SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (date of earliest event reported): June 26, 1997
ENTERGY LOUISIANA, INC.
(Exact name of registrant as specified in its charter)
Louisiana 0-8474 72-0245590
(State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of Incorporation)
639 Loyola Avenue, New Orleans, Louisiana 70113
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (508) 576-4000
<PAGE>
Item 5. Other Events.
Entergy Louisiana, Inc. (the "Registrant") is the
lessee of three separate undivided interests in Unit 3 of the
Waterford Steam Electric Generating Station under three separate,
but substantially identical, long-term net leases. The lessors
under such leases (the "Lessors") acquired the undivided
interests from the Registrant in three separate sale-leaseback
transactions that occurred in 1989. Approximately 87.7% of the
aggregate consideration paid by the Lessors for their respective
undivided interests was provided to the Lessors from the issuance
of Waterford 3 Secured Lease Obligation Bonds (the "Initial
Series Bonds") in 1989.
In June 1997, the Registrant exercised its option to
request the Lessors to refinance the outstanding Initial Series
Bonds. In connection with such refinancing, the Registrant
entered into (i) an Underwriting Agreement, dated as of June 26,
1997, with Morgan Stanley & Co. Incorporated, Citicorp
Securities, Inc. and W3A Funding Corporation (a special purpose
entity formed to facilitate the refinancing) relating to the
offering and sale of $307,632,000 Waterford 3 Secured Lease
Obligation Bonds, 8.09% Series due 2017 (the "New Bonds") and
(ii) three separate Refunding Agreements, each dated as of June
27, 1997, with W3A Funding Corporation, an equity investor as
Owner Participant, the Lessors and Bankers Trust Company, as
Indenture Trustee and Collateral Trust Trustee. The proceeds of
the New Bonds will be loaned to the Lessors, and will be used to
redeem the outstanding Initial Series Bonds and to pay certain
costs and expenses incurred in connection with the refinancing.
Item 7. Financial Statements and Exhibits
(c) Exhibits
1. Underwriting Agreement, dated as of June 26, 1997;
2. Refunding Agreement No. 1, dated as of June 27, 1997;
3. Refunding Agreement No. 2, dated as of June 27, 1997; and
4. Refunding Agreement No. 3, dated as of June 27, 1997.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
ENTERGY LOUISIANA, INC.
/s/ Louis E. Buck
Louis E. Buck
Vice President and Chief Accounting Officer
Dated: July 14, 1997
Exhibit 1
Entergy Louisiana, Inc.
W3A Funding Corporation
$307,632,000
Waterford 3 Secured Lease Obligation Bonds, 8.09% Series due 2017
UNDERWRITING AGREEMENT
June 26, 1997
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, Entergy Louisiana, Inc., a
Louisiana corporation (the "Company"), and W3A Funding
Corporation, a Delaware corporation ("Funding Corporation"),
hereby confirms its agreement with you, as the several
underwriters (the "Underwriters", which term, when the context
permits, shall also include any underwriters substituted as
hereinafter in Section 12 provided), as follows:
1. Introduction. The Funding Corporation proposes to issue
and sell $307,632,000 in aggregate principal amount of its
Waterford 3 Secured Lease Obligation Bonds, 8.09% Series due 2017
(the "Bonds") pursuant to a Collateral Trust Indenture dated as
of July 1, 1997, as supplemented by Supplemental Indenture No. 1
thereto dated as of July 1, 1997 (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").
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 a price of 100% of
the principal amount thereof:
Name Principal Amount
Morgan Stanley & Co. Incorporated $153,816,000
Citicorp Securities, Inc. 153,816,000
------------
$307,632,000
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
Owner Participant referred to below will pay to the several
Underwriters in immediately available funds an underwriting
commission of .875% of the principal amount thereof ($2,691,780).
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 (as defined herein), pursuant to Sections 3.01(a)(iii) and
3.01(b) of the Refunding Agreements Nos. 1, 2 and 3, each dated
as of June 27, 1997, among the Funding Corporation, the Company,
the Owner Participant named therein, the Owner Trustee, Bankers
Trust Company, as corporate indenture trustee, and Stanley Burg,
as individual indenture trustee (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.
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.
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 that 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. 333-01329) for the registration of $322,526,000
aggregate principal amount of the Bonds under the Securities Act
of 1933, as amended (the "Securities Act"), and such registration
statement, as amended by Amendments No. 1 and No. 2 thereto, 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 transmitted for
filing to the Commission pursuant to Rule 424(b) under the
Securities Act ("Rule 424(b)"), 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 that 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 Counsel for the Underwriters shall reasonably object on
legal grounds in writing. For purposes of this Underwriting
Agreement, any document that 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, at the time it 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 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
statement of eligibility on Form T-1 filed as an exhibit to the
Registration Statement (the "Statement of Eligibility").
(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, will constitute a legal,
valid and binding obligation of the Company 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
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 and contribution 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 Transaction Documents 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 then amended or supplemented, the
Company possesses adequate franchises, licenses, permits,
and other rights to conduct its business and operations as
now conducted (including, without limitation, the
performance of its current obligations under the Transaction
Documents) without any known conflicts with the rights of
others that could have a material adverse effect on the
Company.
(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.
(a) 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,
will constitute a legal, valid and binding obligation of the
Funding Corporation enforceable against the Funding Corporation
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 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
and contribution provisions contained herein.
5. Offering. The Company is advised by the Underwriters
that they propose to make a public offering of their respective
portions of the Bonds 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, if any, from the Closing Date.
6. Time and Place of Closing. Delivery of the Bonds and
payment of the purchase price therefor by wire transfer in
immediately available funds to the corporate indenture trustee
under each Lease Indenture (as defined in the Prospectus), for
the account of the Funding Corporation, 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 July 17, 1997, 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 ("DTC") in New York, New York. The certificates for the
Bonds shall be in the form of two typewritten bonds in fully
registered form, in the aggregate principal amount of the Bonds,
and registered in the name of Cede & Co, as nominee of DTC. 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.
On the Closing Date, the Owner Participant referred to
in Section 2 hereof will pay the underwriting commissions payable
at such time to the Underwriters pursuant to Section 2 hereof by
wire transfer in immediately available funds to an account
designated by Morgan Stanley & Co. Incorporated for the accounts
of the several Underwriters.
7. 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
in the form that it became effective or a conformed copy thereof,
certified by an officer of the Company to be in such form.
(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.
(e) 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(b) 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 as the Underwriters are
required by law to deliver a prospectus after this Underwriting
Agreement has become effective, 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 that 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 that 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 fees, expenses and taxes incident to the
performance of the Company's and the Funding Corporation's
obligations under this Underwriting Agreement including, but not
limited to, (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 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) the rating of the Bonds by one or more nationally
recognized statistical rating agencies and (vi) filings or other
notices (if any) with or to, as the case may be, the National
Association of Securities Dealers, Inc. (the "NASD") in
connection with its review of the terms of the offering of the
Bonds. 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.
8. 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 transmitted for filing
to the Commission pursuant to Rule 424(b) 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 an order 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.
(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 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, 1996 to a specified date
not more than five 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 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, and (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) Between the date hereof and the Closing Date, no
Lease Default (as defined in the Prospectus) under each
Lease (as defined in the Prospectus), no Lease Indenture
Default (as defined in the Prospectus) under each Lease
Indenture and no default (or an event which, with the giving
of notice or the passage of time or both, would constitute a
default) under the Trust Indenture shall have occurred.
(k) 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.
(l) 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 Baa3 or higher from Moody's Investors
Service, Inc. and BBB- or higher from Standard & Poor's.
(m) Between the date hereof and the Closing Date,
neither Moody's Investors Service, Inc. nor Standard and
Poor's shall have lowered its rating of any of the Company's
debt securities in any respect.
(n) 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
Agreements (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 Pledged Lessor
Bonds, with none of such conditions precedent having been
waived by the Funding Corporation, the Company or the
Trustee without the consent of the Underwriters.
(o) The opinions of counsel required to be delivered by
the first two sentences of Section 10(c)(5) of the
Participation Agreements 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
Participant named therein, all as described and/or defined
in the Participation Agreements, 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 Agreements, 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.
(p) 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.
(q) 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.
(r) 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
and the Funding Corporation. 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.
9. 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 of the Commission under the Holding Company Act
authorizing the issuance and sale of the Bonds.
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 or the Funding Corporation 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.
10. 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 transmitted for filing to the Commission
pursuant to Rule 424(b)), 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
transmitted for filing to the Commission pursuant to Rule 424(b))
or the Prospectus or any amendment or supplement to any thereof
or arising out of or based upon statements in or omissions from
the Statement of Eligibility, 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 transmitted for filing to the Commission
pursuant to Rule 424(b)), 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 transmitted for
filing to the Commission pursuant to Rule 424(b)) 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.
11. 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, who are
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.
13. 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.
14. 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.
15. 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 National
Corporate Research, Ltd., 224 West 34th Street, Suite 2110, New
York, New York 10122, Attention: John Morrissey, with a copy to
Reid & Priest LLP, 40 West 57th Street, New York, New York 10019,
Attention: John T. Hood, Esq.
16.
<PAGE>
Very truly yours,
W3A Funding Corporation
By:/s/ John Morrissey
Name: John Morrissey
Title: Vice President
Entergy Louisiana, Inc.
By:/s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title:Vice President and Treasurer
Accepted as of the date first above written:
Morgan Stanley & Co. Incorporated
Citicorp Securities, Inc.
By: Morgan Stanley & Co. Incorporated
By:/s/ Bruce Paone
Name: Bruce Paone
Title: Vice President
<PAGE>
EXHIBIT A
[Letterhead of Monroe & Lemann]
July 14, 1997
Morgan Stanley & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Stanley & Co. Incorporated
1585 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 Entergy Louisiana, Inc., a
Louisiana corporation (the "Company"), in connection with the
issuance and sale to you pursuant to the Underwriting Agreement,
effective June __, 1997 (the "Underwriting Agreement"), among W3A
Funding Corporation, a Delaware corporation (the "Funding
Corporation"), the Company and you, of $307,632,000 aggregate
principal amount of the Funding Corporation's Waterford 3 Secured
Lease Obligation Bonds, _____% Series due ____ (the "Bonds").
The Bonds are being issued pursuant to the Collateral Trust
Indenture dated as of July 1, 1997, as amended by Supplemental
Indenture No. 1 thereto, dated as of July 1, 1997 (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; (e) the records of various corporate
proceedings relating to the authorization, 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. 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. 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:
(i) 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.
(ii) 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 of the Company
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 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.
(iii) 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",
"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 transmitted for filing to the Commission
pursuant to Rule 424(b), complied as to form in all material
respects with the applicable requirements of the Securities Act
and (except with respect to the Statement of Eligibility, 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 were 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, when 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 were
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 by the Funding Corporation; 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 the declaration of
effectiveness of the Registration Statement under the Securities
Act or the qualification of the Trust Indenture under the TIA,
which have 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 each 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 each 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
certain permitted liens) in favor of the Funding Corporation.
The description of the Lease Indenture Estate (as defined in the
Prospectus) 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 transmitted for filing to the Commission pursuant to
Rule 424(b) 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 Statement of Eligibility
or as to the information contained in the Prospectus Supplement
under the caption "Certain Terms of the Collateral Bonds--Book-
Entry Only System."
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]
July 14, 1997
Morgan Stanley & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Stanley & Co. Incorporated
1585 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 Entergy Louisiana, Inc., a Louisiana corporation (the
"Company"), in connection with the issuance and sale to you
pursuant to the Underwriting Agreement, effective June __, 1997
(the "Underwriting Agreement"), among W3A Funding Corporation, a
Delaware corporation ("Funding Corporation"), the Company and
you, of $307,632,000 aggregate principal amount of the Funding
Corporation's Waterford 3 Secured Lease Obligation Bonds, _____%
Series due ____ (the "Bonds"). The Bonds are being issued
pursuant to the Collateral Trust Indenture, dated as of July 1,
1997, as amended by Supplemental Indenture No. 1, dated as of
July 1, 1997 (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; (e) the records of various corporate
proceedings relating to the authorization, 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 Funding Corporation. 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. 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:
(iv) 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 obligation of the Company
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 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.
(v) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(vi) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"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.
(vii) The execution, delivery and performance by the
Company of the Underwriting Agreement and the consummation of the
transactions contemplated thereby will not violate any provision
of, or constitute a default under, any of the Transaction
Documents.
(viii) 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 transmitted for filing to the Commission
pursuant to Rule 424(b), complied as to form in all material
respects with the applicable requirements of the Securities Act
and (except with respect to the Statement of Eligibility, 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 were 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, when 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 were
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.
(ix) An appropriate order has been entered by the Commission
under the Holding Company Act authorizing the issuance and sale
of the Bonds; 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 the declaration of
effectiveness of the Registration Statement under the Securities
Act or the qualification of the Trust Indenture under the TIA,
which have 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 transmitted for
filing to the Commission pursuant to Rule 424(b) 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 Statement of Eligibility or as to the information
contained in the Prospectus Supplement under the caption "Certain
Terms of the Collateral Bonds--Book-Entry Only System."
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 liens of the Trust Indenture or the Lease Indentures (as
defined in the Prospectus).
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]
July 14, 1997
Morgan Stanley & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
Ladies and Gentlemen:
We have acted as special counsel to W3A Funding
Corporation, a Delaware corporation ("Funding Corporation"), in
connection with the issuance and sale to you of $307,632,000
aggregate principal amount of its Waterford 3 Secured Lease
Obligation Bonds, _____% Series due ____ (the "Bonds"), pursuant
to the Underwriting Agreement, effective June __, 1997 (the
"Underwriting Agreement"), among Funding Corporation, Entergy
Louisiana, Inc., a Louisiana corporation ("Entergy Louisiana"),
and you. The Bonds are being issued pursuant to the Collateral
Trust Indenture, dated as of July 1, 1997 (the "Original
Indenture"), as amended by Supplemental Indenture No. 1 thereto
(the "Supplemental Indenture"), dated as of July 1, 1997 (the
Original Indenture, as so amended, being hereinafter referred to
as the "Trust Indenture"), among Funding Corporation, Entergy
Louisiana 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; (e) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Bonds by Funding Corporation and the authorization, 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 the Funding Corporation. 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
obligation of Funding Corporation 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 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 Bonds have been duly and validly authorized,
executed and issued by Funding Corporation and are legal, valid
and binding obligations of Funding Corporation enforceable
against Funding Corporation 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 enforceability is considered in a proceeding in equity or
at law), and are entitled to the benefit of the security afforded
by the Trust Indenture.
(4) 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.
(5) The Commission has issued an order under the
Holding Company Act authorizing the issuance and sale of the
Bonds, and no other approval, authorization, consent or other
order of any regulatory body (other than the declaration of
effectiveness of the Registration Statement under the Securities
Act or the qualification of the Trust Indenture under the TIA,
which have been duly obtained, or such registration or
qualification as may be required under the securities or blue sky
laws of any jurisdiction) is legally required for the valid
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.
(6) 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.
(7) The Underwriting Agreement has been duly
authorized, executed and delivered by Funding Corporation.
(8) 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 known to us to be applicable
to Funding Corporation or any provision of any order, writ,
judgment or decree of any governmental instrumentality known to
us to be 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).
(9) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"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.
(10) 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 with respect to the Pledged Property (as
defined in the Original Indenture).
The opinion expressed in paragraph (10) 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 against such parties in accordance with
their respective terms, (y) that no property of the types
described in the Granting Clauses of the Original Indenture,
other than the Pledged Lessor Bonds (as defined in the
Prospectus), has been subjected to the lien of the Trust
Indenture, and (z) that the Trustee has obtained and continues to
retain possession of such Pledged Lessor Bonds.
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 of America, the laws 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 Entergy
Louisiana 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]
July 14, 1997
Morgan Stanley & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $307,632,000 in aggregate principal amount of
Waterford 3 Secured Lease Obligation Bonds, _____% Series due
____ (the "Bonds") issued by W3A Funding Corporation, a Delaware
corporation (the "Funding Corporation"), pursuant to the
Underwriting Agreement, effective June __, 1997 (the
"Underwriting Agreement"), among the Funding Corporation, Entergy
Louisiana, Inc, a Louisiana corporation ("Entergy Louisiana"),
and you. The Bonds are being issued pursuant to the Collateral
Trust Indenture, dated as of July 1, 1997, as amended by
Supplemental Indenture No. 1 thereto, dated as of July 1, 1997
(the Collateral Trust Indenture, as so amended, being hereinafter
referred to as the "Trust Indenture"), among the Funding
Corporation, Entergy Louisiana 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 laws of
the State of New York, the General Corporation Law of the State
of Delaware and the federal laws of 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 reviewed, and
have relied as to matters of fact material to this opinion upon,
the documents delivered to you at the closing of the transactions
contemplated by the Underwriting Agreement, and we have reviewed
such other documents and have satisfied ourselves as to such
other matters as we have deemed necessary in order to enable us
to render this opinion. As to such matters of fact material to
this opinion, we have relied upon representations and
certifications of the Company and Funding Corporation in such
documents and in the Underwriting Agreement, and upon statements
in the Registration Statement. In such review, we have assumed
the genuineness of all signatures, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, the authenticity of the originals of such
documents and all documents submitted to us as originals and the
correctness of all statements of fact contained in all such
original documents. 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 Funding
Corporation, titles to property, franchises or the liens of the
Trust Indenture or the Lease Indentures (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 each
of the Company and the Funding Corporation, has been duly and
validly executed and delivered by each of the Company and the
Funding Corporation, and is a legal, valid and binding instrument
of each of the Company and the Funding Corporation enforceable
against the Company and the Funding Corporation 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 enforceability is considered in
a proceeding in equity or at law), and, to the best of our
knowledge, is qualified under the TIA and no proceedings to
suspend such qualification have been instituted or threatened by
the Commission.
(2) The Bonds have been duly and validly authorized by
all necessary corporate action on the part of the Funding
Corporation, and are legal, valid and binding obligations of the
Funding Corporation enforceable against the Funding Corporation
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 enforceability is considered in
a proceeding in equity or at law) and are entitled to the benefit
of the security purported to be afforded by the Trust Indenture.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"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 by the Funding Corporation 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 the declaration of effectiveness of
the Registration Statement under the Securities Act or the
qualification of the Trust Indenture under the TIA, which have
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 transmitted for filing to the Commission
pursuant to Rule 424(b), complied as to form in all material
respects with the applicable requirements of the Securities Act
and (except with respect to the Statement of Eligibility, 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 were 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 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 were deemed to comply therewith; to the best of our
knowledge, the Registration Statement has become, and on the date
hereof is, effective under the Securities Act and 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 the Funding Corporation 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 the above-mentioned
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 transmitted for filing to the
Commission pursuant to Rule 424(b) 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
Statement of Eligibility 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
Annual Report on Form 10-K for
the year ended December 31, 1996
"SELECTED FINANCIAL DATA--
FIVE-YEAR COMPARISON" 93 The amounts of electric
operatin revenues (by source)
for the twelve month periods
ended December 31, 1996 and 1995.
Quarterly Report on Form 10-Q for
the period ended March 31, 1997
"SELECTED OPERATING
RESULTS" 38 The amounts of electric operating
revenues (by source) for the three
months ended March 31, 1997 and
1996.
<PAGE>
Exhibit 2
REFUNDING AGREEMENT NO. 1
dated as of June 27, 1997
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 Corporate Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 1,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and as Collateral Trust Trustee
under Collateral Trust Indenture to be dated as of
July 1, 1997, with the Lessee and Funding Corporation,
STANLEY BURG,
as Individual Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 1,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company),
as Lessee
<PAGE>
This REFUNDING AGREEMENT NO. 1, dated as of June 27,
1997, 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 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
Individual Indenture Trustee under the Indenture, and ENTERGY
LOUISIANA, INC. (formerly 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, dated as of September
1, 1989 (as the same may be amended, modified or supplemented
from time to time, 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 (together, the "1997 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 June 20, 1997, 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 July 17, 1997 (the "Refunding Date"), and the Indenture
Trustee gave notice of such redemption to the Holders of such
Bonds on June 27, 1997, 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 and the payment of a portion
of the premium related thereto, such loan to be evidenced by
Additional 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 date hereof (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 July 1, 1997,
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 establish 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
July 1, 1997 ("Supplemental Indenture No. 2"), providing, among
other things, for the issuance of 1997 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 July 1, 1997
("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 July 1, 1997 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
1
1.11. 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 $174,000,000,
and shall receive the Owner Trustee's 1997 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.
1.12. Issuance of Refunding Bonds; Additional Equity
Investment; 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; and (b)(i) the Owner Participant shall pay to
the Owner Trustee an additional equity investment of
$2,890,148.32 ("Additional Equity Investment"), (ii) the Lessee
shall make a Supplemental Rent payment in the amount of
$741,105.63; and (iii) the Owner Trustee shall issue the 1997
Bonds in the principal amount of $174,000,000 and apply the
Refunding Loan, the Additional Equity Investment and the
Supplemental Rent payment to redeem the Initial Series Bonds then
Outstanding maturing in 2005 ("Series 2005 Bonds") for an amount
equal to 102.060% of the outstanding principal amount thereof
(such outstanding principal amount being $73,344,000) plus
accrued interest thereon and to redeem the Initial Series Bonds
then Outstanding maturing in 2017 ("Series 2017 Bonds") for an
amount equal to 106.402% of the outstanding principal amount
thereof (such outstanding principal amount being $95,896,000)
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 $174,000,000 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 1997 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
Portion of 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 1997 Bonds to
Funding Corporation, Funding Corporation shall pledge such 1997
Bonds in accordance with the terms of the Collateral Trust
Indenture.
1.13. 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
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 1997 Bonds as contemplated by the Refunding Documents
and request the Indenture Trustee (x) to authenticate and deliver
the 1997 Bonds pursuant to Section 2.05 of the Indenture and
(y) in view of the fact that Funding Corporation is to pledge
such 1997 Bonds to the Collateral Trust Trustee, cause such 1997
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 1997 Bonds,
as security for Funding Corporation's obligations under the
related Refunding Collateral Bonds (as hereinafter defined) and
under the Collateral Trust Indenture. Accordingly, Funding
Corporation hereby consents to the Owner Trustee's issuance of
the 1997 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 in
the amount of $109,288,603.42, 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 as contemplated by the last
sentence of Section 16(e)(4) of the Participation Agreement.
(g) Terms of 1997 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 1997 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
2
2.11. 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 $307,632,000 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.
2.12. 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 of the Lessee 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), (5), (7) 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 set forth 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 set
forth 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.
2.13. Conditions to Obligation of Owner Trustee.
The obligation of the Owner Trustee to issue and deliver the
1997 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 by the Owner Trustee of a direction from the Owner
Participant in conformance with Section 1.03.
2.14. 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
3
3.11. 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 Lessor's Percentage (as defined in
Section 13(a) of the Participation Agreement) of the following
costs and expenses ("Refunding Expenses") without duplication of
amounts payable with respect to any other refunding of bonds on
the Refunding Date utilizing the proceeds of the Refunding
Collateral Bonds:
(i) the reasonable legal fees and
disbursements of the Owner Participant's
Special Counsel (in an amount not to exceed
the amount agreed to by the Owner Participant
and the Lessee), the Owner's Participant's
Louisiana Counsel, 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;
(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 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).
Notwithstanding anything in this Section 3.01 to the
contrary, the amount of Refunding Expenses payable by the Owner
Trustee shall not exceed $1,805,305.43. Subject to the
provisions of paragraphs (b) and (c) below, funds for the payment
of Refunding Expenses will be provided by the Owner Participant
and the Owner Trustee will promptly disburse funds for the
payment of such expenses in accordance with written authorization
from the Owner Participant.
(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.
(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.
(d) Furthermore, in the event that the Lessor's Percentage
of 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.
(e) Promptly after the payment of the Refunding Expenses,
any adjustments to Basic Rent and the Value Schedules as are
required by Section 3(e)(ii) of the Facility Lease shall be made.
ARTICLE FOUR
MISCELLANEOUS
4
4.11. 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.
4.12. Governing Law.
This Refunding Agreement shall be governed by, and be
construed in accordance with, the laws of the State of New York.
4.13. 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. Notwithstanding anything herein to the
contrary, 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Refunding Agreement to be duly executed by their respective
officers thereunto duly authorized as of the date first set forth
above.
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
ENTERGY LOUISIANA, INC., as Lessee
By
Name:
Title:
<PAGE>
SCHEDULE 1
Recordations and Filings
<PAGE>
AMENDMENT NO. 1
dated as of July 1, 1997
to
PARTICIPATION AGREEMENT NO. 1
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 Corporate Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 1,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and as Collateral Trust Trustee
under Collateral Trust Indenture
dated as of July 1, 1997
with the Lessee and Funding Corporation,
STANLEY BURG,
as Individual Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 1,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company),
as Lessee
<PAGE>
This AMENDMENT NO. 1, dated as of July 1, 1997 ("PA
Amendment No. 1"), to PARTICIPATION AGREEMENT NO. 1, 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, as Owner Trustee, BANKERS TRUST
COMPANY, as Corporate Indenture Trustee under the Indenture and
as Collateral Trust Trustee under the Collateral Trust Indenture,
STANLEY BURG, as Individual Indenture Trustee under the
Indenture, and ENTERGY LOUISIANA, INC. (formerly 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, 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 July 1, 1997, 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 and for the payment of
certain expenses incurred in connection therewith, such loan to
be evidenced by Additional Bonds issued by the Owner Trustee to
or upon the order of Funding Corporation; and
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
1
1.11. 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 by deleting paragraphs (b), (c)
and (d) and inserting the following 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")
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).
(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 the proceeds thereof to 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. 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. Not less
than three Business Days prior to the Refunding Date,
Funding Corporation and Lessee shall deliver to the
Owner Participant and the Owner Trustee a certificate
setting forth the terms of the Additional Bonds which
Lessee may determine as provided below. 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 Section 2.17 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 Section 2.17. 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, the Indenture Trustee, the Collateral
Trust Trustee 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. Notwithstanding the foregoing,
nothing herein shall prohibit the Owner Participant
from otherwise participating in any such action
initiated by any other person.
(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) and, as to FNBC, (4), (6), (7) and
(8), and the Owner Trustee agrees as set forth in
clauses (2) and (5), and, as to the Owner Trustee, (4),
(6), (7) and (8) 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.
Notwithstanding the foregoing, nothing herein shall
prohibit FNBC or the Owner Trustee from otherwise
participating in any such action initiated by any other
person.
(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. Notwithstanding
the foregoing, nothing herein shall prohibit the
corporate Indenture Trustee or the Individual Indenture
Trustee from otherwise participating in any such action
initiated by any other person.
(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 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 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 or is to become a party on or
before the Refunding Date 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 with, or results 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.
(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 (i) it shall have received the
prior written consent of the Owner Participant and (ii)
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,
purchase or directly or indirectly acquire any
Collateral Bond issued in connection with any Bond
without the prior written 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 as contemplated by
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.
The Collateral Trust Trustee represents and warrants
that:
(a) Due Organization. The 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 a party.
(b) Due Authorization. The execution, delivery and
performance by the Collateral Trust Trustee of the
Collateral Trust Indenture, this Participation Agreement,
the Refunding Agreement and each other Transaction Document
to which the Collateral Trust Trustee is a party have been
duly authorized by all necessary corporate action of the
Collateral Trust Trustee and each has been duly executed and
delivered by the Collateral Trust Trustee.
(c) Execution; Authentication of Bonds. (i) Each of
the Collateral Trust Indenture, this Participation
Agreement, the Refunding Agreement and each other
Transaction Document to which the Collateral Trust Trustee
is a party has been duly executed and delivered by the
Collateral Trust Trustee and constitutes the legal, valid
and binding agreement of the Collateral Trust Trustee,
enforceable against the Collateral Trust Trustee in
accordance with its terms; and (ii) each officer of the
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, a Responsible Officer.
(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, directly or indirectly, any of the bonds or
Collateral Bonds, or any interest therein, without the
written consent of the Owner Participant; provided,
however, that the Lessee may purchase Collateral Bonds
for application in accordance with the sinking fund
provisions of the Collateral Trust Indenture so long as
(A) the amount of Collateral Bonds held at any time by
the Lessee (and any Affiliates) does not exceed the sum
of the amounts due as Basic Rent for the next two
consecutive Basic Rent Payment Dates and (B) none of
the Collateral Bonds purchased are held by the Lessee
(or any Affiliate) for a period in excess of 12 months.
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.
Notwithstanding the foregoing, nothing herein shall
prohibit the Lessee from otherwise participating in any
such action initiated by any other person.
(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. 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, Lessee's Special Counsel, and, if Funding
Corporation is being utilized in connection with a
refunding, Reid & Priest LLP, counsel to Funding
Corporation, 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 (5), (7) and (9) of Section 6(a), subclauses
(1) through (10) of Section 7(a), and subclauses (1)
through (5), (10), (11), (12), (15), (16), (19) and
(20) 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
and all references to the Disclosure Documents being
deemed to refer to the 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 on or prior 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 (5),
(10), (11), (12), (15), (16), (19) and (20) 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 and
all references to the Disclosure Documents being deemed
to refer to the 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 and
prior 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 the matters set forth in
paragraph (3) above); 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 any 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) 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, (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, (e) any
transfer of all or any part of the right, title and
interest of the Owner Trustee in the Undivided Interest
or 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 or Refunding
Expenses, (ii) that the fees, expenses, disbursements
and costs of the Owner Participant in connection with
any refunding or reoptimization which does not require
the utilization of Funding Corporation or any amendment
to the documents 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, Four Albany Street, New York, New York 10006,
Attention: Corporate and Agency Group - Public Utilities
Group; (iv) if to Funding Corporation, at c/o National
Corporate Research, Ltd., 19 East Loockerman Street, Dover,
Delaware 19901; (v) if to the Collateral Trust Trustee at
Four Albany Street, New York, New York 10006, Attention:
Corporate and Agency Group _ Public Utilities Group; and
(vi) if to the Lessee, at 639 Loyola Avenue, New Orleans,
Louisiana 70113, 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) Schedule 7 to the Participation Agreement is hereby
amended in its entirety to read as set forth in Schedule 2
hereto.
(p) Appendix A to the Participation Agreement is hereby
amended as set forth in Schedule A-1 to Appendix A attached
hereto.
ARTICLE TWO
MISCELLANEOUS
2
2.11. 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.
2.12. 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.
2.13. 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
ENTERGY LOUISIANA, INC., 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 July 1, 1997, 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:
3 Refunding Date: July 17, 1997
4 Interest Rate and
Amortization of
1997 Bonds: See Supplemental Indenture No. 2,
dated as of July 1, 1997
5 Refunding Expenses: $1,805,305.43 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).
6 Accrued Interest: $741,105.63 paid by the Owner Trustee on
the Refunding Date from Supplemental Rent
paid by the Lessee as interest from July 2,
1997 to the Refunding Date on the Initial
Series Bonds which are redeemed on the
Refunding Date.
7 Premium: $7,650,148.32 paid by the Owner Trustee
on the Refunding Date from a portion of the
proceeds of the 1997 Bonds and the
Additional Equity Investment in respect of
the premium on the Initial Series Bonds
redeemed on the Refunding Date.
8 1997 Bonds: $174,000,000 issued by the Owner Trustee in
accordance with the Refunding Agreement,
Supplemental Indenture No. 2, dated as of
July 1, 1997, 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.
9 Supplemental Rent: $741,105.63 paid by the Lessee on the
Refunding Date.
8. Additional Equity
Investment: $2,890,148.32 funded by the Owner
Participant on the Refunding Date.
9. Owner Participant's
Marginal Federal Tax
Rate as of 1993: 35%
10. Owner Participant's
Marginal State Tax Rate
- as of 1989: 17.53%
- as of 1991: 17%
11. Tax Payment Method
- as of 1992: 93/7
- as of 1993: 97/3
- as of 1994: 100/0
<PAGE>
SCHEDULE 7
TO
PARTICIPATION
AGREEMENT
MODIFIED CASUALTY VALUES
Percentage of
DATE Facility Cost
2 Oct 1989 15.35994164%
2 Nov 1989 15.67239923%
2 Dec 1989 15.98834854%
2 Jan 1990 16.27355506%
2 Feb 1990 19.01539796%
2 Mar 1990 19.35692342%
2 Apr 1990 19.69845726%
2 May 1990 20.01316020%
2 Jun 1990 20.33137994%
2 Jul 1990 20.62250823%
2 Aug 1990 25.61498436%
2 Sep 1990 26.00822611%
2 Oct 1990 26.37521478%
2 Nov 1990 26.74630455%
2 Dec 1990 27.12154124%
2 Jan 1991 27.31715636%
2 Feb 1991 27.66651744%
2 Mar 1991 28.02084502%
2 Apr 1991 28.36559785%
2 May 1991 28.68613578%
2 Jun 1991 29.01025571%
2 Jul 1991 29.30993015%
2 Aug 1991 29.61295371%
2 Sep 1991 29.91936331%
2 Oct 1991 30.20112951%
2 Nov 1991 30.48604444%
2 Dec 1991 30.77414330%
2 Jan 1992 31.03739413%
2 Feb 1992 31.30358679%
2 Mar 1992 31.57275416%
2 Apr 1992 31.83245501%
2 May 1992 32.07777287%
2 Jun 1992 32.32583215%
2 Jul 1992 32.55937834%
2 Aug 1992 32.79553440%
2 Sep 1992 33.03432952%
2 Oct 1992 33.25850801%
2 Nov 1992 33.48519169%
2 Dec 1992 33.71440857%
2 Jan 1993 34.73018180%
2 Feb 1993 34.95040875%
2 Mar 1993 35.17309674%
2 Apr 1993 35.39298907%
2 May 1993 35.59854035%
2 Jun 1993 35.80638866%
2 Jul 1993 35.99976132%
2 Aug 1993 36.19529492%
2 Sep 1993 36.39301361%
2 Oct 1993 36.57614346%
2 Nov 1993 36.76131977%
2 Dec 1993 36.94856544%
2 Jan 1994 37.12110522%
2 Feb 1994 37.29557313%
2 Mar 1994 37.47199072%
2 Apr 1994 37.64830163%
2 May 1994 37.81097562%
2 Jun 1994 37.97546749%
2 Jul 1994 38.12619036%
2 Aug 1994 38.27859756%
2 Sep 1994 38.43270791%
2 Oct 1994 38.57293325%
2 Nov 1994 38.71472560%
2 Dec 1994 38.85810249%
2 Jan 1995 38.98747441%
2 Feb 1995 39.11829207%
2 Mar 1995 39.25057161%
2 Apr 1995 39.38432938%
2 May 1995 39.50527976%
2 Jun 1995 39.62758175%
2 Jul 1995 39.73694834%
2 Aug 1995 39.84753711%
2 Sep 1995 39.95936170%
2 Oct 1995 40.05813380%
2 Nov 1995 40.15800967%
2 Dec 1995 40.25900166%
2 Jan 1996 40.34682011%
2 Feb 1996 40.43561992%
2 Mar 1996 40.52541208%
2 Apr 1996 40.61620765%
2 May 1996 40.69565725%
2 Jun 1996 40.77599469%
2 Jul 1996 40.84486927%
2 Aug 1996 40.91451353%
2 Sep 1996 40.98493606%
2 Oct 1996 41.04378493%
2 Nov 1996 41.10329144%
2 Dec 1996 41.16346294%
2 Jan 1997 41.21194622%
2 Feb 1997 41.26097131%
2 Mar 1997 41.31054425%
2 Apr 1997 41.36067117%
2 May 1997 41.39640699%
2 Jun 1997 41.43254216%
2 Jul 1997 41.45412988%
2 Aug 1997 43.87231565%
2 Sep 1997 43.94356192%
2 Oct 1997 44.00065311%
2 Nov 1997 44.05838229%
2 Dec 1997 44.11675659%
2 Jan 1998 44.16083197%
2 Feb 1998 44.20539988%
2 Mar 1998 44.25046585%
2 Apr 1998 44.29603542%
2 May 1998 44.32699239%
2 Jun 1998 44.35829530%
2 Jul 1998 44.37482618%
2 Aug 1998 44.39154179%
2 Sep 1998 44.40844419%
2 Oct 1998 44.41041364%
2 Nov 1998 44.41240509%
2 Dec 1998 44.41441879%
2 Jan 1999 44.41441879%
2 Feb 1999 44.41441879%
2 Mar 1999 44.41441879%
2 Apr 1999 44.41441879%
2 May 1999 44.41441879%
2 Jun 1999 44.41441879%
2 Jul 1999 44.41441879%
2 Aug 1999 44.41441879%
2 Sep 1999 44.41441879%
2 Oct 1999 44.41441879%
2 Nov 1999 44.41441879%
2 Dec 1999 44.41441880%
2 Jan 2000 44.41441879%
2 Feb 2000 44.41441879%
2 Mar 2000 44.41441879%
2 Apr 2000 44.41441879%
2 May 2000 44.41441879%
2 Jun 2000 44.41441879%
2 Jul 2000 44.41441879%
2 Aug 2000 44.41441879%
2 Sep 2000 44.41441879%
2 Oct 2000 44.41441879%
2 Nov 2000 44.41441879%
2 Dec 2000 44.41441879%
2 Jan 2001 44.41441879%
2 Feb 2001 44.41441879%
2 Mar 2001 44.41441879%
2 Apr 2001 44.41441879%
2 May 2001 44.41441879%
2 Jun 2001 44.41441879%
2 Jul 2001 44.41441879%
2 Aug 2001 44.41441879%
2 Sep 2001 44.41441879%
2 Oct 2001 44.41441879%
2 Nov 2001 44.41441879%
2 Dec 2001 44.41441879%
2 Jan 2002 44.41441879%
2 Feb 2002 44.41441879%
2 Mar 2002 44.41441879%
2 Apr 2002 44.41441879%
2 May 2002 44.41441879%
2 Jun 2002 44.41441879%
2 Jul 2002 44.41441879%
2 Aug 2002 44.41441879%
2 Sep 2002 44.41441879%
2 Oct 2002 44.41441879%
2 Nov 2002 44.41441879%
2 Dec 2002 44.41441879%
2 Jan 2003 44.41441879%
2 Feb 2003 43.01441879%
2 Mar 2003 43.01441879%
2 Apr 2003 43.01441879%
2 May 2003 43.01441879%
2 Jun 2003 43.01441879%
2 Jul 2003 43.01671052%
2 Aug 2003 41.61671052%
2 Sep 2003 41.61671052%
2 Oct 2003 41.61671052%
2 Nov 2003 41.61671052%
2 Dec 2003 41.61671052%
2 Jan 2004 41.62131958%
2 Feb 2004 41.39631958%
2 Mar 2004 41.39631958%
2 Apr 2004 41.39631958%
2 May 2004 41.39631958%
2 Jun 2004 41.39631958%
2 Jul 2004 41.39631958%
2 Aug 2004 41.39631958%
2 Sep 2004 41.39631958%
2 Oct 2004 41.39631958%
2 Nov 2004 41.39631958%
2 Dec 2004 41.39631958%
2 Jan 2005 41.39631958%
2 Feb 2005 41.37881958%
2 Mar 2005 41.37881958%
2 Apr 2005 41.37881958%
2 May 2005 41.37881958%
2 Jun 2005 41.37881958%
2 Jul 2005 41.37881958%
2 Aug 2005 41.36131958%
2 Sep 2005 41.36131958%
2 Oct 2005 41.36131958%
2 Nov 2005 41.36131958%
2 Dec 2005 41.36131958%
2 Jan 2006 41.36131958%
2 Feb 2006 41.08631958%
2 Mar 2006 41.08631958%
2 Apr 2006 41.08631958%
2 May 2006 41.08631958%
2 Jun 2006 41.08631958%
2 Jul 2006 41.08631958%
2 Aug 2006 40.81131958%
2 Sep 2006 40.81131958%
2 Oct 2006 40.81131958%
2 Nov 2006 40.81131958%
2 Dec 2006 40.81131958%
2 Jan 2007 40.81131958%
2 Feb 2007 40.48631958%
2 Mar 2007 40.48631958%
2 Apr 2007 40.48631958%
2 May 2007 40.48631958%
2 Jun 2007 40.48631958%
2 Jul 2007 40.48631958%
2 Aug 2007 40.16131958%
2 Sep 2007 40.16131958%
2 Oct 2007 40.16131958%
2 Nov 2007 40.16131958%
2 Dec 2007 40.16131958%
2 Jan 2008 40.16131958%
2 Feb 2008 39.56131958%
2 Mar 2008 39.56131958%
2 Apr 2008 39.56131958%
2 May 2008 39.56131958%
2 Jun 2008 39.56131958%
2 Jul 2008 39.56131958%
2 Aug 2008 38.96131958%
2 Sep 2008 38.96131958%
2 Oct 2008 38.96131958%
2 Nov 2008 38.96131958%
2 Dec 2008 38.96131958%
2 Jan 2009 38.96131958%
2 Feb 2009 37.71131958%
2 Mar 2009 37.71131958%
2 Apr 2009 37.71131958%
2 May 2009 37.71131958%
2 Jun 2009 37.71131958%
2 Jul 2009 37.71312909%
2 Aug 2009 36.46312909%
2 Sep 2009 36.46312909%
2 Oct 2009 36.46312909%
2 Nov 2009 36.46312909%
2 Dec 2009 36.46312909%
2 Jan 2010 36.46676833%
2 Feb 2010 35.21676833%
2 Mar 2010 35.21676833%
2 Apr 2010 35.21676833%
2 May 2010 35.21676833%
2 Jun 2010 35.21676833%
2 Jul 2010 35.22655274%
2 Aug 2010 33.97655274%
2 Sep 2010 33.97655274%
2 Oct 2010 33.97655274%
2 Nov 2010 33.97655274%
2 Dec 2010 33.97655274%
2 Jan 2011 33.99255101%
2 Feb 2011 31.59255101%
2 Mar 2011 31.59255101%
2 Apr 2011 31.59255101%
2 May 2011 31.59255101%
2 Jun 2011 31.59255101%
2 Jul 2011 31.61435185%
2 Aug 2011 29.21435185%
2 Sep 2011 29.21435185%
2 Oct 2011 29.21435185%
2 Nov 2011 29.21435185%
2 Dec 2011 29.21435185%
2 Jan 2012 29.24202009%
2 Feb 2012 26.84202009%
2 Mar 2012 26.84202009%
2 Apr 2012 26.84202009%
2 May 2012 26.84202009%
2 Jun 2012 26.84202009%
2 Jul 2012 26.86207630%
2 Aug 2012 24.46207630%
2 Sep 2012 24.46207630%
2 Oct 2012 24.46207630%
2 Nov 2012 24.46207630%
2 Dec 2012 24.46207630%
2 Jan 2013 24.47443542%
2 Feb 2013 23.27443542%
2 Mar 2013 23.27443542%
2 Apr 2013 23.27443542%
2 May 2013 23.27443542%
2 Jun 2013 23.27443542%
2 Jul 2013 23.28679453%
2 Aug 2013 22.08679453%
2 Sep 2013 22.08679453%
2 Oct 2013 22.08679453%
2 Nov 2013 22.08679453%
2 Dec 2013 22.08679453%
2 Jan 2014 22.09915365%
2 Feb 2014 20.59915365%
2 Mar 2014 20.59915365%
2 Apr 2014 20.59915365%
2 May 2014 20.59915365%
2 Jun 2014 20.59915365%
2 Jul 2014 20.61304907%
2 Aug 2014 19.11304907%
2 Sep 2014 19.11304907%
2 Oct 2014 19.11304907%
2 Nov 2014 19.11304907%
2 Dec 2014 19.11304907%
2 Jan 2015 19.12849797%
2 Feb 2015 17.62849797%
2 Mar 2015 17.62849797%
2 Apr 2015 17.62849797%
2 May 2015 17.62849797%
2 Jun 2015 17.62849797%
2 Jul 2015 17.64394687%
2 Aug 2015 16.14394687%
2 Sep 2015 16.14394687%
2 Oct 2015 16.14394687%
2 Nov 2015 16.14394687%
2 Dec 2015 16.14394687%
2 Jan 2016 16.15939577%
2 Feb 2016 14.65939577%
2 Mar 2016 14.65939577%
2 Apr 2016 14.65939577%
2 May 2016 14.65939577%
2 Jun 2016 14.65939577%
2 Jul 2016 14.65939577%
2 Aug 2016 13.15939577%
2 Sep 2016 13.15939577%
2 Oct 2016 13.15939577%
2 Nov 2016 13.15939577%
2 Dec 2016 13.15939577%
2 Jan 2017 13.15939577%
2 Feb 2017 12.59639696%
2 Mar 2017 12.59639695%
2 Apr 2017 12.59639695%
2 May 2017 12.64166422%
2 Jun 2017 12.68743736%
2 Jul 2017 12.80627257%
<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) "Additional Equity Investment" shall have the
meaning ascribed thereto in the Refunding Agreement.
