Trustee, the Indenture Trustee, the Collateral Trust Trustee
and the Owner Participant, including in connection with the
issue, sale and purchase of Bonds and Collateral Bonds after
the Closing Date, and (ii) all reasonable fees, expenses,
disbursements and costs (including legal and other
professional fees and expenses) incurred by the Owner
Participant, the Owner Trustee, the Indenture Trustee and
the Collateral Trust Trustee in connection with (a) any
Default, Event of Default, Indenture Default or Indenture
Event of Default, (b) the entering into or giving or
withholding of any amendment, modification, supplement,
waiver, consent or other action with respect to any
Transaction Document or Financing Document, (c) any Event of
Loss, Deemed Loss Event, Financial Event or Inchoate
Financial Event, (d) any transfer of all or any part of the
right, title and interest of the Indenture Trustee in, to
and under the Transaction Documents (except to the extent
arising from any transfer by the Owner Participant of its
right, title and interest in, to and under any of the
Transaction Documents or the Trust Estate pursuant to
Section 14), (f) any Special Transfer, (g) any refunding or
reoptimization pursuant to Section 2(b) or 2(c) (except to
the extent (i) constituting Transaction Expenses, (ii) that
the fees, expenses, disbursements and costs of the Owner
Participant in connection with any refunding or
reoptimization shall exceed $50,000, or (iii) arising from
any reoptimization in connection with a Tax Rate Change),
(h) any removal or replacement of the Owner Trustee and (i)
any amendment to a Decommissioning Trust Agreement."
(m) Section 19 is amended and restated as follows:
"SECTION 19. Notices, etc.
All communications, notices and consents provided for
herein shall be in writing, including telex, telecopy or
other wire transmission containing a request for assurance
of receipt in a manner typical with respect to
communications of that type, or mailed by registered or
certified mail, and shall be addressed (i) if to the Owner
Participant, at the address for notices set forth on
Schedule 1; (ii) if to FNBC or the Owner Trustee, at 210
Baronne Street, New Orleans, Louisiana, 70112, Attention:
Corporate Trust Department; (iii) if to IT or the Indenture
Trustee, at _______________; (iv) if to Funding Corporation,
c/o National Corporate Research, Ltd., 19 East Loockerman
Street, Dover, Delaware 19901; (v) if to the Collateral
Trust Trustee, _______________________; and (vi) if to the
Lessee, at 317 Baronne Street, New Orleans, Louisiana 70112,
Attention: Treasurer, or at such other address as any party
(or its successors or permitted assigns hereunder) hereto
may from time to time designate by notice duly given in
accordance with the provisions of this Section to the other
parties hereto. All such communications, notices and
consents given in the manner provided above shall be
effective (x) if sent by telex, telecopy or other wire
transmission, on the date of transmission thereof, or (y) if
sent by mail, three Business Days after being mailed."
(n) Schedule 5 to the Participation Agreement is amended to
include the additional Pricing Assumptions set forth in Schedule
1 hereto.
(o) Appendix A to the Participation Agreement is hereby
amended as set forth in Schedule A-1 to Appendix A attached
hereto.
ARTICLE TWO
MISCELLANEOUS
Section 2.01. Execution.
This PA Amendment No. 1 may be executed in separate
counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 2.02. Governing Law.
This PA Amendment No. 1 has been negotiated and
delivered in the State of New York and shall be governed by, and
be construed in accordance with, the laws of the State of New
York.
Section 2.03. Concerning the Owner Trustee.
FNBC is entering into this PA Amendment No. 1 solely as
Owner Trustee under the Trust Agreement and not in its individual
capacity. Anything herein to the contrary notwithstanding, all
and each of the agreements and obligations herein made or
undertaken on the part of the Owner Trustee are made or
undertaken not as personal agreements of FNBC, but are made and
undertaken solely for the purpose of binding only the Trust
Estate and nothing contained in this Participation Agreement
shall entitle any person to any claim against FNBC in its
individual capacity or any of its assets.
IN WITNESS WHEREOF, the parties hereto have caused this
PA Amendment No. 1 to be duly executed by their respective
officers thereunto duly authorized.
ESSL 2, INC., as Owner Participant
By
Name:
Title:
W3A FUNDING CORPORATION
By
Name:
Title:
FIRST NATIONAL BANK OF COMMERCE, not in
its individual capacity, but solely
as Owner Trustee under the Trust
Agreement
By
Name:
Title:
BANKERS TRUST COMPANY, as Corporate
Indenture Trustee and Collateral
Trust Trustee
By
Name:
Title:
STANLEY BURG, not in his individual
capacity but solely as Individual
Indenture Trustee
LOUISIANA POWER & LIGHT COMPANY, as Lessee
By
Name:
Title:
<PAGE>
Schedule 1
Pricing Assumptions
Basic Rent, Casualty Values and Special Casualty Values, as set
forth in the Facility Lease, as amended by Lease Supplement No.
1, dated as of _________ __, 1996, for dates occurring after the
Refunding Date set forth below, have been computed on the basis
of the following additional Pricing Assumptions which hereby
supplement and amend Schedule 5 to the Participation Agreement:
1. Refunding Date: ___________________ __, 199_
2. Interest Rate and
Amortization of
199_ Bonds: See Supplemental Indenture No. 2, dated as
of _____________, 199_
3. Refunding Expenses: $____________ paid by the Owner Trustee
on the Refunding Date from funds
provided by the Owner Participant
(amortized on a straight-line basis
during the period commencing on the
Refunding Date and ending on the last
day of the Basic Lease Term).
4. Accrued Interest: $____________ paid by the Owner Trustee
on the Refunding Date as interest from
_________ _, 199_ to the Refunding Date
on the Initial Series Bonds which are
redeemed on the Refunding Date.
5. Premium: $____________ paid by the Owner Trustee
on the Refunding Date in respect of the
premium on the Initial Series Bonds
redeemed on the Refunding Date.
6. ____ Bonds: $_____________ issued by the Owner Trustee in
accordance with the Refunding Agreement,
Supplemental Indenture No. 2, dated as
of ________ _, 199_, and other
Transaction Documents and not in excess
of 105% of the outstanding principal
amount of the Initial Series Bonds as of
the Refunding Date.
7. Additional Equity
Investment: $____________ funded by the Owner Trustee
or the Owner Participant, as the case may
be, on the Refunding Date.
8. Supplemental Rent: $_____________ paid by the Lessee on the
Refunding Date.
9. Owner Participant's
Marginal State
Tax Rate(s): 9.5281%; 9%, beginning in fiscal year 1991.
10. Owner Participant's
Marginal Federal
Tax Rate(s): 34%; 35%, beginning in fiscal year 1991.
11. Tax Payment
Method(s): 90/10;
93/7, beginning in fiscal year 1992;
97/3, beginning in fiscal year 1993;
100/0, beginning in fiscal year 1994.
<PAGE>
SCHEDULE A-1
TO
APPENDIX A
(Definitions)
Appendix A ("Definitions") to the Participation Agreement
and the other Transaction Documents (as defined therein) is
hereby amended as follows:
(a) The following definitions are deleted from Appendix A:
"Authenticating Agent", "Authorized Agent", "Bond Registrar",
"Initial Interest Payment Date", "Paying Agent", "Place of
Payment", "Predecessor Bonds", "Regular Record Date" and "Special
Record Date".
(b) The following definitions are added to Appendix A:
(1) "Collateral Bonds" shall mean all bonds, notes and
other evidences of indebtedness from time to time issued and
outstanding under the Collateral Trust Indenture.
(2) "Collateral Trust Indenture" shall mean (x) in
respect of the refunding of the Initial Series Bonds, the
Collateral Trust Indenture, dated as of __________ __, 199_,
among the Lessee, Funding Corporation and the Collateral Trust
Trustee, and (y) in respect of any refunding from time to time of
Additional Bonds pursuant to Section 2(b) of the Participation
Agreement, the related collateral trust indenture, in form and
substance satisfactory to the Owner Participant, among the
Lessee, Funding Corporation and the Collateral Trust Trustee.