(2) "Collateral Bonds" shall mean all bonds, notes and
other evidences of indebtedness from time to time issued and
outstanding under the Collateral Trust Indenture.
(3) "Collateral Trust Indenture" shall mean (x) in
respect of the refunding of the Initial Series Bonds, the
Collateral Trust Indenture, dated as of July 1, 1997, 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.
(4) "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,
Bankers Trust Company, a New York banking corporation, 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.
(5) "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.
(6) "LP&L" means Entergy Louisiana, Inc. (formerly
Louisiana Power & Light Company), a Louisiana corporation, and
its permitted successors and assigns.
(7) "1997 Bonds" shall have the meaning set forth in
the Refunding Agreement.
(8) "Refunding Agreement" shall mean the Refunding
Agreement No. 1, dated as of June 27, 1997, among the Owner
Participant, the Owner Trustee, Funding Corporation, the
Indenture Trustee, the Collateral Trust Trustee and the Lessee.
(9) "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.
(10) "Refunding Expenses" shall have the meaning set
forth in Section 3.01 of the Refunding Agreement.
(11) "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 1997 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 or 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
1997 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 1997 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 1997 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 "Obligor" is amended and
restated as follows:
"Obligor", when used with reference to the
Bonds, the Indenture, the Collateral Bonds or the
Collateral Trust Indenture, means the Lessee and any
successor to the obligations of the Lessee under the
Lease, and does not include the Indenture Trustee, the
Collateral Trust Trustee, the Funding Corporation, the
Owner Trustee or the Owner Participant so long as none
of the foregoing shall have assumed such obligations;
provided, however, that no reference in the Indenture
to the Lessee as an Obligor shall be construed as
implying any guaranty or assumption by the Lessee of
the Bonds or the Collateral Trust Bonds or the
obligations represented thereby.
(4) 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.
(5) 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.
(6) 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.
(7) 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".
(8) 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.
<PAGE>
SUPPLEMENTAL INDENTURE NO. 2
dated as of July 1, 1997
to
INDENTURE OF MORTGAGE AND
DEED OF TRUST NO. 1
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. 1,
dated as of September 1, 1989, with
the Owner Participant,
and
BANKERS TRUST COMPANY,
as Corporate Indenture Trustee,
and
STANLEY BURG,
as 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
<PAGE>
The Supplemental Indenture No. 2, dated as of July 1, 1997, to
Indenture of Mortgage and Deed of Trust No. 1, 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 Schedule A-1 being
attached hereto as Exhibit B), Bankers Trust Company, a New York
banking corporation (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 (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 have 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 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 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, 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 and the
Indenture 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
1. 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 if made in the manner provided in this
Section."
(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 of interest or principal, or both, and premium, if
any, 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 or otherwise except in
compliance with Section 2.08 of the Indenture.
(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."
(c) Notwithstanding the foregoing, no Bond
issued to Funding Corporation shall be transferred
without the prior written consent of the Owner Trustee,
provided, however, that each Bond may be pledged with
the Collateral Trust Trustee and sold by the Collateral
Trust Trustee in accordance with the Collateral Trust
Indenture.
(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 40 days prior to the first payment date
proposed to be affected by such adjustment, an Owner Trustee
Request, 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 and maturity
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 Request and shall have no duty with
respect to the calculations referred to in the foregoing
clause (z), other than to make such Owner Trustee Request
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 Request, and in any event at least thirty (30)
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 Bonds after giving effect to such
adjustment."
(d) Article Three is amended to add the following 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."
(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 conclusively
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 referred to
herein of the Owner Trustee 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 receive
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 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 (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. In addition, the obligations of the
Owner Trustee under Section 8.07 shall survive the
earlier resignation or removal of the Indenture
Trustee."
(2) 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 1997 Bonds
2.
2.01 The 1997 Bonds.
(a) There is hereby created and established a separate series
of Additional Bonds designated "Waterford 3 Secured Lease
Obligation Bonds, 8.09% Series A due 2017" (the "1997 Bonds").
The 1997 Bonds shall be issued in the aggregate principal amount,
shall bear interest at the rate per annum and shall have the
final maturity set forth below:
Original
Principal Interest Final
Amount Rate Maturity
1997 Bonds $174,000,000 8.09% January 2, 2017
The 1997 Bonds shall be substantially in the form of Exhibit A
hereto.
(b) Each 1997 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 January 2, 1998
and on each January 2 and July 2 thereafter to and including the
final maturity date thereof, unless paid in full prior to such
date as provided herein and in such 1997 Bond.
(c) The original principal amount of each 1997 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 1997 Bond. Installments of principal of
and premium, if any, and interest on each 1997 Bond shall be due
and payable on the payment dates specified in Schedule 1 attached
thereto.
(d) Each 1997 Bond shall be subject to redemption as set forth
in such 1997 Bond. There shall not be a Sinking Fund for the
1997 Bonds.
ARTICLE THREE
Miscellaneous
3.
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.
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.
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
Corporate Indenture Trustee
[Seal]
By:
Name:
Title:
Stanley Burg,
as Individual Indenture Trustee
<PAGE>
ACKNOWLEDGMENT
State Of )
) ss.:
County Of )
On this ___ day of _________, 1997, 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 _________, 1997, 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, 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 _________, 1997, 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 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 A
TO
SUPPLEMENTAL INDENTURE NO. 2
FORM OF 1997 BOND
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 OR OTHERWISE EXCEPT IN COMPLIANCE
WITH SECTION 2.08 OF THE INDENTURE
WATERFORD 3 SECURED LEASE
OBLIGATION BOND, 8.09% SERIES A
DUE 2017
(DUE January 2, 2017)
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. 1, 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 January 2 and July 2
in each year, commencing January 2, 1998, at the rate of 8.09%
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. 1, 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 July 1, 1997 (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 Corporate and Individual Indenture Trustee,
respectively (together, the "Indenture Trustee"), shall be made
only from the Indenture Estate or the income and proceeds
received by the Indenture Trustee therefrom, 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 Indenture 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
at a price equal to 100% of the unpaid principal amount hereof
plus accrued and unpaid interest hereon as provided in Section
7.16 of the Indenture. This Bond is also subject to redemption
in full, at 100% of 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 to be redeemed 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 and limitations provided in
Section 2.09 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.
Attest: FIRST NATIONAL BANK OF COMMERCE, not in its
individual capacity but solely as
Owner Trustee
By: ____________________________
[SEAL] Authorized Officer
This Bond is one of the Waterford 3 Secured Lease
Obligation Bonds, 8.09% Series A Due 2017 referred to in the
within-mentioned Indenture.
BANKERS TRUST COMPANY, as
Corporate Indenture Trustee
Dated:__________________ By:______________________________
Title:
<PAGE>
SCHEDULE 1
TO
EXHIBIT A
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Date Principal Amount Principal Balance
Payable
January 2, 1999 14,265,963 159,734,037
January 2, 2000 11,628,346 148,105,691
January 2, 2001 11,628,345 136,477,346
January 2, 2002 11,628,346 124,849,000
January 2, 2003 18,859,206 105,989,794
January 2, 2004 9,303,560 96,686,234
January 2, 2005 354,065 96,332,169
January 2, 2006 1,514,101 94,818,068
January 2, 2007 1,739,351 93,078,717
January 2, 2008 2,978,225 90,100,492
January 2, 2009 6,635,943 83,464,549
January 2, 2010 8,367,394 75,097,155
January 2, 2011 13,354,342 61,742,813
January 2, 2012 7,893,923 53,848,890
January 2, 2013 5,625,545 48,223,345
January 2, 2014 7,596,377 40,626,968
January 2, 2015 6,963,124 33,663,844
January 2, 2016 735,185 32,928,659
January 2, 2017 32,928,659 0
<PAGE>
EXHIBIT B
TO
SUPPLEMENTAL INDENTURE NO. 2
[Schedule A-1 to Appendix A (Definitions)]
<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, 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 July 1, 1997
to
FACILITY LEASE NO. 1
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, dated as of September 1, 1989,
with the Owner Participant,
Lessor
and
ENTERGY LOUISIANA, INC.
(formerly 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, 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 July 1, 1997
to
FACILITY LEASE NO. 1
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, dated as
of September 1, 1989, with the Owner Participant,
Lessor
and
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company),
Lessee
Original Facility Lease Recorded on
[September 28, 1989] at _________________
<PAGE>
This LEASE SUPPLEMENT NO. 1, dated as of July 1, 1997
("Lease Supplement No. 1"), to FACILITY LEASE NO. 1, 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 ENTERGY LOUISIANA, INC.
(formerly 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,
Funding Corporation, the Collateral Trust Trustee and the
Indenture Trustee have entered into a Refunding Agreement No. 1,
dated as of July 1, 1997, 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 July
1, 1997, 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:
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.
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 13(g) of the Facility Lease is hereby amended
by adding, after the second sentence thereof, the following
sentence:
For purposes of the
preceding sentence, Casualty Value
shall be determined in accordance
with Schedule 2 to this Facility
Lease as in effect on the date of
the original execution and delivery
hereof, without regard to the
changes to such Schedule effected
by Lease Supplement No. 1 hereto.
(d) 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
Facility 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.
(e) 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, except that solely for purposes
of Section 13(g) of the Facility Lease, Schedule 2 shall remain
unchanged.
(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.
(f) Schedule U3S to the Facility Lease is attached hereto.
(g) Appendix A to the Facility Lease is hereby amended as
set forth in Schedule A-1 to Appendix A attached hereto.
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.
(d) Concerning the Lessor. FNBC is entering into this
Lease Supplement No. 1 solely as Owner Trustee under the Trust
Agreement and not in its individual capacity. Notwithstanding
anything herein to the contrary, all and each of the agreements
and obligations herein made or undertaken on the part of the
Lessor are made or undertaken not as personal agreements of FNBC,
but are made and undertaken solely for the purpose of binding the
Trust Estate, and nothing contained in this Lease Supplement No.
1 shall entitle any person to claim against FNBC in its
individual capacity or any of its assets.
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
ENTERGY LOUISIANA, INC.
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 Parish 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 Parish 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 _______________ of ENTERGY
LOUISIANA, INC., 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
TO
LEASE
BASIC RENT
PERCENTAGES
Basic Rent Percentage of
Payment Date Facility Cost Advance Arrears
2 Jul 1990 .00000000% .00000000% .00000000%
2 Jan 1991 4.60463095% .00000000% 100.00000000%
2 Jul 1991 4.60658005% .01521247% 99.98478753%
2 Jan 1992 4.60342555% 100.00000000% .00000000%
2 Jul 1992 4.60692555% .01175716% 99.98824284%
2 Jan 1993 4.60724530% 100.00000000% .00000000%
2 Jul 1993 4.60303930% .00686530% 99.99313470%
2 Jan 1994 4.60753930% 100.00000000% .00000000%
2 Jul 1994 4.60280755% .00331602% 99.99668398%
2 Jan 1995 4.60780755% 100.00000000% .00000000%
2 Jul 1995 4.60255005% .00000000% 100.00000000%
2 Jan 1996 5.38205005% 100.00000000% .00000000%
2 Jul 1996 4.56240580% .00549458% 99.99450542%
2 Jan 1997 6.81040580% 100.00000000% .00000000%
2 Jul 1997 4.44663380% .00000000% 100.00000000%
2 Jan 1998 3.22588750% 100.00000000% .00000000%
2 Jul 1998 3.51915000% .00000000% 100.00000000%
2 Jan 1999 10.65213150% 100.00000000% .00000000%
2 Jul 1999 3.23062090% .00000000% 100.00000000%
2 Jan 2000 9.04479390% 100.00000000% .00000000%
2 Jul 2000 2.99543760% .00000000% 100.00000000%
2 Jan 2001 8.80961010% 100.00000000% .00000000%
2 Jul 2001 2.76025432% .00000000% 100.00000000%
2 Jan 2002 8.57442732% 100.00000000% .00000000%
2 Jul 2002 2.52507102% .00000000% 100.00000000%
2 Jan 2003 13.35467402% 100.00000000% .00000000%
2 Jul 2003 3.54364358% .00000000% 100.00000000%
2 Jan 2004 7.02042358% 100.00000000% .00000000%
2 Jul 2004 1.95547908% .00000000% 100.00000000%
2 Jan 2005 2.15001158% 100.00000000% .00000000%
2 Jul 2005 1.96581812% .00000000% 100.00000000%
2 Jan 2006 2.98036862% 100.00000000% .00000000%
2 Jul 2006 2.19269543% .00000000% 100.00000000%
2 Jan 2007 3.11237093% 100.00000000% .00000000%
2 Jul 2007 2.20751705% .00000000% 100.00000000%
2 Jan 2008 3.97162955% 100.00000000% .00000000%
2 Jul 2008 2.42228245% .00000000% 100.00000000%
2 Jan 2009 6.39025395% 100.00000000% .00000000%
2 Jul 2009 2.93807050% .00000000% 100.00000000%
2 Jan 2010 7.12176750% 100.00000000% .00000000%
2 Jul 2010 2.76883996% .00000000% 100.00000000%
2 Jan 2011 10.59601096% 100.00000000% .00000000%
2 Jul 2011 3.64874839% .00000000% 100.00000000%
2 Jan 2012 7.59570989% 100.00000000% .00000000%
2 Jul 2012 3.48909380% .00000000% 100.00000000%
2 Jan 2013 5.10186630% 100.00000000% .00000000%
2 Jul 2013 2.17531715% .00000000% 100.00000000%
2 Jan 2014 6.27350565% 100.00000000% .00000000%
2 Jul 2014 2.32168043% .00000000% 100.00000000%
2 Jan 2015 5.80324243% 100.00000000% .00000000%
2 Jul 2015 2.18085124% .00000000% 100.00000000%
2 Jan 2016 2.54844374% 100.00000000% .00000000%
1 Jul 2016 2.16598213% .00000000% 100.00000000%
2 Jan 2017 17.69332032% 100.00000000% .00000000%
2 Jul 2017 12.80626270% .00000000% 100.00000000%
<PAGE>
SCHEDULE 2
TO
LEASE
SCHEDULE OF CASUALTY VALUES
PART A
Percentage of
DATE Facility Cost
2 Oct 1989 104.22081450%
2 Nov 1989 105.31010708%
2 Dec 1989 106.40297535%
2 Jan 1990 107.46518553%
2 Feb 1990 108.58002578%
2 Mar 1990 109.69872660%
2 Apr 1990 110.81752275%
2 May 1990 111.90957571%
2 Jun 1990 113.00523396%
2 Jul 1990 114.07389004%
2 Aug 1990 115.24040370%
2 Sep 1990 116.41135410%
2 Oct 1990 117.55614306%
2 Nov 1990 118.70512556%
2 Dec 1990 119.85834824%
2 Jan 1991 120.83204341%
2 Feb 1991 117.35599912%
2 Mar 1991 118.48859736%
2 Apr 1991 119.61171742%
2 May 1991 120.71071998%
2 Jun 1991 121.81340281%
2 Jul 1991 122.89173928%
2 Aug 1991 119.36691878%
2 Sep 1991 120.45216548%
2 Oct 1991 121.51287054%
2 Nov 1991 122.57682700%
2 Dec 1991 123.64407092%
2 Jan 1992 124.68657129%
2 Feb 1992 121.12869331%
2 Mar 1992 122.17732189%
2 Apr 1992 123.21659118%
2 May 1992 124.24158566%
2 Jun 1992 125.26943069%
2 Jul 1992 126.28287270%
2 Aug 1992 122.69208005%
2 Sep 1992 123.71096401%
2 Oct 1992 124.71534436%
2 Nov 1992 125.72234390%
2 Dec 1992 126.73199162%
2 Jan 1993 128.52831170%
2 Feb 1993 124.92192289%
2 Mar 1993 125.92535847%
2 Apr 1993 126.92611747%
2 May 1993 127.91265555%
2 Jun 1993 128.90161184%
2 Jul 1993 129.87621473%
2 Aug 1993 126.25006258%
2 Sep 1993 127.22925921%
2 Oct 1993 128.19399249%
2 Nov 1993 129.16089884%
2 Dec 1993 130.13000224%
2 Jan 1994 131.08452857%
2 Feb 1994 127.43353507%
2 Mar 1994 128.39216163%
2 Apr 1994 129.35081376%
2 May 1994 130.29596238%
2 Jun 1994 131.24306344%
2 Jul 1994 132.17653127%
2 Aug 1994 128.50901281%
2 Sep 1994 129.44614320%
2 Oct 1994 130.36952794%
2 Nov 1994 131.29462028%
2 Dec 1994 132.22143896%
2 Jan 1995 133.13439573%
2 Feb 1995 129.44109209%
2 Mar 1995 130.35720346%
2 Apr 1995 131.27493992%
2 May 1995 132.18001713%
2 Jun 1995 133.08659540%
2 Jul 1995 133.98038902%
2 Aug 1995 130.27300685%
2 Sep 1995 131.16956396%
2 Oct 1995 132.05322334%
2 Nov 1995 132.93814261%
2 Dec 1995 133.82433548%
2 Jan 1996 134.69751367%
2 Feb 1996 130.18309274%
2 Mar 1996 131.05187585%
2 Apr 1996 131.92182548%
2 May 1996 132.78059364%
2 Jun 1996 133.64041561%
2 Jul 1996 134.48894213%
2 Aug 1996 130.77600141%
2 Sep 1996 131.62641513%
2 Oct 1996 132.46542705%
2 Nov 1996 133.30526997%
2 Dec 1996 134.14595277%
2 Jan 1997 134.97512378%
2 Feb 1997 128.97531342%
2 Mar 1997 129.78663625%
2 Apr 1997 130.59869416%
2 May 1997 131.39654368%
2 Jun 1997 132.19497684%
2 Jul 1997 132.97904846%
2 Aug 1997 133.64542875%
2 Sep 1997 134.32495502%
2 Oct 1997 134.99051707%
2 Nov 1997 135.65690963%
2 Dec 1997 136.32414153%
2 Jan 1998 136.97727041%
2 Feb 1998 134.40520198%
2 Mar 1998 135.05971846%
2 Apr 1998 135.71493967%
2 May 1998 136.35575116%
2 Jun 1998 136.99711326%
2 Jul 1998 137.62390977%
2 Aug 1998 134.73194929%
2 Sep 1998 135.35953571%
2 Oct 1998 135.97240110%
2 Nov 1998 136.58550230%
2 Dec 1998 137.19884142%
2 Jan 1999 137.81038441%
2 Feb 1999 127.72192743%
2 Mar 1999 128.28582311%
2 Apr 1999 128.84994214%
2 May 1999 129.41428647%
2 Jun 1999 129.97885807%
2 Jul 1999 130.54365895%
2 Aug 1999 127.87807021%
2 Sep 1999 128.44333569%
2 Oct 1999 129.00883653%
2 Nov 1999 129.57457479%
2 Dec 1999 130.14055257%
2 Jan 2000 121.31171593%
2 Feb 2000 122.18924429%
2 Mar 2000 122.71675605%
2 Apr 2000 123.24451583%
2 May 2000 123.77252581%
2 Jun 2000 124.30078819%
2 Jul 2000 124.82930518%
2 Aug 2000 122.36264138%
2 Sep 2000 122.89167430%
2 Oct 2000 123.42096859%
2 Nov 2000 123.95052654%
2 Dec 2000 124.48035047%
2 Jan 2001 125.01044270%
2 Feb 2001 116.69199812%
2 Mar 2001 117.18343683%
2 Apr 2001 117.67515098%
2 May 2001 118.16714297%
2 Jun 2001 118.65941525%
2 Jul 2001 119.15197027%
2 Aug 2001 116.88455618%
2 Sep 2001 117.37768415%
2 Oct 2001 117.87110237%
2 Nov 2001 118.36481339%
2 Dec 2001 118.85881977%
2 Jan 2002 119.35312411%
2 Feb 2002 111.23410482%
2 Mar 2002 111.68981573%
2 Apr 2002 112.14583250%
2 May 2002 112.60215782%
2 Jun 2002 113.05879439%
2 Jul 2002 113.51574496%
2 Aug 2002 111.44794120%
2 Sep 2002 111.90552803%
2 Oct 2002 112.36343718%
2 Nov 2002 112.82167148%
2 Dec 2002 113.28023379%
2 Jan 2003 113.73912697%
2 Feb 2003 100.78010854%
2 Mar 2003 101.17610098%
2 Apr 2003 101.57243309%
2 May 2003 101.96910784%
2 Jun 2003 102.36612825%
2 Jul 2003 102.76578906%
2 Aug 2003 99.61986628%
2 Sep 2003 100.01794195%
2 Oct 2003 100.41637555%
2 Nov 2003 100.81517024%
2 Dec 2003 101.21432917%
2 Jan 2004 101.61846461%
2 Feb 2004 94.96657710%
2 Mar 2004 95.33548732%
2 Apr 2004 95.70477473%
2 May 2004 96.07444266%
2 Jun 2004 96.44449444%
2 Jul 2004 96.81493343%
2 Aug 2004 95.23028392%
2 Sep 2004 95.60150756%
2 Oct 2004 95.97312870%
2 Nov 2004 96.34515082%
2 Dec 2004 96.71757744%
2 Jan 2005 94.91240368%
2 Feb 2005 95.31245329%
2 Mar 2005 95.68492133%
2 Apr 2005 96.05780826%
2 May 2005 96.43111774%
2 Jun 2005 96.80485348%
2 Jul 2005 97.17901923%
2 Aug 2005 95.58780062%
2 Sep 2005 95.96283772%
2 Oct 2005 96.33831625%
2 Nov 2005 96.71424007%
2 Dec 2005 97.09061308%
2 Jan 2006 97.46743924%
2 Feb 2006 94.85924985%
2 Mar 2006 95.23189047%
2 Apr 2006 95.60499625%
2 May 2006 95.97857128%
2 Jun 2006 96.35261968%
2 Jul 2006 96.72714561%
2 Aug 2006 94.90945780%
2 Sep 2006 95.28495137%
2 Oct 2006 95.66093513%
2 Nov 2006 96.03741340%
2 Dec 2006 96.41439050%
2 Jan 2007 96.79187081%
2 Feb 2007 94.05162462%
2 Mar 2007 94.42426158%
2 Apr 2007 94.79741511%
2 May 2007 95.17108975%
2 Jun 2007 95.54529006%
2 Jul 2007 95.92002067%
2 Aug 2007 94.08776915%
2 Sep 2007 94.46357433%
2 Oct 2007 94.83992387%
2 Nov 2007 95.21682255%
2 Dec 2007 95.59427520%
2 Jan 2008 95.97228666%
2 Feb 2008 92.36919312%
2 Mar 2008 92.73829787%
2 Apr 2008 93.10797628%
2 May 2008 93.47823338%
2 Jun 2008 93.84907424%
2 Jul 2008 94.22050399%
2 Aug 2008 92.17024534%
2 Sep 2008 92.54286841%
2 Oct 2008 92.91609600%
2 Nov 2008 93.28993341%
2 Dec 2008 93.66438600%
2 Jan 2009 94.03945916%
2 Feb 2009 88.00253572%
2 Mar 2009 88.35649774%
2 Apr 2009 88.71109681%
2 May 2009 89.06633852%
2 Jun 2009 89.42222850%
2 Jul 2009 89.78058195%
2 Aug 2009 87.19971509%
2 Sep 2009 87.55758421%
2 Oct 2009 87.91612466%
2 Nov 2009 88.27534232%
2 Dec 2009 88.63524313%
2 Jan 2010 83.00577222%
2 Feb 2010 82.21078509%
2 Mar 2010 82.54456644%
2 Apr 2010 82.87905524%
2 May 2010 83.21425769%
2 Jun 2010 83.55018004%
2 Jul 2010 83.89661304%
2 Aug 2010 81.46515425%
2 Sep 2010 81.80327445%
2 Oct 2010 82.14214016%
2 Nov 2010 82.48175791%
2 Dec 2010 82.82213431%
2 Jan 2011 83.17927428%
2 Feb 2011 72.88016157%
2 Mar 2011 73.17783881%
2 Apr 2011 73.47630166%
2 May 2011 73.77555702%
2 Jun 2011 74.07561185%
2 Jul 2011 74.39827398%
2 Aug 2011 71.05120044%
2 Sep 2011 71.35369598%
2 Oct 2011 71.65701940%
2 Nov 2011 71.96117798%
2 Dec 2011 72.26617904%
2 Jan 2012 72.59969820%
2 Feb 2012 65.28408747%
2 Mar 2012 65.56505146%
2 Apr 2012 65.84688788%
2 May 2012 66.12960439%
2 Jun 2012 66.41320870%
2 Jul 2012 66.71776482%
2 Aug 2012 63.51407438%
2 Sep 2012 63.80038911%
2 Oct 2012 64.08762322%
2 Nov 2012 64.37578477%
2 Dec 2012 64.66488188%
2 Jan 2013 64.96728190%
2 Feb 2013 60.13744582%
2 Mar 2013 60.41043641%
2 Apr 2013 60.68439585%
2 May 2013 60.95933262%
2 Jun 2013 61.23525531%
2 Jul 2013 61.52453167%
2 Aug 2013 59.62713504%
2 Sep 2013 59.90606766%
2 Oct 2013 60.18602125%
2 Nov 2013 60.46700475%
2 Dec 2013 60.74902721%
2 Jan 2014 61.04445687%
2 Feb 2014 55.02947285%
2 Mar 2014 55.28906107%
2 Apr 2014 55.54972519%
2 May 2014 55.81147464%
2 Jun 2014 56.07431896%
2 Jul 2014 56.35216316%
2 Aug 2014 54.29554566%
2 Sep 2014 54.56173251%
2 Oct 2014 54.82905315%
2 Nov 2014 55.09751753%
2 Dec 2014 55.36713566%
2 Jan 2015 55.65336659%
2 Feb 2015 50.09860862%
2 Mar 2015 50.34827761%
2 Apr 2015 50.59914138%
2 May 2015 50.85121043%
2 Jun 2015 51.10449533%
2 Jul 2015 51.37445562%
2 Aug 2015 49.44935305%
2 Sep 2015 49.70634985%
2 Oct 2015 49.96460572%
2 Nov 2015 50.22413170%
2 Dec 2015 50.48493895%
2 Jan 2016 50.76248759%
2 Feb 2016 48.47496913%
2 Mar 2016 48.73720980%
2 Apr 2016 49.00077730%
2 May 2016 49.26568325%
2 Jun 2016 49.53193940%
2 Jul 2016 49.79955759%
2 Aug 2016 47.90256766%
2 Sep 2016 48.17294589%
2 Oct 2016 48.44472232%
2 Nov 2016 48.71790923%
2 Dec 2016 48.99251898%
2 Jan 2017 49.26856406%
2 Feb 2017 31.74174981%
2 Mar 2017 31.90970639%
2 Apr 2017 32.07913642%
2 May 2017 32.29532009%
2 Jun 2017 32.51350902%
2 Jul 2017 32.80627257%
<PAGE>
SCHEDULE 2
TO
LEASE
SCHEDULE OF CASUALTY VALUES
PART B
Percentage of
DATE Facility Cost
2 Oct 1989 116.72731224%
2 Nov 1989 117.94731993%
2 Dec 1989 119.17133239%
2 Jan 1990 120.36100779%
2 Feb 1990 121.60962887%
2 Mar 1990 122.86257379%
2 Apr 1990 124.11562548%
2 May 1990 125.33872480%
2 Jun 1990 126.56586204%
2 Jul 1990 127.76275684%
2 Aug 1990 129.06925214%
2 Sep 1990 130.38071659%
2 Oct 1990 131.66288023%
2 Nov 1990 132.94974063%
2 Dec 1990 134.24135003%
2 Jan 1991 135.33188862%
2 Feb 1991 131.43871901%
2 Mar 1991 132.70722904%
2 Apr 1991 133.96512351%
2 May 1991 135.19600638%
2 Jun 1991 136.43101115%
2 Jul 1991 137.63874799%
2 Aug 1991 133.69094903%
2 Sep 1991 134.90642534%
2 Oct 1991 136.09441500%
2 Nov 1991 137.28604624%
2 Dec 1991 138.48135943%
2 Jan 1992 139.64895984%
2 Feb 1992 135.66413651%
2 Mar 1992 136.83860052%
2 Apr 1992 138.00258212%
2 May 1992 139.15057594%
2 Jun 1992 140.30176237%
2 Jul 1992 141.43681742%
2 Aug 1992 137.41512966%
2 Sep 1992 138.55627969%
2 Oct 1992 139.68118568%
2 Nov 1992 140.80902517%
2 Dec 1992 141.93983061%
2 Jan 1993 143.95170910%
2 Feb 1993 139.91255364%
2 Mar 1993 141.03640149%
2 Apr 1993 142.15725157%
2 May 1993 143.26217422%
2 Jun 1993 144.36980526%
2 Jul 1993 145.46136050%
2 Aug 1993 141.40007009%
2 Sep 1993 142.49677032%
2 Oct 1993 143.57727159%
2 Nov 1993 144.66020670%
2 Dec 1993 145.74560251%
2 Jan 1994 146.81467200%
2 Feb 1994 142.72555928%
2 Mar 1994 143.79922103%
2 Apr 1994 144.87291141%
2 May 1994 145.93147787%
2 Jun 1994 146.99223105%
2 Jul 1994 148.03771502%
2 Aug 1994 143.93009435%
2 Sep 1994 144.97968038%
2 Oct 1994 146.01387129%
2 Nov 1994 147.04997471%
2 Dec 1994 148.08801164%
2 Jan 1995 149.11052322%
2 Feb 1995 144.97402314%
2 Mar 1995 146.00006788%
2 Apr 1995 147.02793271%
2 May 1995 148.04161919%
2 Jun 1995 149.05698685%
2 Jul 1995 150.05803570%
2 Aug 1995 145.90576767%
2 Sep 1995 146.90991164%
2 Oct 1995 147.89961014%
2 Nov 1995 148.89071972%
2 Dec 1995 149.88325574%
2 Jan 1996 150.86121531%
2 Feb 1996 145.80506387%
2 Mar 1996 146.77810095%
2 Apr 1996 147.75244454%
2 May 1996 148.71426488%
2 Jun 1996 149.67726548%
2 Jul 1996 150.62761519%
2 Aug 1996 146.46912158%
2 Sep 1996 147.42158495%
2 Oct 1996 148.36127830%
2 Nov 1996 149.30190237%
2 Dec 1996 150.24346710%
2 Jan 1997 151.17213863%
2 Feb 1997 144.45235103%
2 Mar 1997 145.36103260%
2 Apr 1997 146.27053746%
2 May 1997 147.16412892%
2 Jun 1997 148.05837406%
2 Jul 1997 148.93653428%
2 Aug 1997 149.68288020%
2 Sep 1997 150.44394962%
2 Oct 1997 151.18937912%
2 Nov 1997 151.93573879%
2 Dec 1997 152.68303851%
2 Jan 1998 153.41454286%
2 Feb 1998 150.53382622%
2 Mar 1998 151.26688468%
2 Apr 1998 152.00073243%
2 May 1998 152.71844130%
2 Jun 1998 153.43676685%
2 Jul 1998 154.13877894%
2 Aug 1998 150.89978320%
2 Sep 1998 151.60268000%
2 Oct 1998 152.28908923%
2 Nov 1998 152.97576258%
2 Dec 1998 153.66270239%
2 Jan 1999 154.34763054%
2 Feb 1999 143.04855872%
2 Mar 1999 143.68012188%
2 Apr 1999 144.31193520%
2 May 1999 144.94400085%
2 Jun 1999 145.57632104%
2 Jul 1999 146.20889802%
2 Aug 1999 143.22343864%
2 Sep 1999 143.85653597%
2 Oct 1999 144.48989691%
2 Nov 1999 145.12352376%
2 Dec 1999 145.75741888%
2 Jan 2000 135.86912184%
2 Feb 2000 136.85195360%
2 Mar 2000 137.44276678%
2 Apr 2000 138.03385773%
2 May 2000 138.62522891%
2 Jun 2000 139.21688277%
2 Jul 2000 139.80882180%
2 Aug 2000 137.04615835%
2 Sep 2000 137.63867522%
2 Oct 2000 138.23148482%
2 Nov 2000 138.82458972%
2 Dec 2000 139.41799253%
2 Jan 2001 140.01169582%
2 Feb 2001 130.69503789%
2 Mar 2001 131.24544925%
2 Apr 2001 131.79616910%
2 May 2001 132.34720013%
2 Jun 2001 132.89854508%
2 Jul 2001 133.45020670%
2 Aug 2001 130.91070292%
2 Sep 2001 131.46300625%
2 Oct 2001 132.01563465%
2 Nov 2001 132.56859100%
2 Dec 2001 133.12187814%
2 Jan 2002 133.67549900%
2 Feb 2002 124.58219740%
2 Mar 2002 125.09259362%
2 Apr 2002 125.60333240%
2 May 2002 126.11441676%
2 Jun 2002 126.62584972%
2 Jul 2002 127.13763436%
2 Aug 2002 124.82169414%
2 Sep 2002 125.33419139%
2 Oct 2002 125.84704964%
2 Nov 2002 126.36027206%
2 Dec 2002 126.87386184%
2 Jan 2003 127.38782221%
2 Feb 2003 112.87372156%
2 Mar 2003 113.31723310%
2 Apr 2003 113.76112506%
2 May 2003 114.20540078%
2 Jun 2003 114.65006364%
2 Jul 2003 115.09768375%
2 Aug 2003 111.57425023%
2 Sep 2003 112.02009498%
2 Oct 2003 112.46634062%
2 Nov 2003 112.91299067%
2 Dec 2003 113.36004867%
2 Jan 2004 113.81268036%
2 Feb 2004 106.36256635%
2 Mar 2004 106.77574580%
2 Apr 2004 107.18934770%
2 May 2004 107.60337578%
2 Jun 2004 108.01783377%
2 Jul 2004 108.43272544%
2 Aug 2004 106.65791799%
2 Sep 2004 107.07368847%
2 Oct 2004 107.48990414%
2 Nov 2004 107.90656892%
2 Dec 2004 108.32368673%
2 Jan 2005 106.30189212%
2 Feb 2005 106.74994768%
2 Mar 2005 107.16711189%
2 Apr 2005 107.58474525%
2 May 2005 108.00285187%
2 Jun 2005 108.42143590%
2 Jul 2005 108.84050154%
2 Aug 2005 107.05833669%
2 Sep 2005 107.47837825%
2 Oct 2005 107.89891420%
2 Nov 2005 108.31994888%
2 Dec 2005 108.74148665%
2 Jan 2006 109.16353195%
2 Feb 2006 106.24235983%
2 Mar 2006 106.65971733%
2 Apr 2006 107.07759580%
2 May 2006 107.49599983%
2 Jun 2006 107.91493404%
2 Jul 2006 108.33440308%
2 Aug 2006 106.29859274%
2 Sep 2006 106.71914553%
2 Oct 2006 107.14024735%
2 Nov 2006 107.56190301%
2 Dec 2006 107.98411736%
2 Jan 2007 108.40689531%
2 Feb 2007 105.33781957%
2 Mar 2007 105.75517297%
2 Apr 2007 106.17310492%
2 May 2007 106.59162052%
2 Jun 2007 107.01072487%
2 Jul 2007 107.43042315%
2 Aug 2007 105.37830145%
2 Sep 2007 105.79920325%
2 Oct 2007 106.22071473%
2 Nov 2007 106.64284126%
2 Dec 2007 107.06558822%
2 Jan 2008 107.48896106%
2 Feb 2008 103.45349629%
2 Mar 2008 103.86689361%
2 Apr 2008 104.28093343%
2 May 2008 104.69562139%
2 Jun 2008 105.11096315%
2 Jul 2008 105.52696447%
2 Aug 2008 103.23067478%
2 Sep 2008 103.64801262%
2 Oct 2008 104.06602752%
2 Nov 2008 104.48472542%
2 Dec 2008 104.90411232%
2 Jan 2009 105.32419426%
2 Feb 2009 98.56284001%
2 Mar 2009 98.95927747%
2 Apr 2009 99.35642843%
2 May 2009 99.75429914%
2 Jun 2009 100.15289592%
2 Jul 2009 100.55425178%
2 Aug 2009 97.66368090%
2 Sep 2009 98.06449432%
2 Oct 2009 98.46605962%
2 Nov 2009 98.86838340%
2 Dec 2009 99.27147231%
2 Jan 2010 92.96646489%
2 Feb 2010 92.07607930%
2 Mar 2010 92.44991441%
2 Apr 2010 92.82454187%
2 May 2010 93.19996861%
2 Jun 2010 93.57620164%
2 Jul 2010 93.96420660%
2 Aug 2010 91.24097276%
2 Sep 2010 91.61966738%
2 Oct 2010 91.99919698%
2 Nov 2010 92.37956886%
2 Dec 2010 92.76079043%
2 Jan 2011 93.16078719%
2 Feb 2011 81.62578096%
2 Mar 2011 81.95917947%
2 Apr 2011 82.29345786%
2 May 2011 82.62862386%
2 Jun 2011 82.96468527%
2 Jul 2011 83.32606686%
2 Aug 2011 79.57734449%
2 Sep 2011 79.91613950%
2 Oct 2011 80.25586173%
2 Nov 2011 80.59651934%
2 Dec 2011 80.93812052%
2 Jan 2012 81.31166198%
2 Feb 2012 73.11817797%
2 Mar 2012 73.43285764%
2 Apr 2012 73.74851443%
2 May 2012 74.06515692%
2 Jun 2012 74.38279374%
2 Jul 2012 74.72389660%
2 Aug 2012 71.13576331%
2 Sep 2012 71.45643580%
2 Oct 2012 71.77813801%
2 Nov 2012 72.10087894%
2 Dec 2012 72.42466771%
2 Jan 2013 72.76335573%
2 Feb 2013 67.35393932%
2 Mar 2013 67.65968878%
2 Apr 2013 67.96652335%
2 May 2013 68.27445253%
2 Jun 2013 68.58348595%
2 Jul 2013 68.90747547%
2 Aug 2013 66.78239124%
2 Sep 2013 67.09479578%
2 Oct 2013 67.40834380%
2 Nov 2013 67.72304532%
2 Dec 2013 68.03891048%
2 Jan 2014 68.36979169%
2 Feb 2014 61.63300959%
2 Mar 2014 61.92374840%
2 Apr 2014 62.21569221%
2 May 2014 62.50885160%
2 Jun 2014 62.80323724%
2 Jul 2014 63.11442274%
2 Aug 2014 60.81101114%
2 Sep 2014 61.10914041%
2 Oct 2014 61.40853953%
2 Nov 2014 61.70921963%
2 Dec 2014 62.01119194%
2 Jan 2015 62.33177058%
2 Feb 2015 56.11044165%
2 Mar 2015 56.39007092%
2 Apr 2015 56.67103835%
2 May 2015 56.95335568%
2 Jun 2015 57.23703477%
2 Jul 2015 57.53939029%
2 Aug 2015 55.38327542%
2 Sep 2015 55.67111183%
2 Oct 2015 55.96035841%
2 Nov 2015 56.25102750%
2 Dec 2015 56.54313162%
2 Jan 2016 56.85398610%
2 Feb 2016 54.29196543%
2 Mar 2016 54.58567498%
2 Apr 2016 54.88087058%
2 May 2016 55.17756524%
2 Jun 2016 55.47577213%
2 Jul 2016 55.77550450%
2 Aug 2016 53.65087578%
2 Sep 2016 53.95369940%
2 Oct 2016 54.25808900%