(3) "Collateral Trust Trustee" shall mean (x) in
respect of the Collateral Trust Indenture entered into in
connection with the refunding of the Initial Series Bonds, ____
and its successors or assigns, and (y) in respect of any
Collateral Trust Indenture utilized in connection with the
refunding of Additional Bonds pursuant to Section 2(b) of the
Participation Agreement, the bank or trust company acting as
trustee thereunder and its successors or assigns.
(4) "Funding Corporation" shall mean (x) in respect of
the refunding of the Initial Series Bonds, W3A Funding
Corporation, a Delaware corporation, and (y) in respect of any
refunding of Additional Bonds pursuant to Section 2(b) of the
Participation Agreement, any special-purpose entity that issues
Collateral Bonds to provide funds to refund such Additional
Bonds.
(5) "Refunding Agreement" shall mean the Refunding
Agreement No. __, dated as of __________, among the Owner
Participant, the Owner Trustee, Funding Corporation, the
Indenture Trustee, the Collateral Trust Trustee and the Lessee.
(6) "Refunding Collateral Bonds" shall mean any one or
more series of Collateral Bonds issued and sold by Funding
Corporation, a portion of the proceeds of which will be applied
to the refunding of the Initial Series Bonds or any Additional
Bonds.
(7) "Refunding Expenses" shall have the meaning set
forth in the Refunding Agreement.
(8) "Refunding Loan" shall have the meaning set forth
in Section 2(b) of the Participation Agreement.
(c) The following definitions in Appendix A are revised as
set forth below:
(1) The definition of "Indemnitees" is amended and
restated as follows:
"Indemnitees" shall mean FNBC, the Owner
Trustee, the Corporate Indenture Trustee, the
Individual Indenture Trustee and the Collateral Trust
Trustee, each in their individual and fiduciary
capacities, the Owner Participant, Funding Corporation,
the Trust, the Trust Estate, the Indenture Estate, the
indenture estate under the Collateral Trust Indenture,
any Affiliate of any of the foregoing and the
respective successors, assigns, agents, shareholders,
officers, directors or employees of any of the
foregoing.
(2) The definition of "Net Economic Return" is hereby
amended and restated to be as follows:
"Net Economic Return" shall mean:
(i) the net after-tax economic yield
expected by the Owner Participant as of the date of the
initial authentication and delivery of the 199_ Bonds
(as defined in the Indenture) with respect to the
Undivided Interest, calculated using the Assumptions
and the computations of Basic Rent, Casualty Values and
Special Casualty Values derived therefrom (the
"Schedules and Assumptions") as such yield shall be
adjusted pursuant to and in accordance with Section 3
of the Facility Lease and as agreed between the Lessee
and the Owner Participant; and
(ii) the sum of after-tax cash flow over the
Basic Lease Term at least equal to that expected by the
Owner Participant as of the date of the initial
authentication and delivery of the 199_ Bonds
calculated using the Schedules and Assumptions (the
"Original After-Tax Cash Flow"); and
(iii) the same general pattern of after-tax
Earnings originally expected by the Owner Participant
as of the date of the initial authentication and
delivery of the 199_ Bonds calculated using the
Schedules and Assumptions.
Notwithstanding the above, nothing in this definition
shall be construed to obligate the Lessee to restore any
portion of a reduction in Earnings where such portion of the
reduction is due to events other than changes in Basic Rent
provided for in the Transaction Documents, including, by
example, changes in Financial Accounting Standards Board
Statement No. 13 occurring after the date of the initial
authentication and delivery of the ______ Bonds.
For the purposes of this definition, the Assumptions
shall be deemed to include the assumptions that (i) the
Owner Participant is fully taxable during the entire Basic
Lease Term (provided, however, that nothing in this
definition or the Participation Agreement shall be construed
to be a representation by the Owner Participant as to the
actual residual value assumed by the Owner Participant for
purposes of calculating its earnings according to Financial
Accounting Standards Board Statement No. 13 accounting or
for any other purpose) and (ii) none of the equity
investment is comprised of borrowed funds.
(3) The definition of "Officers' Certificate" is
amended and restated as follows:
"Officers' Certificate" shall mean a
certificate signed by the President or any Vice
President and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of
the Person with respect to which such term is used.
(4) The definition of "Registration Statement" is
amended and restated as follows:
"Registration Statement" shall mean a registration
statement, including all exhibits and all documents incorporated
in such registration statement by reference, filed with the SEC
under the Securities Act with respect to (x) in the case of the
transactions contemplated to occur on the Closing Date, the
offer, issue and sale of the Initial Series Bonds, and (y) in the
case of the transactions contemplated to occur on any Refunding
Date, the offer, issue and sale of any Refunding Collateral Bonds
or Additional Bonds.
(5) The definition of "Responsible Officer" is amended
by adding the following after the words "shall mean" in the first
line thereof:
(i) when used with respect to the Trustee,
any officer within the Corporate Trust Office including
any Vice President, Assistant Vice President,
Secretary, Assistant Secretary, Managing Director or
any other officer of the Trustee customarily performing
functions similar to those performed by any of the
above designated officers and also, with respect to a
particular matter, any other officer to whom such
matter is referred because of such officer's knowledge
and familiarity with the particular subject, and (ii)
and by adding word "other" after the words "agreement or
obligation of any" in the second line thereof.
(6) The definition of "Transaction Documents" is
amended by adding the words" and the Collateral Trust Indenture,
the Refunding Agreement and the Collateral Bonds" after the word
"Bonds".
(7) The definition of "Underwriting Agreement" is
amended and restated as follows:
"Underwriting Agreement" shall mean (x) with respect to
the Initial Series Bonds, Underwriting Agreement No. [See
Additional Information], dated September 21, 1989, among the
Owner Trustee, the Lessee, and the underwriter or underwriters
for the Initial Series Bonds, and (y) with respect to any
Refunding Collateral Bonds or Additional Bonds, the underwriting
agreement among the Lessee, Funding Corporation or the Owner
Trustee (as the case may be), and the underwriter or underwriters
for such Collateral Bonds or Additional Bonds relating to the
purchase, sale and delivery thereof.
Exhibit 4(i)-4
AMENDMENT NO. 1
dated as of , 1996
to
TAX INDEMNIFICATION AGREEMENT No. [1,2,3]
dated as of September 1, 1989
Between
ESSL 2, INC.
Beneficiary under Trust Agreement No. [1/2/3,]
dated as of September 1, 1989
with
FIRST NATIONAL BANK OF COMMERCE
AS OWNER TRUSTEE,
Lessor,
and
LOUISIANA POWER & LIGHT COMPANY
Lessee
SALE AND LEASEBACK OF AN UNDIVIDED INTEREST IN UNIT NO. 3
OF THE WATERFORD STEAM ELECTRIC GENERATING STATION
<PAGE>
AMENDMENT NO. 1, dated as of , 1996 ("TIA
Amendment No. 1"), to TAX INDEMNIFICATION AGREEMENT No. [1/2/3,]
dated as of September 1, 1989, between ESSL 2 INC., a Delaware
corporation (the "Owner Participant"), beneficiary under the
Trust Agreement, with FIRST NATIONAL BANK OF COMMERCE, a national
banking association, not in its individual capacity, but solely
as Owner Trustee under the Trust Agreement (the "Lessor") and
LOUISIANA POWER & LIGHT COMPANY, a Delaware corporation (the
"Lessee"). Capitalized terms not otherwise defined herein shall
have the respective meanings specified in Appendix A to Facility
Lease No. [1/2/3,] dated as of September 1, 1989, between the
Lessor and the Lessee, as amended by Lease Supplement No. 1
thereto, dated as of the date hereof and as otherwise modified,
amended or supplemented pursuant to the terms thereof (the
"Facility Lease") or the Refunding Agreement, dated as of
, 1996, among the Owner Participant, the Lessor, W3A FUNDING
CORPORATION, as Funding Corporation, Banker's Trust Company, not
in its individual capacity but solely as successor Corporate
Indenture Trustee under Indenture No. [1/2/3] and Stanley Burg,
not in his individual capacity but solely as successor Individual
Indenture Trustee under Indenture No. [1/2/3,] and the Lessee
(the "Refunding Agreement").
WHEREAS, pursuant to Participation Agreement No.
[1/2/3], the Lessor agreed to purchase the Undivided Interest
with funds provided by the Owner Participant and by the issuance
of the Initial Series Bonds;
WHEREAS, the Lessor executed the Facility Lease
pursuant to which the Lessor has leased the Undivided Interest to
the Lessee;
WHEREAS, the Lessee and the Owner Participant have
agreed (a) for the Owner Participant [to make an additional
equity investment and] to cause the refinancing of the Initial
Series Bonds through the issuance of the 1996 Bonds in amounts
which, when added to [the equity investment made by the Owner
Participant and] any Supplemental Rent paid by the Lessee, will
be sufficient to redeem the Initial Series Bonds, including any
premium and accrued interest thereon and (b) [for the Owner
Participant to provide funds to the Lessor to permit the Lessor
to pay the Refunding Expenses]; and
WHEREAS, the Owner Participant and the Lessee have
heretofore executed Tax Indemnification Agreement No. [1/2/3]
and desire to amend Tax Indemnification Agreement No. [1/2/3] as
hereinafter provided to clarify their respective rights and
obligations arising from the transactions contemplated by
Refunding Agreement No. [1/2/3] (the "Refunding");
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
Tax Indemnification Agreement No. [1/2/3] is hereby
amended, effective upon the execution and delivery of this
Agreement, as follows:
1. Section l.1(h) thereof is amended by (i) deleting
the word "and" before "(vii)" and (ii) inserting the words ", and
(viii) any Supplemental Rent paid in connection with the
Refunding" immediately after the words "retained by the Owner
Participant".
2. Section 1.1(i) thereof is amended by (i) inserting
the words "through 1992 and 35% for each taxable year"
immediately after the words "each taxable year" and immediately
before the word "thereafter".
3. Section 1.1(o) thereof is amended by inserting the
words ", Retirement Premium Deduction, Refunding Amortization
Deductions" immediately after the words "the Amortization
Deductions" and immediately before the words "and the Interest
Deductions".
4. Section 1.1(p) thereof is amended by inserting the
words "and the Refunding Date will be the date set forth in
Schedule 1 to PA Amendment No. 1" immediately after the words
"Participation Agreement" and immediately before the period
ending the sentence.
5. Section 1.1 thereof is amended by adding the
following tax assumptions after Section 1.1(p):
"(q) The Owner Participant will be allowed a deduction
for the premium paid with respect to the Refunded Bonds in
the taxable year of the Owner Participant in which such
premium is paid or accrued (the "Retirement Premium
Deduction"); and the Owner Participant will be entitled to
take the Retirement Premium Deduction into account in
computing its consolidated federal income tax liability in
accordance with the accrual method of tax accounting.
(r) The Owner Participant will be allowed deductions
for amortization of an amount equal to the Refunding
Expenses to the extent payable by the Lessor pursuant to
Section 5 of the Refunding Agreement computed on a straight-
line basis over a term from the Refunding Date to the end of
the Basic Lease Term (the "Refunding Amortization
Deductions"); and the Owner Participant will be entitled to
take the Refunding Amortization Deductions into account in
computing its consolidated federal income tax liability."
6. The last sentence of section 1.1 thereof is
amended by replacing "(p)" immediately after the words "The
foregoing clauses (a) through" with "(r)".
7. Section 1.2(1)(d) thereof is amended by inserting
the words "the Retirement Premium Deduction, the Refunding
Amortization Deductions" immediately after the words "the
Amortization Deductions," and immediately before the words "or
any corresponding deduction or credit".
8. Section 1.2(1) is amended by adding the following
representation after Section 1.2(1)(e):
"(f) The Owner Participant will be entitled to deduct
the Retirement Premium Deduction and the Refunding
Amortization Deductions."
9. Section 3.1(a)(1)(A) thereof is amended by
inserting the words "(except the Refunding Agreement and any
related amendments to the Transaction Documents)" (i) immediately
after the words "the Transaction Documents" and immediately
before the words "or an act", (ii) immediately after the words
"the Transaction Documents" and immediately before the words ")
by (i)" and (iii) immediately after the words "the Transaction
Documents" and immediately before words ", shall each be an act".
10. Section 3.1(a)(1) thereof is amended by deleting
the word "or" at the end of paragraph (F) thereof, inserting the
word "or" at the end of paragraph (G) thereof and adding the
following paragraph after paragraph (G) thereof:
"(H) the presence of Funding Corporation, or any
successor or assign thereof, in the transactions
contemplated by the Transaction Documents,"
11. Section 3.1(a)(2)(A) thereof is amended by
inserting the words "the Retirement Premium Deduction, the
Refunding Amortization Deductions", immediately after the words
"the Amortization Deductions," and immediately before the words
"or the Interest Deductions".
12. Section 6(a) thereof is amended by inserting the
words ", the Retirement Premium Deduction, the Refunding
Amortization Deductions" immediately after the words "the
Amortization Deductions" and immediately before the words "or the
Interest Deductions".
13. Section 6(b) thereof is amended by inserting the
words ", the Retirement Premium Deduction, the Refunding
Amortization Deductions" immediately after the words "the
Amortization Deductions" and immediately before the words "or the
Interest Deductions".
IN WITNESS WHEREOF, the Owner Participant and the
Lessee have each caused this TIA Amendment No. 1 to be duly
executed in New York, New York by their respective officers
thereunto duly authorized as of the date first set forth above.
LOUISIANA POWER & LIGHT COMPANY
Name:
Title:
ATTEST: ESSL 2 INC.
Name: Name:
Title: Title:
<PAGE>
ACKNOWLEDGMENT
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me, the
undersigned Notary Public, duly commissioned and qualified within
the State and County aforesaid, personally came and appeared
_____________________, who being by me duly sworn did say that he
is a ___________________ of ESSL 2 INC., a Delaware corporation,
and that said instrument was signed on behalf of said corporation
by authority of its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
Notary Public
My Commission Expires:
_________ __, ____
<PAGE>
ACKNOWLEDGMENT
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me, the
undersigned Notary Public, duly commissioned and qualified within
the State and County aforesaid, personally came and appeared
_____________________, who being by me duly sworn did say that he
is a ___________________ of LOUISIANA POWER & LIGHT COMPANY, a
Delaware corporation, and that said instrument was signed on
behalf of said corporation by authority of its Board of Directors
and that he acknowledged said instrument to be the free act and
deed of said corporation.
Notary Public
My Commission Expires:
_________ __, ____
Exhibit 4(k)
REFUNDING AGREEMENT NO. [1/2/3]
dated as of ____________ __, 199_
among
ESSL 2, INC.,
as Owner Participant,
W3A FUNDING CORPORATION,
as Funding Corporation,
FIRST NATIONAL BANK OF COMMERCE,
as Owner Trustee,
BANKERS TRUST COMPANY,
as [successor] Corporate Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. [1/2/3],
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and as Collateral Trust Trustee
under Collateral Trust Indenture dated as of
, , with the Lessee and Funding Corporation,
STANLEY BURG,
as successor Individual Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. [1/2/3],
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and
LOUISIANA POWER & LIGHT COMPANY,
as Lessee
<PAGE>
THIS REFUNDING AGREEMENT NO. [1/2/3], dated as of
_________ __, 199_, among ESSL 2, INC., as Owner Participant
(such term and all other capitalized terms used herein and not
defined herein having the respective meanings specified in
Appendix A to the Participation Agreement referred to below, as
modified by Schedule A-1 thereto), W3A FUNDING CORPORATION, as
Funding Corporation, FIRST NATIONAL BANK OF COMMERCE, not in its
individual capacity but solely as Owner Trustee, BANKERS TRUST
COMPANY, as [successor] Corporate Indenture Trustee under the
Indenture and as Collateral Trust Trustee under the Collateral
Trust Indenture, STANLEY BURG, not in his individual capacity but
solely as [successor] Individual Indenture Trustee under the
Indenture, and LOUISIANA POWER & LIGHT COMPANY, as Lessee.