2 Nov 2016 54.56405834%
2 Dec 2016 54.87162126%
2 Jan 2017 55.18079175%
2 Feb 2017 35.55075979%
2 Mar 2017 35.73887116%
2 Apr 2017 35.92863279%
2 May 2017 36.17075850%
2 Jun 2017 36.41513010%
2 Jul 2017 36.74302528%
<PAGE>
SCHEDULE 3
TO
LEASE
SCHEDULE OF SPECIALTY CASUALTY VALUES
Percentage of
DATE Facility Cost
2 Oct 1989 103.67527896%
2 Nov 1989 104.75978572%
2 Dec 1989 105.84782618%
2 Jan 1990 106.90516620%
2 Feb 1990 108.01509356%
2 Mar 1990 109.12883839%
2 Apr 1990 110.24263508%
2 May 1990 111.32964472%
2 Jun 1990 112.42021541%
2 Jul 1990 113.48373929%
2 Aug 1990 114.64507572%
2 Sep 1990 115.81080349%
2 Oct 1990 116.95032400%
2 Nov 1990 118.09399182%
2 Dec 1990 119.24185320%
2 Jan 1991 120.21014004%
2 Feb 1991 116.72863997%
2 Mar 1991 117.85573457%
2 Apr 1991 118.97330271%
2 May 1991 120.06670464%
2 Jun 1991 121.16373772%
2 Jul 1991 122.23637487%
2 Aug 1991 118.70580504%
2 Sep 1991 119.78525199%
2 Oct 1991 120.84010641%
2 Nov 1991 121.89816090%
2 Dec 1991 122.95945109%
2 Jan 1992 123.99594549%
2 Feb 1992 120.43200885%
2 Mar 1992 121.47452561%
2 Apr 1992 122.50762949%
2 May 1992 123.52640445%
2 Jun 1992 124.54797540%
2 Jul 1992 125.55508829%
2 Aug 1992 121.95791100%
2 Sep 1992 122.97035431%
2 Oct 1992 123.96823751%
2 Nov 1992 124.96868290%
2 Dec 1992 125.97171897%
2 Jan 1993 127.76136940%
2 Feb 1993 124.14825243%
2 Mar 1993 125.14490082%
2 Apr 1993 126.13881310%
2 May 1993 127.11844438%
2 Jun 1993 128.10043329%
2 Jul 1993 129.06800768%
2 Aug 1993 125.43476536%
2 Sep 1993 126.40680963%
2 Oct 1993 127.36432780%
2 Nov 1993 128.32395574%
2 Dec 1993 129.28571688%
2 Jan 1994 130.23283654%
2 Feb 1994 126.57437139%
2 Mar 1994 127.52546077%
2 Apr 1994 128.47650959%
2 May 1994 129.41398818%
2 Jun 1994 130.35335195%
2 Jul 1994 131.27901459%
2 Aug 1994 127.60362248%
2 Sep 1994 128.53281015%
2 Oct 1994 129.44818248%
2 Nov 1994 130.36519212%
2 Dec 1994 131.28385720%
2 Jan 1995 132.18858885%
2 Feb 1995 128.48698792%
2 Mar 1995 129.39472921%
2 Apr 1995 130.30402216%
2 May 1995 131.20058179%
2 Jun 1995 132.09856777%
2 Jul 1995 132.98369371%
2 Aug 1995 129.26756781%
2 Sep 1995 130.15530450%
2 Oct 1995 131.03006608%
2 Nov 1995 131.90600949%
2 Dec 1995 132.78314776%
2 Jan 1996 133.64719192%
2 Feb 1996 129.12355681%
2 Mar 1996 129.98304493%
2 Apr 1996 130.84361802%
2 May 1996 131.69292738%
2 Jun 1996 132.54320756%
2 Jul 1996 133.38210860%
2 Aug 1996 129.65945795%
2 Sep 1996 130.50007656%
2 Oct 1996 131.32920744%
2 Nov 1996 132.15908264%
2 Dec 1996 132.98971027%
2 Jan 1997 133.80873790%
2 Feb 1997 127.79869518%
2 Mar 1997 128.59969588%
2 Apr 1997 129.40134111%
2 May 1997 130.18868660%
2 Jun 1997 130.97652358%
2 Jul 1997 131.74990607%
2 Aug 1997 132.40550345%
2 Sep 1997 133.07415222%
2 Oct 1997 133.72874134%
2 Nov 1997 134.38406471%
2 Dec 1997 135.04013031%
2 Jan 1998 135.68199494%
2 Feb 1998 133.09856343%
2 Mar 1998 133.74161715%
2 Apr 1998 134.38527505%
2 May 1998 135.01442177%
2 Jun 1998 135.64401678%
2 Jul 1998 136.25894298%
2 Aug 1998 133.35500804%
2 Sep 1998 133.97051495%
2 Oct 1998 134.57119487%
2 Nov 1998 135.17200370%
2 Dec 1998 135.77294261%
2 Jan 1999 136.37197660%
2 Feb 1999 126.27090089%
2 Mar 1999 126.82206714%
2 Apr 1999 127.37334506%
2 May 1999 127.92473563%
2 Jun 1999 128.47623984%
2 Jul 1999 129.02785869%
2 Aug 1999 126.34897228%
2 Sep 1999 126.90082343%
2 Oct 1999 127.45279225%
2 Nov 1999 128.00487979%
2 Dec 1999 128.55708709%
2 Jan 2000 129.10941519%
2 Feb 2000 120.57787439%
2 Mar 2000 121.09125007%
2 Apr 2000 121.60474976%
2 May 2000 122.11837456%
2 Jun 2000 122.63212555%
2 Jul 2000 123.14600384%
2 Aug 2000 120.66457293%
2 Sep 2000 121.17870920%
2 Oct 2000 121.69297615%
2 Nov 2000 122.20737492%
2 Dec 2000 122.72190669%
2 Jan 2001 123.23657261%
2 Feb 2001 114.90256638%
2 Mar 2001 115.37830693%
2 Apr 2001 115.85418520%
2 May 2001 116.33020239%
2 Jun 2001 116.80635972%
2 Jul 2001 117.28265843%
2 Aug 2001 114.99884541%
2 Sep 2001 115.47543059%
2 Oct 2001 115.95216089%
2 Nov 2001 116.42903760%
2 Dec 2001 116.90606198%
2 Jan 2002 117.38323535%
2 Feb 2002 109.24693480%
2 Mar 2002 109.68521284%
2 Apr 2002 110.12364381%
2 May 2002 110.56222906%
2 Jun 2002 111.00096994%
2 Jul 2002 111.43986781%
2 Aug 2002 109.35385299%
2 Sep 2002 109.79306899%
2 Oct 2002 110.23244616%
2 Nov 2002 110.67198590%
2 Dec 2002 111.11168964%
2 Jan 2003 111.55155882%
2 Feb 2003 98.57334948%
2 Mar 2003 98.94998267%
2 Apr 2003 99.32678569%
2 May 2003 99.70376004%
2 Jun 2003 100.08090721%
2 Jul 2003 100.46052045%
2 Aug 2003 97.29437422%
2 Sep 2003 97.67204902%
2 Oct 2003 98.04990279%
2 Nov 2003 98.42793710%
2 Dec 2003 98.80615353%
2 Jan 2004 99.18916275%
2 Feb 2004 92.51596368%
2 Mar 2004 92.86337538%
2 Apr 2004 93.21097568%
2 May 2004 93.55876624%
2 Jun 2004 93.90674872%
2 Jul 2004 94.25492480%
2 Aug 2004 92.64781709%
2 Sep 2004 92.99638551%
2 Oct 2004 93.34515266%
2 Nov 2004 93.69412032%
2 Dec 2004 94.04329022%
2 Jan 2005 94.39266414%
2 Feb 2005 92.59103877%
2 Mar 2005 92.93963264%
2 Apr 2005 93.28843595%
2 May 2005 93.63745053%
2 Jun 2005 93.98667825%
2 Jul 2005 94.33612097%
2 Aug 2005 92.71996244%
2 Sep 2005 93.06984083%
2 Oct 2005 93.41993994%
2 Nov 2005 93.77026170%
2 Dec 2005 94.12080805%
2 Jan 2006 94.47158097%
2 Feb 2006 91.83710979%
2 Mar 2006 92.18323805%
2 Apr 2006 92.52959890%
2 May 2006 92.87619437%
2 Jun 2006 93.22302652%
2 Jul 2006 93.57009744%
2 Aug 2006 91.72471377%
2 Sep 2006 92.07226850%
2 Oct 2006 92.42006834%
2 Nov 2006 92.76811543%
2 Dec 2006 93.11641193%
2 Jan 2007 93.46496004%
2 Feb 2007 90.69552783%
2 Mar 2007 91.03872273%
2 Apr 2007 91.38217592%
2 May 2007 91.72588966%
2 Jun 2007 92.06986624%
2 Jul 2007 92.41410796%
2 Aug 2007 90.55110009%
2 Sep 2007 90.89587910%
2 Oct 2007 91.24093030%
2 Nov 2007 91.58625606%
2 Dec 2007 91.93185880%
2 Jan 2008 92.27774096%
2 Feb 2008 88.64223624%
2 Mar 2008 88.97864549%
2 Apr 2008 89.31534156%
2 May 2008 89.65232698%
2 Jun 2008 89.98960429%
2 Jul 2008 90.32717603%
2 Aug 2008 88.24276235%
2 Sep 2008 88.58093076%
2 Oct 2008 88.91940142%
2 Nov 2008 89.25817700%
2 Dec 2008 89.59726017%
2 Jan 2009 89.93665362%
2 Feb 2009 83.86373746%
2 Mar 2009 84.18139101%
2 Apr 2009 84.49936309%
2 May 2009 84.81765649%
2 Jun 2009 85.13627402%
2 Jul 2009 85.45702804%
2 Aug 2009 82.83823190%
2 Sep 2009 83.15783900%
2 Oct 2009 83.47778177%
2 Nov 2009 83.79806314%
2 Dec 2009 84.11868609%
2 Jan 2010 84.44329285%
2 Feb 2010 77.61463558%
2 Mar 2010 77.90809625%
2 Apr 2010 78.20191065%
2 May 2010 78.49608187%
2 Jun 2010 78.79061304%
2 Jul 2010 79.09529175%
2 Aug 2010 76.62171236%
2 Sep 2010 76.91734246%
2 Oct 2010 77.21334531%
2 Nov 2010 77.50972419%
2 Dec 2010 77.80648238%
2 Jan 2011 78.11962150%
2 Feb 2011 67.77612194%
2 Mar 2011 68.02902292%
2 Apr 2011 68.28231671%
2 May 2011 68.53600676%
2 Jun 2011 68.79009654%
2 Jul 2011 69.06639039%
2 Aug 2011 65.67254179%
2 Sep 2011 65.92785192%
2 Oct 2011 66.18357600%
2 Nov 2011 66.43971766%
2 Dec 2011 66.69628055%
2 Jan 2012 66.98093662%
2 Feb 2012 59.61603413%
2 Mar 2012 59.84727394%
2 Apr 2012 60.07894997%
2 May 2012 60.31106604%
2 Jun 2012 60.54362602%
2 Jul 2012 60.79669000%
2 Aug 2012 57.54105569%
2 Sep 2012 57.77497088%
2 Oct 2012 58.00934575%
2 Nov 2012 58.24418434%
2 Dec 2012 58.47949071%
2 Jan 2013 58.72762810%
2 Feb 2013 53.84305335%
2 Mar 2013 54.06082508%
2 Apr 2013 54.27908123%
2 May 2013 54.49782604%
2 Jun 2013 54.71706381%
2 Jul 2013 54.94915798%
2 Aug 2013 52.99407752%
2 Sep 2013 53.21482026%
2 Oct 2013 53.43607348%
2 Nov 2013 53.65784166%
2 Dec 2013 53.88012933%
2 Jan 2014 54.11530014%
2 Feb 2014 48.03952865%
2 Mar 2014 48.23779613%
2 Apr 2014 48.43660156%
2 May 2014 48.63594966%
2 Jun 2014 48.83584518%
2 Jul 2014 49.05018836%
2 Aug 2014 46.92951277%
2 Sep 2014 47.13107956%
2 Oct 2014 47.33321325%
2 Nov 2014 47.53591881%
2 Dec 2014 47.73920125%
2 Jan 2015 47.95851453%
2 Feb 2015 42.33625186%
2 Mar 2015 42.51782396%
2 Apr 2015 42.69999345%
2 May 2015 42.88276558%
2 Jun 2015 43.06614563%
2 Jul 2015 43.26558783%
2 Aug 2015 41.26934853%
2 Sep 2015 41.45458453%
2 Oct 2015 41.64045007%
2 Nov 2015 41.82695066%
2 Dec 2015 42.01409189%
2 Jan 2016 42.21732827%
2 Feb 2016 39.85484561%
2 Mar 2016 40.04146446%
2 Apr 2016 40.22874671%
2 May 2016 40.41669820%
2 Jun 2016 40.60532478%
2 Jul 2016 40.79463239%
2 Aug 2016 38.81864487%
2 Sep 2016 39.00933250%
2 Oct 2016 39.20071923%
2 Nov 2016 39.39281119%
2 Dec 2016 39.58561457%
2 Jan 2017 39.77913562%
2 Feb 2017 22.16907339%
2 Mar 2017 22.25305167%
2 Apr 2017 22.33776669%
2 May 2017 22.46849216%
2 Jun 2017 22.60047319%
2 Jul 2017 22.80627257%
<PAGE>
SCHEDULE 4
TO
LEASE
SCHEDULE OF NET CASUALTY VALUES
PART A
Percentage of
DATE Facility Cost
2 Oct 1989 16.93778241%
2 Nov 1989 17.26934019%
2 Dec 1989 17.60457946%
2 Jan 1990 17.90825348%
2 Feb 1990 20.74134140%
2 Mar 1990 21.10317752%
2 Apr 1990 21.46511181%
2 May 1990 21.79951160%
2 Jun 1990 22.13762336%
2 Jul 1990 22.44793397%
2 Aug 1990 27.59879350%
2 Sep 1990 28.01442523%
2 Oct 1990 28.40312143%
2 Nov 1990 28.79613526%
2 Dec 1990 29.19351471%
2 Jan 1991 29.40605462%
2 Feb 1991 29.77698736%
2 Mar 1991 30.15313213%
2 Apr 1991 30.51951827%
2 May 1991 30.86107328%
2 Jun 1991 31.20641747%
2 Jul 1991 31.52669492%
2 Aug 1991 31.85052354%
2 Sep 1991 32.17794223%
2 Oct 1991 32.48009312%
2 Nov 1991 32.78559161%
2 Dec 1991 33.09447485%
2 Jan 1992 33.37788238%
2 Feb 1992 33.66442729%
2 Mar 1992 33.95414436%
2 Apr 1992 34.23422522%
2 May 1992 34.49960888%
2 Jun 1992 34.76792745%
2 Jul 1992 35.02141682%
2 Aug 1992 35.27770763%
2 Sep 1992 35.53683091%
2 Oct 1992 35.78102142%
2 Nov 1992 36.02790863%
2 Dec 1992 36.27752237%
2 Jan 1993 37.33708535%
2 Feb 1993 37.57768308%
2 Mar 1993 37.82093622%
2 Apr 1993 38.06143359%
2 May 1993 38.28728925%
2 Jun 1993 38.51563468%
2 Jul 1993 38.72920199%
2 Aug 1993 38.94512115%
2 Sep 1993 39.16341814%
2 Oct 1993 39.36682382%
2 Nov 1993 39.57246686%
2 Dec 1993 39.78037196%
2 Jan 1994 39.97326868%
2 Feb 1994 40.16828438%
2 Mar 1994 40.36544242%
2 Apr 1994 40.56262678%
2 May 1994 40.74590806%
2 Jun 1994 40.93119958%
2 Jul 1994 41.10245445%
2 Aug 1994 41.27558448%
2 Sep 1994 41.45061029%
2 Oct 1994 41.61148373%
2 Nov 1994 41.77411529%
2 Dec 1994 41.93852428%
2 Jan 1995 42.08866120%
2 Feb 1995 42.24043523%
2 Mar 1995 42.39386427%
2 Apr 1995 42.54896648%
2 May 1995 42.69103488%
2 Jun 1995 42.83464876%
2 Jul 1995 42.96509968%
2 Aug 1995 43.09696554%
2 Sep 1995 43.23026173%
2 Oct 1995 43.35027856%
2 Nov 1995 43.47159257%
2 Dec 1995 43.59421786%
2 Jan 1996 43.70344337%
2 Feb 1996 43.81384429%
2 Mar 1996 43.92543337%
2 Apr 1996 44.03822347%
2 May 1996 44.13950126%
2 Jun 1996 44.24186402%
2 Jul 1996 44.33259713%
2 Aug 1996 44.42429656%
2 Sep 1996 44.51697270%
2 Oct 1996 44.59790969%
2 Nov 1996 44.67970225%
2 Dec 1996 44.76235955%
2 Jan 1997 44.83316443%
2 Feb 1997 44.90471038%
2 Mar 1997 44.97700523%
2 Apr 1997 45.05005692%
2 May 1997 45.10847980%
2 Jun 1997 45.16750359%
2 Jul 1997 45.21174090%
2 Aug 1997 47.72368240%
2 Sep 1997 47.81943549%
2 Oct 1997 47.90081117%
2 Nov 1997 47.98304194%
2 Dec 1997 48.06613688%
2 Jan 1998 48.13471150%
2 Feb 1998 48.20399674%
2 Mar 1998 48.27400002%
2 Apr 1998 48.34472888%
2 May 1998 48.40062166%
2 Jun 1998 48.45708133%
2 Jul 1998 48.49854444%
2 Aug 1998 48.54041219%
2 Sep 1998 48.58268857%
2 Oct 1998 48.60980835%
2 Nov 1998 48.63717092%
2 Dec 1998 48.66477844%
2 Jan 1999 48.69053669%
2 Feb 1999 48.71652091%
2 Mar 1999 48.74273307%
2 Apr 1999 48.76917520%
2 May 1999 48.79584928%
2 Jun 1999 48.82275738%
2 Jul 1999 48.84990153%
2 Aug 1999 48.87728381%
2 Sep 1999 48.90490630%
2 Oct 1999 48.93277112%
2 Nov 1999 48.96088039%
2 Dec 1999 48.98923625%
2 Jan 2000 49.01784087%
2 Feb 2000 49.04669643%
2 Mar 2000 49.07580514%
2 Apr 2000 49.10516920%
2 May 2000 49.13479087%
2 Jun 2000 49.16467240%
2 Jul 2000 49.19481607%
2 Aug 2000 49.22522418%
2 Sep 2000 49.25589905%
2 Oct 2000 49.28684303%
2 Nov 2000 49.31805847%
2 Dec 2000 49.34954775%
2 Jan 2001 49.38131328%
2 Feb 2001 49.41335748%
2 Mar 2001 49.44568279%
2 Apr 2001 49.47829169%
2 May 2001 49.51118664%
2 Jun 2001 49.54437019%
2 Jul 2001 49.57784483%
2 Aug 2001 49.61161315%
2 Sep 2001 49.64567770%
2 Oct 2001 49.68004109%
2 Nov 2001 49.71470594%
2 Dec 2001 49.74967489%
2 Jan 2002 49.78495062%
2 Feb 2002 49.82053581%
2 Mar 2002 49.85643318%
2 Apr 2002 49.89264547%
2 May 2002 49.92917543%
2 Jun 2002 49.96602587%
2 Jul 2002 50.00319958%
2 Aug 2002 50.04069941%
2 Sep 2002 50.07852821%
2 Oct 2002 50.11668886%
2 Nov 2002 50.15518429%
2 Dec 2002 50.19401744%
2 Jan 2003 50.23319125%
2 Feb 2003 48.83128407%
2 Mar 2003 48.87114823%
2 Apr 2003 48.91136209%
2 May 2003 48.95192874%
2 Jun 2003 48.99285127%
2 Jul 2003 49.03649234%
2 Aug 2003 47.63671137%
2 Sep 2003 47.67872038%
2 Oct 2003 47.72109792%
2 Nov 2003 47.76384724%
2 Dec 2003 47.80697157%
2 Jan 2004 47.85521966%
2 Feb 2004 47.66744641%
2 Mar 2004 47.71171569%
2 Apr 2004 47.75637333%
2 May 2004 47.80142273%
2 Jun 2004 47.84686734%
2 Jul 2004 47.89271062%
2 Aug 2004 47.93895608%
2 Sep 2004 47.98560723%
2 Oct 2004 48.03266763%
2 Nov 2004 48.08014088%
2 Dec 2004 48.12803061%
2 Jan 2005 48.17634045%
2 Feb 2005 48.20705629%
2 Mar 2005 48.25621747%
2 Apr 2005 48.30580994%
2 May 2005 48.35583745%
2 Jun 2005 48.40630384%
2 Jul 2005 48.45721296%
2 Aug 2005 48.49055089%
2 Sep 2005 48.54235714%
2 Oct 2005 48.59461789%
2 Nov 2005 48.64733710%
2 Dec 2005 48.70051879%
2 Jan 2006 48.75416704%
2 Feb 2006 48.52514894%
2 Mar 2006 48.57974260%
2 Apr 2006 48.63481520%
2 May 2006 48.69037091%
2 Jun 2006 48.74641402%
2 Jul 2006 48.80294877%
2 Aug 2006 48.57684251%
2 Sep 2006 48.63437352%
2 Oct 2006 48.69240925%
2 Nov 2006 48.75095412%
2 Dec 2006 48.81001258%
2 Jan 2007 48.86958913%
2 Feb 2007 48.59507191%
2 Mar 2007 48.65569835%
2 Apr 2007 48.71685665%
2 May 2007 48.77855147%
2 Jun 2007 48.84078752%
2 Jul 2007 48.90356955%
2 Aug 2007 48.63228592%
2 Sep 2007 48.69617432%
2 Oct 2007 48.76062319%
2 Nov 2007 48.82563746%
2 Dec 2007 48.89122207%
2 Jan 2008 48.95738205%
2 Feb 2008 48.40636900%
2 Mar 2008 48.47369487%
2 Apr 2008 48.54161137%
2 May 2008 48.61012368%
2 Jun 2008 48.67923703%
2 Jul 2008 48.74895669%
2 Aug 2008 48.20153456%
2 Sep 2008 48.27248284%
2 Oct 2008 48.34405354%
2 Nov 2008 48.41625210%
2 Dec 2008 48.48908404%
2 Jan 2009 48.56255491%
2 Feb 2009 47.34968403%
2 Mar 2009 47.42444963%
2 Apr 2009 47.49987113%
2 May 2009 47.57595429%
2 Jun 2009 47.65270489%
2 Jul 2009 47.73199187%
2 Aug 2009 46.52310871%
2 Sep 2009 46.60189702%
2 Oct 2009 46.68137652%
2 Nov 2009 46.76155326%
2 Dec 2009 46.84243338%
2 Jan 2010 46.92776996%
2 Feb 2010 45.72308908%
2 Mar 2010 45.80611653%
2 Apr 2010 45.88987237%
2 May 2010 45.97436297%
2 Jun 2010 46.05959478%
2 Jul 2010 46.15564823%
2 Aug 2010 44.95539573%
2 Sep 2010 45.04289042%
2 Oct 2010 45.13115267%
2 Nov 2010 45.22018923%
2 Dec 2010 45.31000688%
2 Jan 2011 45.41708411%
2 Feb 2011 43.03747085%
2 Mar 2011 43.12967313%
2 Apr 2011 43.22268427%
2 May 2011 43.31651137%
2 Jun 2011 43.41116158%
2 Jul 2011 43.52908803%
2 Aug 2011 41.15439251%
2 Sep 2011 41.25155566%
2 Oct 2011 41.34957119%
2 Nov 2011 41.44844659%
2 Dec 2011 41.54818939%
2 Jan 2012 41.67729412%
2 Feb 2012 39.30778092%
2 Mar 2012 39.41017186%
2 Apr 2012 39.51346105%
2 May 2012 39.61765636%
2 Jun 2012 39.72276574%
2 Jul 2012 39.84944688%
2 Aug 2012 37.48539484%
2 Sep 2012 37.59329485%
2 Oct 2012 37.70214143%
2 Nov 2012 37.81194290%
2 Dec 2012 37.92270761%
2 Jan 2013 38.04716884%
2 Feb 2013 36.92437865%
2 Mar 2013 37.03808414%
2 Apr 2013 37.15278713%
2 May 2013 37.26849637%
2 Jun 2013 37.38522070%
2 Jul 2013 37.51569384%
2 Aug 2013 36.39896827%
2 Sep 2013 36.51879160%
2 Oct 2013 36.63966609%
2 Nov 2013 36.76160099%
2 Dec 2013 36.88460558%
2 Jan 2014 37.02141407%
2 Feb 2014 35.60220275%
2 Mar 2014 35.72847307%
2 Apr 2014 35.85585113%
2 May 2014 35.98434664%
2 Jun 2014 36.11396940%
2 Jul 2014 36.25903589%
2 Aug 2014 34.84655935%
2 Sep 2014 34.97962356%
2 Oct 2014 35.11385509%
2 Nov 2014 35.24926421%
2 Dec 2014 35.38586123%
2 Jan 2015 35.53956259%
2 Feb 2015 34.13418322%
2 Mar 2015 34.27440684%
2 Apr 2015 34.41586061%
2 May 2015 34.55855532%
2 Jun 2015 34.70250183%
2 Jul 2015 34.86361716%
2 Aug 2015 33.46571681%
2 Sep 2015 33.61348506%
2 Oct 2015 33.76254964%
2 Nov 2015 33.91292193%
2 Dec 2015 34.06461338%
2 Jan 2016 34.23354159%
2 Feb 2016 32.84352264%
2 Mar 2016 32.99924146%
2 Apr 2016 33.15632635%
2 May 2016 33.31478930%
2 Jun 2016 33.47464240%
2 Jul 2016 33.63589784%
2 Aug 2016 32.25418437%
2 Sep 2016 32.41828152%
2 Oct 2016 32.58381824%
2 Nov 2016 32.75080717%
2 Dec 2016 32.91926104%
2 Jan 2017 33.08919272%
2 Feb 2017 32.68095775%
2 Mar 2017 32.85388400%
2 Apr 2017 33.02832731%
2 May 2017 33.25090764%
2 Jun 2017 33.47555257%
2 Jul 2017 33.77697872%
<PAGE>
SCHEDULE 4
TO
LEASE
SCHEDULE OF NET CASUALTY VALUES
PART B
Percentage of
DATE Facility Cost
2 Oct 1989 18.42513425%
2 Nov 1989 18.78580700%
2 Dec 1989 19.15048452%
2 Jan 1990 19.48082497%
2 Feb 1990 22.56269389%
2 Mar 1990 22.95630381%
2 Apr 1990 23.35002051%
2 May 1990 23.71378484%
2 Jun 1990 24.08158710%
2 Jul 1990 24.41914691%
2 Aug 1990 30.02231715%
2 Sep 1990 30.47444661%
2 Oct 1990 30.89727526%
2 Nov 1990 31.32480067%
2 Dec 1990 31.75707508%
2 Jan 1991 31.98827868%
2 Feb 1991 32.39178402%
2 Mar 1991 32.80095906%
2 Apr 1991 33.19951854%
2 May 1991 33.57106641%
2 Jun 1991 33.94673620%
2 Jul 1991 34.29513806%
2 Aug 1991 34.64740293%
2 Sep 1991 35.00357314%
2 Oct 1991 35.33225670%
2 Nov 1991 35.66458183%
2 Dec 1991 36.00058893%
2 Jan 1992 36.30888323%
2 Feb 1992 36.62059041%
2 Mar 1992 36.93574830%
2 Apr 1992 37.24042382%
2 May 1992 37.52911152%
2 Jun 1992 37.82099186%
2 Jul 1992 38.09674081%
2 Aug 1992 38.37553720%
2 Sep 1992 38.65741478%
2 Oct 1992 38.92304832%
2 Nov 1992 39.19161534%
2 Dec 1992 39.46314833%
2 Jan 1993 40.61575437%
2 Feb 1993 40.87747963%
2 Mar 1993 41.14209347%
2 Apr 1993 41.40370956%
2 May 1993 41.64939820%
2 Jun 1993 41.89779525%
2 Jul 1993 42.13011648%
2 Aug 1993 42.36499608%
2 Sep 1993 42.60246231%
2 Oct 1993 42.82372958%
2 Nov 1993 43.04743069%
2 Dec 1993 43.27359249%
2 Jan 1994 43.48342798%
2 Feb 1994 43.69556854%
2 Mar 1994 43.91003954%
2 Apr 1994 44.12453919%
2 May 1994 44.32391489%
2 Jun 1994 44.52547735%
2 Jul 1994 44.71177057%
2 Aug 1994 44.90010361%
2 Sep 1994 45.09049890%
2 Oct 1994 45.26549907%
2 Nov 1994 45.44241174%
2 Dec 1994 45.62125792%
2 Jan 1995 45.78457876%
2 Feb 1995 45.94968047%
2 Mar 1995 46.11658252%
2 Apr 1995 46.28530468%
2 May 1995 46.43984848%
2 Jun 1995 46.59607347%
2 Jul 1995 46.73797965%
2 Aug 1995 46.88142499%
2 Sep 1995 47.02642628%
2 Oct 1995 47.15698211%
2 Nov 1995 47.28894902%
2 Dec 1995 47.42234236%
2 Jan 1996 47.54115925%
2 Feb 1996 47.66125478%
2 Mar 1996 47.78264279%
2 Apr 1996 47.90533729%
2 May 1996 48.01550855%
2 Jun 1996 48.12686006%
2 Jul 1996 48.22556069%
2 Aug 1996 48.32531249%
2 Sep 1996 48.42612677%
2 Oct 1996 48.51417105%
2 Nov 1996 48.60314603%
2 Dec 1996 48.69306169%
2 Jan 1997 48.77008414%
2 Feb 1997 48.84791272%
2 Mar 1997 48.92655598%
2 Apr 1997 49.00602253%
2 May 1997 49.06957569%
2 Jun 1997 49.13378251%
2 Jul 1997 49.18190442%
2 Aug 1997 51.91442620%
2 Sep 1997 52.01858762%
2 Oct 1997 52.10710912%
2 Nov 1997 52.19656079%
2 Dec 1997 52.28695251%
2 Jan 1998 52.36154886%
2 Feb 1998 52.43691822%
2 Mar 1998 52.51306868%
2 Apr 1998 52.59000843%
2 May 1998 52.65080930%
2 Jun 1998 52.71222684%
2 Jul 1998 52.75733094%
2 Aug 1998 52.80287520%
2 Sep 1998 52.84886400%
2 Oct 1998 52.87836523%
2 Nov 1998 52.90813058%
2 Dec 1998 52.93816239%
2 Jan 1999 52.96618254%
2 Feb 1999 52.99444851%
2 Mar 1999 53.02296243%
2 Apr 1999 53.05172650%
2 May 1999 53.08074292%
2 Jun 1999 53.11001388%
2 Jul 1999 53.13954163%
2 Aug 1999 53.16932842%
2 Sep 1999 53.19937652%
2 Oct 1999 53.22968822%
2 Nov 1999 53.26026584%
2 Dec 1999 53.29111171%
2 Jan 2000 53.32222818%
2 Feb 2000 53.35361762%
2 Mar 2000 53.38528244%
2 Apr 2000 53.41722504%
2 May 2000 53.44944787%
2 Jun 2000 53.48195337%
2 Jul 2000 53.51474404%
2 Aug 2000 53.54782236%
2 Sep 2000 53.58119088%
2 Oct 2000 53.61485213%
2 Nov 2000 53.64880868%
2 Dec 2000 53.68306312%
2 Jan 2001 53.71761807%
2 Feb 2001 53.75247615%
2 Mar 2001 53.78764003%
2 Apr 2001 53.82311240%
2 May 2001 53.85889596%
2 Jun 2001 53.89499343%
2 Jul 2001 53.93140758%
2 Aug 2001 53.96814118%
2 Sep 2001 54.00519703%
2 Oct 2001 54.04257796%
2 Nov 2001 54.08028683%
2 Dec 2001 54.11832649%
2 Jan 2002 54.15669988%
2 Feb 2002 54.19540990%
2 Mar 2002 54.23445951%
2 Apr 2002 54.27385170%
2 May 2002 54.31358946%
2 Jun 2002 54.35367582%
2 Jul 2002 54.39411386%
2 Aug 2002 54.43490665%
2 Sep 2002 54.47605729%
2 Oct 2002 54.51756894%
2 Nov 2002 54.55944476%
2 Dec 2002 54.60168794%
2 Jan 2003 54.64430171%
2 Feb 2003 53.11928933%
2 Mar 2003 53.16265406%
2 Apr 2003 53.20639921%
2 May 2003 53.25052813%
2 Jun 2003 53.29504417%
2 Jul 2003 53.34251748%
2 Aug 2003 51.81981801%
2 Sep 2003 51.86551595%
2 Oct 2003 51.91161476%
2 Nov 2003 51.95811802%
2 Dec 2003 52.00502922%
2 Jan 2004 52.05751410%
2 Feb 2004 51.85325198%
2 Mar 2004 51.90140866%
2 Apr 2004 51.94998780%
2 May 2004 51.99899311%
2 Jun 2004 52.04842833%
2 Jul 2004 52.09829724%
2 Aug 2004 52.14860363%
2 Sep 2004 52.19935134%
2 Oct 2004 52.25054425%
2 Nov 2004 52.30218625%
2 Dec 2004 52.35428130%
2 Jan 2005 52.40683336%
2 Feb 2005 52.44024644%
2 Mar 2005 52.49372460%
2 Apr 2005 52.54767190%
2 May 2005 52.60209247%
2 Jun 2005 52.65699044%
2 Jul 2005 52.71237003%
2 Aug 2005 52.74863545%
2 Sep 2005 52.80499095%
2 Oct 2005 52.86184085%
2 Nov 2005 52.91918948%
2 Dec 2005 52.97704120%
2 Jan 2006 53.03540044%
2 Feb 2006 52.78627165%
2 Mar 2006 52.84565933%
2 Apr 2006 52.90556799%
2 May 2006 52.96600221%
2 Jun 2006 53.02696661%
2 Jul 2006 53.08846583%
2 Aug 2006 52.84250457%
2 Sep 2006 52.90508754%
2 Oct 2006 52.96821954%
2 Nov 2006 53.03190538%
2 Dec 2006 53.09614993%
2 Jan 2007 53.16095805%
2 Feb 2007 52.86233474%
2 Mar 2007 52.92828495%
2 Apr 2007 52.99481373%
2 May 2007 53.06192613%
2 Jun 2007 53.12962730%
2 Jul 2007 53.19792239%
2 Aug 2007 52.90281661%
2 Sep 2007 52.97231522%
2 Oct 2007 53.04242353%
2 Nov 2007 53.11314687%
2 Dec 2007 53.18449064%
2 Jan 2008 53.25646031%
2 Feb 2008 52.65706133%
2 Mar 2008 52.73029926%
2 Apr 2008 52.80417969%
2 May 2008 52.87870825%
2 Jun 2008 52.95389063%
2 Jul 2008 53.02973256%
2 Aug 2008 52.43423983%
2 Sep 2008 52.51141827%
2 Oct 2008 52.58927378%
2 Nov 2008 52.66781229%
2 Dec 2008 52.74703980%
2 Jan 2009 52.82696234%
2 Feb 2009 51.50758603%
2 Mar 2009 51.58891700%
2 Apr 2009 51.67096146%
2 May 2009 51.75372569%
2 Jun 2009 51.83721596%
2 Jul 2009 51.92346534%
2 Aug 2009 50.60842693%
2 Sep 2009 50.69413385%
2 Oct 2009 50.78059265%
2 Nov 2009 50.86780993%
2 Dec 2009 50.95579235%
2 Jan 2010 51.04862256%
2 Feb 2010 49.73815544%
2 Mar 2010 49.82847376%
2 Apr 2010 49.91958442%
2 May 2010 50.01149437%
2 Jun 2010 50.10421061%
2 Jul 2010 50.20869877%
2 Aug 2010 48.90304889%
2 Sep 2010 48.99822673%
2 Oct 2010 49.09423952%
2 Nov 2010 49.19109461%
2 Dec 2010 49.28879939%
2 Jan 2011 49.40527936%
2 Feb 2011 46.81670591%
2 Mar 2011 46.91700472%
2 Apr 2011 47.01818342%
2 May 2011 47.12024972%
2 Jun 2011 47.22321143%
2 Jul 2011 47.35149331%
2 Aug 2011 44.76826945%
2 Sep 2011 44.87396476%
2 Oct 2011 44.98058729%
2 Nov 2011 45.08814520%
2 Dec 2011 45.19664668%
2 Jan 2012 45.33708844%
2 Feb 2012 42.75950197%
2 Mar 2012 42.87088413%
2 Apr 2012 42.98324342%
2 May 2012 43.09658839%
2 Jun 2012 43.21092772%
2 Jul 2012 43.34873306%
2 Aug 2012 40.77708731%
2 Sep 2012 40.89446230%
2 Oct 2012 41.01286700%
2 Nov 2012 41.13231042%
2 Dec 2012 41.25280168%
2 Jan 2013 41.38819218%
2 Feb 2013 40.16680679%
2 Mar 2013 40.29049706%
2 Apr 2013 40.41527243%
2 May 2013 40.54114241%
2 Jun 2013 40.66811661%
2 Jul 2013 40.81004694%
2 Aug 2013 39.59525873%
2 Sep 2013 39.72560406%
2 Oct 2013 39.85709287%
2 Nov 2013 39.98973520%
2 Dec 2013 40.12354115%
2 Jan 2014 40.27236315%
2 Feb 2014 38.72852710%
2 Mar 2014 38.86588555%
2 Apr 2014 39.00444902%
2 May 2014 39.14422807%
2 Jun 2014 39.28523334%
2 Jul 2014 39.44303851%
2 Aug 2014 37.90652864%
2 Sep 2014 38.05127757%
2 Oct 2014 38.19729633%
2 Nov 2014 38.34459609%
2 Dec 2014 38.49318806%
2 Jan 2015 38.66038634%
2 Feb 2015 37.13159686%
2 Mar 2015 37.28413389%
2 Apr 2015 37.43800909%
2 May 2015 37.59323420%
2 Jun 2015 37.74982104%
2 Jul 2015 37.92508434%
2 Aug 2015 36.40443063%
2 Sep 2015 36.56517481%
2 Oct 2015 36.72732915%
2 Nov 2015 36.89090602%
2 Dec 2015 37.05591791%
2 Jan 2016 37.23968015%
2 Feb 2016 35.72759994%
2 Mar 2016 35.89699284%
2 Apr 2016 36.06787177%
2 May 2016 36.24024977%
2 Jun 2016 36.41414000%
2 Jul 2016 36.58955571%
2 Aug 2016 35.08651030%
2 Sep 2016 35.26501726%
2 Oct 2016 35.44509020%
2 Nov 2016 35.62674287%
2 Dec 2016 35.80998913%
2 Jan 2017 35.99484296%
2 Feb 2017 35.55075979%
2 Mar 2017 35.73887116%
2 Apr 2017 35.92863279%
2 May 2017 36.17075850%
2 Jun 2017 36.41513010%
2 Jul 2017 36.74302528%
<PAGE>
SCHEDULE 4
TO
LEASE
SCHEDULE OF NET CASUALTY VALUES
PART C
Percentage of
DATE Facility Cost
2 Oct 1989 16.45101272%
2 Nov 1989 16.77304196%
2 Dec 1989 17.09864689%
2 Jan 1990 17.39359372%
2 Feb 1990 20.14526240%
2 Mar 1990 20.49669983%
2 Apr 1990 20.84823260%
2 May 1990 21.17302218%
2 Jun 1990 21.50141705%
2 Jul 1990 21.80280974%
2 Aug 1990 26.80564031%
2 Sep 1990 27.20932733%
2 Oct 1990 27.58685291%
2 Nov 1990 27.96857203%
2 Dec 1990 28.35453132%
2 Jan 1991 28.56096311%
2 Feb 1991 28.92123573%
2 Mar 1991 29.28657059%
2 Apr 1991 29.64242727%
2 May 1991 29.97416644%
2 Jun 1991 30.30958589%
2 Jul 1991 30.62065898%
2 Aug 1991 30.93518119%
2 Sep 1991 31.25319030%
2 Oct 1991 31.54665777%
2 Nov 1991 31.84337663%
2 Dec 1991 32.14338297%
2 Jan 1992 32.41864574%
2 Feb 1992 32.69695572%
2 Mar 1992 32.97834670%
2 Apr 1992 33.25037841%
2 May 1992 33.50813529%
2 Jun 1992 33.76874273%
2 Jul 1992 34.01494715%
2 Aug 1992 34.26387250%
2 Sep 1992 34.51554891%
2 Oct 1992 34.75272171%
2 Nov 1992 34.99251370%
2 Dec 1992 35.23495387%
2 Jan 1993 36.26406640%
2 Feb 1993 36.49774967%
2 Mar 1993 36.73401203%
2 Apr 1993 36.96759782%
2 May 1993 37.18696268%
2 Jun 1993 37.40874576%
2 Jul 1993 37.61617543%
2 Aug 1993 37.82588936%
2 Sep 1993 38.03791278%
2 Oct 1993 38.23547284%
2 Nov 1993 38.43520597%
2 Dec 1993 38.63713615%
2 Jan 1994 38.82448927%
2 Feb 1994 39.01390048%
2 Mar 1994 39.20539245%
2 Apr 1994 39.39690999%
2 May 1994 39.57492401%
2 Jun 1994 39.75489049%
2 Jul 1994 39.92122372%
2 Aug 1994 40.08937822%
2 Sep 1994 40.25937402%
2 Oct 1994 40.41562417%
2 Nov 1994 40.57358191%
2 Dec 1994 40.73326600%
2 Jan 1995 40.87908818%
2 Feb 1995 41.02650042%
2 Mar 1995 41.17552011%
2 Apr 1995 41.32616489%
2 May 1995 41.46415043%
2 Jun 1995 41.60363703%
2 Jul 1995 41.73033897%
2 Aug 1995 41.85841517%
2 Sep 1995 41.98788061%
2 Oct 1995 42.10444831%
2 Nov 1995 42.22227591%
2 Dec 1995 42.34137711%
2 Jan 1996 42.44746362%
2 Feb 1996 42.55469177%
2 Mar 1996 42.66307392%
2 Apr 1996 42.77262258%
2 May 1996 42.87098978%
2 Jun 1996 42.97041077%
2 Jul 1996 43.05853633%
2 Aug 1996 43.14760044%
2 Sep 1996 43.23761319%
2 Oct 1996 43.31622415%
2 Nov 1996 43.39566610%
2 Dec 1996 43.47594794%
2 Jan 1997 43.54471798%
2 Feb 1997 43.61420779%
2 Mar 1997 43.68442498%
2 Apr 1997 43.75537726%
2 May 1997 43.81212115%
2 Jun 1997 43.86944867%
2 Jul 1997 43.91241466%
2 Aug 1997 46.35216625%
2 Sep 1997 46.44516752%
2 Oct 1997 46.52420457%
2 Nov 1997 46.60407213%
2 Dec 1997 46.68477903%
2 Jan 1998 46.75138291%
2 Feb 1998 46.81867698%
2 Mar 1998 46.88666846%
2 Apr 1998 46.95536467%
2 May 1998 47.00965116%
2 Jun 1998 47.06448825%
2 Jul 1998 47.10475977%
2 Aug 1998 47.14542429%
2 Sep 1998 47.18648571%
2 Oct 1998 47.21282610%
2 Nov 1998 47.23940230%
2 Dec 1998 47.26621642%
2 Jan 1999 47.29123441%
2 Feb 1999 47.31647188%
2 Mar 1999 47.34193074%
2 Apr 1999 47.36761295%
2 May 1999 47.39352046%
2 Jun 1999 47.41965525%
2 Jul 1999 47.44601931%
2 Aug 1999 47.47261466%
2 Sep 1999 47.49944332%
2 Oct 1999 47.52650734%
2 Nov 1999 47.55380879%
2 Dec 1999 47.58134974%
2 Jan 2000 47.60913230%
2 Feb 2000 47.63715859%
2 Mar 2000 47.66543075%
2 Apr 2000 47.69395093%
2 May 2000 47.72272131%
2 Jun 2000 47.75174408%
2 Jul 2000 47.78102146%
2 Aug 2000 47.81055568%
2 Sep 2000 47.84034900%
2 Oct 2000 47.87040369%
2 Nov 2000 47.90072204%
2 Dec 2000 47.93130636%
2 Jan 2001 47.96215899%
2 Feb 2001 47.99328228%
2 Mar 2001 48.02467860%
2 Apr 2001 48.05635036%
2 May 2001 48.08829996%
2 Jun 2001 48.12052985%
2 Jul 2001 48.15304248%
2 Aug 2001 48.18584034%
2 Sep 2001 48.21892592%
2 Oct 2001 48.25230175%
2 Nov 2001 48.28597038%
2 Dec 2001 48.31993437%
2 Jan 2002 48.35419632%
2 Feb 2002 48.38875884%
2 Mar 2002 48.42362456%
2 Apr 2002 48.45879616%
2 May 2002 48.49427630%
2 Jun 2002 48.53006770%
2 Jul 2002 48.56617309%
2 Aug 2002 48.60259522%
2 Sep 2002 48.63933687%
2 Oct 2002 48.67640084%
2 Nov 2002 48.71378996%
2 Dec 2002 48.75150709%
2 Jan 2003 48.78955510%
2 Feb 2003 47.42793690%
2 Mar 2003 47.46665541%
2 Apr 2003 47.50571358%
2 May 2003 47.54511440%
2 Jun 2003 47.58486087%
2 Jul 2003 47.62724775%
2 Aug 2003 46.26769465%
2 Sep 2003 46.30849638%
2 Oct 2003 46.34965604%
2 Nov 2003 46.39117680%
2 Dec 2003 46.43306180%
2 Jan 2004 46.47992330%
2 Feb 2004 46.29754641%
2 Mar 2004 46.34054345%
2 Apr 2004 46.38391768%
2 May 2004 46.42767242%
2 Jun 2004 46.47181101%
2 Jul 2004 46.51633682%
2 Aug 2004 46.56125324%
2 Sep 2004 46.60656370%
2 Oct 2004 46.65227165%
2 Nov 2004 46.69838058%
2 Dec 2004 46.74489402%
2 Jan 2005 46.79181550%
2 Feb 2005 46.82164861%
2 Mar 2005 46.86939696%
2 Apr 2005 46.91756420%
2 May 2005 46.96615399%
2 Jun 2005 47.01517004%
2 Jul 2005 47.06461610%
2 Aug 2005 47.09699594%
2 Sep 2005 47.14731335%
2 Oct 2005 47.19807219%
2 Nov 2005 47.24927632%
2 Dec 2005 47.30092964%
2 Jan 2006 47.35303611%
2 Feb 2006 47.13059969%
2 Mar 2006 47.18362440%
2 Apr 2006 47.23711428%
2 May 2006 47.29107340%
2 Jun 2006 47.34550590%
2 Jul 2006 47.40041592%
2 Aug 2006 47.18080765%
2 Sep 2006 47.23668530%
2 Oct 2006 47.29305316%
2 Nov 2006 47.34991552%
2 Dec 2006 47.40727672%
2 Jan 2007 47.46514112%
2 Feb 2007 47.19851316%
2 Mar 2007 47.25739728%
2 Apr 2007 47.31679797%
2 May 2007 47.37671976%
2 Jun 2007 47.43716723%
2 Jul 2007 47.49814499%
2 Aug 2007 47.23465769%
2 Sep 2007 47.29671002%
2 Oct 2007 47.35930672%
2 Nov 2007 47.42245256%
2 Dec 2007 47.48615236%
2 Jan 2008 47.55041099%
2 Feb 2008 47.01523333%
2 Mar 2008 47.08062434%
2 Apr 2008 47.14658901%
2 May 2008 47.21313237%
2 Jun 2008 47.28025949%
2 Jul 2008 47.34797550%
2 Aug 2008 46.81628556%
2 Sep 2008 46.88519488%
2 Oct 2008 46.95470873%
2 Nov 2008 47.02483240%
2 Dec 2008 47.09557125%
2 Jan 2009 47.16693066%
2 Feb 2009 45.98891610%
2 Mar 2009 46.06153304%
2 Apr 2009 46.13478702%
2 May 2009 46.20868365%
2 Jun 2009 46.28322854%
2 Jul 2009 46.36023691%
2 Aug 2009 45.18609547%
2 Sep 2009 45.26261951%
2 Oct 2009 45.33981487%
2 Nov 2009 45.41768744%
2 Dec 2009 45.49624317%
2 Jan 2010 45.57912729%
2 Feb 2010 44.40906736%
2 Mar 2010 44.48970871%
2 Apr 2010 44.57105752%
2 May 2010 44.65311997%
2 Jun 2010 44.73590233%
2 Jul 2010 44.82919533%
2 Aug 2010 43.66343651%
2 Sep 2010 43.74841672%
2 Oct 2010 43.83414243%
2 Nov 2010 43.92062019%
2 Dec 2010 44.00785660%
2 Jan 2011 44.11185657%
2 Feb 2011 41.80063028%
2 Mar 2011 41.89018279%
2 Apr 2011 41.98052091%
2 May 2011 42.07165154%
2 Jun 2011 42.16358163%
2 Jul 2011 42.27811903%
2 Aug 2011 39.97166915%
2 Sep 2011 40.06603996%
2 Oct 2011 40.16123865%
2 Nov 2011 40.25727250%
2 Dec 2011 40.35414882%
2 Jan 2012 40.47954325%
2 Feb 2012 38.17812676%
2 Mar 2012 38.27757512%
2 Apr 2012 38.37789591%
2 May 2012 38.47909678%
2 Jun 2012 38.58118546%
2 Jul 2012 38.70422595%
2 Aug 2012 36.40811367%
2 Sep 2012 36.51291277%
2 Oct 2012 36.61863125%
2 Nov 2012 36.72527716%
2 Dec 2012 36.83285864%
2 Jan 2013 36.95374302%
2 Feb 2013 35.86322035%
2 Mar 2013 35.97365809%
2 Apr 2013 36.08506467%
2 May 2013 36.19744858%
2 Jun 2013 36.31081840%
2 Jul 2013 36.43754191%
2 Aug 2013 35.35290958%
2 Sep 2013 35.46928934%
2 Oct 2013 35.58669006%
2 Nov 2013 35.70512071%
2 Dec 2013 35.82459031%
2 Jan 2014 35.95746710%
2 Feb 2014 34.57904205%
2 Mar 2014 34.70168353%
2 Apr 2014 34.82540091%
2 May 2014 34.95020363%
2 Jun 2014 35.07610120%
2 Jul 2014 35.21699867%
2 Aug 2014 33.84511486%
2 Sep 2014 33.97435497%
2 Oct 2014 34.10472887%
2 Nov 2014 34.23624651%
2 Dec 2014 34.36891791%
2 Jan 2015 34.51820209%
2 Feb 2015 33.15321148%
2 Mar 2015 33.28940526%
2 Apr 2015 33.42679383%
2 May 2015 33.56538768%
2 Jun 2015 33.70519736%
2 Jul 2015 33.86168245%
2 Aug 2015 32.50395592%
2 Sep 2015 32.64747751%
2 Oct 2015 32.79225817%
2 Nov 2015 32.93830895%
2 Dec 2015 33.08564099%
2 Jan 2016 33.24971442%
2 Feb 2016 31.89964280%
2 Mar 2016 32.05088646%
2 Apr 2016 32.20345694%
2 May 2016 32.35736587%
2 Jun 2016 32.51262500%
2 Jul 2016 32.66924617%
2 Aug 2016 31.32724134%
2 Sep 2016 31.48662255%
2 Oct 2016 31.64740196%
2 Nov 2016 31.80959185%
2 Dec 2016 31.97320458%
2 Jan 2017 32.13825264%
2 Feb 2017 31.74174981%
2 Mar 2017 31.90970639%
2 Apr 2017 32.07913642%
2 May 2017 32.29532009%