W I T N E S S E T H:
WHEREAS, the parties to this Refunding Agreement, other
than Funding Corporation and the Collateral Trust Trustee, are
parties to Participation Agreement No. [1/2/3], dated as of
September 1, 1989 (the "Participation Agreement"), among the
Owner Participant, the Owner Trustee, the Corporate Indenture
Trustee, the Individual Indenture Trustee and the Lessee; and
WHEREAS, the Initial Series Bonds were issued by the
Owner Trustee in connection with the acquisition of the Undivided
Interest; and
WHEREAS, Section 2(b) of the Participation Agreement
provides for a refunding of Outstanding Bonds upon satisfaction
of the conditions set forth in Sections 2 and 10(c) of the
Participation Agreement and Section 2.05 of the Indenture; and
WHEREAS, the Lessee has requested such a refunding; and
WHEREAS, Section 3(e) of the Facility Lease provides
for an adjustment to Basic Rent and the Value Schedules in
connection with the issuance of any Refunding Bonds; and
WHEREAS, the Lessee and the Owner Participant have
agreed for the Owner Participant to make an additional equity
investment and to cause the refinancing of the Outstanding
Initial Series Bonds through the issuance of Refunding Bonds and
other Additional Bonds in amounts sufficient to redeem such
Outstanding Initial Series Bonds and finance certain transaction
expenses associated therewith and the premium thereon, and
accordingly have agreed that the refunding contemplated by this
Agreement will require certain amendments to the Transaction
Documents; and
WHEREAS, on ________ __, 199__, at the direction of the
Lessee and the Owner Participant, the Owner Trustee gave the
Indenture Trustee notice of redemption of the Initial Series
Bonds on ______, 199__ (the "Refunding Date"), and the Indenture
Trustee gave notice of such redemption to the Holders of such
Bonds on ___, 199__, which notice provided, in accordance with
Section 5.05 of the Indenture, that such redemption is
conditional upon the receipt by the Indenture Trustee, on or
prior to the Refunding Date, of money sufficient to pay the
principal of, premium, if any, and interest on the Initial Series
Bonds then outstanding and that, if such money shall not have
been so received, said notice shall be of no force and effect and
the Owner Trustee shall not be required to redeem such
Outstanding Initial Series Bonds; and
WHEREAS, the parties hereto wish to effect the
refunding of the Outstanding Initial Series Bonds through a
refunding transaction in which, among other things, Funding
Corporation will issue Collateral Bonds to the public and will
apply a portion of the proceeds thereof as a Refunding Loan for
the account of the Owner Trustee for the refunding in whole of,
the Outstanding Initial Series Bonds, such loan to be evidenced
by Additional Bonds ("199_ Bonds") issued by the Owner Trustee to
or upon the order of Funding Corporation; and
WHEREAS, the Lessee proposes to enter into an
Underwriting Agreement, dated _________ (the "Refunding
Underwriting Agreement"), with Funding Corporation, Morgan
Stanley & Co. Incorporated and Citicorp Securities, Inc. (the
"Refunding Underwriters"); and
WHEREAS, in connection with the aforesaid, it will be
necessary for the Owner Participant, the Lessee, Funding
Corporation, the Owner Trustee, the Indenture Trustee and the
Collateral Trust Trustee, subject to the conditions set forth
herein, to enter into Amendment No. 1, dated as of _______, 199_,
to the Participation Agreement ("PA Amendment No. 1"), to make
certain amendments and add certain provisions thereto; and
WHEREAS, Section 10.01 of the Indenture provides, among
other things, that the parties to the Indenture may, without
consent of the Holders of any Bonds, execute a Series
Supplemental Indenture in order to evidence the issuance of and
to provide the terms of Additional Bonds and to make certain
changes to the Indenture; and
WHEREAS, subject to the conditions set forth herein,
the Owner Trustee and the Indenture Trustee will execute
Supplemental Indenture No. 2 to the Indenture, dated as of
_________ __, 199_ ("Supplemental Indenture No. 2"), providing,
among other things, for the issuance of 199_ Bonds with the
respective terms and conditions specified therein; and
WHEREAS, Section 10.03 of the Indenture provides, among
other things, that without the consent of the Holders of any
Bonds, the Indenture Trustee (x) shall, upon receipt of a written
instruction from the Lessee and the Owner Trustee, consent to
certain amendments of the Facility Lease and (y) may join in
certain amendments of the Participation Agreement; and
WHEREAS, subject to the conditions set forth herein,
the Owner Trustee and the Lessee intend to execute Lease
Supplement No. 1 to the Facility Lease, dated as of _________ __,
199_ ("Lease Supplement No. 1"), to make certain amendments to
the Facility Lease; and
WHEREAS, subject to the conditions set forth herein,
the Owner Participant and the Lessee intend to execute Amendment
No. 1, dated as of _________ __, 199_ to the Tax Indemnification
Agreement ("TIA Amendment No. 1") to amend certain provisions of
the Tax Indemnification Agreement; and
WHEREAS, Basic Rent and the Value Schedules, as set
forth in Lease Supplement No. 1, will be adjusted to take into
effect, among other things, the additional Tax Assumptions set
forth in TIA Amendment No. 1 and the additional Pricing
Assumptions set forth in Schedule 1 to PA Amendment No. 1;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE ONE
REFUNDING TRANSACTIONS
Section 1.01. Agreement of Funding Corporation.
Subject to the satisfaction or written waiver of the terms
and conditions hereof and of Section 2 and 10(c) of the
Participation Agreement, on the Refunding Date, Funding
Corporation shall make a Refunding Loan by paying to the
Indenture Trustee for the account of the Owner Trustee
immediately available funds in an amount equal to $__________,
and shall receive the Owner Trustee's 199_ Bonds to evidence such
Refunding Loan, as described in Section 1.02. The proceeds of
the Refunding Loan shall be paid directly to a special account
established by the Owner Trustee with the Indenture Trustee and
shall be applied as set forth in Section 1.02.
Section 1.02. Issuance of Refunding Bonds; Application of
Proceeds.
Subject to the satisfaction or written waiver of the terms
and conditions hereof and of Sections 2 and 10(c) of the
Participation Agreement and Section 2.05 of the Indenture, on the
Refunding Date: (a)(i) the Lessee, the Owner Participant,
Funding Corporation, the Owner Trustee, the Indenture Trustee,
the Individual Indenture Trustee and the Collateral Trust Trustee
shall enter into PA Amendment No. 1, (ii) the Lessee and the
Lessor shall enter into Lease Supplement No. 1, (iii) the Owner
Trustee, the Indenture Trustee and the Individual Indenture
Trustee shall enter into Supplemental Indenture No. 2, (iv) the
Lessee, Funding Corporation and the Collateral Trust Trustee
shall enter into the Collateral Trust Indenture and, subject to
satisfaction of the conditions therein set forth, Supplemental
Indenture No. 1 thereto ("Collateral Trust Supplement"), and (v)
the Lessee and the Owner Participant shall enter into TIA
Amendment No. 1; (b)(i) the Owner Participant shall pay to the
Owner Trustee an additional equity investment of $_________ (the
"Additional Equity Investment"); (ii) the Lessee shall make a
Supplemental Rent payment in the amount of $____________; and
(iii) the Owner Trustee, on behalf of the Owner Participant,
shall issue the 199_ Bonds in the principal amount of $
and apply the Refunding Loan, the Additional Equity Investment
and the Supplemental Rent to redeem the Initial Series Bonds then
Outstanding maturing in 2005 ("Series 2005 Bonds") for an amount
equal to % of the outstanding principal amount thereof (such
outstanding principal amount being $ ) plus accrued
interest thereon and to redeem the Initial Series Bonds then
Outstanding maturing in 2017 ("Series 2017 Bonds") for an amount
equal to % of the outstanding principal amount thereof (such
outstanding principal amount being $ ) plus accrued
interest thereon. The Owner Participant shall pay the Additional
Equity Investment and the Lessee shall pay the Supplemental Rent
payment directly to the special account established by the Owner
Trustee with the Indenture Trustee. Upon receipt of the
Refunding Loan in the aggregate principal amount of $
and the payments of the Owner Participant and the Lessee
described above, the Indenture Trustee, at the direction of the
Owner Trustee shall (i) authenticate and deliver the 199_ Bonds
of the series and in the aggregate principal amount of the
Refunding Loan, and bearing interest at the rates per annum and
having such other terms and conditions as set forth in
Supplemental Indenture No. 2 and (ii) apply the Refunding Loan
and the payments of the Owner Participant and the Lessee pursuant
to clause (b) of this paragraph to the redemption of the Series
2005 Bonds and Series 2017 Bonds then outstanding. Upon issuance
of the 199_ Bonds to Funding Corporation, Funding Corporation
shall pledge such 199_ Bonds in accordance with the terms of the
Collateral Trust Indenture.
Section 1.03. Implementation.
(a) Forms. The forms of PA Amendment No. 1, Supplemental
Indenture No. 2, Lease Supplement No. 1, the Collateral Trust
Indenture, the Collateral Trust Supplement and TIA Amendment
No. 1 are attached hereto as Exhibits A, B, C, D, E and F,
respectively.
(b) Obligations of the Owner Participant. The Owner
Participant hereby directs the Owner Trustee to execute and
deliver this Refunding Agreement and, subject to the terms and
conditions of Sections 2(b) and 10(c) of the Participation
Agreement and Section 2.05 of the Indenture, the Owner
Participant hereby agrees that, on the Refunding Date, it will
execute and deliver TIA Amendment No. 1 and PA Amendment No. 1
and make the payments described in Section 1.02 and direct the
Owner Trustee to (i) execute and deliver PA Amendment No. 1,
Supplemental Indenture No. 2 and Lease Supplement No. 1
(collectively, with this Refunding Agreement and TIA Amendment
No. 1, the "Refunding Documents") in substantially the forms of
Exhibits A, B and C hereto, respectively, (ii) instruct the
Indenture Trustee to consent to Lease Supplement No. 1, (iii)
execute the 199_ Bonds as contemplated by the Refunding Documents
and to request the Indenture Trustee (x) to authenticate and
deliver the 199_ Bonds pursuant to Section 2.05 of the Indenture
and (y) in view of the fact that Funding Corporation is to pledge
such 199_ Bonds to the Collateral Trust Trustee, to cause such
199_ Bonds to be delivered directly to, and registered in the
name of, the Collateral Trust Trustee, and (iv) execute and
deliver all other agreements, instruments and certificates
contemplated by the Transaction Documents and the Refunding
Documents.
(c) Instruction and Consent. Subject to satisfaction of the
terms and conditions of Sections 2(b) and 10(c) of the
Participation Agreement and Section 2.05 of the Indenture, (x) in
accordance with Section 10.03(a) of the Indenture, the Lessee and
the Owner Trustee hereby instruct the Indenture Trustee to
consent, effective as of the Refunding Date, to Lease Supplement
No. 1, and the Indenture Trustee hereby so consents, and (y) in
accordance with Section 10.01 and 10.03 of the Indenture, the
Owner Trustee and the Indenture Trustee hereby consent and agree
to execute and deliver PA Amendment No. 1 and Supplemental
Indenture No. 2 on the Refunding Date. The Lessee consents to
the execution and delivery of Supplemental Indenture No. 2 by the
Owner Trustee and the Indenture Trustee on the Refunding Date.
(d) Recordations and Filings. The Lessee shall cause to be
made the recordations and filings set forth in Schedule 1 hereto
on or prior to the Refunding Date and represents that such
filings and recordations are all the recordations and filings
necessary to preserve, protect and perfect the Owner Trustee's
right, title and interest in and to the Undivided Interest, the
Ground Lease Property and under the Facility Lease, as amended by
Lease Amendment No. 1, and the security interest of the Indenture
Trustee in the Lease Indenture Estate under the Indenture, as
amended by Supplemental Indenture No. 2.
(e) Funding Corporation Consent. Pursuant to the
Collateral Trust Indenture, Funding Corporation shall assign to
the Collateral Trust Trustee on the Refunding Date all of Funding
Corporation's right, title and interest in and to the 199_ Bonds,
as security for Funding Corporation's obligations under the
related Refunding Collateral Bonds and under the Collateral Trust
Indenture. Accordingly, Funding Corporation hereby consents to
the Owner Trustee's issuance of the 199_ Bonds directly to the
Collateral Trust Trustee.
[(f) Promissory Note; First Mortgage Bonds. The Lessee and
the Owner Participant agree that a replacement Promissory Note
dated the Refunding Date and reflecting the revisions to the
Value Schedules contemplated by Lease Supplement No. 1 shall be
delivered to the Owner Participant in exchange for the Promissory
Note dated September 28, 1989 as contemplated by the last
sentence of Section 16(a)(3) of the Participation Agreement. In
addition, the Owner Participant shall surrender to the Lessee for
retirement and cancellation First Mortgage Bonds in the principal
amount of $ , as contemplated by the last sentence of
Section 16(e)(4) of the Participation Agreement.]
(g) Terms of 199_ Bonds. In accordance with Section 2(b)
of the Participation Agreement, the Lessee hereby gives the Owner
Participant irrevocable notice that the terms of the 199_ Bonds
shall be as set forth in Exhibit B hereto. The Owner Participant
hereby agrees to accept a notice period of fewer than five
Business Days as contemplated by Section 2(b) of the
Participation Agreement.
ARTICLE TWO
CONDITIONS TO REFUNDING TRANSACTIONS
Section 2.01. Conditions to Obligations of Funding Corporation
and Lessee.
The respective obligations of Funding Corporation and the
Lessee to take the actions specified in Sections 1.01 and 1.02
are subject to the satisfaction on or before the Refunding Date
of the following conditions:
(i) the Refunding Underwriting Agreement
relating to the offer and sale to the public of
$___________ aggregate principal amount of Secured
Lease Obligation Bonds of Funding Corporation (the
"Refunding Collateral Bonds") shall have been executed
and delivered;
(ii) the Refunding Underwriters shall have
purchased the Refunding Collateral Bonds pursuant to
the Refunding Underwriting Agreement; and
(iii) the conditions set forth in Sections 2
and 10(c) of the Participation Agreement and in the
Refunding Underwriting Agreement shall have been
satisfied or waived in writing.
Section 2.02. Conditions Precedent to Obligations of Owner
Participant and Lessee.