2 Jun 2017 32.51350902%
2 Jul 2017 32.80627257%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART A
Percentage of
DATE Facility Cost
2 Oct 1989 16.37610500%
2 Nov 1989 16.70273535%
2 Dec 1989 17.03300394%
2 Jan 1990 17.33166371%
2 Feb 1990 20.15969337%
2 Mar 1990 20.51642688%
2 Apr 1990 20.87321377%
2 May 1990 21.20242101%
2 Jun 1990 21.53529466%
2 Jul 1990 21.84032123%
2 Aug 1990 26.98585035%
2 Sep 1990 27.39610491%
2 Oct 1990 27.77937677%
2 Nov 1990 28.16691866%
2 Dec 1990 28.55877818%
2 Jan 1991 28.76574973%
2 Feb 1991 29.13106527%
2 Mar 1991 29.50154354%
2 Apr 1991 29.86221348%
2 May 1991 30.19800216%
2 Jun 1991 30.53752942%
2 Jul 1991 30.85193890%
2 Aug 1991 31.16984808%
2 Sep 1991 31.49129541%
2 Oct 1991 31.78742255%
2 Nov 1991 32.08684444%
2 Dec 1991 32.38959777%
2 Jan 1992 32.66682163%
2 Feb 1992 32.94712860%
2 Mar 1992 33.23055302%
2 Apr 1992 33.50428603%
2 May 1992 33.76326615%
2 Jun 1992 34.02512499%
2 Jul 1992 34.27209797%
2 Aug 1992 34.52181522%
2 Sep 1992 34.77430727%
2 Oct 1992 35.01180840%
2 Nov 1992 35.25194752%
2 Dec 1992 35.49475398%
2 Jan 1993 36.54744996%
2 Feb 1993 36.78112046%
2 Mar 1993 37.01738559%
2 Apr 1993 37.25083364%
2 May 1993 37.46957813%
2 Jun 1993 37.69075002%
2 Jul 1993 37.89708087%
2 Aug 1993 38.10570007%
2 Sep 1993 38.31663307%
2 Oct 1993 38.51261014%
2 Nov 1993 38.71075942%
2 Dec 1993 38.91110502%
2 Jan 1994 39.09637590%
2 Feb 1994 39.28369888%
2 Mar 1994 39.47309671%
2 Apr 1994 39.66245278%
2 May 1994 39.83783710%
2 Jun 1994 40.01516237%
2 Jul 1994 40.17838111%
2 Aug 1994 40.34340452%
2 Sep 1994 40.51025259%
2 Oct 1994 40.66287655%
2 Nov 1994 40.81718625%
2 Dec 1994 40.97320038%
2 Jan 1995 41.11486880%
2 Feb 1995 41.25810002%
2 Mar 1995 41.40291133%
2 Apr 1995 41.54932021%
2 May 1995 41.68261899%
2 Jun 1995 41.81738633%
2 Jul 1995 41.93891312%
2 Aug 1995 42.06177653%
2 Sep 1995 42.18599131%
2 Oct 1995 42.29684707%
2 Nov 1995 42.40891962%
2 Dec 1995 42.52222239%
2 Jan 1996 42.62204360%
2 Feb 1996 42.72295772%
2 Mar 1996 42.82497677%
2 Apr 1996 42.92811288%
2 May 1996 43.01965199%
2 Jun 1996 43.11219065%
2 Jul 1996 43.19301346%
2 Aug 1996 43.27471565%
2 Sep 1996 43.35730687%
2 Oct 1996 43.42807043%
2 Nov 1996 43.49960033%
2 Dec 1996 43.57190494%
2 Jan 1997 43.63226631%
2 Feb 1997 43.69327713%
2 Mar 1997 43.75494444%
2 Apr 1997 43.81727534%
2 May 1997 43.86488339%
2 Jun 1997 43.91299748%
2 Jul 1997 43.94622937%
2 Aug 1997 46.44706890%
2 Sep 1997 46.53162264%
2 Oct 1997 46.60170071%
2 Nov 1997 46.67253475%
2 Dec 1997 46.74413299%
2 Jan 1998 46.80111007%
2 Feb 1998 46.85869601%
2 Mar 1998 46.91689736%
2 Apr 1998 46.97572076%
2 May 1998 47.01960362%
2 Jun 1998 47.06394803%
2 Jul 1998 47.09318959%
2 Aug 1998 47.12272857%
2 Sep 1998 47.15256802%
2 Oct 1998 47.16714177%
2 Nov 1998 47.18184825%
2 Dec 1998 47.19668865%
2 Jan 1999 47.20956777%
2 Feb 1999 47.22255988%
2 Mar 1999 47.23566597%
2 Apr 1999 47.24888702%
2 May 1999 47.26222407%
2 Jun 1999 47.27567812%
2 Jul 1999 47.28925019%
2 Aug 1999 47.30294133%
2 Sep 1999 47.31675258%
2 Oct 1999 47.33068499%
2 Nov 1999 47.34473962%
2 Dec 1999 47.35891756%
2 Jan 2000 47.37321987%
2 Feb 2000 47.38764764%
2 Mar 2000 47.40220200%
2 Apr 2000 47.41688403%
2 May 2000 47.43169486%
2 Jun 2000 47.44663563%
2 Jul 2000 47.46170747%
2 Aug 2000 47.47691152%
2 Sep 2000 47.49224896%
2 Oct 2000 47.50772094%
2 Nov 2000 47.52332866%
2 Dec 2000 47.53907330%
2 Jan 2001 47.55495607%
2 Feb 2001 47.57097816%
2 Mar 2001 47.58714083%
2 Apr 2001 47.60344526%
2 May 2001 47.61989275%
2 Jun 2001 47.63648452%
2 Jul 2001 47.65322185%
2 Aug 2001 47.67010600%
2 Sep 2001 47.68713827%
2 Oct 2001 47.70431997%
2 Nov 2001 47.72165239%
2 Dec 2001 47.73913687%
2 Jan 2002 47.75677473%
2 Feb 2002 47.77456733%
2 Mar 2002 47.79251602%
2 Apr 2002 47.81062216%
2 May 2002 47.82888715%
2 Jun 2002 47.84731237%
2 Jul 2002 47.86589922%
2 Aug 2002 47.88464912%
2 Sep 2002 47.90356353%
2 Oct 2002 47.92264386%
2 Nov 2002 47.94189158%
2 Dec 2002 47.96130814%
2 Jan 2003 47.98089506%
2 Feb 2003 46.55922914%
2 Mar 2003 46.57916121%
2 Apr 2003 46.59926815%
2 May 2003 46.61955147%
2 Jun 2003 46.64001273%
2 Jul 2003 46.66301303%
2 Aug 2003 45.24241022%
2 Sep 2003 45.26341473%
2 Oct 2003 45.28460350%
2 Nov 2003 45.30597816%
2 Dec 2003 45.32754033%
2 Jan 2004 45.35403709%
2 Feb 2004 45.14432169%
2 Mar 2004 45.16645633%
2 Apr 2004 45.18878515%
2 May 2004 45.21130985%
2 Jun 2004 45.23403216%
2 Jul 2004 45.25695380%
2 Aug 2004 45.28007653%
2 Sep 2004 45.30340210%
2 Oct 2004 45.32693230%
2 Nov 2004 45.35066893%
2 Dec 2004 45.37461380%
2 Jan 2005 45.39876872%
2 Feb 2005 45.40511773%
2 Mar 2005 45.42969832%
2 Apr 2005 45.45449455%
2 May 2005 45.47950831%
2 Jun 2005 45.50474151%
2 Jul 2005 45.53019607%
2 Aug 2005 45.53785613%
2 Sep 2005 45.56375925%
2 Oct 2005 45.58988962%
2 Nov 2005 45.61624923%
2 Dec 2005 45.64284008%
2 Jan 2006 45.66966420%
2 Feb 2006 45.41358665%
2 Mar 2006 45.44088349%
2 Apr 2006 45.46841979%
2 May 2006 45.49619765%
2 Jun 2006 45.52421920%
2 Jul 2006 45.55248658%
2 Aug 2006 45.29786494%
2 Sep 2006 45.32663046%
2 Oct 2006 45.35564832%
2 Nov 2006 45.38492075%
2 Dec 2006 45.41444999%
2 Jan 2007 45.44423826%
2 Feb 2007 45.13967143%
2 Mar 2007 45.16998465%
2 Apr 2007 45.20056380%
2 May 2007 45.23141121%
2 Jun 2007 45.26252923%
2 Jul 2007 45.29392025%
2 Aug 2007 44.99097021%
2 Sep 2007 45.02291442%
2 Oct 2007 45.05513885%
2 Nov 2007 45.08764599%
2 Dec 2007 45.12043829%
2 Jan 2008 45.15351828%
2 Feb 2008 44.56913504%
2 Mar 2008 44.60279798%
2 Apr 2008 44.63675623%
2 May 2008 44.67101238%
2 Jun 2008 44.70556906%
2 Jul 2008 44.74042889%
2 Aug 2008 44.15784111%
2 Sep 2008 44.19331525%
2 Oct 2008 44.22910060%
2 Nov 2008 44.26519988%
2 Dec 2008 44.30161585%
2 Jan 2009 44.33835129%
2 Feb 2009 43.08842270%
2 Mar 2009 43.12580550%
2 Apr 2009 43.16351625%
2 May 2009 43.20155782%
2 Jun 2009 43.23993313%
2 Jul 2009 43.28050814%
2 Aug 2009 42.03257341%
2 Sep 2009 42.07196757%
2 Oct 2009 42.11170732%
2 Nov 2009 42.15179568%
2 Dec 2009 42.19223575%
2 Jan 2010 42.23677750%
2 Feb 2010 40.99094390%
2 Mar 2010 41.03245763%
2 Apr 2010 41.07433555%
2 May 2010 41.11658085%
2 Jun 2010 41.15919676%
2 Jul 2010 41.21226045%
2 Aug 2010 39.96864105%
2 Sep 2010 40.01238839%
2 Oct 2010 40.05651952%
2 Nov 2010 40.10103780%
2 Dec 2010 40.14594662%
2 Jan 2011 40.20772105%
2 Feb 2011 37.78240758%
2 Mar 2011 37.82850872%
2 Apr 2011 37.87501428%
2 May 2011 37.92192784%
2 Jun 2011 37.96925294%
2 Jul 2011 38.03943912%
2 Aug 2011 35.61658451%
2 Sep 2011 35.66516608%
2 Oct 2011 35.71417385%
2 Nov 2011 35.76361154%
2 Dec 2011 35.81348294%
2 Jan 2012 35.89227877%
2 Feb 2012 33.47201532%
2 Mar 2012 33.52321079%
2 Apr 2012 33.57485539%
2 May 2012 33.62695304%
2 Jun 2012 33.67950773%
2 Jul 2012 33.75317313%
2 Aug 2012 31.33564026%
2 Sep 2012 31.38959027%
2 Oct 2012 31.44401355%
2 Nov 2012 31.49891429%
2 Dec 2012 31.55429664%
2 Jan 2013 31.62288967%
2 Feb 2013 30.44374114%
2 Mar 2013 30.50059389%
2 Apr 2013 30.55794538%
2 May 2013 30.61580001%
2 Jun 2013 30.67416217%
2 Jul 2013 30.74576114%
2 Aug 2013 29.56964494%
2 Sep 2013 29.62955661%
2 Oct 2013 29.68999385%
2 Nov 2013 29.75096130%
2 Dec 2013 29.81246359%
2 Jan 2014 29.88723025%
2 Feb 2014 28.40543280%
2 Mar 2014 28.46856796%
2 Apr 2014 28.53225699%
2 May 2014 28.59650475%
2 Jun 2014 28.66131613%
2 Jul 2014 28.74100266%
2 Aug 2014 27.26257261%
2 Sep 2014 27.32910471%
2 Oct 2014 27.39622048%
2 Nov 2014 27.46392504%
2 Dec 2014 27.53222355%
2 Jan 2015 27.61702724%
2 Feb 2015 26.14214577%
2 Mar 2015 26.21225759%
2 Apr 2015 26.28298446%
2 May 2015 26.35433181%
2 Jun 2015 26.42630508%
2 Jul 2015 26.51481575%
2 Aug 2015 25.04367379%
2 Sep 2015 25.11755792%
2 Oct 2015 25.19209021%
2 Nov 2015 25.26727635%
2 Dec 2015 25.34312208%
2 Jan 2016 25.43553919%
2 Feb 2016 23.96833794%
2 Mar 2016 24.04619734%
2 Apr 2016 24.12473979%
2 May 2016 24.20397127%
2 Jun 2016 24.28389781%
2 Jul 2016 24.36452554%
2 Aug 2016 22.90147702%
2 Sep 2016 22.98352560%
2 Oct 2016 23.06629395%
2 Nov 2016 23.14978842%
2 Dec 2016 23.23401535%
2 Jan 2017 23.31898119%
2 Feb 2017 22.82503501%
2 Mar 2017 22.91149813%
2 Apr 2017 22.99871979%
2 May 2017 23.13331330%
2 Jun 2017 23.26919952%
2 Jul 2017 23.48108831%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART B
Percentage of
DATE Facility Cost
2 Oct 1989 17.81413444%
2 Nov 1989 18.16944707%
2 Dec 1989 18.52871744%
2 Jan 1990 18.85360332%
2 Feb 1990 21.92996980%
2 Mar 1990 22.31802903%
2 Apr 1990 22.70614632%
2 May 1990 23.06426213%
2 Jun 1990 23.42636631%
2 Jul 1990 23.75817807%
2 Aug 1990 29.35554982%
2 Sep 1990 29.80182993%
2 Oct 1990 30.21875791%
2 Nov 1990 30.64033088%
2 Dec 1990 31.06660063%
2 Jan 1991 31.29174691%
2 Feb 1991 31.68914178%
2 Mar 1991 32.09215274%
2 Apr 1991 32.48449407%
2 May 1991 32.84976924%
2 Jun 1991 33.21911130%
2 Jul 1991 33.56112992%
2 Aug 1991 33.90695554%
2 Sep 1991 34.25663003%
2 Oct 1991 34.57876088%
2 Nov 1991 34.90447580%
2 Dec 1991 35.23381471%
2 Jan 1992 35.53538233%
2 Feb 1992 35.84030381%
2 Mar 1992 36.14861648%
2 Apr 1992 36.44638672%
2 May 1992 36.72810857%
2 Jun 1992 37.01296193%
2 Jul 1992 37.28162227%
2 Aug 1992 37.55326786%
2 Sep 1992 37.82793192%
2 Oct 1992 38.08628864%
2 Nov 1992 38.34751502%
2 Dec 1992 38.61164297%
2 Jan 1993 39.75677899%
2 Feb 1993 40.01096872%
2 Mar 1993 40.26798092%
2 Apr 1993 40.52192866%
2 May 1993 40.75988169%
2 Jun 1993 41.00047528%
2 Jul 1993 41.22492459%
2 Aug 1993 41.45186320%
2 Sep 1993 41.68131878%
2 Oct 1993 41.89450513%
2 Nov 1993 42.11005441%
2 Dec 1993 42.32799290%
2 Jan 1994 42.52953291%
2 Feb 1994 42.73330522%
2 Mar 1994 42.93933458%
2 Apr 1994 43.14531851%
2 May 1994 43.33610380%
2 Jun 1994 43.52900047%
2 Jul 1994 43.70655188%
2 Aug 1994 43.88606644%
2 Sep 1994 44.06756589%
2 Oct 1994 44.23359216%
2 Nov 1994 44.40145221%
2 Dec 1994 44.57116635%
2 Jan 1995 44.72527506%
2 Feb 1995 44.88108379%
2 Mar 1995 45.03861136%
2 Apr 1995 45.19787680%
2 May 1995 45.34288090%
2 Jun 1995 45.48948252%
2 Jul 1995 45.62168090%
2 Aug 1995 45.75533328%
2 Sep 1995 45.89045569%
2 Oct 1995 46.01104599%
2 Nov 1995 46.13295992%
2 Dec 1995 46.25621212%
2 Jan 1996 46.36479889%
2 Feb 1996 46.47457455%
2 Mar 1996 46.58555216%
2 Apr 1996 46.69774493%
2 May 1996 46.79732233%
2 Jun 1996 46.89798706%
2 Jul 1996 46.98590714%
2 Aug 1996 47.07478382%
2 Sep 1996 47.16462759%
2 Oct 1996 47.24160508%
2 Nov 1996 47.31941622%
2 Dec 1996 47.39807009%
2 Jan 1997 47.46373195%
2 Feb 1997 47.53010030%
2 Mar 1997 47.59718277%
2 Apr 1997 47.66498712%
2 May 1997 47.71677576%
2 Jun 1997 47.76911487%
2 Jul 1997 47.80526494%
2 Aug 1997 50.52570986%
2 Sep 1997 50.61768849%
2 Oct 1997 50.69392030%
2 Nov 1997 50.77097448%
2 Dec 1997 50.84885995%
2 Jan 1998 50.91084033%
2 Feb 1998 50.97348304%
2 Mar 1998 51.03679521%
2 Apr 1998 51.10078406%
2 May 1998 51.14852038%
2 Jun 1998 51.19675879%
2 Jul 1998 51.22856814%
2 Aug 1998 51.26070100%
2 Sep 1998 51.29316074%
2 Oct 1998 51.30901425%
2 Nov 1998 51.32501214%
2 Dec 1998 51.34115572%
2 Jan 1999 51.35516579%
2 Feb 1999 51.36929877%
2 Mar 1999 51.38355574%
2 Apr 1999 51.39793777%
2 May 1999 51.41244599%
2 Jun 1999 51.42708146%
2 Jul 1999 51.44184534%
2 Aug 1999 51.45673874%
2 Sep 1999 51.47176279%
2 Oct 1999 51.48691864%
2 Nov 1999 51.50220744%
2 Dec 1999 51.51763038%
2 Jan 2000 51.53318862%
2 Feb 2000 51.54888333%
2 Mar 2000 51.56471574%
2 Apr 2000 51.58068704%
2 May 2000 51.59679846%
2 Jun 2000 51.61305121%
2 Jul 2000 51.62944655%
2 Aug 2000 51.64598571%
2 Sep 2000 51.66266997%
2 Oct 2000 51.67950059%
2 Nov 2000 51.69647886%
2 Dec 2000 51.71360608%
2 Jan 2001 51.73088356%
2 Feb 2001 51.74831259%
2 Mar 2001 51.76589454%
2 Apr 2001 51.78363072%
2 May 2001 51.80152251%
2 Jun 2001 51.81957124%
2 Jul 2001 51.83777832%
2 Aug 2001 51.85614511%
2 Sep 2001 51.87467303%
2 Oct 2001 51.89336350%
2 Nov 2001 51.91221793%
2 Dec 2001 51.93123777%
2 Jan 2002 51.95042446%
2 Feb 2002 51.96977947%
2 Mar 2002 51.98930428%
2 Apr 2002 52.00900037%
2 May 2002 52.02886926%
2 Jun 2002 52.04891244%
2 Jul 2002 52.06913145%
2 Aug 2002 52.08952784%
2 Sep 2002 52.11010317%
2 Oct 2002 52.13085900%
2 Nov 2002 52.15179691%
2 Dec 2002 52.17291849%
2 Jan 2003 52.19422538%
2 Feb 2003 50.64771919%
2 Mar 2003 50.66940155%
2 Apr 2003 50.69127413%
2 May 2003 50.71333859%
2 Jun 2003 50.73559661%
2 Jul 2003 50.76061663%
2 Aug 2003 49.21526689%
2 Sep 2003 49.23811586%
2 Oct 2003 49.26116527%
2 Nov 2003 49.28441690%
2 Dec 2003 49.30787250%
2 Jan 2004 49.33669601%
2 Feb 2004 49.10856495%
2 Mar 2004 49.13264329%
2 Apr 2004 49.15693287%
2 May 2004 49.18143552%
2 Jun 2004 49.20615314%
2 Jul 2004 49.23108758%
2 Aug 2004 49.25624078%
2 Sep 2004 49.28161464%
2 Oct 2004 49.30721108%
2 Nov 2004 49.33303209%
2 Dec 2004 49.35907962%
2 Jan 2005 49.38535564%
2 Feb 2005 49.39226218%
2 Mar 2005 49.41900126%
2 Apr 2005 49.44597492%
2 May 2005 49.47318519%
2 Jun 2005 49.50063419%
2 Jul 2005 49.52832398%
2 Aug 2005 49.53665669%
2 Sep 2005 49.56483444%
2 Oct 2005 49.59325939%
2 Nov 2005 49.62193370%
2 Dec 2005 49.65085956%
2 Jan 2006 49.68003918%
2 Feb 2006 49.40147479%
2 Mar 2006 49.43116863%
2 Apr 2006 49.46112296%
2 May 2006 49.49134007%
2 Jun 2006 49.52182227%
2 Jul 2006 49.55257188%
2 Aug 2006 49.27559124%
2 Sep 2006 49.30688273%
2 Oct 2006 49.33844873%
2 Nov 2006 49.37029166%
2 Dec 2006 49.40241393%
2 Jan 2007 49.43481799%
2 Feb 2007 49.10350633%
2 Mar 2007 49.13648144%
2 Apr 2007 49.16974582%
2 May 2007 49.20330203%
2 Jun 2007 49.23715261%
2 Jul 2007 49.27130015%
2 Aug 2007 48.94174727%
2 Sep 2007 48.97649658%
2 Oct 2007 49.01155073%
2 Nov 2007 49.04691240%
2 Dec 2007 49.08258429%
2 Jan 2008 49.11856911%
2 Feb 2008 48.48286962%
2 Mar 2008 48.51948860%
2 Apr 2008 48.55642880%
2 May 2008 48.59369309%
2 Jun 2008 48.63128427%
2 Jul 2008 48.66920524%
2 Aug 2008 48.03545888%
2 Sep 2008 48.07404810%
2 Oct 2008 48.11297585%
2 Nov 2008 48.15224511%
2 Dec 2008 48.19185886%
2 Jan 2009 48.23182013%
2 Feb 2009 46.87213198%
2 Mar 2009 46.91279747%
2 Apr 2009 46.95381970%
2 May 2009 46.99520180%
2 Jun 2009 47.03694695%
2 Jul 2009 47.08108496%
2 Aug 2009 45.72356575%
2 Sep 2009 45.76641922%
2 Oct 2009 45.80964862%
2 Nov 2009 45.85325725%
2 Dec 2009 45.89724847%
2 Jan 2010 45.94570155%
2 Feb 2010 44.59046798%
2 Mar 2010 44.63562714%
2 Apr 2010 44.68118247%
2 May 2010 44.72713745%
2 Jun 2010 44.77349557%
2 Jul 2010 44.83121892%
2 Aug 2010 43.47839399%
2 Sep 2010 43.52598290%
2 Oct 2010 43.57398930%
2 Nov 2010 43.62241685%
2 Dec 2010 43.67126923%
2 Jan 2011 43.73846824%
2 Feb 2011 41.10018153%
2 Mar 2011 41.15033093%
2 Apr 2011 41.20092028%
2 May 2011 41.25195343%
2 Jun 2011 41.30343428%
2 Jul 2011 41.37978369%
2 Aug 2011 38.74417176%
2 Sep 2011 38.79701941%
2 Oct 2011 38.85033068%
2 Nov 2011 38.90410963%
2 Dec 2011 38.95836037%
2 Jan 2012 39.04407547%
2 Feb 2012 36.41128223%
2 Mar 2012 36.46697331%
2 Apr 2012 36.52315296%
2 May 2012 36.57982544%
2 Jun 2012 36.63699510%
2 Jul 2012 36.71712925%
2 Aug 2012 34.08730638%
2 Sep 2012 34.14599388%
2 Oct 2012 34.20519622%
2 Nov 2012 34.26491794%
2 Dec 2012 34.32516357%
2 Jan 2013 34.39977993%
2 Feb 2013 33.11708723%
2 Mar 2013 33.17893236%
2 Apr 2013 33.24132004%
2 May 2013 33.30425504%
2 Jun 2013 33.36774214%
2 Jul 2013 33.44562841%
2 Aug 2013 32.16623431%
2 Sep 2013 32.23140697%
2 Oct 2013 32.29715138%
2 Nov 2013 32.36347253%
2 Dec 2013 32.43037551%
2 Jan 2014 32.51170763%
2 Feb 2014 30.89978959%
2 Mar 2014 30.96846882%
2 Apr 2014 31.03775055%
2 May 2014 31.10764008%
2 Jun 2014 31.17814272%
2 Jul 2014 31.26482673%
2 Aug 2014 29.65657181%
2 Sep 2014 29.72894626%
2 Oct 2014 29.80195565%
2 Nov 2014 29.87560552%
2 Dec 2014 29.94990151%
2 Jan 2015 30.04215203%
2 Feb 2015 28.43775730%
2 Mar 2015 28.51402581%
2 Apr 2015 28.59096341%
2 May 2015 28.66857596%
2 Jun 2015 28.74686939%
2 Jul 2015 28.84315242%
2 Aug 2015 27.24282556%
2 Sep 2015 27.32319765%
2 Oct 2015 27.40427482%
2 Nov 2015 27.48606326%
2 Dec 2015 27.56856920%
2 Jan 2016 27.66910170%
2 Feb 2016 26.07306160%
2 Mar 2016 26.15775804%
2 Apr 2016 26.24319751%
2 May 2016 26.32938652%
2 Jun 2016 26.41633163%
2 Jul 2016 26.50403949%
2 Aug 2016 24.91251678%
2 Sep 2016 25.00177026%
2 Oct 2016 25.09180672%
2 Nov 2016 25.18263307%
2 Dec 2016 25.27425619%
2 Jan 2017 25.36668310%
2 Feb 2017 24.82936220%
2 Mar 2017 24.92341787%
2 Apr 2017 25.01829869%
2 May 2017 25.16471122%
2 Jun 2017 25.31252997%
2 Jul 2017 25.54302528%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART C
Percentage of
DATE Facility Cost
2 Oct 1989 15.90547718%
2 Nov 1989 16.22272060%
2 Dec 1989 16.54349771%
2 Jan 1990 16.83357439%
2 Feb 1990 19.58033018%
2 Mar 1990 19.92681163%
2 Apr 1990 20.27334493%
2 May 1990 20.59309119%
2 Jun 1990 20.91639849%
2 Jul 1990 21.21265899%
2 Aug 1990 26.21031234%
2 Sep 1990 26.60877672%
2 Oct 1990 26.98103385%
2 Nov 1990 27.35743829%
2 Dec 1990 27.73803628%
2 Jan 1991 27.93905974%
2 Feb 1991 28.29387659%
2 Mar 1991 28.65370780%
2 Apr 1991 29.00401256%
2 May 1991 29.33015111%
2 Jun 1991 29.65992080%
2 Jul 1991 29.96529457%
2 Aug 1991 30.27406745%
2 Sep 1991 30.58627681%
2 Oct 1991 30.87389364%
2 Nov 1991 31.16471054%
2 Dec 1991 31.45876313%
2 Jan 1992 31.72801994%
2 Feb 1992 32.00027126%
2 Mar 1992 32.27555043%
2 Apr 1992 32.54141671%
2 May 1992 32.79295408%
2 Jun 1992 33.04728744%
2 Jul 1992 33.28716274%
2 Aug 1992 33.52970345%
2 Sep 1992 33.77493921%
2 Oct 1992 34.00561486%
2 Nov 1992 34.23885270%
2 Dec 1992 34.47468122%
2 Jan 1993 35.49712410%
2 Feb 1993 35.72407921%
2 Mar 1993 35.95355439%
2 Apr 1993 36.18029345%
2 May 1993 36.39275151%
2 Jun 1993 36.60756721%
2 Jul 1993 36.80796838%
2 Aug 1993 37.01059214%
2 Sep 1993 37.21546320%
2 Oct 1993 37.40580815%
2 Nov 1993 37.59826287%
2 Dec 1993 37.79285080%
2 Jan 1994 37.97279724%
2 Feb 1994 38.15473680%
2 Mar 1994 38.33869159%
2 Apr 1994 38.52260581%
2 May 1994 38.69294982%
2 Jun 1994 38.86517899%
2 Jul 1994 39.02370704%
2 Aug 1994 39.18398789%
2 Sep 1994 39.34604097%
2 Oct 1994 39.49427871%
2 Nov 1994 39.64415376%
2 Dec 1994 39.79568424%
2 Jan 1995 39.93328130%
2 Feb 1995 40.07239624%
2 Mar 1995 40.21304586%
2 Apr 1995 40.35524714%
2 May 1995 40.48471509%
2 Jun 1995 40.61560939%
2 Jul 1995 40.73364366%
2 Aug 1995 40.85297614%
2 Sep 1995 40.97362115%
2 Oct 1995 41.08129106%
2 Nov 1995 41.19014279%
2 Dec 1995 41.30018939%
2 Jan 1996 41.39714187%
2 Feb 1996 41.49515585%
2 Mar 1996 41.59424300%
2 Apr 1996 41.69441512%
2 May 1996 41.78332351%
2 Jun 1996 41.87320273%
2 Jul 1996 41.95170280%
2 Aug 1996 42.03105698%
2 Sep 1996 42.11127463%
2 Oct 1996 42.18000454%
2 Nov 1996 42.24947877%
2 Dec 1996 42.31970544%
2 Jan 1997 42.37833210%
2 Feb 1997 42.43758955%
2 Mar 1997 42.49748462%
2 Apr 1997 42.55802421%
2 May 1997 42.60426407%
2 Jun 1997 42.65099542%
2 Jul 1997 42.68327227%
2 Aug 1997 45.11224095%
2 Sep 1997 45.19436472%
2 Oct 1997 45.26242884%
2 Nov 1997 45.33122721%
2 Dec 1997 45.40076781%
2 Jan 1998 45.45610744%
2 Feb 1998 45.51203843%
2 Mar 1998 45.56856715%
2 Apr 1998 45.62570005%
2 May 1998 45.66832177%
2 Jun 1998 45.71139178%
2 Jul 1998 45.73979298%
2 Aug 1998 45.76848304%
2 Sep 1998 45.79746495%
2 Oct 1998 45.81161987%
2 Nov 1998 45.82590370%
2 Dec 1998 45.84031761%
2 Jan 1999 45.85282660%
2 Feb 1999 45.86544533%
2 Mar 1999 45.87817477%
2 Apr 1999 45.89101587%
2 May 1999 45.90396963%
2 Jun 1999 45.91703702%
2 Jul 1999 45.93021905%
2 Aug 1999 45.94351673%
2 Sep 1999 45.95693106%
2 Oct 1999 45.97046307%
2 Nov 1999 45.98411379%
2 Dec 1999 45.99788427%
2 Jan 2000 46.01177555%
2 Feb 2000 46.02578869%
2 Mar 2000 46.03992477%
2 Apr 2000 46.05418486%
2 May 2000 46.06857005%
2 Jun 2000 46.08308144%
2 Jul 2000 46.09772013%
2 Aug 2000 46.11248724%
2 Sep 2000 46.12738390%
2 Oct 2000 46.14241124%
2 Nov 2000 46.15757041%
2 Dec 2000 46.17286257%
2 Jan 2001 46.18828889%
2 Feb 2001 46.20385053%
2 Mar 2001 46.21954870%
2 Apr 2001 46.23538457%
2 May 2001 46.25135938%
2 Jun 2001 46.26747432%
2 Jul 2001 46.28373064%
2 Aug 2001 46.30012956%
2 Sep 2001 46.31667235%
2 Oct 2001 46.33336027%
2 Nov 2001 46.35019458%
2 Dec 2001 46.36717658%
2 Jan 2002 46.38430755%
2 Feb 2002 46.40158881%
2 Mar 2002 46.41902168%
2 Apr 2002 46.43660747%
2 May 2002 46.45434755%
2 Jun 2002 46.47224325%
2 Jul 2002 46.49029594%
2 Aug 2002 46.50850700%
2 Sep 2002 46.52687783%
2 Oct 2002 46.54540982%
2 Nov 2002 46.56410438%
2 Dec 2002 46.58296294%
2 Jan 2003 46.60198695%
2 Feb 2003 45.22117785%
2 Mar 2003 45.24053710%
2 Apr 2003 45.26006619%
2 May 2003 45.27976660%
2 Jun 2003 45.29963983%
2 Jul 2003 45.32197913%
2 Aug 2003 43.94220258%
2 Sep 2003 43.96260345%
2 Oct 2003 43.98318328%
2 Nov 2003 44.00394366%
2 Dec 2003 44.02488616%
2 Jan 2004 44.05062144%
2 Feb 2004 43.84693299%
2 Mar 2004 43.86843151%
2 Apr 2004 43.89011863%
2 May 2004 43.91199600%
2 Jun 2004 43.93406530%
2 Jul 2004 43.95632820%
2 Aug 2004 43.97878641%
2 Sep 2004 44.00144164%
2 Oct 2004 44.02429561%
2 Nov 2004 44.04735008%
2 Dec 2004 44.07060680%
2 Jan 2005 44.09406754%
2 Feb 2005 44.10023409%
2 Mar 2005 44.12410827%
2 Apr 2005 44.14819189%
2 May 2005 44.17248678%
2 Jun 2005 44.19699481%
2 Jul 2005 44.22171784%
2 Aug 2005 44.22915776%
2 Sep 2005 44.25431646%
2 Oct 2005 44.27969588%
2 Nov 2005 44.30529795%
2 Dec 2005 44.33112461%
2 Jan 2006 44.35717784%
2 Feb 2006 44.10845963%
2 Mar 2006 44.13497199%
2 Apr 2006 44.16171693%
2 May 2006 44.18869649%
2 Jun 2006 44.21591274%
2 Jul 2006 44.24336775%
2 Aug 2006 43.99606361%
2 Sep 2006 44.02400244%
2 Oct 2006 44.05218637%
2 Nov 2006 44.08061755%
2 Dec 2006 44.10929815%
2 Jan 2007 44.13823035%
2 Feb 2007 43.84241637%
2 Mar 2007 43.87185843%
2 Apr 2007 43.90155877%
2 May 2007 43.93151967%
2 Jun 2007 43.96174340%
2 Jul 2007 43.99223228%
2 Aug 2007 43.69798863%
2 Sep 2007 43.72901480%
2 Oct 2007 43.76031315%
2 Nov 2007 43.79188607%
2 Dec 2007 43.82373597%
2 Jan 2008 43.85586528%
2 Feb 2008 43.28827645%
2 Mar 2008 43.32097196%
2 Apr 2008 43.35395429%
2 May 2008 43.38722597%
2 Jun 2008 43.42078953%
2 Jul 2008 43.45464754%
2 Aug 2008 42.88880257%
2 Sep 2008 42.92325723%
2 Oct 2008 42.95801415%
2 Nov 2008 42.99307599%
2 Dec 2008 43.02844541%
2 Jan 2009 43.06412512%
2 Feb 2009 41.85011784%
2 Mar 2009 41.88642631%
2 Apr 2009 41.92305330%
2 May 2009 41.96000161%
2 Jun 2009 41.99727406%
2 Jul 2009 42.03668300%
2 Aug 2009 40.82461228%
2 Sep 2009 40.86287430%
2 Oct 2009 40.90147198%
2 Nov 2009 40.94040826%
2 Dec 2009 40.97968613%
2 Jan 2010 41.02294781%
2 Feb 2010 39.81291784%
2 Mar 2010 39.85323852%
2 Apr 2010 39.89391292%
2 May 2010 39.93494415%
2 Jun 2010 39.97633533%
2 Jul 2010 40.02787404%
2 Aug 2010 38.81999463%
2 Sep 2010 38.86248473%
2 Oct 2010 38.90534759%
2 Nov 2010 38.94858647%
2 Dec 2010 38.99220467%
2 Jan 2011 39.05220379%
2 Feb 2011 36.69659065%
2 Mar 2011 36.74136690%
2 Apr 2011 36.78653596%
2 May 2011 36.83210128%
2 Jun 2011 36.87806632%
2 Jul 2011 36.94623544%
2 Aug 2011 34.59301050%
2 Sep 2011 34.64019590%
2 Oct 2011 34.68779525%
2 Nov 2011 34.73581217%
2 Dec 2011 34.78425033%
2 Jan 2012 34.86078167%
2 Feb 2012 32.51007342%
2 Mar 2012 32.55979760%
2 Apr 2012 32.60995800%
2 May 2012 32.66055843%
2 Jun 2012 32.71160277%
2 Jul 2012 32.78315112%
2 Aug 2012 30.43509498%
2 Sep 2012 30.48749454%
2 Oct 2012 30.54035377%
2 Nov 2012 30.59367673%
2 Dec 2012 30.64746747%
2 Jan 2013 30.71408922%
2 Feb 2013 29.56882788%
2 Mar 2013 29.62404675%
2 Apr 2013 29.67975004%
2 May 2013 29.73594200%
2 Jun 2013 29.79262691%
2 Jul 2013 29.86216822%
2 Aug 2013 28.71985206%
2 Sep 2013 28.77804194%
2 Oct 2013 28.83674230%
2 Nov 2013 28.89595762%
2 Dec 2013 28.95569242%
2 Jan 2014 29.02831038%
2 Feb 2014 27.58909785%
2 Mar 2014 27.65041859%
2 Apr 2014 27.71227728%
2 May 2014 27.77467864%
2 Jun 2014 27.83762743%
2 Jul 2014 27.91502387%
2 Aug 2014 26.47908197%
2 Sep 2014 26.54370202%
2 Oct 2014 26.60888897%
2 Nov 2014 26.67464779%
2 Dec 2014 26.74098349%
2 Jan 2015 26.82335003%
2 Feb 2015 25.39085473%
2 Mar 2015 25.45895162%
2 Apr 2015 25.52764590%
2 May 2015 25.59694282%
2 Jun 2015 25.66684767%
2 Jul 2015 25.75281466%
2 Aug 2015 24.32395139%
2 Sep 2015 24.39571219%
2 Oct 2015 24.46810252%
2 Nov 2015 24.54112791%
2 Dec 2015 24.61479393%
2 Jan 2016 24.70455509%
2 Feb 2016 23.27951929%
2 Mar 2016 23.35514111%
2 Apr 2016 23.43142635%
2 May 2016 23.50838082%
2 Jun 2016 23.58601038%
2 Jul 2016 23.66432097%
2 Aug 2016 22.24331855%
2 Sep 2016 22.32300916%
2 Oct 2016 22.40339886%
2 Nov 2016 22.48449381%
2 Dec 2016 22.56630017%
2 Jan 2017 22.64882420%
2 Feb 2017 22.16907339%
2 Mar 2017 22.25305167%
2 Apr 2017 22.33776669%
2 May 2017 22.46849216%
2 Jun 2017 22.60047319%
2 Jul 2017 22.80627257%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART D
Percentage of
DATE Facility Cost
2 Oct 1989 17.36347925%
2 Nov 1989 17.70980332%
2 Dec 1989 18.05998500%
2 Jan 1990 18.37665204%
2 Feb 1990 21.37519378%
2 Mar 1990 21.75343603%
2 Apr 1990 22.13173488%
2 May 1990 22.48079122%
2 Jun 1990 22.83373502%
2 Jul 1990 23.15715273%
2 Aug 1990 28.61292430%
2 Sep 1990 29.04791459%
2 Oct 1990 29.45429529%
2 Nov 1990 29.86520347%
2 Dec 1990 30.28068961%
2 Jan 1991 30.50014022%
2 Feb 1991 30.88748194%
2 Mar 1991 31.28029768%
2 Apr 1991 31.66271371%
2 May 1991 32.01874830%
2 Jun 1991 32.37874687%
2 Jul 1991 32.71211324%
2 Aug 1991 33.04919030%
2 Sep 1991 33.39001885%
2 Oct 1991 33.70400056%
2 Nov 1991 34.02147567%
2 Dec 1991 34.34248308%
2 Jan 1992 34.63642177%
2 Feb 1992 34.93362946%
2 Mar 1992 35.23414255%
2 Apr 1992 35.52437991%
2 May 1992 35.79897487%
2 Jun 1992 36.07662212%
2 Jul 1992 36.33848599%
2 Aug 1992 36.60325960%
2 Sep 1992 36.87097530%
2 Oct 1992 37.12279622%
2 Nov 1992 37.37741420%
2 Dec 1992 37.63486033%
2 Jan 1993 38.75102714%
2 Feb 1993 38.99878647%
2 Mar 1993 39.24929688%
2 Apr 1993 39.49682035%
2 May 1993 39.72875373%
2 Jun 1993 39.96326087%
2 Jul 1993 40.18203215%
2 Aug 1993 40.40322975%
2 Sep 1993 40.62688066%
2 Oct 1993 40.83467390%
2 Nov 1993 41.04477030%
2 Dec 1993 41.25719546%
2 Jan 1994 41.45363699%
2 Feb 1994 41.65225434%
2 Mar 1994 41.85307165%
2 Apr 1994 42.05384468%
2 May 1994 42.23980355%
2 Jun 1994 42.42782040%
2 Jul 1994 42.60088019%
2 Aug 1994 42.77585345%
2 Sep 1994 42.95276139%
2 Oct 1994 43.11458759%
2 Nov 1994 43.27820119%
2 Dec 1994 43.44362196%
2 Jan 1995 43.59383209%
2 Feb 1995 43.74569923%
2 Mar 1995 43.89924173%
2 Apr 1995 44.05447813%
2 May 1995 44.19581397%
2 Jun 1995 44.33870692%
2 Jul 1995 44.46756100%
2 Aug 1995 44.59783229%
2 Sep 1995 44.72953642%
2 Oct 1995 44.84707607%
2 Nov 1995 44.96590588%
2 Dec 1995 45.08604008%
2 Jan 1996 45.19187987%
2 Feb 1996 45.29887847%
2 Mar 1996 45.40704861%
2 Apr 1996 45.51640317%
2 May 1996 45.61346150%
2 Jun 1996 45.71157965%
2 Jul 1996 45.79727556%
2 Aug 1996 45.88390387%
2 Sep 1996 45.97147480%
2 Oct 1996 46.04650496%
2 Nov 1996 46.12234766%
2 Dec 1996 46.19901177%
2 Jan 1997 46.26301254%
2 Feb 1997 46.32770193%
2 Mar 1997 46.39308738%
2 Apr 1997 46.45917643%
2 May 1997 46.50965494%
2 Jun 1997 46.56067000%
2 Jul 1997 46.59590556%
2 Aug 1997 49.24752970%
2 Sep 1997 49.33718149%
2 Oct 1997 49.41148482%
2 Nov 1997 49.48658970%
2 Dec 1997 49.56250486%
2 Jan 1998 49.62291729%
2 Feb 1998 49.68397529%
2 Mar 1998 49.74568581%
2 Apr 1998 49.80805589%
2 May 1998 49.85458460%
2 Jun 1998 49.90160269%
2 Jul 1998 49.93260734%
2 Aug 1998 49.96392732%
2 Sep 1998 49.99556590%
2 Oct 1998 50.01101836%
2 Nov 1998 50.02661154%
2 Dec 1998 50.04234672%
2 Jan 1999 50.05600237%
2 Feb 1999 50.06977782%
2 Mar 1999 50.08367412%
2 Apr 1999 50.09769232%
2 May 1999 50.11183351%
2 Jun 1999 50.12609875%
2 Jul 1999 50.14048913%
2 Aug 1999 50.15500576%
2 Sep 1999 50.16964974%
2 Oct 1999 50.18442218%
2 Nov 1999 50.19932422%
2 Dec 1999 50.21435699%
2 Jan 2000 50.22952164%
2 Feb 2000 50.24481932%
2 Mar 2000 50.26025121%
2 Apr 2000 50.27581847%
2 May 2000 50.29152230%
2 Jun 2000 50.30736391%
2 Jul 2000 50.32334448%
2 Aug 2000 50.33946524%
2 Sep 2000 50.35572742%
2 Oct 2000 50.37213227%
2 Nov 2000 50.38868103%
2 Dec 2000 50.40537497%
2 Jan 2001 50.42221537%
2 Feb 2001 50.43920350%
2 Mar 2001 50.45634066%
2 Apr 2001 50.47362816%
2 May 2001 50.49106732%
2 Jun 2001 50.50865947%
2 Jul 2001 50.52640595%
2 Aug 2001 50.54430810%
2 Sep 2001 50.56236732%
2 Oct 2001 50.58058496%
2 Nov 2001 50.59896242%
2 Dec 2001 50.61750110%
2 Jan 2002 50.63620241%
2 Feb 2002 50.65506778%
2 Mar 2002 50.67409867%
2 Apr 2002 50.69329649%
2 May 2002 50.71266274%
2 Jun 2002 50.73219888%
2 Jul 2002 50.75190640%
2 Aug 2002 50.77178681%
2 Sep 2002 50.79184163%
2 Oct 2002 50.81207239%
2 Nov 2002 50.83248061%
2 Dec 2002 50.85306788%
2 Jan 2003 50.87383575%
2 Feb 2003 49.36645249%
2 Mar 2003 49.38758633%
2 Apr 2003 49.40890559%
2 May 2003 49.43041187%
2 Jun 2003 49.45210681%
2 Jul 2003 49.47649388%
2 Aug 2003 47.97023782%
2 Sep 2003 47.99250877%
2 Oct 2003 48.01497508%
2 Nov 2003 48.03763850%
2 Dec 2003 48.06050072%
2 Jan 2004 48.08859507%
2 Feb 2004 47.86623518%
2 Mar 2004 47.88970440%
2 Apr 2004 47.91337950%
2 May 2004 47.93726230%
2 Jun 2004 47.96135462%
2 Jul 2004 47.98565829%
2 Aug 2004 48.01017516%
2 Sep 2004 48.03490712%
2 Oct 2004 48.05985604%
2 Nov 2004 48.08502384%
2 Dec 2004 48.11041242%
2 Jan 2005 48.13602373%
2 Feb 2005 48.14275555%
2 Mar 2005 48.16881819%
2 Apr 2005 48.19510948%
2 May 2005 48.22163140%
2 Jun 2005 48.24838600%
2 Jul 2005 48.27537531%
2 Aug 2005 48.28349722%
2 Sep 2005 48.31096214%
2 Oct 2005 48.33866800%
2 Nov 2005 48.36661693%
2 Dec 2005 48.39481103%
2 Jan 2006 48.42325248%
2 Feb 2006 48.15173510%
2 Mar 2006 48.18067776%
2 Apr 2006 48.20987432%
2 May 2006 48.23932700%
2 Jun 2006 48.26903807%
2 Jul 2006 48.29900979%
2 Aug 2006 48.02903611%
2 Sep 2006 48.05953600%
2 Oct 2006 48.09030345%
2 Nov 2006 48.12134083%
2 Dec 2006 48.15265048%
2 Jan 2007 48.18423480%
2 Feb 2007 47.86130454%
2 Mar 2007 47.89344545%
2 Apr 2007 47.92586832%
2 May 2007 47.95857564%
2 Jun 2007 47.99156988%
2 Jul 2007 48.02485357%
2 Aug 2007 47.70363759%
2 Sep 2007 47.73750782%
2 Oct 2007 47.77167519%
2 Nov 2007 47.80614229%
2 Dec 2007 47.84091177%
2 Jan 2008 47.87598626%
2 Feb 2008 47.25636846%
2 Mar 2008 47.29206106%
2 Apr 2008 47.32806677%
2 May 2008 47.36438835%
2 Jun 2008 47.40102857%
2 Jul 2008 47.43799023%
2 Aug 2008 46.82027614%
2 Sep 2008 46.85788914%
2 Oct 2008 46.89583211%
2 Nov 2008 46.93410796%
2 Dec 2008 46.97271957%
2 Jan 2009 47.01166992%
2 Feb 2009 45.68637864%
2 Mar 2009 45.72601539%
2 Apr 2009 45.76599985%
2 May 2009 45.80633509%
2 Jun 2009 45.84702418%
2 Jul 2009 45.89004561%
2 Aug 2009 44.56686841%
2 Sep 2009 44.60863778%
2 Oct 2009 44.65077358%
2 Nov 2009 44.69327902%
2 Dec 2009 44.73615736%
2 Jan 2010 44.78338469%
2 Feb 2010 43.46243531%
2 Mar 2010 43.50645205%
2 Apr 2010 43.55085494%
2 May 2010 43.59564736%
2 Jun 2010 43.64083274%
2 Jul 2010 43.69709583%
2 Aug 2010 42.37849414%
2 Sep 2010 42.42487916%
2 Oct 2010 42.47167112%
2 Nov 2010 42.51887356%
2 Dec 2010 42.56649010%
2 Jan 2011 42.63198914%
2 Feb 2011 40.06044479%
2 Mar 2011 40.10932553%
2 Apr 2011 40.15863509%
2 May 2011 40.20837723%
2 Jun 2011 40.25855573%
2 Jul 2011 40.33297369%
2 Aug 2011 37.76403646%
2 Sep 2011 37.81554719%
2 Oct 2011 37.86750981%
2 Nov 2011 37.91992829%
2 Dec 2011 37.97280661%
2 Jan 2012 38.05635332%
2 Feb 2012 35.49016348%
2 Mar 2012 35.54444571%
2 Apr 2012 35.59920415%
2 May 2012 35.65444295%
2 Jun 2012 35.71016636%
2 Jul 2012 35.78827331%
2 Aug 2012 33.22497869%
2 Sep 2012 33.28218154%
2 Oct 2012 33.33988620%
2 Nov 2012 33.39809710%
2 Dec 2012 33.45681865%
2 Jan 2013 33.52954740%
2 Feb 2013 32.27930377%
2 Mar 2013 32.33958437%
2 Apr 2013 32.40039379%
2 May 2013 32.46173668%
2 Jun 2013 32.52361771%
2 Jul 2013 32.59953364%
2 Aug 2013 31.35250517%
2 Sep 2013 31.41602912%
2 Oct 2013 31.48011034%
2 Nov 2013 31.54475374%
2 Dec 2013 31.60996423%
2 Jan 2014 31.68923883%
2 Feb 2014 30.11809849%
2 Mar 2014 30.18504029%
2 Apr 2014 30.25256936%
2 May 2014 30.32069085%
2 Jun 2014 30.38940994%
2 Jul 2014 30.47390106%
2 Aug 2014 28.90633115%
2 Sep 2014 28.97687471%
2 Oct 2014 29.04803713%
2 Nov 2014 29.11982384%
2 Dec 2014 29.19224031%
2 Jan 2015 29.28215712%
2 Feb 2015 27.71834975%
2 Mar 2015 27.79268885%
2 Apr 2015 27.86768011%
2 May 2015 27.94332925%
2 Jun 2015 28.01964204%
2 Jul 2015 28.11348934%
2 Aug 2015 26.55364693%
2 Sep 2015 26.63198581%
2 Oct 2015 26.71101192%
2 Nov 2015 26.79073130%
2 Dec 2015 26.87115004%
2 Jan 2016 26.96913931%
2 Feb 2016 25.41347522%
2 Mar 2016 25.49602905%
2 Apr 2016 25.57930710%
2 May 2016 25.66331573%
2 Jun 2016 25.74806133%
2 Jul 2016 25.83355039%
2 Aug 2016 24.28228942%
2 Sep 2016 24.36928500%
2 Oct 2016 24.45704376%
2 Nov 2016 24.54557241%
2 Dec 2016 24.63487769%
2 Jan 2017 24.72496642%
2 Feb 2017 24.20123845%
2 Mar 2017 24.29291474%
2 Apr 2017 24.38539530%
2 May 2017 24.52810394%
2 Jun 2017 24.67218323%
2 Jul 2017 24.89684756%
<PAGE>
Schedule U3S
<PAGE>
Schedule A-1
to
Appendix A
<PAGE>
COLLATERAL TRUST INDENTURE
dated as of July 1, 1997
among
W3A FUNDING CORPORATION,
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company)
and
BANKERS TRUST COMPANY,
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
ENTERGY LOUISIANA, INC.
Reconciliation and tie between Indenture
dated as of July 1, 1997
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>
COLLATERAL TRUST INDENTURE
Collateral Trust Indenture, dated as of July 1, 1997, 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,
Entergy Louisiana, Inc. (formerly Louisiana Power & Light
Company), a Louisiana corporation ("ELI"), 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.
RECITALS
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:
GRANTING CLAUSES
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; and
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 ELI, the board of directors of ELI, 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 ELI, 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 any other city in which any Corporate Trust Office
(as defined in the respective Lease Indentures) of a Lease
Indenture Trustee is 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, ELI and each Securityholder.
"ELI" shall mean Entergy Louisiana, Inc. (formerly Louisiana
Power & Light Company), a Louisiana corporation, and its
permitted successors and assigns.
"ELI Request" means a written request or order, signed in the
name of ELI 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 ELI, and delivered to the Trustee.
"Event of Default" has the meaning specified in Section 8.01.
"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.
"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.
"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 mean the "Indenture Estate" as
defined 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 ELI and any successor to the obligations of ELI
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 ELI as an Obligor herein shall be
construed as implying any guaranty or assumption of the
Securities or the obligations represented thereby by ELI.
"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 ELI, 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 ELI, 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 ELI, 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 ELI, 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.
"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.
"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 and terms 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
ELI to the Trustee to take any action under any provision of this
Indenture, the Company, such Lessor or ELI, 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 ELI 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 ELI, 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 ELI, 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 ELI. 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
ELI, 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 ELI.
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 ELI 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 ELI 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 ELI by
the Company for such purpose, or
(c) ELI 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 ELI 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 ELI
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, ELI 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 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 and (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;
(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;
(d) the Pledged Lessor Bonds relating to the Securities
of such series in an aggregate principal amount not less
than the aggregate principal amount of such series of
Securities proposed to be authenticated and delivered;
(e) signed copies, either addressed to the Trustee or
accompanied by statements that the Trustee may rely on such
documents, of all certificates and opinions of counsel
delivered (i) to the Company in connection with its receipt
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 ELI
(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; and
(f) 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
accountant (who shall not be an employee of the Company, or
ELI 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 ELI 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
ELI (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 ELI 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, ELI 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 issued under such Lease Indenture.
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,
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 thereto. 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, and prompt notice to the Holders in the manner specified
in Section 1.06, of the location, and of any change in the
location, of each such office or agency. 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 at 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 ELI 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 ELI 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 and provided to it for its execution. The Trustee
shall have no duty to monitor the necessity of filing any such
financing statement, continuation statement or other instrument
referred to in 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 ELI 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 ELI 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 ELI 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.
ELI 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, ELI 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 ELI 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 ELI 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 ELI 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, ELI 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 ELI Order, as the case may be, shall first
select such Securities for redemption. Any such Company Order or
ELI 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 ELI 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 ELI, as the case may be,
by the Trustee, or to the Company or ELI, 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 ELI, 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
United States 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 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 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 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 ELI, 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 ELI 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.
In 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 ELI 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 ELI 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, ELI 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, ELI, 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
ELI, 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 ELI 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 ELI
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or an ELI Request or ELI
Order, in the case of a request or direction of either the
Company or ELI, as the case may be, and any resolution of
the Board of Directors of the Company or ELI may be
sufficiently evidenced by a Board Resolution of the Company
or ELI, 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 ELI;
(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 ELI,
personally or by agent or attorney at the sole cost and
expense of the Company or ELI, 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 ELI, 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 ELI 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 ELI 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 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.
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 ELI. If an instrument of
acceptance by a successor Trustee shall not have been delivered
to the Company, ELI 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 ELI.
(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, ELI 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) ELI, 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, ELI, 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, ELI 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 ELI. If no successor Trustee
shall have been so appointed by ELI, 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, ELI 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, ELI 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 ELI, (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, ELI and the
Company. The Company may, and at the request of the Trustee or
ELI 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 ELI 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 ELI 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 ELI 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 ELI or the Company; and ELI 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) ELI, 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
ELI, 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 ELI 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 ELI
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 ELI,
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 ELI
Section 10.01. ELI to Furnish Trustee Names and Addresses of
Holders.
Semiannually, not later than March 31 and September 30 in
each year, commencing March 31, 1998 and at such other times as
the Trustee may request in writing, ELI 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 be
preserved 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 ELI.
Section 10.02. Reports by Trustee and ELI.
If required by Section 313 (a) of the Trust Indenture Act,
within thirty days after December 1 in each year commencing
December 1, 1997, 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 ELI 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; Amendments
Section 11.01. Supplemental Indentures Without Consent of
Holders.
Without the consent of the Holders of any Securities, ELI,
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
ELI and the assumption by any such successor of the
covenants of ELI 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 ELI, 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 ELI; 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, ELI 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, ELI 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, ELI and the
Trustee, the Company and ELI, 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 ELI 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 ELI, bear
a notation in form approved by such Lessor, the Company, ELI 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 ELI shall so determine, new
Securities so modified as to conform, in the opinion of such
Owner Trustee, the Company, ELI 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.
Section 11.08. Trustee may Join in Amendments.
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, any Participation Agreement.
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,
(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; and
(z) if such deposit shall have been made or if such
pledged Lessor Bonds are so deemed to have been paid, in
either case, prior to the Stated Maturity of principal or
Redemption Date of such Securities, an Opinion of Counsel
to the effect that such deposit or deemed payment, as the
case may be, and satisfaction and discharge of indebtedness
shall not be deemed to be, or result in, a taxable event
with respect to the holders of such Securities for purposes
of United States Federal income taxation; provided that
such Opinion of Counsel need not address the matters
specified in this clause (z) if the Trustee shall have
received documentary evidence that each Holder of such
Security either is not subject to, or is exempt from,
United States Federal income taxation.
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, ELI 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
ELI, 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, ELI, 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 ELI 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 have
proceeded to cause the meeting to be held as provided herein,
then the Company, ELI 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 ELI, 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, ELI 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, ELI 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, ELI, 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, ELI 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 ELI, 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 ELI
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 ELI.
In no event shall any provision of this Indenture or the
Securities constitute a guaranty or assumption by ELI of the
Securities or the indebtedness represented thereby (it being
understood that, in accordance with Section 2.16 of each Lease
Indenture, ELI 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
Entergy Louisiana, Inc.
By
------------------------------------
Title: Vice President and Treasurer
Bankers Trust Company, 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.
---------------------------------
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 Entergy Louisiana, Inc., 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 __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.
--------------------------------
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 ELI 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, as amended, among the Owner
Participant, the Company, the Trustee, First National Bank of
Commerce, individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and ELI.
PART II
Lease - Facility Lease No. 2, dated as of September 1, 1989,
as amended and supplemented, between ELI 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 and Stanley Burg, 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, as amended, among the Owner
Participant, the Company, the Trustee, First National Bank of
Commerce, individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and ELI.
PART III
Lease - Facility Lease No. 3, dated as of September 1, 1989,
as amended and supplemented, between ELI 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, as amended, among the Owner
Participant, the Company, the Trustee, First National Bank of
Commerce, individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and ELI.
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1
dated as of July 1, 1997
to
COLLATERAL TRUST INDENTURE
dated as of July 1, 1997
among
W3A FUNDING CORPORATION,
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company)
and
BANKERS TRUST COMPANY,
as Trustee
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>
SUPPLEMENTAL INDENTURE NO. 1, dated as of July 1, 1997,
among W3A FUNDING CORPORATION, a Delaware corporation (the
"Company"), ENTERGY LOUISIANA, INC. (formerly Louisiana Power &
Light Company), a Louisiana corporation ("ELI"), and BANKERS
TRUST COMPANY, a New York banking corporation, not in its
individual capacity but solely as trustee (the "Trustee").
WHEREAS, the Company and ELI have heretofore executed
and delivered to the Trustee a Collateral Trust Indenture, dated
as of July 1, 1997 (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, ELI 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 ELI (a) desire the issuance by
the Company of a separate 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 ELI
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 ELI 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 is hereby created and established a separate
series of Securities designated "Waterford 3 Secured Lease
Obligation Bonds, 8.09% Series due 2017" (the "Bonds"). The
Bonds shall be issued in the aggregate principal amount, shall
bear interest at the rate per annum and shall have the Stated
Maturity of principal set forth below:
Original Interest Final
Principal Amount Rate Maturity
----------------- --------- --------
Bonds $307,632,000 8.09% January 2, 2017
The Bonds shall be substantially in the form of Exhibit A hereto.
The interest on the 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 January 2 and July 2 in each
year (commencing January 2, 1998), until the principal amount of
the Bonds 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 (i) payments of interest and Installment Payment Amounts on
such Bonds, 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 (ii) 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 ELI,
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 equal (subject to adjustment as set forth in Section
1.02(b)) 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,
means the principal amount identified as such on the face of such
Bond.
Installment Installment Payment
Payment Date Percentage
January 2, 1999 8.205086597%
January 2, 2000 6.682958210%
January 2, 2001 6.682957885%
January 2, 2002 6.682958210%
January 2, 2003 10.824584244%
January 2, 2004 5.353311749%
January 2, 2005 0.203574401%
January 2, 2006 0.864755617%
January 2, 2007 0.989230639%
January 2, 2008 1.710452749%
January 2, 2009 3.631649503%
January 2, 2010 4.847784366%
January 2, 2011 7.737269855%
January 2, 2012 4.543215595%
January 2, 2013 3.328583177%
January 2, 2014 4.481746047%
January 2, 2015 4.111220549%
January 2, 2016 0.430046614%
January 2, 2017 18.688613993%
(b) Certain Adjustments to Installment Payments and
Stated Maturity. (i) The principal amount of Bonds to be paid in
installments on Installment Payment Dates and at Stated Maturity,
and the Stated Maturity, shall be adjusted (a "Payment
Adjustment") at the direction of the Company, so as to correlate,
as to amounts and dates, to any adjustment to the principal
amortization and maturity schedule of the Pledged Lessor Bonds
issued under any Lease Indenture pursuant to Section 2.17 of 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 (calculated in accordance
with generally accepted financial practice from the date of
initial issuance) by more than 6 months or extend the final
maturity of the Bonds and (B) the Company shall be obligated 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 ELI at least 40 days prior to the first payment date proposed
to be affected by such adjustment, a Company Request (A) stating
that the Company is obligated 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 as to which a Payment Adjustment is to be made,
(C) attaching a copy of the revised principal schedule or
schedules for the corresponding Pledged Lessor Bonds, and
(D) attaching calculations showing that (x) the average life of
the Bonds 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 ELI, send to each Holder of Bonds in respect of which
a Payment Adjustment has been made at least 30 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 (other than pursuant to principal
installment payments), each Installment Payment Amount for each
Bond 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 redeemed pursuant to such partial
redemption, and the denominator shall be the aggregate unpaid
principal amount of Bonds 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 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 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 Pledged 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 Pledged Lessor Bonds are to be prepaid, at a
Redemption Price equal to 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
pursuant to Section 14 of such Lease, to the right of ELI to
assume such Pledged 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 shall be subject to redemption, at the option
of the Company, with the written consent of the Lessee and the
Owner Trustee, 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 January 22, 2008, 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 Stated
Maturity, 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 plus .125%, 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. "Investment
Banker" shall mean an independent investment banking institution
of national standing appointed by ELI 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 are to be redeemed, the particular Bonds 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, ELI 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
ENTERGY LOUISIANA, INC.
By
-------------------------
Title: Vice President
BANKERS TRUST COMPANY, 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 ENTERGY LOUISIANA, INC., 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, 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
Number Amount Rate Maturity
------ --------- -------- --------
R-1A-1 174,000,000 8.09% January 2, 2017
Lessor Bonds Issued Under Lease Indenture No. 2
Principal Interest
Number Amount Rate Maturity
------ ---------- --------- --------
R-2B-1 87,000,000 8.09% January 2, 2017
Lessor Bonds Issued Under Lease Indenture No. 3
Principal Interest
Number Amount Rate Maturity
------ ---------- --------- --------
R-3C-1 46,632,000 8.09% January 2, 2017
<PAGE>
EXHIBIT A
FORM OF BOND
NUMBER
R-
________________________
WATERFORD 3
SECURED LEASE OBLIGATION BOND,
8.09 % SERIES DUE 2017
STATED
INTEREST RATE MATURITY CUSIP
8.09% January 2, 2017
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 below, all
capitalized terms used herein without definition herein having
the meanings ascribed thereto in such Indenture), 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 below with the final
installment due and payable on the Stated Maturity (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 January 2, 1998, the date of
the original issuance of Bonds of this series, semiannually on
January 2 and July 2 in each year, commencing January 2, 1998 at
the Interest Rate (stated above) per annum, until the principal
hereof is paid in full or made available for payment.
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
(i) payment of interest and Installment Payment Amounts (other
than such amounts payable on the Stated Maturity hereof) shall be
made, without presentation or surrender hereof, by check mailed
to the address of the Holder of this Bond at the close of
business on the Regular Record Date for such payment, whether or
not such Regular Record Date is a Business Day, as such address
shall appear in the Security Register and (ii) 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 ELI (as
hereinafter defined), the Trustee and such Holder. The Regular
Record Date for a January 2 payment shall be December 15 and the
Regular Record Date for a July 2 payment shall be June 15.
Notwithstanding the foregoing, any interest or Installment
Payment Amount not 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.
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.
This Bond is one of an authorized issue of Securities
of the Company known as its "Waterford 3 Secured Lease Obligation
Bonds, 8.09 % Series due 2017" (the "Bonds"). The Bonds are
issued under and secured by a Collateral Trust Indenture, dated
as of July 1, 1997 (the "Original Indenture"), among the Company,
Entergy Louisiana, Inc. (formerly Louisiana Power & Light
Company), a Louisiana corporation ("ELI"), and Bankers Trust
Company, 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 July 1,
1997 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
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 ("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, 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 Corporate Indenture 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 ELI 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 Bond 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 aggregate 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
January 2, 1999 8.205086597% 0.9179491
January 2, 2000 6.682958210% 0.8511196
January 2, 2001 6.682957885% 0.7842900
January 2, 2002 6.682958210% 0.7174604
January 2, 2003 10.824584244% 0.6092145
January 2, 2004 5.353311749% 0.5556814
January 2, 2005 0.203574401% 0.5536457
January 2, 2006 0.864755617% 0.5449981
January 2, 2007 0.989230639% 0.5351058
January 2, 2008 1.710452749% 0.5180013
January 2, 2009 3.631649503% 0.4816848
January 2, 2010 4.847784366% 0.4332070
January 2, 2011 7.737269855% 0.3558343
January 2, 2012 4.543215595% 0.3104021
January 2, 2013 3.328583177% 0.2771163
January 2, 2014 4.481746047% 0.2322988
January 2, 2015 4.111220549% 0.1911866
January 2, 2016 0.430046614% 0.1868861
January 2, 2017 18.688613993% 0.0000000
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 this series
(calculated in accordance with generally accepted financial
practice from the date of initial issuance) by more than 6 months
or extend the Stated Maturity of Bonds of this series.
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 the 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 Pledged Lessor Bonds are to be prepaid, at a
redemption price equal to 100% of 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 ELI to assume such
Pledged 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 Company, with the prior written
consent of the Lessee and the Owner Trustee, 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 Bonds to be so redeemed, plus
accrued interest, if any, thereon to the Redemption Date, plus,
if such redemption is made prior to January 22, 2008, 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 30 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.
The obligation of the Company to pay the principal of
and premium, if any, and interest on this Bond, and the lien of
the Indenture, is subject to being legally discharged prior to
the Stated Maturity of this Bond upon the deposit with the
Trustee of cash or certain securities sufficient to pay this Bond
when due in accordance with the terms of 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, except to the extent that laws of
other jurisdictions are mandatorily applicable.
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 the Indenture, or be valid
or obligatory for any purpose.
<PAGE>
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>
AMENDMENT NO. 1
dated as of June 25, 1997
to
TAX INDEMNIFICATION AGREEMENT No. 1
dated as of September 1, 1989
between
ESSL 2, INC.
Beneficiary under Trust Agreement No. 1,
dated as of September 1, 1989
with
FIRST NATIONAL BANK OF COMMERCE
AS OWNER TRUSTEE,
Lessor,
and
ENTERGY LOUISIANA, INC.
(formerly 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 June 25, 1997 ("TIA
Amendment No. 1"), to TAX INDEMNIFICATION AGREEMENT No. 1, 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
ENTERGY LOUISIANA, INC. (formerly 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 the Participation Agreement
No. 1, dated as of September 1, 1989, (as amended by Amendment
No. 1 thereto, dated as of the date hereof and as otherwise
modified, amended or supplemented pursuant to the terms thereof;
the "Participation Agreement") among the Owner Participant, the
Lessor, BANKER'S TRUST COMPANY, not in its individual capacity
but solely as successor Corporate Indenture Trustee under
Indenture No. 1 and STANLEY BURG, not in his individual capacity
but solely as successor Individual Indenture Trustee under
Indenture No. 1, and the Lessee, or the Refunding Agreement.
WHEREAS, pursuant to Participation Agreement No. 1, 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 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 1997 Bonds in amounts which,
when added to the Additional Equity Investment made by the Owner
Participant and any Rent paid by the Lessee, will be sufficient
to redeem the Initial Series Bonds, including any premium and
accrued interest thereon and to pay the Refunding Expenses; and
WHEREAS, the Owner Participant and the Lessee have
heretofore executed Tax Indemnification Agreement No. 1 and
desire to amend Tax Indemnification Agreement No. 1 as
hereinafter provided to clarify their respective rights and
obligations arising from the transactions contemplated by
Refunding Agreement No. 1 (the "Refunding");
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
Tax Indemnification Agreement No. 1 is hereby amended,
effective upon the execution and delivery of this Agreement, as
follows:
1. Section 1.1(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 Amendment No. 1 to the Participation Agreement"
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 3.01 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 in
accordance with the accrual method of tax accounting."
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) Assuming that the Facility Lease is a "true" lease
for federal income tax purposes, 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".
<PAGE>
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.
ENTERGY LOUISIANA, INC.
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 ENTERGY LOUISIANA, 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:
_________ __, ____
Exhibit 3
REFUNDING AGREEMENT NO. 2
dated as of June 27, 1997
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 Corporate Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 2,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and as Collateral Trust Trustee
under Collateral Trust Indenture to be dated as of
July 1, 1997, with the Lessee and Funding Corporation,
STANLEY BURG,
as Individual Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 2,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company),
as Lessee
<PAGE>
This REFUNDING AGREEMENT NO. 2, dated as of June 27,
1997, 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 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
Individual Indenture Trustee under the Indenture, and ENTERGY
LOUISIANA, INC. (formerly 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. 2, dated as of September
1, 1989 (as the same may be amended, modified or supplemented
from time to time, 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 (together, the "1997 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 June 20, 1997, 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 July 17, 1997 (the "Refunding Date"), and the Indenture
Trustee gave notice of such redemption to the Holders of such
Bonds on June 27, 1997, 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 and the payment of a portion
of the premium related thereto, such loan to be evidenced by
Additional 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 date hereof (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 July 1, 1997,
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 establish 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
July 1, 1997 ("Supplemental Indenture No. 2"), providing, among
other things, for the issuance of 1997 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 July 1, 1997
("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 July 1, 1997 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
1.11. 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 $87,000,000,
and shall receive the Owner Trustee's 1997 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.
1.12. Issuance of Refunding Bonds; Additional Equity
Investment; 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; and (b)(i) the Owner Participant shall pay to
the Owner Trustee an additional equity investment of
$1,448,179.38 ("Additional Equity Investment"), (ii) the Lessee
shall make a Supplemental Rent payment in the amount of
$370,565.85; and (iii) the Owner Trustee shall issue the 1997
Bonds in the principal amount of $87,000,000 and apply the
Refunding Loan, the Additional Equity Investment and the
Supplemental Rent payment to redeem the Initial Series Bonds then
Outstanding maturing in 2005 ("Series 2005 Bonds") for an amount
equal to 102.060% of the outstanding principal amount thereof
(such outstanding principal amount being $36,674,000) plus
accrued interest thereon and to redeem the Initial Series Bonds
then Outstanding maturing in 2017 ("Series 2017 Bonds") for an
amount equal to 106.402% of the outstanding principal amount
thereof (such outstanding principal amount being $47,949,000)
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 $87,000,000 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 1997 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
Portion of 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 1997 Bonds to
Funding Corporation, Funding Corporation shall pledge such 1997
Bonds in accordance with the terms of the Collateral Trust
Indenture.
1.13. 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
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 1997 Bonds as contemplated by the Refunding Documents
and request the Indenture Trustee (x) to authenticate and deliver
the 1997 Bonds pursuant to Section 2.05 of the Indenture and
(y) in view of the fact that Funding Corporation is to pledge
such 1997 Bonds to the Collateral Trust Trustee, cause such 1997
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 1997 Bonds,
as security for Funding Corporation's obligations under the
related Refunding Collateral Bonds (as hereinafter defined) and
under the Collateral Trust Indenture. Accordingly, Funding
Corporation hereby consents to the Owner Trustee's issuance of
the 1997 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 in
the amount of $54,626,322.18, 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 as contemplated by the last
sentence of Section 16(e)(4) of the Participation Agreement.
(g) Terms of 1997 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 1997 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
2.11. 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 $307,632,000 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.
2.12. 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 of the Lessee 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), (5), (7) 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 set forth 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 set
forth 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.
2.13. Conditions to Obligation of Owner Trustee.
The obligation of the Owner Trustee to issue and deliver the
1997 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 by the Owner Trustee of a direction from the Owner
Participant in conformance with Section 1.03.
2.14. 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
3.11. 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 Lessor's Percentage (as defined in
Section 13(a) of the Participation Agreement) of the following
costs and expenses ("Refunding Expenses") without duplication of
amounts payable with respect to any other refunding of bonds on
the Refunding Date utilizing the proceeds of the Refunding
Collateral Bonds:
(i) the reasonable legal fees and
disbursements of the Owner Participant's
Special Counsel (in an amount not to exceed
the amount agreed to by the Owner Participant
and the Lessee), the Owner's Participant's
Louisiana Counsel, 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;
(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 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).
Notwithstanding anything in this Section 3.01 to the
contrary, the amount of Refunding Expenses payable by the Owner
Trustee shall not exceed $902,652.71. Subject to the provisions
of paragraphs (b) and (c) below, funds for the payment of
Refunding Expenses will be provided by the Owner Participant and
the Owner Trustee will promptly disburse funds for the payment of
such expenses in accordance with written authorization from the
Owner Participant.
(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.
(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.
(d) Furthermore, in the event that the Lessor's Percentage
of 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.
(e) Promptly after the payment of the Refunding Expenses,
any adjustments to Basic Rent and the Value Schedules as are
required by Section 3(e)(ii) of the Facility Lease shall be made.
ARTICLE FOUR
MISCELLANEOUS
4.11. 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.
4.12. Governing Law.
This Refunding Agreement shall be governed by, and be
construed in accordance with, the laws of the State of New York.
4.13. 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. Notwithstanding anything herein to the
contrary, 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Refunding Agreement to be duly executed by their respective
officers thereunto duly authorized as of the date first set forth
above.
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
ENTERGY LOUISIANA, INC., as Lessee
By
Name:
Title:
<PAGE>
SCHEDULE 1
Recordations and Filings
<PAGE>
AMENDMENT NO. 1
dated as of July 1, 1997
to
PARTICIPATION AGREEMENT NO. 2
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 Corporate Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 2,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and as Collateral Trust Trustee
under Collateral Trust Indenture
dated as of July 1, 1997
with the Lessee and Funding Corporation,
STANLEY BURG,
as Individual Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 2,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company),
as Lessee
<PAGE>
This AMENDMENT NO. 1, dated as of July 1, 1997 ("PA
Amendment No. 1"), to PARTICIPATION AGREEMENT NO. 2, 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, as Owner Trustee, BANKERS TRUST
COMPANY, as Corporate Indenture Trustee under the Indenture and
as Collateral Trust Trustee under the Collateral Trust Indenture,
STANLEY BURG, as Individual Indenture Trustee under the
Indenture, and ENTERGY LOUISIANA, INC. (formerly 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. 2, 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 July 1, 1997, 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 and for the payment of
certain expenses incurred in connection therewith, such loan to
be evidenced by Additional Bonds issued by the Owner Trustee to
or upon the order of Funding Corporation; and
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
1.11. 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 by deleting paragraphs (b), (c)
and (d) and inserting the following 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")
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).
(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 the proceeds thereof to 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. 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. Not less
than three Business Days prior to the Refunding Date,
Funding Corporation and Lessee shall deliver to the
Owner Participant and the Owner Trustee a certificate
setting forth the terms of the Additional Bonds which
Lessee may determine as provided below. 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 Section 2.17 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 Section 2.17. 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, the Indenture Trustee, the Collateral
Trust Trustee 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. Notwithstanding the foregoing,
nothing herein shall prohibit the Owner Participant
from otherwise participating in any such action
initiated by any other person.
(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) and, as to FNBC, (4), (6), (7) and
(8), and the Owner Trustee agrees as set forth in
clauses (2) and (5), and, as to the Owner Trustee, (4),
(6), (7) and (8) 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.
Notwithstanding the foregoing, nothing herein shall
prohibit FNBC or the Owner Trustee from otherwise
participating in any such action initiated by any other
person.
(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. Notwithstanding
the foregoing, nothing herein shall prohibit the
corporate Indenture Trustee or the Individual Indenture
Trustee from otherwise participating in any such action
initiated by any other person.
(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 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 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 or is to become a party on or
before the Refunding Date 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 with, or results 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.
(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 (i) it shall have received the
prior written consent of the Owner Participant and (ii)
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,
purchase or directly or indirectly acquire any
Collateral Bond issued in connection with any Bond
without the prior written 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 as contemplated by
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.
The Collateral Trust Trustee represents and warrants
that:
(a) Due Organization. The 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 a party.
(b) Due Authorization. The execution, delivery and
performance by the Collateral Trust Trustee of the
Collateral Trust Indenture, this Participation Agreement,
the Refunding Agreement and each other Transaction Document
to which the Collateral Trust Trustee is a party have been
duly authorized by all necessary corporate action of the
Collateral Trust Trustee and each has been duly executed and
delivered by the Collateral Trust Trustee.
(c) Execution; Authentication of Bonds. (i) Each of
the Collateral Trust Indenture, this Participation
Agreement, the Refunding Agreement and each other
Transaction Document to which the Collateral Trust Trustee
is a party has been duly executed and delivered by the
Collateral Trust Trustee and constitutes the legal, valid
and binding agreement of the Collateral Trust Trustee,
enforceable against the Collateral Trust Trustee in
accordance with its terms; and (ii) each officer of the
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, a Responsible Officer.
(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, directly or indirectly, any of the bonds or
Collateral Bonds, or any interest therein, without the
written consent of the Owner Participant; provided,
however, that the Lessee may purchase Collateral Bonds
for application in accordance with the sinking fund
provisions of the Collateral Trust Indenture so long as
(A) the amount of Collateral Bonds held at any time by
the Lessee (and any Affiliates) does not exceed the sum
of the amounts due as Basic Rent for the next two
consecutive Basic Rent Payment Dates and (B) none of
the Collateral Bonds purchased are held by the Lessee
(or any Affiliate) for a period in excess of 12 months.
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.
Notwithstanding the foregoing, nothing herein shall
prohibit the Lessee from otherwise participating in any
such action initiated by any other person.
(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. 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, Lessee's Special Counsel, and, if Funding
Corporation is being utilized in connection with a
refunding, Reid & Priest LLP, counsel to Funding
Corporation, 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 (5), (7) and (9) of Section 6(a), subclauses
(1) through (10) of Section 7(a), and subclauses (1)
through (5), (10), (11), (12), (15), (16), (19) and
(20) 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
and all references to the Disclosure Documents being
deemed to refer to the 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 on or prior 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 (5),
(10), (11), (12), (15), (16), (19) and (20) 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 and
all references to the Disclosure Documents being deemed
to refer to the 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 and
prior 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 the matters set forth in
paragraph (3) above); 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 any 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) 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, (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, (e) any
transfer of all or any part of the right, title and
interest of the Owner Trustee in the Undivided Interest
or 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 or Refunding
Expenses, (ii) that the fees, expenses, disbursements
and costs of the Owner Participant in connection with
any refunding or reoptimization which does not require
the utilization of Funding Corporation or any amendment
to the documents 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, Four Albany Street, New York, New York 10006,
Attention: Corporate and Agency Group - Public Utilities
Group; (iv) if to Funding Corporation, at c/o National
Corporate Research, Ltd., 19 East Loockerman Street, Dover,
Delaware 19901; (v) if to the Collateral Trust Trustee at
Four Albany Street, New York, New York 10006, Attention:
Corporate and Agency Group - Public Utilities Group; and
(vi) if to the Lessee, at 639 Loyola Avenue, New Orleans,
Louisiana 70113, 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) Schedule 7 to the Participation Agreement is hereby
amended in its entirety to read as set forth in Schedule 2
hereto.
(p) Appendix A to the Participation Agreement is hereby
amended as set forth in Schedule A-1 to Appendix A attached
hereto.
ARTICLE TWO
MISCELLANEOUS
2.11. Execution.
2.12. 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.
2.13. 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.
2.14. 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.
<PAGE>
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
ENTERGY LOUISIANA, INC., 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 July 1, 1997, 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:
3 Refunding Date: July 17, 1997
4 Interest Rate and
Amortization of
1997 Bonds: See Supplemental Indenture No. 2,
dated as of July 1, 1997
5 Refunding Expenses: $902,652.71 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).
6 Accrued Interest: $370,565.85 paid by the Owner Trustee on
the Refunding Date from Supplemental Rent
paid by the Lessee as interest from
July 2, 1997 to the Refunding Date on
the Initial Series Bonds which are
redeemed on the Refunding Date.
7 Premium: $3,825,179.38 paid by the Owner Trustee
on the Refunding Date from a portion of
the proceeds of the 1997 Bonds and the
Additional Equity Investment in respect
of the premium on the Initial Series
Bonds redeemed on the Refunding Date.
8 1997 Bonds: $87,000,000 issued by the Owner Trustee
in accordance with the Refunding Agreement,
Supplemental Indenture No. 2, dated as of
July 1, 1997, 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.
9 Supplemental Rent: $370,565.85 paid by the Lessee on the
Refunding Date.
8. Additional Equity
Investment: $1,448,179.38 funded by the Owner
Participant on the Refunding Date.