The obligations of the Owner Participant and the Lessee to
take the actions specified in Article One hereof on the Refunding
Date shall be subject to the following conditions precedent:
(i) each of the representations and
warranties set forth in Section 9(a)(1), (2), (3), (4),
(5), (10), (11), (12), (15), (16), (19) and (20) of the
Participation Agreement shall be true and correct as of
the Refunding Date, provided that (a) all references
therein to Closing Date shall be deemed to mean the
Refunding Date, (b) the term Disclosure Documents shall
be deemed to mean Lessee's latest Annual Report on Form
10-K filed with the SEC and all documents subsequently
filed by the Lessee with the SEC pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act prior to
the date of the execution and delivery of the Refunding
Agreement, and (c) the references in clause (10) to
June 30, 1989 shall be deemed to mean the last day of
the fiscal quarter for which the most recent Quarterly
Report on Form 10-Q has been filed with the SEC; and
Lessee shall have delivered a certificate to such
effect to the Owner Participant; and
(ii) each of the representations
and warranties of the Owner Participant set forth in
Section 6(a)(1), (2), (3), (4) and (9) of the
Participation Agreement shall be true and correct as of
the Refunding Date, provided that all references
therein to Closing Date shall be deemed to mean the
Refunding Date; and the Owner Participant shall have
delivered a certificate to such effect to the Lessee;
(iii) each of the representations
and warranties of FNBC and Owner Trustee set forth in
Section 7(a)(1), (2), (3), (4), (5), (6), (7), (8), (9)
and (10) of the Participation Agreement shall be true
and correct as of the Refunding Date, provided that all
references therein to Closing Date shall be deemed to
mean the Refunding Date; and FNBC and the Owner Trustee
shall have delivered a certificate to such effect to
the Owner Participant and the Lessee;
(iv) each of the representations
and warranties of IT and the Indenture Trustee set
forth in Section 8(a) of the Participation Agreement
shall be true and correct as of the Refunding Date,
provided that all references therein to Closing Date
shall be deemed to mean the Refunding Date; and IT and
the Indenture Trustee shall have delivered a
certificate to such effect to the Owner Participant and
the Lessee;
(v) each of the representations and
warranties of Funding Corporation in Section 8A of the
Participation Agreement shall be true and correct and
Funding Corporation shall have delivered a certificate
to such effect to the Owner Participant and the Lessee.
(vi) each of the representations
and warranties of the Collateral Trust Trustee in
Section 8B of the Participation Agreement shall be true
and correct and the Collateral Trust Trustee shall have
delivered a certificate to such effect to the Owner
Participant and the Lessee.
(vii) the Refunding Underwriting
Agreement shall have been executed and delivered;
(viii) the Refunding Underwriters
shall have purchased the Refunding Collateral Bonds
pursuant to the Refunding Underwriting Agreement; and
(ix) the conditions set forth in
Sections 2(b) and 10(c) of the Participation Agreement
shall have been satisfied or waived in writing;
provided, however, that the obligations of the Lessee shall not
be subject to the conditions set forth in clause (i) above and
the obligations of the Owner Participant shall not be subject to
the conditions set forth in clause (ii) above.
Section 2.03.Conditions to Obligation of Owner Trustee.
The obligation of the Owner Trustee to issue and deliver the
199_ Bonds on the Refunding Date to the Collateral Trust Trustee,
as assignee of Funding Corporation, in consideration of the
Refunding Loan is subject to (x) the simultaneous performance by
Funding Corporation of its obligations under Article One and the
payment by the Owner Participant and the Lessee of the amounts
provided in Section 1.02, (y) the satisfaction on or before the
Refunding Date of the conditions set forth in Sections 2
and 10(c) of the Participation Agreement and Section 2.05 of the
Indenture to the obligation of the Owner Trustee to participate
in the transactions contemplated by this Refunding Agreement, and
(z) receipt of a direction from the Owner Participant in
conformance with Section 1.03.
Section 2.04.Conditions to Obligation of Indenture Trustee.
The obligation of the Indenture Trustee to take the action
specified in Section 1.02 is subject to the satisfaction on or
before the Refunding Date of the conditions set forth in Section
2.05 of the Indenture.
ARTICLE THREE
REFUNDING EXPENSES
Section 3.01.Refunding Expenses.
(a) Subject to the provisions of this Section 3.01, solely
from funds provided by the Owner Participant, the Owner Trustee
hereby agrees that it will pay when due, or reimburse any Person
who has previously paid, the following costs and expenses
("Refunding Expenses"):
(i) the reasonable legal fees and
disbursements of the Owner Participant's
Special Counsel (not to exceed $_______), the
Owner Participant's Tax Counsel (not to
exceed $______), the Owner Participant's
Special Louisiana Counsel (not to exceed
$ ), the Owner Trustee's Counsel
(Louisiana and New York) and the Indenture
Trustee's Counsel for their services rendered
in connection with the execution and delivery
of this Refunding Agreement and the other
Refunding Documents and Financing Documents;
(ii) all stenographic,
printing, reproduction, and other reasonable
out-of-pocket expenses (other than investment
banking or brokerage fees) incurred in
connection with the transactions contemplated
by the Refunding Documents and Financing
Documents and all other agreements, documents
or instruments prepared in connection
therewith (including all structuring
computations and computerized lease analysis
and travel related costs);
(iii) all costs of
issuance of the Refunding Collateral Bonds,
including, without limitation, the costs of
preparing the Refunding Underwriting
Agreement, and all filing fees relating to
any Registration Statement for the Refunding
Collateral Bonds and the fees, expenses and
disbursements of the law firms referred to in
clause (i) above, and of counsel to the
Refunding Underwriters, rating agency fees
and the fees and commissions of the Refunding
Underwriters;
(iv) all fees of the
Owner Trustee and the Indenture Trustee in
connection with the review, execution and
delivery of this Refunding Agreement and the
other Refunding Documents; and
(v) any other fees, expenses,
disbursements and costs as the Lessee and the
Owner Participant shall have agreed are
payable pursuant to this Section 3.01(a).
Subject to the provisions of paragraphs (b) and (c)
below, funds for the payment of Refunding Expenses will be
provided by the Owner Participant to the Owner Trustee and the
Owner Trustee will promptly disburse such funds upon written
authorization from the Owner Participant. The amount of
Refunding Expenses payable by the Owner Trustee shall not exceed
$____________.
(b) Payments or reimbursements of Refunding Expenses shall
be made (i) on the Refunding Date to the extent invoiced and
approved by the Owner Participant on or prior to the Refunding
Date, and (ii) to the extent not previously paid pursuant hereto
as promptly as practicable, and in any event not later than 10
Business Days after being invoiced. Each party hereto shall use
its best efforts to prepare, and cause any Person acting for it
to prepare, and submit as soon as practicable and in any event
not later than 30 days after the Refunding Date any invoice of
such Person in respect of Refunding Expenses. Promptly after the
payment of such Refunding Expenses, such adjustments to Basic
Rent and the Value Schedules as are required by Section 3(e)(ii)
of the Facility Lease shall be made.
(c) Notwithstanding anything in this Section 3.01 to the
contrary, in the event the transactions contemplated by this
Refunding Agreement shall not be consummated, the Lessee shall
pay or cause to be paid, and shall indemnify and hold harmless
the Indenture Trustee, the Owner Trustee, Funding Corporation,
the Owner Participant and the Collateral Trust Trustee with
respect to all losses, costs and expenses whatsoever incurred by
them as a result of the pursuit of such transactions, including,
without limitation, all Refunding Expenses (which shall, in such
an instance, be deemed to include, without limitation, all
losses, costs and expenses whatsoever incurred by the Owner
Participant pursuant to this Agreement and Section 7.01 of the
Trust Agreement) unless, in the case of the Owner Participant,
such failure to consummate shall result solely from the Owner
Participant's default in making its investment as contemplated in
Article One hereunder. Furthermore, in the event that the
Refunding Expenses shall exceed the funds available to the Owner
Trustee pursuant to paragraph (a) for the payment of Refunding
Expenses, the Lessee shall pay or cause to be paid, and shall
indemnify and hold harmless the Indenture Trustee, the Owner
Trustee, Funding Corporation, the Owner Participant and the
Collateral Trust Trustee with respect to, all such excess
Refunding Expenses.
ARTICLE FOUR
MISCELLANEOUS
Section 4.01.Execution.
This Refunding Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 4.02.Governing Law.