9. Owner Participant's
Marginal Federal Tax
Rate as of 1993: 35%
10. Owner Participant's
Marginal State Tax Rate
- as of 1989: 17.53%
- as of 1991: 17%
11. Tax Payment Method
- as of 1992: 93/7
- as of 1993: 97/3
- as of 1994: 100/0
<PAGE>
SCHEDULE 7
TO
PARTICIPATION
AGREEMENT
MODIFIED CASUALTY VALUES
Percentage of
DATE Facility Cost
2 Oct 1989 15.35541245%
2 Nov 1989 15.66777791%
2 Dec 1989 15.98363406%
2 Jan 1990 16.26874535%
2 Feb 1990 19.01061645%
2 Mar 1990 19.35204708%
2 Apr 1990 19.69348492%
2 May 1990 20.00808862%
2 Jun 1990 20.32620801%
2 Jul 1990 20.61723269%
2 Aug 1990 25.60984218%
2 Sep 1990 26.00298281%
2 Oct 1990 26.36986708%
2 Nov 1990 26.74085129%
2 Dec 1990 27.11598125%
2 Jan 1991 27.31148909%
2 Feb 1991 27.66154781%
2 Mar 1991 28.01577988%
2 Apr 1991 28.36043519%
2 May 1991 28.68087399%
2 Jun 1991 29.00489371%
2 Jul 1991 29.30446631%
2 Aug 1991 29.60738664%
2 Sep 1991 29.91369211%
2 Oct 1991 30.19535252%
2 Nov 1991 30.48016048%
2 Dec 1991 30.76815117%
2 Jan 1992 31.03129213%
2 Feb 1992 31.29737369%
2 Mar 1992 31.56642872%
2 Apr 1992 31.82601575%
2 May 1992 32.07121964%
2 Jun 1992 32.31916368%
2 Jul 1992 32.55259447%
2 Aug 1992 32.78863384%
2 Sep 1992 33.02731096%
2 Oct 1992 33.25137125%
2 Nov 1992 33.47793542%
2 Dec 1992 33.70703145%
2 Jan 1993 34.72263212%
2 Feb 1993 34.94273476%
2 Mar 1993 35.16529704%
2 Apr 1993 35.38506261%
2 May 1993 35.59048570%
2 Jun 1993 35.79820439%
2 Jul 1993 35.99144597%
2 Aug 1993 36.18684704%
2 Sep 1993 36.38443171%
2 Oct 1993 36.56742603%
2 Nov 1993 36.75246531%
2 Dec 1993 36.93957240%
2 Jan 1994 37.11197206%
2 Feb 1994 37.28629828%
2 Mar 1994 37.46257260%
2 Apr 1994 37.63873864%
2 May 1994 37.80126738%
2 Jun 1994 37.96561239%
2 Jul 1994 38.11618800%
2 Aug 1994 38.26844629%
2 Sep 1994 38.42240607%
2 Oct 1994 38.56248040%
2 Nov 1994 38.70412006%
2 Dec 1994 38.84734255%
2 Jan 1995 38.97655960%
2 Feb 1995 39.10722065%
2 Mar 1995 39.23934183%
2 Apr 1995 39.37293947%
2 May 1995 39.49372793%
2 Jun 1995 39.61586620%
2 Jul 1995 39.72506722%
2 Aug 1995 39.83548857%
2 Sep 1995 39.94714387%
2 Oct 1995 40.04574479%
2 Nov 1995 40.14544757%
2 Dec 1995 40.24626453%
2 Jan 1996 40.33390598%
2 Feb 1996 40.42252682%
2 Mar 1996 40.51213801%
2 Apr 1996 40.60275059%
2 May 1996 40.68201639%
2 Jun 1996 40.76216799%
2 Jul 1996 40.83085590%
2 Aug 1996 40.90031140%
2 Sep 1996 40.97054307%
2 Oct 1996 41.02920019%
2 Nov 1996 41.08851280%
2 Dec 1996 41.14848824%
2 Jan 1997 41.19677452%
2 Feb 1997 41.24560039%
2 Mar 1997 41.29497190%
2 Apr 1997 41.34489513%
2 May 1997 41.38042511%
2 Jun 1997 41.41635214%
2 Jul 1997 41.43772950%
2 Aug 1997 43.85887210%
2 Sep 1997 43.92996832%
2 Oct 1997 43.98690790%
2 Nov 1997 44.04448378%
2 Dec 1997 44.10270307%
2 Jan 1998 44.14662181%
2 Feb 1998 44.19103134%
2 Mar 1998 44.23593715%
2 Apr 1998 44.28134478%
2 May 1998 44.31213799%
2 Jun 1998 44.34327532%
2 Jul 1998 44.35963875%
2 Aug 1998 44.37618504%
2 Sep 1998 44.39291624%
2 Oct 1998 44.39471256%
2 Nov 1998 44.39652895%
2 Dec 1998 44.39836564%
2 Jan 1999 44.39836564%
2 Feb 1999 44.39836564%
2 Mar 1999 44.39836564%
2 Apr 1999 44.39836564%
2 May 1999 44.39836564%
2 Jun 1999 44.39836564%
2 Jul 1999 44.39836564%
2 Aug 1999 44.39836564%
2 Sep 1999 44.39836564%
2 Oct 1999 44.39836564%
2 Nov 1999 44.39836564%
2 Dec 1999 44.39836564%
2 Jan 2000 44.39836564%
2 Feb 2000 44.39836564%
2 Mar 2000 44.39836564%
2 Apr 2000 44.39836564%
2 May 2000 44.39836564%
2 Jun 2000 44.39836564%
2 Jul 2000 44.39836564%
2 Aug 2000 44.39836564%
2 Sep 2000 44.39836564%
2 Oct 2000 44.39836564%
2 Nov 2000 44.39836564%
2 Dec 2000 44.39836564%
2 Jan 2001 44.39836564%
2 Feb 2001 44.39836564%
2 Mar 2001 44.39836564%
2 Apr 2001 44.39836564%
2 May 2001 44.39836564%
2 Jun 2001 44.39836564%
2 Jul 2001 44.39836564%
2 Aug 2001 44.39836564%
2 Sep 2001 44.39836564%
2 Oct 2001 44.39836564%
2 Nov 2001 44.39836564%
2 Dec 2001 44.39836564%
2 Jan 2002 44.39836564%
2 Feb 2002 44.39836564%
2 Mar 2002 44.39836564%
2 Apr 2002 44.39836564%
2 May 2002 44.39836564%
2 Jun 2002 44.39836564%
2 Jul 2002 44.39836564%
2 Aug 2002 44.39836564%
2 Sep 2002 44.39836564%
2 Oct 2002 44.39836564%
2 Nov 2002 44.39836564%
2 Dec 2002 44.39836564%
2 Jan 2003 44.39836564%
2 Feb 2003 42.99836564%
2 Mar 2003 42.99836564%
2 Apr 2003 42.99836564%
2 May 2003 42.99836564%
2 Jun 2003 42.99836564%
2 Jul 2003 43.00050458%
2 Aug 2003 41.60050458%
2 Sep 2003 41.60050458%
2 Oct 2003 41.60050458%
2 Nov 2003 41.60050458%
2 Dec 2003 41.60050458%
2 Jan 2004 41.60480637%
2 Feb 2004 41.39480637%
2 Mar 2004 41.39480637%
2 Apr 2004 41.39480637%
2 May 2004 41.39480637%
2 Jun 2004 41.39480637%
2 Jul 2004 41.39480637%
2 Aug 2004 41.39480637%
2 Sep 2004 41.39480637%
2 Oct 2004 41.39480637%
2 Nov 2004 41.39480637%
2 Dec 2004 41.39480637%
2 Jan 2005 41.39480637%
2 Feb 2005 41.37730637%
2 Mar 2005 41.37730637%
2 Apr 2005 41.37730637%
2 May 2005 41.37730637%
2 Jun 2005 41.37730637%
2 Jul 2005 41.37730637%
2 Aug 2005 41.35980637%
2 Sep 2005 41.35980637%
2 Oct 2005 41.35980637%
2 Nov 2005 41.35980637%
2 Dec 2005 41.35980637%
2 Jan 2006 41.35980637%
2 Feb 2006 41.08480637%
2 Mar 2006 41.08480637%
2 Apr 2006 41.08480637%
2 May 2006 41.08480637%
2 Jun 2006 41.08480637%
2 Jul 2006 41.08480637%
2 Aug 2006 40.80980637%
2 Sep 2006 40.80980637%
2 Oct 2006 40.80980637%
2 Nov 2006 40.80980637%
2 Dec 2006 40.80980637%
2 Jan 2007 40.80980637%
2 Feb 2007 40.48480637%
2 Mar 2007 40.48480637%
2 Apr 2007 40.48480637%
2 May 2007 40.48480637%
2 Jun 2007 40.48480637%
2 Jul 2007 40.48480637%
2 Aug 2007 40.15980637%
2 Sep 2007 40.15980637%
2 Oct 2007 40.15980637%
2 Nov 2007 40.15980637%
2 Dec 2007 40.15980637%
2 Jan 2008 40.15980637%
2 Feb 2008 39.55980637%
2 Mar 2008 39.55980637%
2 Apr 2008 39.55980637%
2 May 2008 39.55980637%
2 Jun 2008 39.55980637%
2 Jul 2008 39.55980637%
2 Aug 2008 38.95980637%
2 Sep 2008 38.95980637%
2 Oct 2008 38.95980637%
2 Nov 2008 38.95980637%
2 Dec 2008 38.95980637%
2 Jan 2009 38.95980637%
2 Feb 2009 37.70980637%
2 Mar 2009 37.70980637%
2 Apr 2009 37.70980637%
2 May 2009 37.70980637%
2 Jun 2009 37.70980637%
2 Jul 2009 37.70980637%
2 Aug 2009 36.45980637%
2 Sep 2009 36.45980637%
2 Oct 2009 36.45980637%
2 Nov 2009 36.45980637%
2 Dec 2009 36.45980637%
2 Jan 2010 36.45980637%
2 Feb 2010 35.20980637%
2 Mar 2010 35.20980637%
2 Apr 2010 35.20980637%
2 May 2010 35.20980637%
2 Jun 2010 35.20980637%
2 Jul 2010 35.21537045%
2 Aug 2010 33.96537045%
2 Sep 2010 33.96537045%
2 Oct 2010 33.96537045%
2 Nov 2010 33.96537045%
2 Dec 2010 33.96537045%
2 Jan 2011 33.97656078%
2 Feb 2011 31.62656078%
2 Mar 2011 31.62656078%
2 Apr 2011 31.62656078%
2 May 2011 31.62656078%
2 Jun 2011 31.62656078%
2 Jul 2011 31.64586125%
2 Aug 2011 29.29586125%
2 Sep 2011 29.29586125%
2 Oct 2011 29.29586125%
2 Nov 2011 29.29586125%
2 Dec 2011 29.29586125%
2 Jan 2012 29.32336251%
2 Feb 2012 26.97336251%
2 Mar 2012 26.97336251%
2 Apr 2012 26.97336251%
2 May 2012 26.97336251%
2 Jun 2012 26.97336251%
2 Jul 2012 26.99423094%
2 Aug 2012 24.64423094%
2 Sep 2012 24.64423094%
2 Oct 2012 24.64423094%
2 Nov 2012 24.64423094%
2 Dec 2012 24.64423094%
2 Jan 2013 24.65839243%
2 Feb 2013 23.28339243%
2 Mar 2013 23.28339243%
2 Apr 2013 23.28339243%
2 May 2013 23.28339243%
2 Jun 2013 23.28339243%
2 Jul 2013 23.29755392%
2 Aug 2013 21.92255392%
2 Sep 2013 21.92255392%
2 Oct 2013 21.92255392%
2 Nov 2013 21.92255392%
2 Dec 2013 21.92255392%
2 Jan 2014 21.93671541%
2 Feb 2014 20.43671541%
2 Mar 2014 20.43671541%
2 Apr 2014 20.43671541%
2 May 2014 20.43671541%
2 Jun 2014 20.43671541%
2 Jul 2014 20.45151703%
2 Aug 2014 18.95151703%
2 Sep 2014 18.95151703%
2 Oct 2014 18.95151703%
2 Nov 2014 18.95151703%
2 Dec 2014 18.95151703%
2 Jan 2015 18.96696592%
2 Feb 2015 17.46696592%
2 Mar 2015 17.46696592%
2 Apr 2015 17.46696592%
2 May 2015 17.46696592%
2 Jun 2015 17.46696592%
2 Jul 2015 17.48241482%
2 Aug 2015 15.98241482%
2 Sep 2015 15.98241482%
2 Oct 2015 15.98241482%
2 Nov 2015 15.98241482%
2 Dec 2015 15.98241482%
2 Jan 2016 15.99786372%
2 Feb 2016 14.49786372%
2 Mar 2016 14.49786372%
2 Apr 2016 14.49786372%
2 May 2016 14.49786372%
2 Jun 2016 14.49786372%
2 Jul 2016 14.49786372%
2 Aug 2016 12.99786372%
2 Sep 2016 12.99786372%
2 Oct 2016 12.99786372%
2 Nov 2016 12.99786372%
2 Dec 2016 12.99786372%
2 Jan 2017 12.99786372%
2 Feb 2017 12.90389409%
2 Mar 2017 12.90389409%
2 Apr 2017 12.90389409%
2 May 2017 12.95810302%
2 Jun 2017 13.01291774%
2 Jul 2017 13.14012193%
<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) "Additional Equity Investment" shall have the
meaning ascribed thereto in the Refunding Agreement.
(2) "Collateral Bonds" shall mean all bonds, notes and
other evidences of indebtedness from time to time issued and
outstanding under the Collateral Trust Indenture.
(3) "Collateral Trust Indenture" shall mean (x) in
respect of the refunding of the Initial Series Bonds, the
Collateral Trust Indenture, dated as of July 1, 1997, 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.
(4) "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,
Bankers Trust Company, a New York banking corporation, 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.
(5) "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.
(6) "LP&L" means Entergy Louisiana, Inc. (formerly
Louisiana Power & Light Company), a Louisiana corporation, and
its permitted successors and assigns.
(7) "1997 Bonds" shall have the meaning set forth in
the Refunding Agreement.
(8) "Refunding Agreement" shall mean the Refunding
Agreement No. 2, dated as of June 27, 1997, among the Owner
Participant, the Owner Trustee, Funding Corporation, the
Indenture Trustee, the Collateral Trust Trustee and the Lessee.
(9) "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.
(10) "Refunding Expenses" shall have the meaning set
forth in Section 3.01 of the Refunding Agreement.
(11) "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 1997 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 or 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
1997 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 1997 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 1997 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 "Obligor" is amended and
restated as follows:
"Obligor", when used with reference to the
Bonds, the Indenture, the Collateral Bonds or the
Collateral Trust Indenture, means the Lessee and any
successor to the obligations of the Lessee under the
Lease, and does not include the Indenture Trustee, the
Collateral Trust Trustee, the Funding Corporation, the
Owner Trustee or the Owner Participant so long as none
of the foregoing shall have assumed such obligations;
provided, however, that no reference in the Indenture
to the Lessee as an Obligor shall be construed as
implying any guaranty or assumption by the Lessee of
the Bonds or the Collateral Trust Bonds or the
obligations represented thereby.
(4) 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.
(5) 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.
(6) 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.
(7) 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".
(8) 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.
<PAGE>
SUPPLEMENTAL INDENTURE NO. 2
dated as of July 1, 1997
to
INDENTURE OF MORTGAGE AND
DEED OF TRUST NO. 2
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,
dated as of September 1, 1989, with
the Owner Participant,
and
BANKERS TRUST COMPANY,
as Corporate Indenture Trustee,
and
STANLEY BURG,
as 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
<PAGE>
The Supplemental Indenture No. 2, dated as of July 1, 1997, to
Indenture of Mortgage and Deed of Trust No. 2, 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 Schedule A-1 being
attached hereto as Exhibit C), Bankers Trust Company, a New York
banking corporation and successor in interest under the Indenture
to First Trust of California, National Association, as Corporate
Indenture Trustee (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 James V. Myers, as Individual Indenture Trustee (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 have 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
June 27, 1997;
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 and the
Indenture 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
1. 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 if made in the manner provided in this
Section."
(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 of interest or principal, or both, and premium, if
any, 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 or otherwise except in
compliance with Section 2.08 of the Indenture.
(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."
(c) Notwithstanding the foregoing, no Bond
issued to Funding Corporation shall be transferred
without the prior written consent of the Owner Trustee,
provided, however, that each Bond may be pledged with
the Collateral Trust Trustee and sold by the Collateral
Trust Trustee in accordance with the Collateral Trust
Indenture.
(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 40 days prior to the first payment date
proposed to be affected by such adjustment, an Owner Trustee
Request, 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 and maturity
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 Request and shall have no duty with
respect to the calculations referred to in the foregoing
clause (z), other than to make such Owner Trustee Request
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 Request, and in any event at least thirty (30)
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 Bonds after giving effect to such
adjustment."
(d) Article Three is amended to add the following 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."
(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 conclusively
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 referred to
herein of the Owner Trustee 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 receive
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 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 (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. In addition, the obligations of the
Owner Trustee under Section 8.07 shall survive the
earlier resignation or removal of the Indenture
Trustee."
(2) 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 1997 Bonds
2.01 The 1997 Bonds.
(a) There is hereby created and established a separate series
of Additional Bonds designated "Waterford 3 Secured Lease
Obligation Bonds, 8.09% Series B due 2017" (the "1997 Bonds").
The 1997 Bonds shall be issued in the aggregate principal amount,
shall bear interest at the rate per annum and shall have the
final maturity set forth below:
Original
Principal Interest Final
Amount Rate Maturity
1997 Bonds $87,000,000 8.09% January 2, 2017
The 1997 Bonds shall be substantially in the form of Exhibit A
hereto.
(b) Each 1997 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 January 2, 1998
and on each January 2 and July 2 thereafter to and including the
final maturity date thereof, unless paid in full prior to such
date as provided herein and in such 1997 Bond.
(c) The original principal amount of each 1997 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 1997 Bond. Installments of principal of
and premium, if any, and interest on each 1997 Bond shall be due
and payable on the payment dates specified in Schedule 1 attached
thereto.
(d) Each 1997 Bond shall be subject to redemption as set forth
in such 1997 Bond. There shall not be a Sinking Fund for the
1997 Bonds.
ARTICLE THREE
Miscellaneous
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.
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.
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
Corporate Indenture Trustee
[Seal]
By:
Name:
Title:
Stanley Burg,
as Individual Indenture Trustee
<PAGE>
ACKNOWLEDGMENT
State Of )
) ss.:
County Of )
On this ___ day of _________, 1997, 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 _________, 1997, 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, 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 _________, 1997, 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 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 A
TO
SUPPLEMENTAL INDENTURE NO. 2
FORM OF 1997 BOND
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 OR OTHERWISE EXCEPT IN COMPLIANCE
WITH SECTION 2.08 OF THE INDENTURE
WATERFORD 3 SECURED LEASE
OBLIGATION BOND, 8.09% SERIES B
DUE 2017
(DUE January 2, 2017)
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, 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 January 2 and July 2
in each year, commencing January 2, 1998, at the rate of 8.09%
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, 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 July 1, 1997 (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 Corporate and Individual Indenture Trustee,
respectively (together, the "Indenture Trustee"), shall be made
only from the Indenture Estate or the income and proceeds
received by the Indenture Trustee therefrom, 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 Indenture 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
at a price equal to 100% of the unpaid principal amount hereof
plus accrued and unpaid interest hereon as provided in Section
7.16 of the Indenture. This Bond is also subject to redemption
in full, at 100% of 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 to be redeemed 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 and limitations provided in
Section 2.09 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.
<PAGE>
IN WITNESS WHEREOF, the Owner Trustee has caused this
Bond to be duly executed as of the date hereof.
Attest: FIRST NATIONAL BANK OF COMMERCE, not in its
individual capacity but solely as
Owner Trustee
____________________________ By: ___________________________________
[SEAL] Authorized Officer
This Bond is one of the Waterford 3 Secured Lease
Obligation Bonds, 8.09% Series B Due 2017 referred to in the
within-mentioned Indenture.
BANKERS TRUST COMPANY, as
Corporate Indenture Trustee
Dated:__________________ By: __________________________________
Title:
<PAGE>
SCHEDULE 1
TO
EXHIBIT A
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Date Principal Amount Principal Balance
Payable
January 2, 1999 7,151,024 79,848,976
January 2, 2000 5,814,175 74,034,801
January 2, 2001 5,814,175 68,220,626
January 2, 2002 5,814,175 62,406,451
January 2, 2003 9,398,810 53,007,641
January 2, 2004 4,666,202 48,341,439
January 2, 2005 177,035 48,164,404
January 2, 2006 757,053 47,407,351
January 2, 2007 869,678 46,537,673
January 2, 2008 1,489,115 45,048,558
January 2, 2009 2,953,238 42,095,320
January 2, 2010 4,074,766 38,020,554
January 2, 2011 7,040,508 30,980,046
January 2, 2012 4,032,089 26,947,957
January 2, 2013 3,202,902 23,745,055
January 2, 2014 3,613,492 20,131,563
January 2, 2015 3,481,564 16,649,999
January 2, 2016 367,595 16,282,404
January 2, 2017 16,282,404 0
<PAGE>
EXHIBIT B
to
Supplemental Indenture No. 2
Reference is made to Indenture of Mortgage and Deed of
Trust No. 2, dated as of September 1, 1989 (the "Original
Indenture"), as supplemented by Supplemental Indenture No. 1,
dated as of September 1, 1989 ("Supplemental Indenture No. 1";
the Original Indenture, as supplemented by Supplemental Indenture
No. 1, and as it may be further supplemented or amended from time
to time by all other supplemental indentures thereto being
hereinafter referred to as the "Indenture"), among First National
Bank of Commerce, as 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 Indenture as
modified by Schedule A-1 thereto), and Entergy Louisiana, Inc.,
as Lessee.
Pursuant to Sections 8.10 and 8.11 of the Original
Indenture and effective as of June __, 1997:
1. First Trust of California, National Association,
as Corporate Indenture Trustee, and James V. Myers, as
Individual Indenture Trustee, hereby resign as Corporate
Indenture Trustee and Individual Indenture Trustee,
respectively, under the Indenture; and
2. Bankers Trust Company and Stanley Burg hereby
accept their appointment as successor Corporate Indenture
Trustee and successor Individual Indenture Trustee,
respectively, under the Indenture.
The Owner Trustee and the Lessee hereby acknowledge and
accept such resignation and appointment.
The parties hereto may execute this instrument in
separate counterparts.
First Trust Company of California,
National Association, as Corporate
Indenture Trustee
By:
Name:
Title:
James V. Myers, as Individual Indenture
Trustee
By:
Name:
Title:
Bankers Trust Company, as successor
Corporate Indenture Trustee
By:
Name:
Title:
Stanley Burg, as successor Individual
Indenture Trustee
By:
Name:
Title:
First National Bank of Commerce, as Owner
Trustee
By:
Name:
Title:
Entergy Louisiana, Inc., as Lessee
By:
Name:
Title:
<PAGE>
EXHIBIT C
TO
SUPPLEMENTAL INDENTURE NO. 2
[Schedule A-1 to Appendix A (Definitions)]
<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. 2, 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 July 1, 1997
to
FACILITY LEASE NO. 2
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. 2, dated as of September 1, 1989,
with the Owner Participant,
Lessor
and
ENTERGY LOUISIANA, INC.
(formerly 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. 2, 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 July 1, 1997
to
FACILITY LEASE NO. 2
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. 2, dated as
of September 1, 1989, with the Owner Participant,
Lessor
and
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company),
Lessee
Original Facility Lease Recorded on
[September 28, 1989] at _________________
<PAGE>
This LEASE SUPPLEMENT NO. 1, dated as of July 1, 1997
("Lease Supplement No. 1"), to FACILITY LEASE NO. 2, 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 ENTERGY LOUISIANA, INC.
(formerly 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,
Funding Corporation, the Collateral Trust Trustee and the
Indenture Trustee have entered into a Refunding Agreement No. 2,
dated as of July 1, 1997, 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 July
1, 1997, 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:
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.
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 13(g) of the Facility Lease is hereby amended
by adding, after the second sentence thereof, the following
sentence:
For purposes of the
preceding sentence, Casualty Value
shall be determined in accordance
with Schedule 2 to this Facility
Lease as in effect on the date of
the original execution and delivery
hereof, without regard to the
changes to such Schedule effected
by Lease Supplement No. 1 hereto.
(d) 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
Facility 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.
(e) 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, except that solely for purposes
of Section 13(g) of the Facility Lease, Schedule 2 shall remain
unchanged.
(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.
(f) Schedule U3S to the Facility Lease is attached hereto.
(g) Appendix A to the Facility Lease is hereby amended as
set forth in Schedule A-1 to Appendix A attached hereto.
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.
(d) Concerning the Lessor. FNBC is entering into this
Lease Supplement No. 1 solely as Owner Trustee under the Trust
Agreement and not in its individual capacity. Notwithstanding
anything herein to the contrary, all and each of the agreements
and obligations herein made or undertaken on the part of the
Lessor are made or undertaken not as personal agreements of FNBC,
but are made and undertaken solely for the purpose of binding the
Trust Estate, and nothing contained in this Lease Supplement No.
1 shall entitle any person to claim against FNBC in its
individual capacity or any of its assets.
<PAGE>
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
ENTERGY LOUISIANA, INC.
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 Parish 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 Parish 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 _______________ of ENTERGY
LOUISIANA, INC., 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
TO
LEASE
BASIC RENT PERCENTAGES
Basic Rent Percentage of
Payment Date Facility Cost Advance Arrears
2 Jul 1990 .00000000% .00000000% .00000000%
2 Jan 1991 4.60407221% .00000000% 100.00000000%
2 Jul 1991 4.60681365% .00000000% 100.00000000%
2 Jan 1992 4.60365915% 100.00000000% .00000000%
2 Jul 1992 4.60765915% .00938524% 99.99061476%
2 Jan 1993 4.60745315% 100.00000000% .00000000%
2 Jul 1993 4.60324715% .00536317% 99.99463683%
2 Jan 1994 4.60824715% 100.00000000% .00000000%
2 Jul 1994 4.60298965% .01298743% 99.98701257%
2 Jan 1995 4.60798965% 100.00000000% .00000000%
2 Jul 1995 4.60273215% .00942375% 99.99057625%
2 Jan 1996 5.38273215% 100.00000000% .00000000%
2 Jul 1996 4.56256215% .00870322% 99.99129678%
2 Jan 1997 6.81056215% 100.00000000% .00000000%
2 Jul 1997 4.44679015% .00000000% 100.00000000%
2 Jan 1998 3.22588750% 100.00000000% .00000000%
2 Jul 1998 3.51915000% .00000000% 100.00000000%
2 Jan 1999 10.67017400% 100.00000000% .00000000%
2 Jul 1999 3.22989108% .00000000% 100.00000000%
2 Jan 2000 9.04406608% 100.00000000% .00000000%
2 Jul 2000 2.99470770% .00000000% 100.00000000%
2 Jan 2001 8.80888270% 100.00000000% .00000000%
2 Jul 2001 2.75952432% .00000000% 100.00000000%
2 Jan 2002 8.57369932% 100.00000000% .00000000%
2 Jul 2002 2.52434094% .00000000% 100.00000000%
2 Jan 2003 13.32315094% 100.00000000% .00000000%
2 Jul 2003 3.54415908% .00000000% 100.00000000%
2 Jan 2004 7.02036108% 100.00000000% .00000000%
2 Jul 2004 1.95541121% .00000000% 100.00000000%
2 Jan 2005 2.14994621% 100.00000000% .00000000%
2 Jul 2005 1.96575014% .00000000% 100.00000000%
2 Jan 2006 2.98030314% 100.00000000% .00000000%
2 Jul 2006 2.19262735% .00000000% 100.00000000%
2 Jan 2007 3.11230535% 100.00000000% .00000000%
2 Jul 2007 2.20744887% .00000000% 100.00000000%
2 Jan 2008 3.97156387% 100.00000000% .00000000%
2 Jul 2008 2.42221417% .00000000% 100.00000000%
2 Jan 2009 6.02545217% 100.00000000% .00000000%
2 Jul 2009 2.95275569% .00000000% 100.00000000%
2 Jan 2010 7.02752169% 100.00000000% .00000000%
2 Jul 2010 2.78793141% .00000000% 100.00000000%
2 Jan 2011 10.92843941% 100.00000000% .00000000%
2 Jul 2011 3.60314286% .00000000% 100.00000000%
2 Jan 2012 7.63523186% 100.00000000% .00000000%
2 Jul 2012 3.44004486% .00000000% 100.00000000%
2 Jan 2013 5.66794686% 100.00000000% .00000000%
2 Jul 2013 2.33548747% .00000000% 100.00000000%
2 Jan 2014 6.07397947% 100.00000000% .00000000%
2 Jul 2014 2.31432172% .00000000% 100.00000000%
2 Jan 2015 5.79588572% 100.00000000% .00000000%
2 Jul 2015 2.17349246% .00000000% 100.00000000%
2 Jan 2016 2.54108746% 100.00000000% .00000000%
1 Jul 2016 2.15862324% .00000000% 100.00000000%
2 Jan 2017 17.03501973% 100.00000000% .00000000%
2 Jul 2017 13.14009907% .00000000% 100.00000000%
<PAGE>
SCHEDULE 2
TO
LEASE
SCHEDULE OF CASUALTY VALUES
PART A
Percentage of
DATE Facility Cost
2 Oct 1989 104.22079050%
2 Nov 1989 105.31002989%
2 Dec 1989 106.40284393%
2 Jan 1990 107.46499781%
2 Feb 1990 108.57978317%
2 Mar 1990 109.69842805%
2 Apr 1990 110.81716708%
2 May 1990 111.90915970%
2 Jun 1990 113.00475650%
2 Jul 1990 114.07334784%
2 Aug 1990 115.23980040%
2 Sep 1990 116.41068858%
2 Oct 1990 117.55541205%
2 Nov 1990 118.70432788%
2 Dec 1990 119.85748270%
2 Jan 1991 120.83110948%
2 Feb 1991 117.35556838%
2 Mar 1991 118.48811000%
2 Apr 1991 119.61117143%
2 May 1991 120.71011376%
2 Jun 1991 121.81273526%
2 Jul 1991 122.89100879%
2 Aug 1991 119.36589064%
2 Sep 1991 120.45107215%
2 Oct 1991 121.51171035%
2 Nov 1991 122.57559877%
2 Dec 1991 123.64277346%
2 Jan 1992 124.68520289%
2 Feb 1992 121.12701914%
2 Mar 1992 122.17557431%
2 Apr 1992 123.21476873%
2 May 1992 124.23968817%
2 Jun 1992 125.26745689%
2 Jul 1992 126.28082243%
2 Aug 1992 122.68921413%
2 Sep 1992 123.70801474%
2 Oct 1992 124.71231153%
2 Nov 1992 125.71922619%
2 Dec 1992 126.72878771%
2 Jan 1993 128.52496987%
2 Feb 1993 124.91828354%
2 Mar 1993 125.92162805%
2 Apr 1993 126.92229493%
2 May 1993 127.90873946%
2 Jun 1993 128.89760077%
2 Jul 1993 129.87210723%
2 Aug 1993 126.24564933%
2 Sep 1993 127.22474659%
2 Oct 1993 128.18937899%
2 Nov 1993 129.15618294%
2 Dec 1993 130.12518241%
2 Jan 1994 131.07960326%
2 Feb 1994 127.42779057%
2 Mar 1994 128.38630421%
2 Apr 1994 129.34484182%
2 May 1994 130.28987554%
2 Jun 1994 131.23686009%
2 Jul 1994 132.17021100%
2 Aug 1994 128.50239189%
2 Sep 1994 129.43940206%
2 Oct 1994 130.36266614%
2 Nov 1994 131.28763614%
2 Dec 1994 132.21433077%
2 Jan 1995 133.12716302%
2 Feb 1995 129.43355102%
2 Mar 1995 130.34953439%
2 Apr 1995 131.26714106%
2 May 1995 132.17208670%
2 Jun 1995 133.07853159%
2 Jul 1995 133.97219000%
2 Aug 1995 130.26448866%
2 Sep 1995 131.16090683%
2 Oct 1995 132.04442538%
2 Nov 1995 132.92920190%
2 Dec 1995 133.81525009%
2 Jan 1996 134.68828164%
2 Feb 1996 130.17302569%
2 Mar 1996 131.04165390%
2 Apr 1996 131.91144660%
2 May 1996 132.77005702%
2 Jun 1996 133.62971920%
2 Jul 1996 134.47808511%
2 Aug 1996 130.76482534%
2 Sep 1996 131.61507425%
2 Oct 1996 132.45392048%
2 Nov 1996 133.29359556%
2 Dec 1996 134.13410836%
2 Jan 1997 134.96310842%
2 Feb 1997 128.96296856%
2 Mar 1997 129.77411602%
2 Apr 1997 130.58599631%
2 May 1997 131.38366604%
2 Jun 1997 132.18191711%
2 Jul 1997 132.96580443%
2 Aug 1997 133.63198519%
2 Sep 1997 134.31136143%
2 Oct 1997 134.97677186%
2 Nov 1997 135.64301112%
2 Dec 1997 136.31008800%
2 Jan 1998 136.96306026%
2 Feb 1998 134.39083344%
2 Mar 1998 135.04518977%
2 Apr 1998 135.70024903%
2 May 1998 136.34089676%
2 Jun 1998 136.98209327%
2 Jul 1998 137.60872235%
2 Aug 1998 134.71659255%
2 Sep 1998 135.34400776%
2 Oct 1998 135.95670002%
2 Nov 1998 136.56962616%
2 Dec 1998 137.18278827%
2 Jan 1999 137.79433126%
2 Feb 1999 127.68771032%
2 Mar 1999 128.25148437%
2 Apr 1999 128.81548176%
2 May 1999 129.37970446%
2 Jun 1999 129.94415443%
2 Jul 1999 130.50883367%
2 Aug 1999 127.84385311%
2 Sep 1999 128.40899695%
2 Oct 1999 128.97437615%
2 Nov 1999 129.53999278%
2 Dec 1999 130.10584892%
2 Jan 2000 121.27849340%
2 Feb 2000 122.15502502%
2 Mar 2000 122.68241514%
2 Apr 2000 123.21005327%
2 May 2000 123.73794160%
2 Jun 2000 124.26608233%
2 Jul 2000 124.79447767%
2 Aug 2000 122.32842212%
2 Sep 2000 122.85733339%
2 Oct 2000 123.38650603%
2 Nov 2000 123.91594233%
2 Dec 2000 124.44564461%
2 Jan 2001 124.97561519%
2 Feb 2001 116.65777670%
2 Mar 2001 117.14909375%
2 Apr 2001 117.64068623%
2 May 2001 118.13255656%
2 Jun 2001 118.62470717%
2 Jul 2001 119.11714053%
2 Aug 2001 116.85033476%
2 Sep 2001 117.34334106%
2 Oct 2001 117.83663762%
2 Nov 2001 118.33022697%
2 Dec 2001 118.82411169%
2 Jan 2002 119.31829437%
2 Feb 2002 111.19988124%
2 Mar 2002 111.65547047%
2 Apr 2002 112.11136556%
2 May 2002 112.56756920%
2 Jun 2002 113.02408410%
2 Jul 2002 113.48091298%
2 Aug 2002 111.41371762%
2 Sep 2002 111.87118277%
2 Oct 2002 112.32897024%
2 Nov 2002 112.78708287%
2 Dec 2002 113.24552349%
2 Jan 2003 113.70429500%
2 Feb 2003 100.77688596%
2 Mar 2003 101.17296433%
2 Apr 2003 101.56938236%
2 May 2003 101.96614303%
2 Jun 2003 102.36324936%
2 Jul 2003 102.76284331%
2 Aug 2003 99.61649093%
2 Sep 2003 100.01465251%
2 Oct 2003 100.41317204%
2 Nov 2003 100.81205265%
2 Dec 2003 101.21129750%
2 Jan 2004 101.61521159%
2 Feb 2004 94.96337515%
2 Mar 2004 95.33227406%
2 Apr 2004 95.70155017%
2 May 2004 96.07120678%
2 Jun 2004 96.44124725%
2 Jul 2004 96.81167493%
2 Aug 2004 95.22708197%
2 Sep 2004 95.59829431%
2 Oct 2004 95.96990413%
2 Nov 2004 96.34191494%
2 Dec 2004 96.71433025%
2 Jan 2005 94.89264035%
2 Feb 2005 95.30924918%
2 Mar 2005 95.68170590%
2 Apr 2005 96.05458150%
2 May 2005 96.42787966%
2 Jun 2005 96.80160408%
2 Jul 2005 97.17575851%
2 Aug 2005 95.58459651%
2 Sep 2005 95.95962229%
2 Oct 2005 96.33508949%
2 Nov 2005 96.71100199%
2 Dec 2005 97.08736368%
2 Jan 2006 97.46417852%
2 Feb 2006 94.85604358%
2 Mar 2006 95.22867286%
2 Apr 2006 95.60176730%
2 May 2006 95.97533100%
2 Jun 2006 96.34936807%
2 Jul 2006 96.72388265%
2 Aug 2006 94.90625154%
2 Sep 2006 95.28173376%
2 Oct 2006 95.65770619%
2 Nov 2006 96.03417312%
2 Dec 2006 96.41113888%
2 Jan 2007 96.78860786%
2 Feb 2007 94.04841619%
2 Mar 2007 94.42104180%
2 Apr 2007 94.79418398%
2 May 2007 95.16784727%
2 Jun 2007 95.54203623%
2 Jul 2007 95.91675548%
2 Aug 2007 94.08456072%
2 Sep 2007 94.46035455%
2 Oct 2007 94.83669274%
2 Nov 2007 95.21358007%
2 Dec 2007 95.59102136%
2 Jan 2008 95.96902147%
2 Feb 2008 92.36598253%
2 Mar 2008 92.73507592%
2 Apr 2008 93.10474296%
2 May 2008 93.47498869%
2 Jun 2008 93.84581819%
2 Jul 2008 94.21723657%
2 Aug 2008 92.16703476%
2 Sep 2008 92.53964646%
2 Oct 2008 92.91286268%
2 Nov 2008 93.28668873%
2 Dec 2008 93.66112995%
2 Jan 2009 94.03619174%
2 Feb 2009 88.36651715%
2 Mar 2009 88.72292672%
2 Apr 2009 89.07997333%
2 May 2009 89.43766258%
2 Jun 2009 89.79600011%
2 Jul 2009 90.15499159%
2 Aug 2009 87.56188701%
2 Sep 2009 87.92220368%
2 Oct 2009 88.28319167%
2 Nov 2009 88.64485687%
2 Dec 2009 89.00720523%
2 Jan 2010 82.98696066%
2 Feb 2010 82.67898311%
2 Mar 2010 83.01594639%
2 Apr 2010 83.35361710%
2 May 2010 83.69200147%
2 Jun 2010 84.03110574%
2 Jul 2010 84.37650032%
2 Aug 2010 81.92913193%
2 Sep 2010 82.27043405%
2 Oct 2010 82.61248168%
2 Nov 2010 82.95528135%
2 Dec 2010 83.29883967%
2 Jan 2011 83.65435361%
2 Feb 2011 73.02354455%
2 Mar 2011 73.32195421%
2 Apr 2011 73.62114948%
2 May 2011 73.92113726%
2 Jun 2011 74.22192451%
2 Jul 2011 74.54281870%
2 Aug 2011 71.24208306%
2 Sep 2011 71.54531102%
2 Oct 2011 71.84936687%
2 Nov 2011 72.15425786%
2 Dec 2011 72.45999134%
2 Jan 2012 72.79407594%
2 Feb 2012 65.43910132%
2 Mar 2012 65.72022383%
2 Apr 2012 66.00221877%
2 May 2012 66.28509379%
2 Jun 2012 66.56885662%
2 Jul 2012 66.87438348%
2 Aug 2012 63.71990046%
2 Sep 2012 64.00637371%
2 Oct 2012 64.29376633%
2 Nov 2012 64.58208639%
2 Dec 2012 64.87134203%
2 Jan 2013 65.17570293%
2 Feb 2013 59.77731469%
2 Mar 2013 60.04783368%
2 Apr 2013 60.31932151%
2 May 2013 60.59178668%
2 Jun 2013 60.86523776%
2 Jul 2013 61.15384489%
2 Aug 2013 59.09380629%
2 Sep 2013 59.37026730%
2 Oct 2013 59.64774928%
2 Nov 2013 59.92626118%
2 Dec 2013 60.20581204%
2 Jan 2014 60.50057245%
2 Feb 2014 54.68388822%
2 Mar 2014 54.94225000%
2 Apr 2014 55.20168768%
2 May 2014 55.46221069%
2 Jun 2014 55.72382856%
2 Jul 2014 56.00135251%
2 Aug 2014 53.95086723%
2 Sep 2014 54.21582764%
2 Oct 2014 54.48192184%
2 Nov 2014 54.74915976%
2 Dec 2014 55.01755146%
2 Jan 2015 55.30255594%
2 Feb 2015 49.75392803%
2 Mar 2015 50.00237056%
2 Apr 2015 50.25200788%
2 May 2015 50.50285047%
2 Jun 2015 50.75490891%
2 Jul 2015 51.02364275%
2 Aug 2015 49.10467247%
2 Sep 2015 49.36044280%
2 Oct 2015 49.61747221%
2 Nov 2015 49.87577174%
2 Dec 2015 50.13535253%
2 Jan 2016 50.41167472%
2 Feb 2016 48.13028638%
2 Mar 2016 48.39130058%
2 Apr 2016 48.65364161%
2 May 2016 48.91732109%
2 Jun 2016 49.18235076%
2 Jul 2016 49.44874248%
2 Aug 2016 47.55788491%
2 Sep 2016 47.82703667%
2 Oct 2016 48.09758663%
2 Nov 2016 48.36954707%
2 Dec 2016 48.64293034%
2 Jan 2017 48.91774895%
2 Feb 2017 32.04924694%
2 Mar 2017 32.21720354%
2 Apr 2017 32.38663357%
2 May 2017 32.61175889%
2 Jun 2017 32.83898940%
2 Jul 2017 33.14012193%
<PAGE>
SCHEDULE 2
TO
LEASE
SCHEDULE OF CASUALTY VALUES
PART B
Percentage of
DATE Facility Cost
2 Oct 1989 116.72728536%
2 Nov 1989 117.94723348%
2 Dec 1989 119.17118520%
2 Jan 1990 120.36079755%
2 Feb 1990 121.60935715%
2 Mar 1990 122.86223942%
2 Apr 1990 124.11522713%
2 May 1990 125.33825886%
2 Jun 1990 126.56532728%
2 Jul 1990 127.76214958%
2 Aug 1990 129.06857645%
2 Sep 1990 130.37997121%
2 Oct 1990 131.66206150%
2 Nov 1990 132.94884723%
2 Dec 1990 134.24038062%
2 Jan 1991 135.33084262%
2 Feb 1991 131.43823659%
2 Mar 1991 132.70668320%
2 Apr 1991 133.96451200%
2 May 1991 135.19532741%
2 Jun 1991 136.43026349%
2 Jul 1991 137.63792984%
2 Aug 1991 133.68979752%
2 Sep 1991 134.90520081%
2 Oct 1991 136.09311559%
2 Nov 1991 137.28467062%
2 Dec 1991 138.47990628%
2 Jan 1992 139.64742724%
2 Feb 1992 135.66226144%
2 Mar 1992 136.83664323%
2 Apr 1992 138.00054098%
2 May 1992 139.14845075%
2 Jun 1992 140.29955172%
2 Jul 1992 141.43452112%
2 Aug 1992 137.41191983%
2 Sep 1992 138.55297651%
2 Oct 1992 139.67778891%
2 Nov 1992 140.80553333%
2 Dec 1992 141.93624224%
2 Jan 1993 143.94796625%
2 Feb 1993 139.90847756%
2 Mar 1993 141.03222342%
2 Apr 1993 142.15297032%
2 May 1993 143.25778820%
2 Jun 1993 144.36531286%
2 Jul 1993 145.45676010%
2 Aug 1993 141.39512725%
2 Sep 1993 142.49171618%
2 Oct 1993 143.57210447%
2 Nov 1993 144.65492489%
2 Dec 1993 145.74020430%
2 Jan 1994 146.80915565%
2 Feb 1994 142.71912544%
2 Mar 1994 143.79266072%
2 Apr 1994 144.86622284%
2 May 1994 145.92466060%
2 Jun 1994 146.98528330%
2 Jul 1994 148.03063632%
2 Aug 1994 143.92267892%
2 Sep 1994 144.97213031%
2 Oct 1994 146.00618608%
2 Nov 1994 147.04215248%
2 Dec 1994 148.08005046%
2 Jan 1995 149.10242258%
2 Feb 1995 144.96557714%
2 Mar 1995 145.99147852%
2 Apr 1995 147.01919799%
2 May 1995 148.03273710%
2 Jun 1995 149.04795538%
2 Jul 1995 150.04885280%
2 Aug 1995 145.89622730%
2 Sep 1995 146.90021565%
2 Oct 1995 147.88975643%
2 Nov 1995 148.88070613%
2 Dec 1995 149.87308010%
2 Jan 1996 150.85087544%
2 Feb 1996 145.79378877%
2 Mar 1996 146.76665237%
2 Apr 1996 147.74082019%
2 May 1996 148.70246386%
2 Jun 1996 149.66528550%
2 Jul 1996 150.61545532%
2 Aug 1996 146.45660438%
2 Sep 1996 147.40888316%
2 Oct 1996 148.34839094%
2 Nov 1996 149.28882703%
2 Dec 1996 150.23020136%
2 Jan 1997 151.15868143%
2 Feb 1997 144.43852479%
2 Mar 1997 145.34700994%
2 Apr 1997 146.25631587%
2 May 1997 147.14970596%
2 Jun 1997 148.04374716%
2 Jul 1997 148.92170096%
2 Aug 1997 149.66782341%
2 Sep 1997 150.42872480%
2 Oct 1997 151.17398448%
2 Nov 1997 151.92017245%
2 Dec 1997 152.66729856%
2 Jan 1998 153.39862749%
2 Feb 1998 150.51773345%
2 Mar 1998 151.25061254%
2 Apr 1998 151.98427891%
2 May 1998 152.70180437%
2 Jun 1998 153.41994446%
2 Jul 1998 154.12176903%
2 Aug 1998 150.88258366%
2 Sep 1998 151.58528869%
2 Oct 1998 152.27150402%
2 Nov 1998 152.95798130%
2 Dec 1998 153.64472286%
2 Jan 1999 154.32965101%
2 Feb 1999 143.01023556%
2 Mar 1999 143.64166249%
2 Apr 1999 144.27333957%
2 May 1999 144.90526900%
2 Jun 1999 145.53745296%
2 Jul 1999 146.16989371%
2 Aug 1999 143.18511548%
2 Sep 1999 143.81807658%
2 Oct 1999 144.45130129%
2 Nov 1999 145.08479191%
2 Dec 1999 145.71855079%
2 Jan 2000 135.83191261%
2 Feb 2000 136.81362802%
2 Mar 2000 137.40430496%
2 Apr 2000 137.99525966%
2 May 2000 138.58649459%
2 Jun 2000 139.17801221%
2 Jul 2000 139.76981499%
2 Aug 2000 137.00783277%
2 Sep 2000 137.60021340%
2 Oct 2000 138.19288675%
2 Nov 2000 138.78585541%
2 Dec 2000 139.37912196%
2 Jan 2001 139.97268901%
2 Feb 2001 130.65670990%
2 Mar 2001 131.20698500%
2 Apr 2001 131.75756858%
2 May 2001 132.30846335%
2 Jun 2001 132.85967203%
2 Jul 2001 133.41119739%
2 Aug 2001 130.87237493%
2 Sep 2001 131.42454199%
2 Oct 2001 131.97703413%
2 Nov 2001 132.52985421%
2 Dec 2001 133.08300509%
2 Jan 2002 133.63648969%
2 Feb 2002 124.54386699%
2 Mar 2002 125.05412693%
2 Apr 2002 125.56472943%
2 May 2002 126.07567750%
2 Jun 2002 126.58697419%
2 Jul 2002 127.09862254%
2 Aug 2002 124.78336373%
2 Sep 2002 125.29572470%
2 Oct 2002 125.80844667%
2 Nov 2002 126.32153281%
2 Dec 2002 126.83498631%
2 Jan 2003 127.34881040%
2 Feb 2003 112.87011228%
2 Mar 2003 113.31372005%
2 Apr 2003 113.75770824%
2 May 2003 114.20208019%
2 Jun 2003 114.64683928%
2 Jul 2003 115.09438451%
2 Aug 2003 111.57046984%
2 Sep 2003 112.01641081%
2 Oct 2003 112.46275268%
2 Nov 2003 112.90949897%
2 Dec 2003 113.35665320%
2 Jan 2004 113.80903698%
2 Feb 2004 106.35898017%
2 Mar 2004 106.77214695%
2 Apr 2004 107.18573619%
2 May 2004 107.59975159%
2 Jun 2004 108.01419692%
2 Jul 2004 108.42907592%
2 Aug 2004 106.65433181%
2 Sep 2004 107.07008963%
2 Oct 2004 107.48629263%
2 Nov 2004 107.90294473%
2 Dec 2004 108.32004988%
2 Jan 2005 106.27975719%
2 Feb 2005 106.74635908%
2 Mar 2005 107.16351061%
2 Apr 2005 107.58113128%
2 May 2005 107.99922522%
2 Jun 2005 108.41779657%
2 Jul 2005 108.83684953%
2 Aug 2005 107.05474809%
2 Sep 2005 107.47477696%
2 Oct 2005 107.89530023%
2 Nov 2005 108.31632223%
2 Dec 2005 108.73784732%
2 Jan 2006 109.15987994%
2 Feb 2006 106.23876881%
2 Mar 2006 106.65611360%
2 Apr 2006 107.07397938%
2 May 2006 107.49237072%
2 Jun 2006 107.91129224%
2 Jul 2006 108.33074857%
2 Aug 2006 106.29500172%
2 Sep 2006 106.71554181%
2 Oct 2006 107.13663093%
2 Nov 2006 107.55827389%
2 Dec 2006 107.98047555%
2 Jan 2007 108.40324080%
2 Feb 2007 105.33422613%
2 Mar 2007 105.75156682%
2 Apr 2007 106.16948606%
2 May 2007 106.58798894%
2 Jun 2007 107.00708058%
2 Jul 2007 107.42676614%
2 Aug 2007 105.37470801%
2 Sep 2007 105.79559710%
2 Oct 2007 106.21709587%
2 Nov 2007 106.63920968%
2 Dec 2007 107.06194392%
2 Jan 2008 107.48530405%
2 Feb 2008 103.44990043%
2 Mar 2008 103.86328503%
2 Apr 2008 104.27731212%
2 May 2008 104.69198733%
2 Jun 2008 105.10731637%
2 Jul 2008 105.52330496%
2 Aug 2008 103.22707893%
2 Sep 2008 103.64440404%
2 Oct 2008 104.06240620%
2 Nov 2008 104.48109138%
2 Dec 2008 104.90046554%
2 Jan 2009 105.32053475%
2 Feb 2009 98.97049921%
2 Mar 2009 99.36967793%
2 Apr 2009 99.76957013%
2 May 2009 100.17018209%
2 Jun 2009 100.57152012%
2 Jul 2009 100.97359058%
2 Aug 2009 98.06931345%
2 Sep 2009 98.47286812%
2 Oct 2009 98.87717467%
2 Nov 2009 99.28223969%
2 Dec 2009 99.68806986%
2 Jan 2010 92.94539594%
2 Feb 2010 92.60046108%
2 Mar 2010 92.97785996%
2 Apr 2010 93.35605115%
2 May 2010 93.73504165%
2 Jun 2010 94.11483843%
2 Jul 2010 94.50168036%
2 Aug 2010 91.76062776%
2 Sep 2010 92.14288614%
2 Oct 2010 92.52597948%
2 Nov 2010 92.90991511%
2 Dec 2010 93.29470043%
2 Jan 2011 93.69287604%
2 Feb 2011 81.78636990%
2 Mar 2011 82.12058872%
2 Apr 2011 82.45568742%
2 May 2011 82.79167373%
2 Jun 2011 83.12855545%
2 Jul 2011 83.48795694%
2 Aug 2011 79.79113303%
2 Sep 2011 80.13074834%
2 Oct 2011 80.47129089%
2 Nov 2011 80.81276880%
2 Dec 2011 81.15519030%
2 Jan 2012 81.52936505%
2 Feb 2012 73.29179348%
2 Mar 2012 73.60665069%
2 Apr 2012 73.92248502%
2 May 2012 74.23930504%
2 Jun 2012 74.55711941%
2 Jul 2012 74.89930950%
2 Aug 2012 71.36628852%
2 Sep 2012 71.68713856%
2 Oct 2012 72.00901829%
2 Nov 2012 72.33193676%
2 Dec 2012 72.65590307%
2 Jan 2013 72.99678728%
2 Feb 2013 66.95059245%
2 Mar 2013 67.25357372%
2 Apr 2013 67.55764009%
2 May 2013 67.86280108%
2 Jun 2013 68.16906629%
2 Jul 2013 68.49230628%
2 Aug 2013 66.18506304%
2 Sep 2013 66.49469938%
2 Oct 2013 66.80547919%
2 Nov 2013 67.11741252%
2 Dec 2013 67.43050948%
2 Jan 2014 67.76064114%
2 Feb 2014 61.24595481%
2 Mar 2014 61.53532000%
2 Apr 2014 61.82589020%
2 May 2014 62.11767597%
2 Jun 2014 62.41068799%
2 Jul 2014 62.72151481%
2 Aug 2014 60.42497130%
2 Sep 2014 60.72172696%
2 Oct 2014 61.01975246%
2 Nov 2014 61.31905893%
2 Dec 2014 61.61965764%
2 Jan 2015 61.93886265%
2 Feb 2015 55.72439939%
2 Mar 2015 56.00265503%
2 Apr 2015 56.28224883%
2 May 2015 56.56319253%
2 Jun 2015 56.84549798%
2 Jul 2015 57.14647988%
2 Aug 2015 54.99723317%
2 Sep 2015 55.28369594%
2 Oct 2015 55.57156888%
2 Nov 2015 55.86086435%
2 Dec 2015 56.15159483%
2 Jan 2016 56.46107569%
2 Feb 2016 53.90592075%
2 Mar 2016 54.19825665%
2 Apr 2016 54.49207860%
2 May 2016 54.78739962%
2 Jun 2016 55.08423285%
2 Jul 2016 55.38259158%
2 Aug 2016 53.26483110%
2 Sep 2016 53.56628107%
2 Oct 2016 53.86929703%
2 Nov 2016 54.17389272%
2 Dec 2016 54.48008198%
2 Jan 2017 54.78787882%
2 Feb 2017 35.89515657%
2 Mar 2017 36.08326796%
2 Apr 2017 36.27302960%
2 May 2017 36.52516996%
2 Jun 2017 36.77966813%
2 Jul 2017 37.11693656%
<PAGE>
SCHEDULE 3
TO
LEASE
SCHEDULE OF SPECIALTY CASUALTY VALUES
Percentage of
DATE Facility Cost
2 Oct 1989 103.67525496%
2 Nov 1989 104.75970852%
2 Dec 1989 105.84769475%
2 Jan 1990 106.90497848%
2 Feb 1990 108.01485095%
2 Mar 1990 109.12853984%
2 Apr 1990 110.24227941%
2 May 1990 111.32922871%
2 Jun 1990 112.41973794%
2 Jul 1990 113.48319709%
2 Aug 1990 114.64447242%
2 Sep 1990 115.81013797%
2 Oct 1990 116.94959298%
2 Nov 1990 118.09319413%
2 Dec 1990 119.24098766%
2 Jan 1991 120.20920611%
2 Feb 1991 116.72820923%
2 Mar 1991 117.85524721%
2 Apr 1991 118.97275672%
2 May 1991 120.06609843%
2 Jun 1991 121.16307017%
2 Jul 1991 122.23564438%
2 Aug 1991 118.70477691%
2 Sep 1991 119.78415865%
2 Oct 1991 120.83894622%
2 Nov 1991 121.89693267%
2 Dec 1991 122.95815363%
2 Jan 1992 123.99457709%
2 Feb 1992 120.43033468%
2 Mar 1992 121.47277804%
2 Apr 1992 122.50580703%
2 May 1992 123.52450696%
2 Jun 1992 124.54600160%
2 Jul 1992 125.55303803%
2 Aug 1992 121.95504508%
2 Sep 1992 122.96740504%
2 Oct 1992 123.96520468%
2 Nov 1992 124.96556519%
2 Dec 1992 125.96851506%
2 Jan 1993 127.75802757%
2 Feb 1993 124.14461308%
2 Mar 1993 125.14117041%
2 Apr 1993 126.13499056%
2 May 1993 127.11452829%
2 Jun 1993 128.09642223%
2 Jul 1993 129.06390018%
2 Aug 1993 125.43035211%
2 Sep 1993 126.40229701%
2 Oct 1993 127.35971429%
2 Nov 1993 128.31923984%
2 Dec 1993 129.28089705%
2 Jan 1994 130.22791124%
2 Feb 1994 126.56862690%
2 Mar 1994 127.51960335%
2 Apr 1994 128.47053764%
2 May 1994 129.40790134%
2 Jun 1994 130.34714859%
2 Jul 1994 131.27269432%
2 Aug 1994 127.59700156%
2 Sep 1994 128.52606901%
2 Oct 1994 129.44132068%
2 Nov 1994 130.35820798%
2 Dec 1994 131.27674901%
2 Jan 1995 132.18135613%
2 Feb 1995 128.47944685%
2 Mar 1995 129.38706013%
2 Apr 1995 130.29622331%
2 May 1995 131.19265137%
2 Jun 1995 132.09050396%
2 Jul 1995 132.97549469%
2 Aug 1995 129.25904963%
2 Sep 1995 130.14664738%
2 Oct 1995 131.02126812%
2 Nov 1995 131.89706879%
2 Dec 1995 132.77406237%
2 Jan 1996 133.63795989%
2 Feb 1996 129.11348977%
2 Mar 1996 129.97282298%
2 Apr 1996 130.83323913%
2 May 1996 131.68239076%
2 Jun 1996 132.53251116%
2 Jul 1996 133.37125158%
2 Aug 1996 129.64828188%
2 Sep 1996 130.48873568%
2 Oct 1996 131.31770087%
2 Nov 1996 132.14740823%
2 Dec 1996 132.97786586%
2 Jan 1997 133.79672254%
2 Feb 1997 127.78635032%
2 Mar 1997 128.58717565%
2 Apr 1997 129.38864326%
2 May 1997 130.17580896%
2 Jun 1997 130.96346385%
2 Jul 1997 131.73666204%
2 Aug 1997 132.39205990%
2 Sep 1997 133.06055862%
2 Oct 1997 133.71499613%
2 Nov 1997 134.37016620%
2 Dec 1997 135.02607679%
2 Jan 1998 135.66778478%
2 Feb 1998 133.08419489%
2 Mar 1998 133.72708846%
2 Apr 1998 134.37058441%
2 May 1998 134.99956738%
2 Jun 1998 135.62899680%
2 Jul 1998 136.24375555%
2 Aug 1998 133.33965130%
2 Sep 1998 133.95498700%
2 Oct 1998 134.55549379%
2 Nov 1998 135.15612755%
2 Dec 1998 135.75688945%
2 Jan 1999 136.35592345%
2 Feb 1999 126.23668378%
2 Mar 1999 126.78772840%
2 Apr 1999 127.33888468%
2 May 1999 127.89015362%
2 Jun 1999 128.44153620%
2 Jul 1999 128.99303341%
2 Aug 1999 126.31475517%
2 Sep 1999 126.86648469%
2 Oct 1999 127.41833188%
2 Nov 1999 127.97029778%
2 Dec 1999 128.52238344%
2 Jan 2000 129.07458991%
2 Feb 2000 120.54365513%
2 Mar 2000 121.05690916%
2 Apr 2000 121.57028720%
2 May 2000 122.08379035%
2 Jun 2000 122.59741969%
2 Jul 2000 123.11117633%
2 Aug 2000 120.63035367%
2 Sep 2000 121.14436829%
2 Oct 2000 121.65851358%
2 Nov 2000 122.17279071%
2 Dec 2000 122.68720083%
2 Jan 2001 123.20174509%
2 Feb 2001 114.86834495%
2 Mar 2001 115.34396384%
2 Apr 2001 115.81972045%
2 May 2001 116.29561598%
2 Jun 2001 116.77165165%
2 Jul 2001 117.24782869%
2 Aug 2001 114.96462398%
2 Sep 2001 115.44108750%
2 Oct 2001 115.91769614%
2 Nov 2001 116.39445118%
2 Dec 2001 116.87135391%
2 Jan 2002 117.34840561%
2 Feb 2002 109.21271122%
2 Mar 2002 109.65086758%
2 Apr 2002 110.08917688%
2 May 2002 110.52764045%
2 Jun 2002 110.96625964%
2 Jul 2002 111.40503584%
2 Aug 2002 109.31962941%
2 Sep 2002 109.75872373%
2 Oct 2002 110.19797922%
2 Nov 2002 110.63739728%
2 Dec 2002 111.07697934%
2 Jan 2003 111.51672684%
2 Feb 2003 98.57012691%
2 Mar 2003 98.94684602%
2 Apr 2003 99.32373496%
2 May 2003 99.70079523%
2 Jun 2003 100.07802832%
2 Jul 2003 100.45757470%
2 Aug 2003 97.29099887%
2 Sep 2003 97.66875959%
2 Oct 2003 98.04669928%
2 Nov 2003 98.42481951%
2 Dec 2003 98.80312186%
2 Jan 2004 99.18590973%
2 Feb 2004 92.51276173%
2 Mar 2004 92.86016212%
2 Apr 2004 93.20775111%
2 May 2004 93.55553036%
2 Jun 2004 93.90350153%
2 Jul 2004 94.25166631%
2 Aug 2004 92.64461514%
2 Sep 2004 92.99317225%
2 Oct 2004 93.34192810%
2 Nov 2004 93.69088444%
2 Dec 2004 94.04004303%
2 Jan 2005 94.38940565%
2 Feb 2005 92.58783467%
2 Mar 2005 92.93641721%
2 Apr 2005 93.28520919%
2 May 2005 93.63421245%
2 Jun 2005 93.98342885%
2 Jul 2005 94.33286024%
2 Aug 2005 92.71675833%
2 Sep 2005 93.06662540%
2 Oct 2005 93.41671319%
2 Nov 2005 93.76702362%
2 Dec 2005 94.11755865%
2 Jan 2006 94.46832025%
2 Feb 2006 91.83390353%
2 Mar 2006 92.18002045%
2 Apr 2006 92.52636995%
2 May 2006 92.87295409%
2 Jun 2006 93.21977490%
2 Jul 2006 93.56683448%
2 Aug 2006 91.72150750%
2 Sep 2006 92.06905090%
2 Oct 2006 92.41683940%
2 Nov 2006 92.76487515%
2 Dec 2006 93.11316031%
2 Jan 2007 93.46169708%
2 Feb 2007 90.69231940%
2 Mar 2007 91.03550295%
2 Apr 2007 91.37894479%
2 May 2007 91.72264717%
2 Jun 2007 92.06661240%
2 Jul 2007 92.41084277%
2 Aug 2007 90.54789167%
2 Sep 2007 90.89265932%
2 Oct 2007 91.23769916%
2 Nov 2007 91.58301358%
2 Dec 2007 91.92860497%
2 Jan 2008 92.27447577%
2 Feb 2008 88.63902565%
2 Mar 2008 88.97542353%
2 Apr 2008 89.31210824%
2 May 2008 89.64908230%
2 Jun 2008 89.98634823%
2 Jul 2008 90.32390861%
2 Aug 2008 88.23955177%
2 Sep 2008 88.57770881%
2 Oct 2008 88.91616810%
2 Nov 2008 89.25493232%
2 Dec 2008 89.59400411%
2 Jan 2009 89.93338620%
2 Feb 2009 84.22771889%
2 Mar 2009 84.54781999%
2 Apr 2009 84.86823961%
2 May 2009 85.18898055%
2 Jun 2009 85.51004562%
2 Jul 2009 85.83143768%
2 Aug 2009 83.20040382%
2 Sep 2009 83.52245847%
2 Oct 2009 83.84484878%
2 Nov 2009 84.16757769%
2 Dec 2009 84.49064818%
2 Jan 2010 84.81406325%
2 Feb 2010 78.08283360%
2 Mar 2010 78.37947619%
2 Apr 2010 78.67647251%
2 May 2010 78.97382564%
2 Jun 2010 79.27153874%
2 Jul 2010 79.57517902%
2 Aug 2010 77.08569004%
2 Sep 2010 77.38450206%
2 Oct 2010 77.68368683%
2 Nov 2010 77.98324762%
2 Dec 2010 78.28318774%
2 Jan 2011 78.59470083%
2 Feb 2011 67.91950492%
2 Mar 2011 68.17313832%
2 Apr 2011 68.42716453%
2 May 2011 68.68158700%
2 Jun 2011 68.93640920%
2 Jul 2011 69.21093511%
2 Aug 2011 65.86342441%
2 Sep 2011 66.11946697%
2 Oct 2011 66.37592347%
2 Nov 2011 66.63279754%
2 Dec 2011 66.89009285%
2 Jan 2012 67.17531436%
2 Feb 2012 59.77104799%
2 Mar 2012 60.00244632%
2 Apr 2012 60.23428086%
2 May 2012 60.46655545%
2 Jun 2012 60.69927394%
2 Jul 2012 60.95330866%
2 Aug 2012 57.74688177%
2 Sep 2012 57.98095547%
2 Oct 2012 58.21548886%
2 Nov 2012 58.45048596%
2 Dec 2012 58.68595086%
2 Jan 2013 58.93604913%
2 Feb 2013 53.48292223%
2 Mar 2013 53.69822235%
2 Apr 2013 53.91400689%
2 May 2013 54.13028010%
2 Jun 2013 54.34704627%
2 Jul 2013 54.57847120%
2 Aug 2013 52.46074877%
2 Sep 2013 52.67901990%
2 Oct 2013 52.89780152%
2 Nov 2013 53.11709809%
2 Dec 2013 53.33691415%
2 Jan 2014 53.57141573%
2 Feb 2014 47.69394403%
2 Mar 2014 47.89098506%
2 Apr 2014 48.08856405%
2 May 2014 48.28668570%
2 Jun 2014 48.48535479%
2 Jul 2014 48.69937772%
2 Aug 2014 46.58483434%
2 Sep 2014 46.78517469%
2 Oct 2014 46.98608194%
2 Nov 2014 47.18756105%
2 Dec 2014 47.38961704%
2 Jan 2015 47.60770388%
2 Feb 2015 41.99157127%
2 Mar 2015 42.17191691%
2 Apr 2015 42.35285995%
2 May 2015 42.53440562%
2 Jun 2015 42.71655921%
2 Jul 2015 42.91477495%
2 Aug 2015 40.92466794%
2 Sep 2015 41.10867748%
2 Oct 2015 41.29331656%
2 Nov 2015 41.47859070%
2 Dec 2015 41.66450547%
2 Jan 2016 41.86651539%
2 Feb 2016 39.51016286%
2 Mar 2016 39.69555524%
2 Apr 2016 39.88161102%
2 May 2016 40.06833603%
2 Jun 2016 40.25573615%
2 Jul 2016 40.44381728%
2 Aug 2016 38.47396213%
2 Sep 2016 38.66342328%
2 Oct 2016 38.85358353%
2 Nov 2016 39.04444902%
2 Dec 2016 39.23602594%
2 Jan 2017 39.42832051%
2 Feb 2017 22.47657052%
2 Mar 2017 22.56054881%
2 Apr 2017 22.64526383%
2 May 2017 22.78493096%
2 Jun 2017 22.92595357%
2 Jul 2017 23.14012193%
<PAGE>
SCHEDULE 4
TO
LEASE
SCHEDULE OF NET CASUALTY VALUES
PART A
Percentage of
DATE Facility Cost
2 Oct 1989 16.93311921%
2 Nov 1989 17.26458213%
2 Dec 1989 17.59972547%
2 Jan 1990 17.90330145%
2 Feb 1990 20.73641842%
2 Mar 1990 21.09815691%
2 Apr 1990 21.45999234%
2 May 1990 21.79428996%
2 Jun 1990 22.13229840%
2 Jul 1990 22.44250232%
2 Aug 1990 27.59349916%
2 Sep 1990 28.00902679%
2 Oct 1990 28.39761551%
2 Nov 1990 28.79052065%
2 Dec 1990 29.18779021%
2 Jan 1991 29.40021965%
2 Feb 1991 29.77187069%
2 Mar 1991 30.14791712%
2 Apr 1991 30.51420284%
2 May 1991 30.85565581%
2 Jun 1991 31.20089682%
2 Jul 1991 31.52106941%
2 Aug 1991 31.84479174%
2 Sep 1991 32.17210323%
2 Oct 1991 32.47414520%
2 Nov 1991 32.77953355%
2 Dec 1991 33.08830542%
2 Jan 1992 33.37159983%
2 Feb 1992 33.65803035%
2 Mar 1992 33.94763175%
2 Apr 1992 34.22759543%
2 May 1992 34.49286176%
2 Jun 1992 34.76106166%
2 Jul 1992 35.01443222%
2 Aug 1992 35.27060289%
2 Sep 1992 35.52960467%
2 Oct 1992 35.77367349%
2 Nov 1992 36.02043765%
2 Dec 1992 36.26992697%
2 Jan 1993 37.32931228%
2 Feb 1993 37.56978203%
2 Mar 1993 37.81290575%
2 Apr 1993 38.05327259%
2 May 1993 38.27899627%
2 Jun 1993 38.50720823%
2 Jul 1993 38.72064060%
2 Aug 1993 38.93642330%
2 Sep 1993 39.15458230%
2 Oct 1993 39.35784845%
2 Nov 1993 39.56335040%
2 Dec 1993 39.77111283%
2 Jan 1994 39.96386528%
2 Feb 1994 40.15873510%
2 Mar 1994 40.35574563%
2 Apr 1994 40.55278083%
2 May 1994 40.73591257%
2 Jun 1994 40.92105287%
2 Jul 1994 41.09215612%
2 Aug 1994 41.26513284%
2 Sep 1994 41.44000363%
2 Oct 1994 41.60072159%
2 Nov 1994 41.76319594%
2 Dec 1994 41.92744597%
2 Jan 1995 42.07742343%
2 Feb 1995 42.22903620%
2 Mar 1995 42.38230222%
2 Apr 1995 42.53723957%
2 May 1995 42.67914124%
2 Jun 1995 42.82258654%
2 Jul 1995 42.95286701%
2 Aug 1995 43.08456049%
2 Sep 1995 43.21768239%
2 Oct 1995 43.33752297%
2 Nov 1995 43.45865876%
2 Dec 1995 43.58110384%
2 Jan 1996 43.69014712%
2 Feb 1996 43.80036378%
2 Mar 1996 43.91176653%
2 Apr 1996 44.02436823%
2 May 1996 44.12545678%
2 Jun 1996 44.22762821%
2 Jul 1996 44.31816912%
2 Aug 1996 44.40967422%
2 Sep 1996 44.50215384%
2 Oct 1996 44.58289339%
2 Nov 1996 44.66448632%
2 Dec 1996 44.74694175%
2 Jan 1997 44.81754380%
2 Feb 1997 44.88888465%
2 Mar 1997 44.96097212%
2 Apr 1997 45.03381409%
2 May 1997 45.09202503%
2 Jun 1997 45.15083452%
2 Jul 1997 45.19485525%
2 Aug 1997 47.70984106%
2 Sep 1997 47.80543968%
2 Oct 1997 47.88665925%
2 Nov 1997 47.96873218%
2 Dec 1997 48.05166751%
2 Jan 1998 48.12008089%
2 Feb 1998 48.18920305%
2 Mar 1998 48.25904143%
2 Apr 1998 48.32960356%
2 May 1998 48.38532773%
2 Jun 1998 48.44161692%
2 Jul 1998 48.48290763%
2 Aug 1998 48.52460106%
2 Sep 1998 48.56670117%
2 Oct 1998 48.59364269%
2 Nov 1998 48.62082502%
2 Dec 1998 48.64825029%
2 Jan 1999 48.67400854%
2 Feb 1999 48.69999275%
2 Mar 1999 48.72620493%
2 Apr 1999 48.75264705%
2 May 1999 48.77932114%
2 Jun 1999 48.80622923%
2 Jul 1999 48.83337338%
2 Aug 1999 48.86075566%
2 Sep 1999 48.88837815%
2 Oct 1999 48.91624297%
2 Nov 1999 48.94435223%
2 Dec 1999 48.97270811%
2 Jan 2000 49.00131272%
2 Feb 2000 49.03016829%
2 Mar 2000 49.05927698%
2 Apr 2000 49.08864105%
2 May 2000 49.11826271%
2 Jun 2000 49.14814425%
2 Jul 2000 49.17828792%
2 Aug 2000 49.20869603%
2 Sep 2000 49.23937091%
2 Oct 2000 49.27031487%
2 Nov 2000 49.30153032%
2 Dec 2000 49.33301960%
2 Jan 2001 49.36478513%
2 Feb 2001 49.39682932%
2 Mar 2001 49.42915464%
2 Apr 2001 49.46176353%
2 May 2001 49.49465850%
2 Jun 2001 49.52784204%
2 Jul 2001 49.56131669%
2 Aug 2001 49.59508499%
2 Sep 2001 49.62914954%
2 Oct 2001 49.66351293%
2 Nov 2001 49.69817778%
2 Dec 2001 49.73314675%
2 Jan 2002 49.76842246%
2 Feb 2002 49.80400766%
2 Mar 2002 49.83990503%
2 Apr 2002 49.87611731%
2 May 2002 49.91264729%
2 Jun 2002 49.94949772%
2 Jul 2002 49.98667142%
2 Aug 2002 50.02417125%
2 Sep 2002 50.06200005%
2 Oct 2002 50.10016072%
2 Nov 2002 50.13865615%
2 Dec 2002 50.17748929%
2 Jan 2003 50.21666310%
2 Feb 2003 48.81475593%
2 Mar 2003 48.85462007%
2 Apr 2003 48.89483394%
2 May 2003 48.93540060%
2 Jun 2003 48.97632313%
2 Jul 2003 49.01980689%
2 Aug 2003 47.62002591%
2 Sep 2003 47.66203492%
2 Oct 2003 47.70441247%
2 Nov 2003 47.74716178%
2 Dec 2003 47.79028612%
2 Jan 2004 47.83821784%
2 Feb 2004 47.66588844%
2 Mar 2004 47.71015771%
2 Apr 2004 47.75481535%
2 May 2004 47.79986475%
2 Jun 2004 47.84530936%
2 Jul 2004 47.89115265%
2 Aug 2004 47.93739809%
2 Sep 2004 47.98404924%
2 Oct 2004 48.03110965%
2 Nov 2004 48.07858291%
2 Dec 2004 48.12647263%
2 Jan 2005 48.17478248%
2 Feb 2005 48.20549832%
2 Mar 2005 48.25465950%
2 Apr 2005 48.30425195%
2 May 2005 48.35427947%
2 Jun 2005 48.40474586%
2 Jul 2005 48.45565499%
2 Aug 2005 48.48899290%
2 Sep 2005 48.54079917%
2 Oct 2005 48.59305990%
2 Nov 2005 48.64577911%
2 Dec 2005 48.69896082%
2 Jan 2006 48.75260907%
2 Feb 2006 48.52359097%
2 Mar 2006 48.57818462%
2 Apr 2006 48.63325721%
2 May 2006 48.68881294%
2 Jun 2006 48.74485604%
2 Jul 2006 48.80139079%
2 Aug 2006 48.57528452%
2 Sep 2006 48.63281555%
2 Oct 2006 48.69085128%
2 Nov 2006 48.74939613%
2 Dec 2006 48.80845459%
2 Jan 2007 48.86803116%
2 Feb 2007 48.59351392%
2 Mar 2007 48.65414037%
2 Apr 2007 48.71529867%
2 May 2007 48.77699349%
2 Jun 2007 48.83922955%
2 Jul 2007 48.90201158%
2 Aug 2007 48.63072793%
2 Sep 2007 48.69461634%
2 Oct 2007 48.75906522%
2 Nov 2007 48.82407948%
2 Dec 2007 48.88966410%
2 Jan 2008 48.95582407%
2 Feb 2008 48.40481103%
2 Mar 2008 48.47213689%
2 Apr 2008 48.54005339%
2 May 2008 48.60856570%
2 Jun 2008 48.67767905%
2 Jul 2008 48.74739871%
2 Aug 2008 48.19997657%
2 Sep 2008 48.27092486%
2 Oct 2008 48.34249555%
2 Nov 2008 48.41469412%
2 Dec 2008 48.48752606%
2 Jan 2009 48.56099694%
2 Feb 2009 47.34812604%
2 Mar 2009 47.42289165%
2 Apr 2009 47.49831315%
2 May 2009 47.57439631%
2 Jun 2009 47.65114692%
2 Jul 2009 47.72857084%
2 Aug 2009 46.51968767%
2 Sep 2009 46.59847598%
2 Oct 2009 46.67795548%
2 Nov 2009 46.75813223%
2 Dec 2009 46.83901235%
2 Jan 2010 46.92060200%
2 Feb 2010 45.71592112%
2 Mar 2010 45.79894858%
2 Apr 2010 45.88270441%
2 May 2010 45.96719501%
2 Jun 2010 46.05242682%
2 Jul 2010 46.14413506%
2 Aug 2010 44.94388256%
2 Sep 2010 45.03137725%
2 Oct 2010 45.11963951%
2 Nov 2010 45.20867605%
2 Dec 2010 45.29849370%
2 Jan 2011 45.40062073%
2 Feb 2011 43.07248693%
2 Mar 2011 43.16468921%
2 Apr 2011 43.25770034%
2 May 2011 43.35152744%
2 Jun 2011 43.44617766%
2 Jul 2011 43.56152977%
2 Aug 2011 41.23831371%
2 Sep 2011 41.33547685%
2 Oct 2011 41.43349239%
2 Nov 2011 41.53236778%
2 Dec 2011 41.63211058%
2 Jan 2012 41.76104338%
2 Feb 2012 39.44300964%
2 Mar 2012 39.54540058%
2 Apr 2012 39.64868977%
2 May 2012 39.75288507%
2 Jun 2012 39.85799446%
2 Jul 2012 39.98551185%
2 Aug 2012 37.67293927%
2 Sep 2012 37.78083928%
2 Oct 2012 37.88968586%
2 Nov 2012 37.99948732%
2 Dec 2012 38.11025204%
2 Jan 2013 38.23656897%
2 Feb 2013 36.93360070%
2 Mar 2013 37.04730619%
2 Apr 2013 37.16200917%
2 May 2013 37.27771842%
2 Jun 2013 37.39444275%
2 Jul 2013 37.52677159%
2 Aug 2013 36.22986794%
2 Sep 2013 36.34969126%
2 Oct 2013 36.47056576%
2 Nov 2013 36.59250065%
2 Dec 2013 36.71550525%
2 Jan 2014 36.85416944%
2 Feb 2014 35.43495810%
2 Mar 2014 35.56122844%
2 Apr 2014 35.68860650%
2 May 2014 35.81710201%
2 Jun 2014 35.94672477%
2 Jul 2014 36.09272426%
2 Aug 2014 34.68024773%
2 Sep 2014 34.81331193%
2 Oct 2014 34.94754348%
2 Nov 2014 35.08295259%
2 Dec 2014 35.21954961%
2 Jan 2015 35.37325097%
2 Feb 2015 33.96787159%
2 Mar 2015 34.10809521%
2 Apr 2015 34.24954899%
2 May 2015 34.39224369%
2 Jun 2015 34.53619020%
2 Jul 2015 34.69730555%
2 Aug 2015 33.29940518%
2 Sep 2015 33.44717344%
2 Oct 2015 33.59623802%
2 Nov 2015 33.74661030%
2 Dec 2015 33.89830175%
2 Jan 2016 34.06722997%
2 Feb 2016 32.67721102%
2 Mar 2016 32.83292984%
2 Apr 2016 32.99001472%
2 May 2016 33.14847767%
2 Jun 2016 33.30833077%
2 Jul 2016 33.46958621%
2 Aug 2016 32.08787274%
2 Sep 2016 32.25196989%
2 Oct 2016 32.41750662%
2 Nov 2016 32.58449554%
2 Dec 2016 32.75294942%
2 Jan 2017 32.92288109%
2 Feb 2017 32.99755342%
2 Mar 2017 33.17047970%
2 Apr 2017 33.34492300%
2 May 2017 33.57670956%
2 Jun 2017 33.81066361%
2 Jul 2017 34.12070636%
<PAGE>
SCHEDULE 4
TO
LEASE
SCHEDULE OF NET CASUALTY VALUES
PART B
Percentage of
DATE Facility Cost
2 Oct 1989 18.42006155%
2 Nov 1989 18.78063112%
2 Dec 1989 19.14520429%
2 Jan 1990 19.47543809%
2 Feb 1990 22.55733861%
2 Mar 1990 22.95084232%
2 Apr 1990 23.34445149%
2 May 1990 23.70810467%
2 Jun 1990 24.07579453%
2 Jul 1990 24.41323829%
2 Aug 1990 30.01655789%
2 Sep 1990 30.46857411%
2 Oct 1990 30.89128585%
2 Nov 1990 31.31869303%
2 Dec 1990 31.75084789%
2 Jan 1991 31.98193133%
2 Feb 1991 32.38621803%
2 Mar 1991 32.79528610%
2 Apr 1991 33.19373635%
2 May 1991 33.56517322%
2 Jun 1991 33.94073076%
2 Jul 1991 34.28901856%
2 Aug 1991 34.64116781%
2 Sep 1991 34.99722139%
2 Oct 1991 35.32578647%
2 Nov 1991 35.65799179%
2 Dec 1991 35.99387774%
2 Jan 1992 36.30204899%
2 Feb 1992 36.61363173%
2 Mar 1992 36.92866381%
2 Apr 1992 37.23321185%
2 May 1992 37.52177192%
2 Jun 1992 37.81352317%
2 Jul 1992 38.08914287%
2 Aug 1992 38.36780857%
2 Sep 1992 38.64955399%
2 Oct 1992 38.91505514%
2 Nov 1992 39.18348832%
2 Dec 1992 39.45488596%
2 Jan 1993 40.60729873%
2 Feb 1993 40.86888476%
2 Mar 1993 41.13335782%
2 Apr 1993 41.39483192%
2 May 1993 41.64037699%
2 Jun 1993 41.88862886%
2 Jul 1993 42.12080329%
2 Aug 1993 42.35553445%
2 Sep 1993 42.59285057%
2 Oct 1993 42.81396606%
2 Nov 1993 43.03751369%
2 Dec 1993 43.26352029%
2 Jan 1994 43.47319884%
2 Feb 1994 43.68518071%
2 Mar 1994 43.89949125%
2 Apr 1994 44.11382864%
2 May 1994 44.31304166%
2 Jun 1994 44.51443963%
2 Jul 1994 44.70056791%
2 Aug 1994 44.88873418%
2 Sep 1994 45.07896084%
2 Oct 1994 45.25379188%
2 Nov 1994 45.43053353%
2 Dec 1994 45.60920679%
2 Jan 1995 45.77235417%
2 Feb 1995 45.93728047%
2 Mar 1995 46.10400518%
2 Apr 1995 46.27254799%
2 May 1995 46.42691043%
2 Jun 1995 46.58295205%
2 Jul 1995 46.72467279%
2 Aug 1995 46.86793063%
2 Sep 1995 47.01274231%
2 Oct 1995 47.14310642%
2 Nov 1995 47.27487946%
2 Dec 1995 47.40807677%
2 Jan 1996 47.52669543%
2 Feb 1996 47.64659051%
2 Mar 1996 47.76777583%
2 Apr 1996 47.89026538%
2 May 1996 48.00023079%
2 Jun 1996 48.11137417%
2 Jul 1996 48.20986572%
2 Aug 1996 48.30940612%
2 Sep 1996 48.41000662%
2 Oct 1996 48.49783613%
2 Nov 1996 48.58659396%
2 Dec 1996 48.67629002%
2 Jan 1997 48.75309182%
2 Feb 1997 48.83069729%
2 Mar 1997 48.90911496%
2 Apr 1997 48.98835338%
2 May 1997 49.05167598%
2 Jun 1997 49.11564969%
2 Jul 1997 49.16353599%
2 Aug 1997 51.89936941%
2 Sep 1997 52.00336280%
2 Oct 1997 52.09171448%
2 Nov 1997 52.18099445%
2 Dec 1997 52.27121256%
2 Jan 1998 52.34563349%
2 Feb 1998 52.42082545%
2 Mar 1998 52.49679653%
2 Apr 1998 52.57355491%
2 May 1998 52.63417237%
2 Jun 1998 52.69540446%
2 Jul 1998 52.74032102%
2 Aug 1998 52.78567566%
2 Sep 1998 52.83147269%
2 Oct 1998 52.86078002%
2 Nov 1998 52.89034930%
2 Dec 1998 52.92018286%
2 Jan 1999 52.94820301%
2 Feb 1999 52.97646897%
2 Mar 1999 53.00498290%
2 Apr 1999 53.03374698%
2 May 1999 53.06276339%
2 Jun 1999 53.09203435%
2 Jul 1999 53.12156210%
2 Aug 1999 53.15134889%
2 Sep 1999 53.18139699%
2 Oct 1999 53.21170869%
2 Nov 1999 53.24228631%
2 Dec 1999 53.27313218%
2 Jan 2000 53.30424865%
2 Feb 2000 53.33563809%
2 Mar 2000 53.36730290%
2 Apr 2000 53.39924550%
2 May 2000 53.43146833%
2 Jun 2000 53.46397384%
2 Jul 2000 53.49676451%
2 Aug 2000 53.52984283%
2 Sep 2000 53.56321135%
2 Oct 2000 53.59687259%
2 Nov 2000 53.63082915%
2 Dec 2000 53.66508358%
2 Jan 2001 53.69963853%
2 Feb 2001 53.73449661%
2 Mar 2001 53.76966050%
2 Apr 2001 53.80513286%
2 May 2001 53.84091643%
2 Jun 2001 53.87701390%
2 Jul 2001 53.91342805%
2 Aug 2001 53.95016164%
2 Sep 2001 53.98721749%
2 Oct 2001 54.02459842%
2 Nov 2001 54.06230729%
2 Dec 2001 54.10034697%
2 Jan 2002 54.13872034%
2 Feb 2002 54.17743036%
2 Mar 2002 54.21647998%
2 Apr 2002 54.25587216%
2 May 2002 54.29560993%
2 Jun 2002 54.33569630%
2 Jul 2002 54.37613432%
2 Aug 2002 54.41692711%
2 Sep 2002 54.45807776%
2 Oct 2002 54.49958941%
2 Nov 2002 54.54146523%
2 Dec 2002 54.58370841%
2 Jan 2003 54.62632218%
2 Feb 2003 53.10130980%
2 Mar 2003 53.14467452%
2 Apr 2003 53.18841968%
2 May 2003 53.23254860%
2 Jun 2003 53.27706465%
2 Jul 2003 53.32436684%
2 Aug 2003 51.80166736%
2 Sep 2003 51.84736529%
2 Oct 2003 51.89346412%
2 Nov 2003 51.93996736%
2 Dec 2003 51.98687856%
2 Jan 2004 52.03901930%
2 Feb 2004 51.85155720%
2 Mar 2004 51.89971387%
2 Apr 2004 51.94829302%
2 May 2004 51.99729833%
2 Jun 2004 52.04673355%
2 Jul 2004 52.09660245%
2 Aug 2004 52.14690883%
2 Sep 2004 52.19765655%
2 Oct 2004 52.24884945%
2 Nov 2004 52.30049147%
2 Dec 2004 52.35258651%
2 Jan 2005 52.40513858%
2 Feb 2005 52.43855166%
2 Mar 2005 52.49202981%