This Refunding Agreement shall be governed by, and be
construed in accordance with, the laws of the State of New York.
Section 4.03.Concerning the Owner Trustee.
FNBC is entering into this Refunding Agreement solely
as Owner Trustee under the Trust Agreement and not in its
individual capacity. Anything herein to the contrary
notwithstanding, all and each of the agreements and obligations
herein made or undertaken on the part of the Owner Trustee are
made or undertaken not as personal agreements of FNBC, but are
made or undertaken solely for the purpose of binding only the
Trust Estate, and nothing contained in this Refunding Agreement
shall entitle any person to any claim against FNBC in its
individual capacity or any of its assets.
IN WITNESS WHEREOF, the parties hereto have caused this
Refunding Agreement to be duly executed by their respective
officers thereunto duly authorized.
ESSL 2, INC.
as Owner Participant
By
Name:
Title:
W3A FUNDING CORPORATION
By
Name:
Title:
FIRST NATIONAL BANK OF COMMERCE, not in
its individual capacity but solely
as Owner Trustee under the Trust
Agreement
By
Name:
Title:
BANKERS TRUST COMPANY, not in its
individual capacity but solely as
Corporate Indenture Trustee and
Collateral Trust Trustee
By
Name:
Title:
STANLEY BURG, not in his individual
capacity but solely as Individual
Indenture Trustee
LOUISIANA POWER & LIGHT COMPANY, as Lessee
By
Name:
Title:
<PAGE>
SCHEDULE 1
Recordations and Filings
<PAGE>
EXHIBIT A
Form of PA Amendment No. 1
<PAGE>
EXHIBIT B
Form of Supplemental Indenture No. 2
<PAGE>
EXHIBIT C
Form of Lease Supplement No. 1
<PAGE>
EXHIBIT D
Form of Collateral Trust Indenture
<PAGE>
EXHIBIT E
Form of Collateral Trust Supplement
<PAGE>
EXHIBIT F
Form of TIA Amendment No. 1
Exhibit 5(a)
February 29, 1996
Louisiana Power & Light Company
639 Loyola Avenue
New Orleans, Louisiana 70113
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 to
be filed with the Securities and Exchange Commission (the
"Commission") on or about the date hereof by Louisiana Power &
Light Company (the "Company") for the registration under the
Securities Act of 1933, as amended, of $322,526,000 aggregate
principal amount of Waterford 3 Secured Lease Obligation Bonds
(the "Bonds") to be issued, in one or more series, by W3A Funding
Corporation ("Funding Corporation") and for the qualification
under the Trust Indenture Act of 1939, as amended, of the
Collateral Trust Indenture, as proposed to be supplemented
("Collateral Trust Indenture"), under which the Bonds are to be
issued.
We are of the opinion that Funding Corporation is a
corporation duly organized and validly existing under the laws of
the State of Delaware.
We are further of the opinion that all action necessary
to make valid the proposed issuance and sale by Funding
Corporation of the Bonds to the purchasers thereof will have been
taken when:
(a) the Company's said Registration Statement on
Form S-3, as it may be amended, shall have become
effective in accordance with the applicable
provisions of the Securities Act of 1933, as
amended, and a supplement or supplements to the
prospectus specifying certain details with respect
to the offering or offerings of the Bonds shall
have been filed with the Commission, and the
Collateral Trust Indenture shall have been
qualified under the Trust Indenture Act of 1939,
as amended;
(b) an appropriate order or orders shall have
been issued by the Commission under the Public
Utility Holding Company Act of 1935 in respect of
the related Application-Declaration on Form U-1
(File No. 70-8771), as amended and as it may be
further amended;
(c) appropriate action shall have been taken by
the Boards of Directors of the Company and of
Funding Corporation for the purpose of authorizing
the consummation of the issuance and sale of the
Bonds;
(d) the proposed Collateral Trust Indenture,
under which the Bonds are to be issued, shall have
been appropriately executed and delivered; and
(e) the Bonds shall have been appropriately
issued and delivered for the consideration
contemplated by, and otherwise in conformity with,
the acts, proceedings and documents referred to
above.
We are further of the opinion that when the foregoing
steps have been taken, the Bonds will be legal, valid and binding
obligations of Funding Corporation enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation or other laws affecting
the enforcement of creditors' rights, by fraudulent conveyance
and transfer laws and by general equitable principles and the
exercise of judicial discretion in applying remedies for the
enforcement of the rights and security provided for therein,
including the remedy of specific enforcement and otherwise.
This opinion does not pass upon the matter of compliance with
"blue sky" laws or similar laws relating to the sale or
distribution of the Bonds by underwriters.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
matters of Delaware law, we have examined or caused to be
examined such documents and satisfied ourselves as to such
matters as we have deemed necessary in order to render this
opinion. As to all matters of Louisiana law, we have relied upon
an opinion of even date addressed to you by Monroe & Lemann (A
Professional Corporation), of New Orleans, Louisiana. We have
not examined into and are not passing upon matters relating to
the incorporation of the Company.
We hereby consent to the use of this opinion as an
exhibit to the Company's said Registration Statement on Form S-3,
as it may be amended, and consent to such references to our firm
as may be made in such Registration Statement and in the
Prospectus constituting a part thereof.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
Exhibit 5(b)
February 29, 1996
Louisiana Power & Light Company
639 Loyola Avenue
New Orleans, Louisiana 70113
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 to
be filed with the Securities and Exchange Commission (the
"Commission") on or about the date hereof by Louisiana Power &
Light Company (the "Company") for the registration under the
Securities Act of 1933, as amended, of $322,526,000 aggregate
principal amount of Waterford 3 Secured Lease Obligation Bonds
("the Bonds") to be issued, in one or more series, by W3A Funding
Corporation ("Funding Corporation") and for the qualification
under the Trust Indenture Act of 1939, as amended, of the
Collateral Trust Indenture, as proposed to be supplemented
("Collateral Trust Indenture"), under which the Bonds are to be
issued.
We are of the opinion that the Company is a corporation
validly organized, existing and in good standing under the laws
of the State of Louisiana.
We are further of the opinion that all action necessary
to make valid the proposed issuance and sale by Funding
Corporation of the Bonds to the purchasers thereof will have been
taken when:
(a) the Company's said Registration Statement on Form
S-3, as it
may be amended, shall become effective in
accordance
with the applicable provisions of the Securities
Act of 1933, as
amended, and a supplement or supplements to the
prospectus
specifying certain details with respect to the
offering or
offerings of the Bonds shall have been filed with
the Commission,
and the Collateral Trust Indenture shall have been
qualified under
the Trust Indenture Act of 1939, as amended;
(b) an appropriate order or orders shall have been
issued by the Commission under the Public Utility
Holding Company Act of 1935 in respect of the
related Application-Declaration on Form U-1 (File
No. 70-8771), asamended and as it may be further
amended;
(c) appropriate action shall have been taken by the
Boards of Directors
of the Company and of Funding Corporation for the
purpose of
authorizing the consummation of the issuance and
sale of the Bonds;
(d) the proposed Collateral Trust Indenture, under
which the Bonds are to be issued, shall have been
appropriately executed and delivered; and
(e) the Bonds shall have been appropriately issued and
delivered for the
consideration contemplated by, and otherwise in
conformity with,
the acts, proceedings and documents referred to
above.
We are further of the opinion that when the foregoing
steps have been taken, the Bonds will be legal, valid and binding
obligations of Funding Corporation enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation or other laws affecting
the enforcement of creditors' rights, by fraudulent conveyance
and transfer laws and by general equitable principles and the
exercise of judicial discretion in applying remedies for the
enforcement of the rights and security provided for therein,
including the remedy of specific enforcement and otherwise. This
opinion does not pass upon the matter of compliance with "blue
sky" laws or similar laws relating to the sale or distribution of
the Bonds by underwriters.
We are members of the Louisiana Bar and do not hold
ourselves out as experts on the laws of any other state. In
giving this opinion, we have relied, as to all matters of
Delaware and New York law, upon the opinion of even date
addressed to you by Reid & Priest LLP. We have not examined into
and are not passing upon matters relating to the incorporation of
Funding Corporation.
We hereby consent to the use of this opinion as an
exhibit to the Company's said Registration Statement on Form S-3,
as it may be amended, and consent to such references to our firm
as may be made in such Registration Statement and in the
Prospectus constituting a part thereof.
Very truly yours,
/s/ Monroe & Lemann
Monroe & Lemann
<TABLE>
<CAPTION>
Exhibit 12
Louisiana Power and Light Company
Computation of Ratios of Earnings to Fixed Charges and
Ratios of Earnings to Combined Fixed Charges and Preferred Dividends
Twelve Months Ended
December 31, September 30,
1990 1991 1992 1993 1994 1995
<S> <C> <C> <C> <C> <C> <C>
Fixed charges, as defined:
Interest on long-term debt $154,357 $158,816 $128,672 $124,633 $124,820 $124,992
Interest on notes payable 87 -- 150 898 1,948 1,729
Other interest charges 6,378 5,924 5,591 5,706 4,546 5,230
Amortization of expense and premium on debt 3,397 3,282 7,100 5,720 5,130 5,387
- net(cr)
Interest applicable to rentals 12,906 11,381 9,363 8,519 8,332 9,088
Total fixed charges, as defined 177,125 179,403 150,876 145,476 144,776 146,426
Preferred dividends, as defined (a) 42,365 41,212 42,026 40,779 29,171 28,777
Combined fixed charges and preferred $219,490 $220,615 $192,902 $186,255 $173,947 $175,203
dividends, as defined
Earnings as defined:
Net Income $155,049 $166,572 $182,989 $188,808 $213,839 $243,325
Add:
Provision for income taxes:
Federal and State 62,236 8,684 36,465 70,552 79,260 152,648
Deferred Federal and State - net (9,655) 67,792 51,889 43,017 21,580 (27,948)
Investment tax credit adjustment - net 26,646 8,244 (1,317) (2,756) (37,552) (36,721)
Fixed charges as above 177,125 179,403 150,876 145,476 144,776 146,426
Total earnings, as defined $411,401 $430,695 $420,902 $445,097 $421,903 $477,730
Ratio of earnings to fixed charges, as 2.32 2.40 2.79 3.06 2.91 3.26
defined
Ratio of earnings to combined fixed charges
and preferred dividends, as defined 1.87 1.95 2.18 2.39 2.43 2.73
- ------------------------
(a) "Preferred dividends," as defined by SEC regulation S-K, are computed by
dividing the preferred dividend requirement by one hundred percent
(100%) minus the income tax rate.
</TABLE>
Exhibit 25(a)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF
1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ___________
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
Louisiana Power & Light Company
(Exact name of obligor as specified in its charter)
LOUISIANA 72-0245590
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
639 Loyola Avenue
New Orleans, Louisiana 70113
(Address of principal executive offices) (Zip Code)
Waterford 3 Secured Lease Obligation Bonds
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of
Bankers Trust Company dated August 7, 1990 and
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated March 28,
1994 - Incorporated herein by reference to Exhibit 1
filed with Form T-1 Statement, Registration No. 33-
79862.
Exhibit 2 - Certificate of Authority to commence
business - Incorporated herein by reference to Exhibit
2 filed with Form T-1 Statement, Registration No. 33-
21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein by
reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust
Company, dated as amended on September 21, 1993. -
Incorporated herein by reference to Exhibit 4 filed
with Form T-1 Statement, Registration No. 33-52359.
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company
required by Section 321(b) of the Act. - Incorporated
herein by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - A copy of the latest report of condition
of Bankers Trust Company dated as of September 30,
1995.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New
York, on the 8th day of February, 1996.
BANKERS TRUST COMPANY
By:_______________________________
Scott Thiel
Assistant Vice President
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New
York, on the 8th day of February, 1996.
BANKERS TRUST COMPANY
By: Scott Thiel
Scott Thiel
Assistant Vice President
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/95
ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: 0 0 6 2 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks September 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of
the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in Thousands RCFD Bil Mil Thou
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and
coin(1) 0081 1,690,000 1.a.
b. Interest-bearing balances(2) 0071 1,531,000 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule
RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule
RC-B, column D) 1773 4,104,000 2.b.
3. Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal funds sold 0276 3,475,000 3.a.
b. Securities purchased under agreements to resell 0277 792,000 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
(from Schedule RC-C) RCFD 2122 21,152,000 4.a.
b. LESS: Allowance for loan and lease
losses RCFD 3123 981,000 4.b.
c. LESS: Allocated transfer risk
reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned
income, allowance, and reserve
(item 4.a minus 4.b and 4.c)
2125 20,171,000 4.d.
5. Trading assets (from Schedule RC-D) 3545 37,469,000 5.
6. Premises and fixed assets (including capitalized
leases) 2145 839,000 6.
7. Other real estate owned (from Schedule RC-M) 2150 257,000 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 2130 243,000 8.
9. Customers' liability to this bank on acceptances
outstanding 2155 461,000 9.
10. Intangible assets (from Schedule RC-M) 2143 10,000 10.
11. Other assets (from Schedule RC-F) 2160 10,351,000 11.
12. Total assets (sum of items 1 through 11) 2170 81,393,000 12.
__________________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/95
ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: 0 0 6 2 3
Schedule RC--Continued
Dollar Amounts in Thousands Bil Mil Thou
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of
columns A and C from Schedule RC-E,
part I) RCON 2200 7,445,000 13.a.
(1) Noninterest-bearing
(1) RCON 6631 3,025,000 13.a.(1)
(2) Interest-bearing RCON 6636 4,420,000 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule
RC-E part II) RCFN 2200 20,135,000 13.b.
(1) Noninterest-bearing RCFN 6631 533,000 13.b.(1)
(2) Interest-bearing RCFN 6636 19,602,000 13.b.(2)
14. Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased RCFD 0278 4,021,000 14.a.
b. Securities sold under agreements to
repurchase RCFD 0279 1,472,000 14.b.
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a.
b. Trading liabilities RCFD 3548 20,282,000 15.b.
16. Other borrowed money:
a. With original maturity of one year
or less RCFD 2332 10,242,000 16.a.
b. With original maturity of more than
one year RCFD 2333 3,196,000 16.b.
17. Mortgage indebtedness and obligations
under capitalized leases RCFD 2910 35,000 17.
18. Bank's liability on acceptances executed
and outstanding RCFD 2920 461,000 18.
19. Subordinated notes and debentures RCFD 3200 1,226,000 19.
20. Other liabilities (from Schedule RC-G) RCFD 2930 8,663,000 20.
21. Total liabilities (sum of items 13
through 20) RCFD 2948 77,178,000 21.
22. Limited-life preferred stock and
related surplus RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplusRCFD 3838 400,000 23.
24. Common stock RCFD 3230 852,000 24.
25. Surplus (exclude all surplus related to
preferred stock) RCFD 3839 528,000 25.
26. a. Undivided profits and capital reserves RCFD 3632 2,794,000 26.a.
b. Net unrealized holding gains (losses)
on available-for-sale securities RCFD 8434 6,000 26.b.
27. Cumulative foreign currency translation
adjustments RCFD 3284 (365,000)27.
28. Total equity capital (sum of items 23
through 27) RCFD 3210 4,215,000 28.
29. Total liabilities, limited-life preferred
stock, and equity capital (sum of items
21, 22, and 28) RCFD 3300 81,393,000 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of
auditing work performed for the bank by independent external Number
auditors as of any date during 1994 RCFD 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm
which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
______________________
(1) Including total demand deposits and noninterest-bearing time
and savings deposits.