2 Apr 2005 52.54597711%
2 May 2005 52.60039767%
2 Jun 2005 52.65529566%
2 Jul 2005 52.71067525%
2 Aug 2005 52.74694066%
2 Sep 2005 52.80329617%
2 Oct 2005 52.86014606%
2 Nov 2005 52.91749468%
2 Dec 2005 52.97534641%
2 Jan 2006 53.03370566%
2 Feb 2006 52.78457687%
2 Mar 2006 52.84396453%
2 Apr 2006 52.90387320%
2 May 2006 52.96430742%
2 Jun 2006 53.02527181%
2 Jul 2006 53.08677104%
2 Aug 2006 52.84080977%
2 Sep 2006 52.90339275%
2 Oct 2006 52.96652476%
2 Nov 2006 53.03021059%
2 Dec 2006 53.09445513%
2 Jan 2007 53.15926327%
2 Feb 2007 52.86063994%
2 Mar 2007 52.92659016%
2 Apr 2007 52.99311893%
2 May 2007 53.06023135%
2 Jun 2007 53.12793251%
2 Jul 2007 53.19622760%
2 Aug 2007 52.90112182%
2 Sep 2007 52.97062044%
2 Oct 2007 53.04072874%
2 Nov 2007 53.11145208%
2 Dec 2007 53.18279586%
2 Jan 2008 53.25476551%
2 Feb 2008 52.65536655%
2 Mar 2008 52.72860448%
2 Apr 2008 52.80248490%
2 May 2008 52.87701346%
2 Jun 2008 52.95219583%
2 Jul 2008 53.02803776%
2 Aug 2008 52.43254503%
2 Sep 2008 52.50972348%
2 Oct 2008 52.58757898%
2 Nov 2008 52.66611750%
2 Dec 2008 52.74534500%
2 Jan 2009 52.82526756%
2 Feb 2009 51.50589124%
2 Mar 2009 51.58722221%
2 Apr 2009 51.66926668%
2 May 2009 51.75203089%
2 Jun 2009 51.83552118%
2 Jul 2009 51.91974390%
2 Aug 2009 50.60470548%
2 Sep 2009 50.69041240%
2 Oct 2009 50.77687121%
2 Nov 2009 50.86408850%
2 Dec 2009 50.95207092%
2 Jan 2010 51.04082517%
2 Feb 2010 49.73035805%
2 Mar 2010 49.82067637%
2 Apr 2010 49.91178703%
2 May 2010 50.00369697%
2 Jun 2010 50.09641321%
2 Jul 2010 50.19617459%
2 Aug 2010 48.89052473%
2 Sep 2010 48.98570255%
2 Oct 2010 49.08171536%
2 Nov 2010 49.17857044%
2 Dec 2010 49.27627522%
2 Jan 2011 49.38737029%
2 Feb 2011 46.85479686%
2 Mar 2011 46.95509566%
2 Apr 2011 47.05627435%
2 May 2011 47.15834066%
2 Jun 2011 47.26130236%
2 Jul 2011 47.38678385%
2 Aug 2011 44.85955999%
2 Sep 2011 44.96525528%
2 Oct 2011 45.07187783%
2 Nov 2011 45.17943573%
2 Dec 2011 45.28793722%
2 Jan 2012 45.42819195%
2 Feb 2012 42.90660548%
2 Mar 2012 43.01798764%
2 Apr 2012 43.13034693%
2 May 2012 43.24369190%
2 Jun 2012 43.35803123%
2 Jul 2012 43.49674626%
2 Aug 2012 40.98110052%
2 Sep 2012 41.09847551%
2 Oct 2012 41.21688020%
2 Nov 2012 41.33632362%
2 Dec 2012 41.45681488%
2 Jan 2013 41.59422404%
2 Feb 2013 40.17683865%
2 Mar 2013 40.30052892%
2 Apr 2013 40.42530428%
2 May 2013 40.55117427%
2 Jun 2013 40.67814847%
2 Jul 2013 40.82209746%
2 Aug 2013 39.41130925%
2 Sep 2013 39.54165457%
2 Oct 2013 39.67314338%
2 Nov 2013 39.80578570%
2 Dec 2013 39.93959166%
2 Jan 2014 40.09043232%
2 Feb 2014 38.54659626%
2 Mar 2014 38.68395472%
2 Apr 2014 38.82251819%
2 May 2014 38.96229724%
2 Jun 2014 39.10330252%
2 Jul 2014 39.26212261%
2 Aug 2014 37.72561275%
2 Sep 2014 37.87036167%
2 Oct 2014 38.01638045%
2 Nov 2014 38.16368020%
2 Dec 2014 38.31227216%
2 Jan 2015 38.47947046%
2 Feb 2015 36.95068096%
2 Mar 2015 37.10321800%
2 Apr 2015 37.25709320%
2 May 2015 37.41231831%
2 Jun 2015 37.56890515%
2 Jul 2015 37.74416846%
2 Aug 2015 36.22351473%
2 Sep 2015 36.38425892%
2 Oct 2015 36.54641325%
2 Nov 2015 36.70999013%
2 Dec 2015 36.87500201%
2 Jan 2016 37.05876427%
2 Feb 2016 35.54668405%
2 Mar 2016 35.71607695%
2 Apr 2016 35.88695588%
2 May 2016 36.05933388%
2 Jun 2016 36.23322410%
2 Jul 2016 36.40863981%
2 Aug 2016 34.90559440%
2 Sep 2016 35.08410136%
2 Oct 2016 35.26417431%
2 Nov 2016 35.44582698%
2 Dec 2016 35.62907323%
2 Jan 2017 35.81392706%
2 Feb 2017 35.89515657%
2 Mar 2017 36.08326796%
2 Apr 2017 36.27302960%
2 May 2017 36.52516996%
2 Jun 2017 36.77966813%
2 Jul 2017 37.11693656%
<PAGE>
SCHEDULE 4
TO
LEASE
SCHEDULE OF NET CASUALTY VALUES
PART C
Percentage of
DATE Facility Cost
2 Oct 1989 16.44648353%
2 Nov 1989 16.76842064%
2 Dec 1989 17.09393240%
2 Jan 1990 17.38878401%
2 Feb 1990 20.14048090%
2 Mar 1990 20.49182350%
2 Apr 1990 20.84326026%
2 May 1990 21.16795060%
2 Jun 1990 21.49624512%
2 Jul 1990 21.79753419%
2 Aug 1990 26.80049812%
2 Sep 1990 27.20408403%
2 Oct 1990 27.58150522%
2 Nov 1990 27.96311878%
2 Dec 1990 28.34897133%
2 Jan 1991 28.55529583%
2 Feb 1991 28.91626610%
2 Mar 1991 29.28150545%
2 Apr 1991 29.63726460%
2 May 1991 29.96890466%
2 Jun 1991 30.30422389%
2 Jul 1991 30.61519514%
2 Aug 1991 30.92961412%
2 Sep 1991 31.24751910%
2 Oct 1991 31.54088078%
2 Nov 1991 31.83749267%
2 Dec 1991 32.13739084%
2 Jan 1992 32.41254374%
2 Feb 1992 32.69074262%
2 Mar 1992 32.97202126%
2 Apr 1992 33.24393915%
2 May 1992 33.50158207%
2 Jun 1992 33.76207426%
2 Jul 1992 34.00816328%
2 Aug 1992 34.25697194%
2 Sep 1992 34.50853035%
2 Oct 1992 34.74558495%
2 Nov 1992 34.98525743%
2 Dec 1992 35.22757675%
2 Jan 1993 36.25651672%
2 Feb 1993 36.49007568%
2 Mar 1993 36.72621234%
2 Apr 1993 36.95967136%
2 May 1993 37.17890803%
2 Jun 1993 37.40056148%
2 Jul 1993 37.60786008%
2 Aug 1993 37.81744147%
2 Sep 1993 38.02933087%
2 Oct 1993 38.22675541%
2 Nov 1993 38.42635151%
2 Dec 1993 38.62814312%
2 Jan 1994 38.81535611%
2 Feb 1994 39.00462563%
2 Mar 1994 39.19597433%
2 Apr 1994 39.38734700%
2 May 1994 39.56521577%
2 Jun 1994 39.74503538%
2 Jul 1994 39.91122135%
2 Aug 1994 40.07922695%
2 Sep 1994 40.24907218%
2 Oct 1994 40.40517132%
2 Nov 1994 40.56297637%
2 Dec 1994 40.72250606%
2 Jan 1995 40.86817337%
2 Feb 1995 41.01542899%
2 Mar 1995 41.16429034%
2 Apr 1995 41.31477499%
2 May 1995 41.45259860%
2 Jun 1995 41.59192147%
2 Jul 1995 41.71845785%
2 Aug 1995 41.84636663%
2 Sep 1995 41.97566278%
2 Oct 1995 42.09205930%
2 Nov 1995 42.20971380%
2 Dec 1995 42.32863997%
2 Jan 1996 42.43454949%
2 Feb 1996 42.54159867%
2 Mar 1996 42.64979985%
2 Apr 1996 42.75916552%
2 May 1996 42.85734892%
2 Jun 1996 42.95658408%
2 Jul 1996 43.04452296%
2 Aug 1996 43.13339832%
2 Sep 1996 43.22322020%
2 Oct 1996 43.30163940%
2 Nov 1996 43.38088746%
2 Dec 1996 43.46097323%
2 Jan 1997 43.52954627%
2 Feb 1997 43.59883687%
2 Mar 1997 43.66885264%
2 Apr 1997 43.73960123%
2 May 1997 43.79613927%
2 Jun 1997 43.85325865%
2 Jul 1997 43.89601428%
2 Aug 1997 46.33872269%
2 Sep 1997 46.43157393%
2 Oct 1997 46.51045936%
2 Nov 1997 46.59017362%
2 Dec 1997 46.67072550%
2 Jan 1998 46.73717276%
2 Feb 1998 46.80430844%
2 Mar 1998 46.87213976%
2 Apr 1998 46.94067403%
2 May 1998 46.99479676%
2 Jun 1998 47.04946827%
2 Jul 1998 47.08957234%
2 Aug 1998 47.13006755%
2 Sep 1998 47.17095776%
2 Oct 1998 47.19712502%
2 Nov 1998 47.22352616%
2 Dec 1998 47.25016327%
2 Jan 1999 47.27518126%
2 Feb 1999 47.30041872%
2 Mar 1999 47.32587759%
2 Apr 1999 47.35155980%
2 May 1999 47.37746731%
2 Jun 1999 47.40360210%
2 Jul 1999 47.42996616%
2 Aug 1999 47.45656151%
2 Sep 1999 47.48339017%
2 Oct 1999 47.51045419%
2 Nov 1999 47.53775563%
2 Dec 1999 47.56529659%
2 Jan 2000 47.59307915%
2 Feb 2000 47.62110544%
2 Mar 2000 47.64937759%
2 Apr 2000 47.67789777%
2 May 2000 47.70666815%
2 Jun 2000 47.73569093%
2 Jul 2000 47.76496831%
2 Aug 2000 47.79450253%
2 Sep 2000 47.82429585%
2 Oct 2000 47.85435053%
2 Nov 2000 47.88466888%
2 Dec 2000 47.91525320%
2 Jan 2001 47.94610583%
2 Feb 2001 47.97722912%
2 Mar 2001 48.00862545%
2 Apr 2001 48.04029720%
2 May 2001 48.07224681%
2 Jun 2001 48.10447670%
2 Jul 2001 48.13698933%
2 Aug 2001 48.16978718%
2 Sep 2001 48.20287276%
2 Oct 2001 48.23624859%
2 Nov 2001 48.26991722%
2 Dec 2001 48.30388122%
2 Jan 2002 48.33814316%
2 Feb 2002 48.37270568%
2 Mar 2002 48.40757141%
2 Apr 2002 48.44274300%
2 May 2002 48.47822315%
2 Jun 2002 48.51401455%
2 Jul 2002 48.55011993%
2 Aug 2002 48.58654206%
2 Sep 2002 48.62328371%
2 Oct 2002 48.66034769%
2 Nov 2002 48.69773681%
2 Dec 2002 48.73545394%
2 Jan 2003 48.77350195%
2 Feb 2003 47.41188375%
2 Mar 2003 47.45060225%
2 Apr 2003 47.48966043%
2 May 2003 47.52906125%
2 Jun 2003 47.56880772%
2 Jul 2003 47.61104182%
2 Aug 2003 46.25148871%
2 Sep 2003 46.29229044%
2 Oct 2003 46.33345011%
2 Nov 2003 46.37497086%
2 Dec 2003 46.41685586%
2 Jan 2004 46.46341009%
2 Feb 2004 46.29603321%
2 Mar 2004 46.33903024%
2 Apr 2004 46.38240448%
2 May 2004 46.42615922%
2 Jun 2004 46.47029781%
2 Jul 2004 46.51482362%
2 Aug 2004 46.55974003%
2 Sep 2004 46.60505049%
2 Oct 2004 46.65075844%
2 Nov 2004 46.69686738%
2 Dec 2004 46.74338081%
2 Jan 2005 46.79030230%
2 Feb 2005 46.82013541%
2 Mar 2005 46.86788376%
2 Apr 2005 46.91605099%
2 May 2005 46.96464078%
2 Jun 2005 47.01365684%
2 Jul 2005 47.06310290%
2 Aug 2005 47.09548273%
2 Sep 2005 47.14580015%
2 Oct 2005 47.19655898%
2 Nov 2005 47.24776311%
2 Dec 2005 47.29941644%
2 Jan 2006 47.35152291%
2 Feb 2006 47.12908649%
2 Mar 2006 47.18211119%
2 Apr 2006 47.23560107%
2 May 2006 47.28956020%
2 Jun 2006 47.34399269%
2 Jul 2006 47.39890271%
2 Aug 2006 47.17929444%
2 Sep 2006 47.23517210%
2 Oct 2006 47.29153996%
2 Nov 2006 47.34840231%
2 Dec 2006 47.40576351%
2 Jan 2007 47.46362792%
2 Feb 2007 47.19699995%
2 Mar 2007 47.25588407%
2 Apr 2007 47.31528476%
2 May 2007 47.37520656%
2 Jun 2007 47.43565403%
2 Jul 2007 47.49663179%
2 Aug 2007 47.23314448%
2 Sep 2007 47.29519682%
2 Oct 2007 47.35779352%
2 Nov 2007 47.42093936%
2 Dec 2007 47.48463916%
2 Jan 2008 47.54889778%
2 Feb 2008 47.01372013%
2 Mar 2008 47.07911114%
2 Apr 2008 47.14507580%
2 May 2008 47.21161916%
2 Jun 2008 47.27874628%
2 Jul 2008 47.34646229%
2 Aug 2008 46.81477235%
2 Sep 2008 46.88368168%
2 Oct 2008 46.95319552%
2 Nov 2008 47.02331920%
2 Dec 2008 47.09405804%
2 Jan 2009 47.16541746%
2 Feb 2009 45.98740289%
2 Mar 2009 46.06001983%
2 Apr 2009 46.13327382%
2 May 2009 46.20717044%
2 Jun 2009 46.28171534%
2 Jul 2009 46.35691420%
2 Aug 2009 45.18277275%
2 Sep 2009 45.25929679%
2 Oct 2009 45.33649215%
2 Nov 2009 45.41436473%
2 Dec 2009 45.49292046%
2 Jan 2010 45.57216533%
2 Feb 2010 44.40210540%
2 Mar 2010 44.48274676%
2 Apr 2010 44.56409556%
2 May 2010 44.64615801%
2 Jun 2010 44.72894037%
2 Jul 2010 44.81801303%
2 Aug 2010 43.65225422%
2 Sep 2010 43.73723442%
2 Oct 2010 43.82296014%
2 Nov 2010 43.90943789%
2 Dec 2010 43.99667430%
2 Jan 2011 44.09586633%
2 Feb 2011 41.83464005%
2 Mar 2011 41.92419255%
2 Apr 2011 42.01453067%
2 May 2011 42.10566130%
2 Jun 2011 42.19759139%
2 Jul 2011 42.30962844%
2 Aug 2011 40.05317856%
2 Sep 2011 40.14754936%
2 Oct 2011 40.24274806%
2 Nov 2011 40.33878190%
2 Dec 2011 40.43565823%
2 Jan 2012 40.56088567%
2 Feb 2012 38.30946918%
2 Mar 2012 38.40891754%
2 Apr 2012 38.50923833%
2 May 2012 38.61043920%
2 Jun 2012 38.71252788%
2 Jul 2012 38.83638059%
2 Aug 2012 36.59026832%
2 Sep 2012 36.69506742%
2 Oct 2012 36.80078589%
2 Nov 2012 36.90743180%
2 Dec 2012 37.01501329%
2 Jan 2013 37.13770004%
2 Feb 2013 35.87217737%
2 Mar 2013 35.98261511%
2 Apr 2013 36.09402168%
2 May 2013 36.20640560%
2 Jun 2013 36.31977542%
2 Jul 2013 36.44830130%
2 Aug 2013 35.18866897%
2 Sep 2013 35.30504872%
2 Oct 2013 35.42244945%
2 Nov 2013 35.54088009%
2 Dec 2013 35.66034970%
2 Jan 2014 35.79502886%
2 Feb 2014 34.41660380%
2 Mar 2014 34.53924529%
2 Apr 2014 34.66296267%
2 May 2014 34.78776539%
2 Jun 2014 34.91366296%
2 Jul 2014 35.05546662%
2 Aug 2014 33.68358281%
2 Sep 2014 33.81282292%
2 Oct 2014 33.94319683%
2 Nov 2014 34.07471446%
2 Dec 2014 34.20738586%
2 Jan 2015 34.35667005%
2 Feb 2015 32.99167943%
2 Mar 2015 33.12787321%
2 Apr 2015 33.26526179%
2 May 2015 33.40385563%
2 Jun 2015 33.54366531%
2 Jul 2015 33.70015041%
2 Aug 2015 32.34242387%
2 Sep 2015 32.48594546%
2 Oct 2015 32.63072612%
2 Nov 2015 32.77677690%
2 Dec 2015 32.92410894%
2 Jan 2016 33.08818238%
2 Feb 2016 31.73811076%
2 Mar 2016 31.88935442%
2 Apr 2016 32.04192489%
2 May 2016 32.19583382%
2 Jun 2016 32.35109295%
2 Jul 2016 32.50771412%
2 Aug 2016 31.16570929%
2 Sep 2016 31.32509050%
2 Oct 2016 31.48586992%
2 Nov 2016 31.64805980%
2 Dec 2016 31.81167253%
2 Jan 2017 31.97672059%
2 Feb 2017 32.04924694%
2 Mar 2017 32.21720354%
2 Apr 2017 32.38663357%
2 May 2017 32.61175889%
2 Jun 2017 32.83898940%
2 Jul 2017 33.14012193%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART A
Percentage of
DATE Facility Cost
2 Oct 1989 16.37144179%
2 Nov 1989 16.69797729%
2 Dec 1989 17.02814997%
2 Jan 1990 17.32671169%
2 Feb 1990 20.15477039%
2 Mar 1990 20.51140625%
2 Apr 1990 20.86809430%
2 May 1990 21.19719937%
2 Jun 1990 21.52996971%
2 Jul 1990 21.83488958%
2 Aug 1990 26.98055601%
2 Sep 1990 27.39070646%
2 Oct 1990 27.77387084%
2 Nov 1990 28.16130404%
2 Dec 1990 28.55305367%
2 Jan 1991 28.75991476%
2 Feb 1991 29.12594858%
2 Mar 1991 29.49632853%
2 Apr 1991 29.85689805%
2 May 1991 30.19258469%
2 Jun 1991 30.53200876%
2 Jul 1991 30.84631339%
2 Aug 1991 31.16411628%
2 Sep 1991 31.48545640%
2 Oct 1991 31.78147462%
2 Nov 1991 32.08078637%
2 Dec 1991 32.38342833%
2 Jan 1992 32.66053907%
2 Feb 1992 32.94073166%
2 Mar 1992 33.22404041%
2 Apr 1992 33.49765623%
2 May 1992 33.75651902%
2 Jun 1992 34.01825920%
2 Jul 1992 34.26511338%
2 Aug 1992 34.51471048%
2 Sep 1992 34.76708104%
2 Oct 1992 35.00446047%
2 Nov 1992 35.24447654%
2 Dec 1992 35.48715858%
2 Jan 1993 36.53967690%
2 Feb 1993 36.77321940%
2 Mar 1993 37.00935510%
2 Apr 1993 37.24267263%
2 May 1993 37.46128515%
2 Jun 1993 37.68232358%
2 Jul 1993 37.88851948%
2 Aug 1993 38.09700223%
2 Sep 1993 38.30779723%
2 Oct 1993 38.50363477%
2 Nov 1993 38.70164296%
2 Dec 1993 38.90184588%
2 Jan 1994 39.08697251%
2 Feb 1994 39.27414959%
2 Mar 1994 39.46339992%
2 Apr 1994 39.65260683%
2 May 1994 39.82784160%
2 Jun 1994 40.00501566%
2 Jul 1994 40.16808278%
2 Aug 1994 40.33295288%
2 Sep 1994 40.49964592%
2 Oct 1994 40.65211441%
2 Nov 1994 40.80626691%
2 Dec 1994 40.96212206%
2 Jan 1995 41.10363102%
2 Feb 1995 41.24670101%
2 Mar 1995 41.39134927%
2 Apr 1995 41.53759328%
2 May 1995 41.67072536%
2 Jun 1995 41.80532411%
2 Jul 1995 41.92668045%
2 Aug 1995 42.04937149%
2 Sep 1995 42.17341198%
2 Oct 1995 42.28409148%
2 Nov 1995 42.39598582%
2 Dec 1995 42.50910837%
2 Jan 1996 42.60874736%
2 Feb 1996 42.70947721%
2 Mar 1996 42.81130993%
2 Apr 1996 42.91425764%
2 May 1996 43.00560752%
2 Jun 1996 43.09795484%
2 Jul 1996 43.17858545%
2 Aug 1996 43.26009331%
2 Sep 1996 43.34248799%
2 Oct 1996 43.41305413%
2 Nov 1996 43.48438441%
2 Dec 1996 43.55648715%
2 Jan 1997 43.61664568%
2 Feb 1997 43.67745140%
2 Mar 1997 43.73891132%
2 Apr 1997 43.80103251%
2 May 1997 43.84842862%
2 Jun 1997 43.89632840%
2 Jul 1997 43.92934372%
2 Aug 1997 46.43322757%
2 Sep 1997 46.51762681%
2 Oct 1997 46.58754879%
2 Nov 1997 46.65822500%
2 Dec 1997 46.72966363%
2 Jan 1998 46.78647945%
2 Feb 1998 46.84390231%
2 Mar 1998 46.90193878%
2 Apr 1998 46.96059544%
2 May 1998 47.00430970%
2 Jun 1998 47.04848362%
2 Jul 1998 47.07755278%
2 Aug 1998 47.10691743%
2 Sep 1998 47.13658062%
2 Oct 1998 47.15097611%
2 Nov 1998 47.16550234%
2 Dec 1998 47.18016049%
2 Jan 1999 47.19303962%
2 Feb 1999 47.20603173%
2 Mar 1999 47.21913781%
2 Apr 1999 47.23235888%
2 May 1999 47.24569592%
2 Jun 1999 47.25914997%
2 Jul 1999 47.27272204%
2 Aug 1999 47.28641318%
2 Sep 1999 47.30022442%
2 Oct 1999 47.31415683%
2 Nov 1999 47.32821148%
2 Dec 1999 47.34238940%
2 Jan 2000 47.35669171%
2 Feb 2000 47.37111950%
2 Mar 2000 47.38567385%
2 Apr 2000 47.40035588%
2 May 2000 47.41516672%
2 Jun 2000 47.43010747%
2 Jul 2000 47.44517931%
2 Aug 2000 47.46038336%
2 Sep 2000 47.47572080%
2 Oct 2000 47.49119280%
2 Nov 2000 47.50680051%
2 Dec 2000 47.52254515%
2 Jan 2001 47.53842792%
2 Feb 2001 47.55445001%
2 Mar 2001 47.57061267%
2 Apr 2001 47.58691712%
2 May 2001 47.60336460%
2 Jun 2001 47.61995637%
2 Jul 2001 47.63669369%
2 Aug 2001 47.65357785%
2 Sep 2001 47.67061012%
2 Oct 2001 47.68779182%
2 Nov 2001 47.70512424%
2 Dec 2001 47.72260873%
2 Jan 2002 47.74024658%
2 Feb 2002 47.75803918%
2 Mar 2002 47.77598786%
2 Apr 2002 47.79409401%
2 May 2002 47.81235899%
2 Jun 2002 47.83078421%
2 Jul 2002 47.84937107%
2 Aug 2002 47.86812098%
2 Sep 2002 47.88703538%
2 Oct 2002 47.90611571%
2 Nov 2002 47.92536343%
2 Dec 2002 47.94478000%
2 Jan 2003 47.96436691%
2 Feb 2003 46.54270098%
2 Mar 2003 46.56263306%
2 Apr 2003 46.58273999%
2 May 2003 46.60302332%
2 Jun 2003 46.62348459%
2 Jul 2003 46.64632759%
2 Aug 2003 45.22572477%
2 Sep 2003 45.24672927%
2 Oct 2003 45.26791805%
2 Nov 2003 45.28929270%
2 Dec 2003 45.31085487%
2 Jan 2004 45.33703527%
2 Feb 2004 45.14276372%
2 Mar 2004 45.16489836%
2 Apr 2004 45.18722717%
2 May 2004 45.20975187%
2 Jun 2004 45.23247418%
2 Jul 2004 45.25539582%
2 Aug 2004 45.27851854%
2 Sep 2004 45.30184412%
2 Oct 2004 45.32537433%
2 Nov 2004 45.34911095%
2 Dec 2004 45.37305581%
2 Jan 2005 45.39721073%
2 Feb 2005 45.40355975%
2 Mar 2005 45.42814034%
2 Apr 2005 45.45293657%
2 May 2005 45.47795033%
2 Jun 2005 45.50318352%
2 Jul 2005 45.52863808%
2 Aug 2005 45.53629814%
2 Sep 2005 45.56220127%
2 Oct 2005 45.58833165%
2 Nov 2005 45.61469125%
2 Dec 2005 45.64128210%
2 Jan 2006 45.66810622%
2 Feb 2006 45.41202868%
2 Mar 2006 45.43932551%
2 Apr 2006 45.46686180%
2 May 2006 45.49463966%
2 Jun 2006 45.52266121%
2 Jul 2006 45.55092859%
2 Aug 2006 45.29630697%
2 Sep 2006 45.32507247%
2 Oct 2006 45.35409034%
2 Nov 2006 45.38336277%
2 Dec 2006 45.41289200%
2 Jan 2007 45.44268028%
2 Feb 2007 45.13811345%
2 Mar 2007 45.16842667%
2 Apr 2007 45.19900582%
2 May 2007 45.22985323%
2 Jun 2007 45.26097126%
2 Jul 2007 45.29236227%
2 Aug 2007 44.98941224%
2 Sep 2007 45.02135643%
2 Oct 2007 45.05358087%
2 Nov 2007 45.08608800%
2 Dec 2007 45.11888032%
2 Jan 2008 45.15196031%
2 Feb 2008 44.56757707%
2 Mar 2008 44.60124000%
2 Apr 2008 44.63519825%
2 May 2008 44.66945441%
2 Jun 2008 44.70401108%
2 Jul 2008 44.73887091%
2 Aug 2008 44.15628313%
2 Sep 2008 44.19175727%
2 Oct 2008 44.22754262%
2 Nov 2008 44.26364190%
2 Dec 2008 44.30005788%
2 Jan 2009 44.33679331%
2 Feb 2009 43.08686471%
2 Mar 2009 43.12424752%
2 Apr 2009 43.16195827%
2 May 2009 43.19999985%
2 Jun 2009 43.23837515%
2 Jul 2009 43.27708710%
2 Aug 2009 42.02915237%
2 Sep 2009 42.06854653%
2 Oct 2009 42.10828628%
2 Nov 2009 42.14837466%
2 Dec 2009 42.18881471%
2 Jan 2010 42.22960954%
2 Feb 2010 40.98377595%
2 Mar 2010 41.02528968%
2 Apr 2010 41.06716760%
2 May 2010 41.10941290%
2 Jun 2010 41.15202880%
2 Jul 2010 41.20074728%
2 Aug 2010 39.95712787%
2 Sep 2010 40.00087521%
2 Oct 2010 40.04500635%
2 Nov 2010 40.08952462%
2 Dec 2010 40.13443344%
2 Jan 2011 40.19125768%
2 Feb 2011 37.81742366%
2 Mar 2011 37.86352479%
2 Apr 2011 37.91003036%
2 May 2011 37.95694391%
2 Jun 2011 38.00426902%
2 Jul 2011 38.07188086%
2 Aug 2011 35.70050570%
2 Sep 2011 35.74908728%
2 Oct 2011 35.79809504%
2 Nov 2011 35.84753274%
2 Dec 2011 35.89740414%
2 Jan 2012 35.97602804%
2 Feb 2012 33.60724405%
2 Mar 2012 33.65843952%
2 Apr 2012 33.71008410%
2 May 2012 33.76218176%
2 Jun 2012 33.81473646%
2 Jul 2012 33.88923811%
2 Aug 2012 31.52318469%
2 Sep 2012 31.57713469%
2 Oct 2012 31.63155798%
2 Nov 2012 31.68645871%
2 Dec 2012 31.74184107%
2 Jan 2013 31.81228980%
2 Feb 2013 30.45296319%
2 Mar 2013 30.50981594%
2 Apr 2013 30.56716743%
2 May 2013 30.62502205%
2 Jun 2013 30.68338422%
2 Jul 2013 30.75683889%
2 Aug 2013 29.40054460%
2 Sep 2013 29.46045626%
2 Oct 2013 29.52089351%
2 Nov 2013 29.58186097%
2 Dec 2013 29.64336326%
2 Jan 2014 29.71998562%
2 Feb 2014 28.23818817%
2 Mar 2014 28.30132333%
2 Apr 2014 28.36501236%
2 May 2014 28.42926012%
2 Jun 2014 28.49407150%
2 Jul 2014 28.57469103%
2 Aug 2014 27.09626099%
2 Sep 2014 27.16279309%
2 Oct 2014 27.22990886%
2 Nov 2014 27.29761341%
2 Dec 2014 27.36591192%
2 Jan 2015 27.45071561%
2 Feb 2015 25.97583415%
2 Mar 2015 26.04594596%
2 Apr 2015 26.11667284%
2 May 2015 26.18802019%
2 Jun 2015 26.25999345%
2 Jul 2015 26.34850412%
2 Aug 2015 24.87736216%
2 Sep 2015 24.95124629%
2 Oct 2015 25.02577858%
2 Nov 2015 25.10096472%
2 Dec 2015 25.17681045%
2 Jan 2016 25.26922757%
2 Feb 2016 23.80202631%
2 Mar 2016 23.87988572%
2 Apr 2016 23.95842816%
2 May 2016 24.03765964%
2 Jun 2016 24.11758618%
2 Jul 2016 24.19821391%
2 Aug 2016 22.73516539%
2 Sep 2016 22.81721397%
2 Oct 2016 22.89998233%
2 Nov 2016 22.98347679%
2 Dec 2016 23.06770372%
2 Jan 2017 23.15266956%
2 Feb 2017 23.14163069%
2 Mar 2017 23.22809382%
2 Apr 2017 23.31531547%
2 May 2017 23.45911522%
2 Jun 2017 23.60431055%
2 Jul 2017 23.82481595%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART B
Percentage of
DATE Facility Cost
2 Oct 1989 17.80906175%
2 Nov 1989 18.16427119%
2 Dec 1989 18.52343722%
2 Jan 1990 18.84821644%
2 Feb 1990 21.92461452%
2 Mar 1990 22.31256752%
2 Apr 1990 22.70057730%
2 May 1990 23.05858196%
2 Jun 1990 23.42057376%
2 Jul 1990 23.75226945%
2 Aug 1990 29.34979057%
2 Sep 1990 29.79595743%
2 Oct 1990 30.21276849%
2 Nov 1990 30.63422323%
2 Dec 1990 31.06037344%
2 Jan 1991 31.28539956%
2 Feb 1991 31.68357578%
2 Mar 1991 32.08647978%
2 Apr 1991 32.47871188%
2 May 1991 32.84387605%
2 Jun 1991 33.21310586%
2 Jul 1991 33.55501042%
2 Aug 1991 33.90072043%
2 Sep 1991 34.25027827%
2 Oct 1991 34.57229065%
2 Nov 1991 34.89788576%
2 Dec 1991 35.22710352%
2 Jan 1992 35.52854809%
2 Feb 1992 35.83334514%
2 Mar 1992 36.14153199%
2 Apr 1992 36.43917474%
2 May 1992 36.72076896%
2 Jun 1992 37.00549325%
2 Jul 1992 37.27402435%
2 Aug 1992 37.54553924%
2 Sep 1992 37.82007113%
2 Oct 1992 38.07829547%
2 Nov 1992 38.33938800%
2 Dec 1992 38.60338059%
2 Jan 1993 39.74832335%
2 Feb 1993 40.00237385%
2 Mar 1993 40.25924525%
2 Apr 1993 40.51305102%
2 May 1993 40.75086048%
2 Jun 1993 40.99130888%
2 Jul 1993 41.21561139%
2 Aug 1993 41.44240157%
2 Sep 1993 41.67170704%
2 Oct 1993 41.88474161%
2 Nov 1993 42.10013742%
2 Dec 1993 42.31792069%
2 Jan 1994 42.51930378%
2 Feb 1994 42.72291738%
2 Mar 1994 42.92878629%
2 Apr 1994 43.13460796%
2 May 1994 43.32523057%
2 Jun 1994 43.51796275%
2 Jul 1994 43.69534923%
2 Aug 1994 43.87469701%
2 Sep 1994 44.05602781%
2 Oct 1994 44.22188496%
2 Nov 1994 44.38957401%
2 Dec 1994 44.55911522%
2 Jan 1995 44.71305046%
2 Feb 1995 44.86868380%
2 Mar 1995 45.02603401%
2 Apr 1995 45.18512010%
2 May 1995 45.32994286%
2 Jun 1995 45.47636109%
2 Jul 1995 45.60837404%
2 Aug 1995 45.74183891%
2 Sep 1995 45.87677173%
2 Oct 1995 45.99717030%
2 Nov 1995 46.11889037%
2 Dec 1995 46.24194652%
2 Jan 1996 46.35033507%
2 Feb 1996 46.45991028%
2 Mar 1996 46.57068520%
2 Apr 1996 46.68267303%
2 May 1996 46.78204458%
2 Jun 1996 46.88250116%
2 Jul 1996 46.97021216%
2 Aug 1996 47.05887744%
2 Sep 1996 47.14850743%
2 Oct 1996 47.22527016%
2 Nov 1996 47.30286415%
2 Dec 1996 47.38129842%
2 Jan 1997 47.44673964%
2 Feb 1997 47.51288487%
2 Mar 1997 47.57974174%
2 Apr 1997 47.64731796%
2 May 1997 47.69887605%
2 Jun 1997 47.75098204%
2 Jul 1997 47.78689652%
2 Aug 1997 50.51065309%
2 Sep 1997 50.60246365%
2 Oct 1997 50.67852567%
2 Nov 1997 50.75540814%
2 Dec 1997 50.83311999%
2 Jan 1998 50.89492495%
2 Feb 1998 50.95739028%
2 Mar 1998 51.02052308%
2 Apr 1998 51.08433054%
2 May 1998 51.13188347%
2 Jun 1998 51.17993642%
2 Jul 1998 51.21155822%
2 Aug 1998 51.24350146%
2 Sep 1998 51.27576944%
2 Oct 1998 51.29142904%
2 Nov 1998 51.30723086%
2 Dec 1998 51.32317618%
2 Jan 1999 51.33718626%
2 Feb 1999 51.35131924%
2 Mar 1999 51.36557620%
2 Apr 1999 51.37995825%
2 May 1999 51.39446645%
2 Jun 1999 51.40910193%
2 Jul 1999 51.42386581%
2 Aug 1999 51.43875920%
2 Sep 1999 51.45378325%
2 Oct 1999 51.46893910%
2 Nov 1999 51.48422792%
2 Dec 1999 51.49965084%
2 Jan 2000 51.51520908%
2 Feb 2000 51.53090380%
2 Mar 2000 51.54673621%
2 Apr 2000 51.56270752%
2 May 2000 51.57881893%
2 Jun 2000 51.59507167%
2 Jul 2000 51.61146701%
2 Aug 2000 51.62800617%
2 Sep 2000 51.64469043%
2 Oct 2000 51.66152106%
2 Nov 2000 51.67849933%
2 Dec 2000 51.69562655%
2 Jan 2001 51.71290403%
2 Feb 2001 51.73033307%
2 Mar 2001 51.74791500%
2 Apr 2001 51.76565119%
2 May 2001 51.78354297%
2 Jun 2001 51.80159171%
2 Jul 2001 51.81979878%
2 Aug 2001 51.83816558%
2 Sep 2001 51.85669350%
2 Oct 2001 51.87538397%
2 Nov 2001 51.89423840%
2 Dec 2001 51.91325824%
2 Jan 2002 51.93244493%
2 Feb 2002 51.95179994%
2 Mar 2002 51.97132474%
2 Apr 2002 51.99102084%
2 May 2002 52.01088972%
2 Jun 2002 52.03093290%
2 Jul 2002 52.05115192%
2 Aug 2002 52.07154831%
2 Sep 2002 52.09212364%
2 Oct 2002 52.11287946%
2 Nov 2002 52.13381738%
2 Dec 2002 52.15493896%
2 Jan 2003 52.17624586%
2 Feb 2003 50.62973965%
2 Mar 2003 50.65142202%
2 Apr 2003 50.67329459%
2 May 2003 50.69535905%
2 Jun 2003 50.71761708%
2 Jul 2003 50.74246598%
2 Aug 2003 49.19711625%
2 Sep 2003 49.21996521%
2 Oct 2003 49.24301463%
2 Nov 2003 49.26626625%
2 Dec 2003 49.28972185%
2 Jan 2004 49.31820122%
2 Feb 2004 49.10687016%
2 Mar 2004 49.13094851%
2 Apr 2004 49.15523807%
2 May 2004 49.17974072%
2 Jun 2004 49.20445834%
2 Jul 2004 49.22939279%
2 Aug 2004 49.25454598%
2 Sep 2004 49.27991984%
2 Oct 2004 49.30551630%
2 Nov 2004 49.33133729%
2 Dec 2004 49.35738482%
2 Jan 2005 49.38366085%
2 Feb 2005 49.39056740%
2 Mar 2005 49.41730647%
2 Apr 2005 49.44428012%
2 May 2005 49.47149041%
2 Jun 2005 49.49893939%
2 Jul 2005 49.52662919%
2 Aug 2005 49.53496190%
2 Sep 2005 49.56313965%
2 Oct 2005 49.59156460%
2 Nov 2005 49.62023891%
2 Dec 2005 49.64916478%
2 Jan 2006 49.67834440%
2 Feb 2006 49.39978000%
2 Mar 2006 49.42947383%
2 Apr 2006 49.45942817%
2 May 2006 49.48964527%
2 Jun 2006 49.52012747%
2 Jul 2006 49.55087708%
2 Aug 2006 49.27389646%
2 Sep 2006 49.30518794%
2 Oct 2006 49.33675394%
2 Nov 2006 49.36859686%
2 Dec 2006 49.40071913%
2 Jan 2007 49.43312320%
2 Feb 2007 49.10181154%
2 Mar 2007 49.13478665%
2 Apr 2007 49.16805104%
2 May 2007 49.20160724%
2 Jun 2007 49.23545782%
2 Jul 2007 49.26960537%
2 Aug 2007 48.94005248%
2 Sep 2007 48.97480178%
2 Oct 2007 49.00985593%
2 Nov 2007 49.04521760%
2 Dec 2007 49.08088950%
2 Jan 2008 49.11687433%
2 Feb 2008 48.48117484%
2 Mar 2008 48.51779380%
2 Apr 2008 48.55473402%
2 May 2008 48.59199830%
2 Jun 2008 48.62958949%
2 Jul 2008 48.66751045%
2 Aug 2008 48.03376408%
2 Sep 2008 48.07235330%
2 Oct 2008 48.11128106%
2 Nov 2008 48.15055031%
2 Dec 2008 48.19016408%
2 Jan 2009 48.23012535%
2 Feb 2009 46.87043719%
2 Mar 2009 46.91110267%
2 Apr 2009 46.95212491%
2 May 2009 46.99350702%
2 Jun 2009 47.03525216%
2 Jul 2009 47.07736351%
2 Aug 2009 45.71984431%
2 Sep 2009 45.76269777%
2 Oct 2009 45.80592717%
2 Nov 2009 45.84953582%
2 Dec 2009 45.89352702%
2 Jan 2010 45.93790415%
2 Feb 2010 44.58267060%
2 Mar 2010 44.62782976%
2 Apr 2010 44.67338509%
2 May 2010 44.71934005%
2 Jun 2010 44.76569817%
2 Jul 2010 44.81869475%
2 Aug 2010 43.46586981%
2 Sep 2010 43.51345872%
2 Oct 2010 43.56146512%
2 Nov 2010 43.60989267%
2 Dec 2010 43.65874505%
2 Jan 2011 43.72055918%
2 Feb 2011 41.13827246%
2 Mar 2011 41.18842186%
2 Apr 2011 41.23901121%
2 May 2011 41.29004436%
2 Jun 2011 41.34152521%
2 Jul 2011 41.41507423%
2 Aug 2011 38.83546230%
2 Sep 2011 38.88830995%
2 Oct 2011 38.94162122%
2 Nov 2011 38.99540017%
2 Dec 2011 39.04965091%
2 Jan 2012 39.13517898%
2 Feb 2012 36.55838575%
2 Mar 2012 36.61407683%
2 Apr 2012 36.67025647%
2 May 2012 36.72692896%
2 Jun 2012 36.78409862%
2 Jul 2012 36.86514246%
2 Aug 2012 34.29131959%
2 Sep 2012 34.35000708%
2 Oct 2012 34.40920943%
2 Nov 2012 34.46893113%
2 Dec 2012 34.52917676%
2 Jan 2013 34.60581179%
2 Feb 2013 33.12711909%
2 Mar 2013 33.18896422%
2 Apr 2013 33.25135191%
2 May 2013 33.31428689%
2 Jun 2013 33.37777400%
2 Jul 2013 33.45767892%
2 Aug 2013 31.98228481%
2 Sep 2013 32.04745748%
2 Oct 2013 32.11320188%
2 Nov 2013 32.17952305%
2 Dec 2013 32.24642603%
2 Jan 2014 32.32977680%
2 Feb 2014 30.71785876%
2 Mar 2014 30.78653799%
2 Apr 2014 30.85581972%
2 May 2014 30.92570925%
2 Jun 2014 30.99621189%
2 Jul 2014 31.08391084%
2 Aug 2014 29.47565591%
2 Sep 2014 29.54803038%
2 Oct 2014 29.62103976%
2 Nov 2014 29.69468963%
2 Dec 2014 29.76898561%
2 Jan 2015 29.86123614%
2 Feb 2015 28.25684140%
2 Mar 2015 28.33310992%
2 Apr 2015 28.41004751%
2 May 2015 28.48766007%
2 Jun 2015 28.56595349%
2 Jul 2015 28.66223652%
2 Aug 2015 27.06190966%
2 Sep 2015 27.14228176%
2 Oct 2015 27.22335893%
2 Nov 2015 27.30514736%
2 Dec 2015 27.38765331%
2 Jan 2016 27.48818582%
2 Feb 2016 25.89214571%
2 Mar 2016 25.97684216%
2 Apr 2016 26.06228162%
2 May 2016 26.14847062%
2 Jun 2016 26.23541573%
2 Jul 2016 26.32312359%
2 Aug 2016 24.73160088%
2 Sep 2016 24.82085436%
2 Oct 2016 24.91089084%
2 Nov 2016 25.00171717%
2 Dec 2016 25.09334029%
2 Jan 2017 25.18576721%
2 Feb 2017 25.17375898%
2 Mar 2017 25.26781467%
2 Apr 2017 25.36269549%
2 May 2017 25.51912268%
2 Jun 2017 25.67706800%
2 Jul 2017 25.91693656%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART C
Percentage of
DATE Facility Cost
2 Oct 1989 15.90094799%
2 Nov 1989 16.21809928%
2 Dec 1989 16.53878323%
2 Jan 1990 16.82876468%
2 Feb 1990 19.57554868%
2 Mar 1990 19.92193529%
2 Apr 1990 20.26837259%
2 May 1990 20.58801961%
2 Jun 1990 20.91122657%
2 Jul 1990 21.20738344%
2 Aug 1990 26.20517015%
2 Sep 1990 26.60353342%
2 Oct 1990 26.97568615%
2 Nov 1990 27.35198503%
2 Dec 1990 27.73247629%
2 Jan 1991 27.93339246%
2 Feb 1991 28.28890695%
2 Mar 1991 28.64864266%
2 Apr 1991 28.99884989%
2 May 1991 29.32488933%
2 Jun 1991 29.65455880%
2 Jul 1991 29.95983073%
2 Aug 1991 30.26850038%
2 Sep 1991 30.58060560%
2 Oct 1991 30.86811665%
2 Nov 1991 31.15882657%
2 Dec 1991 31.45277100%
2 Jan 1992 31.72191794%
2 Feb 1992 31.99405816%
2 Mar 1992 32.26922499%
2 Apr 1992 32.53497745%
2 May 1992 32.78640086%
2 Jun 1992 33.04061897%
2 Jul 1992 33.28037888%
2 Aug 1992 33.52280289%
2 Sep 1992 33.76792065%
2 Oct 1992 33.99847810%
2 Nov 1992 34.23159643%
2 Dec 1992 34.46730410%
2 Jan 1993 35.48957442%
2 Feb 1993 35.71640522%
2 Mar 1993 35.94575469%
2 Apr 1993 36.17236698%
2 May 1993 36.38469686%
2 Jun 1993 36.59938293%
2 Jul 1993 36.79965303%
2 Aug 1993 37.00214426%
2 Sep 1993 37.20688129%
2 Oct 1993 37.39709072%
2 Nov 1993 37.58940841%
2 Dec 1993 37.78385776%
2 Jan 1994 37.96366409%
2 Feb 1994 38.14546195%
2 Mar 1994 38.32927347%
2 Apr 1994 38.51304282%
2 May 1994 38.68324158%
2 Jun 1994 38.85532388%
2 Jul 1994 39.01370467%
2 Aug 1994 39.17383662%
2 Sep 1994 39.33573912%
2 Oct 1994 39.48382586%
2 Nov 1994 39.63354822%
2 Dec 1994 39.78492430%
2 Jan 1995 39.92236648%
2 Feb 1995 40.06132482%
2 Mar 1995 40.20181608%
2 Apr 1995 40.34385723%
2 May 1995 40.47316327%
2 Jun 1995 40.60389383%
2 Jul 1995 40.72176254%
2 Aug 1995 40.84092760%
2 Sep 1995 40.96140333%
2 Oct 1995 41.06890205%
2 Nov 1995 41.17758069%
2 Dec 1995 41.28745225%
2 Jan 1996 41.38422774%
2 Feb 1996 41.48206275%
2 Mar 1996 41.58096893%
2 Apr 1996 41.68095806%
2 May 1996 41.76968266%
2 Jun 1996 41.85937604%
2 Jul 1996 41.93768943%
2 Aug 1996 42.01685486%
2 Sep 1996 42.09688163%
2 Oct 1996 42.16541979%
2 Nov 1996 42.23470013%
2 Dec 1996 42.30473073%
2 Jan 1997 42.36316039%
2 Feb 1997 42.42221863%
2 Mar 1997 42.48191227%
2 Apr 1997 42.54224818%
2 May 1997 42.58828219%
2 Jun 1997 42.63480539%
2 Jul 1997 42.66687189%
2 Aug 1997 45.09879740%
2 Sep 1997 45.18077112%
2 Oct 1997 45.24868363%
2 Nov 1997 45.31732870%
2 Dec 1997 45.38671428%
2 Jan 1998 45.44189728%
2 Feb 1998 45.49766989%
2 Mar 1998 45.55403846%
2 Apr 1998 45.61100941%
2 May 1998 45.65346738%
2 Jun 1998 45.69637180%
2 Jul 1998 45.72460555%
2 Aug 1998 45.75312630%
2 Sep 1998 45.78193700%
2 Oct 1998 45.79591879%
2 Nov 1998 45.81002755%
2 Dec 1998 45.82426445%
2 Jan 1999 45.83677345%
2 Feb 1999 45.84939218%
2 Mar 1999 45.86212161%
2 Apr 1999 45.87496272%
2 May 1999 45.88791647%
2 Jun 1999 45.90098387%
2 Jul 1999 45.91416590%
2 Aug 1999 45.92746357%
2 Sep 1999 45.94087790%
2 Oct 1999 45.95440991%
2 Nov 1999 45.96806064%
2 Dec 1999 45.98183111%
2 Jan 2000 45.99572239%
2 Feb 2000 46.00973554%
2 Mar 2000 46.02387162%
2 Apr 2000 46.03813171%
2 May 2000 46.05251690%
2 Jun 2000 46.06702828%
2 Jul 2000 46.08166697%
2 Aug 2000 46.09643408%
2 Sep 2000 46.11133074%
2 Oct 2000 46.12635809%
2 Nov 2000 46.14151726%
2 Dec 2000 46.15680942%
2 Jan 2001 46.17223574%
2 Feb 2001 46.18779738%
2 Mar 2001 46.20349554%
2 Apr 2001 46.21933142%
2 May 2001 46.23530622%
2 Jun 2001 46.25142117%
2 Jul 2001 46.26767748%
2 Aug 2001 46.28407641%
2 Sep 2001 46.30061920%
2 Oct 2001 46.31730712%
2 Nov 2001 46.33414143%
2 Dec 2001 46.35112343%
2 Jan 2002 46.36825440%
2 Feb 2002 46.38553566%
2 Mar 2002 46.40296852%
2 Apr 2002 46.42055432%
2 May 2002 46.43829439%
2 Jun 2002 46.45619009%
2 Jul 2002 46.47424279%
2 Aug 2002 46.49245385%
2 Sep 2002 46.51082468%
2 Oct 2002 46.52935666%
2 Nov 2002 46.54805123%
2 Dec 2002 46.56690979%
2 Jan 2003 46.58593380%
2 Feb 2003 45.20512469%
2 Mar 2003 45.22448395%
2 Apr 2003 45.24401303%
2 May 2003 45.26371344%
2 Jun 2003 45.28358668%
2 Jul 2003 45.30577320%
2 Aug 2003 43.92599665%
2 Sep 2003 43.94639751%
2 Oct 2003 43.96697735%
2 Nov 2003 43.98773772%
2 Dec 2003 44.00868022%
2 Jan 2004 44.03410823%
2 Feb 2004 43.84541979%
2 Mar 2004 43.86691831%
2 Apr 2004 43.88860542%
2 May 2004 43.91048279%
2 Jun 2004 43.93255209%
2 Jul 2004 43.95481499%
2 Aug 2004 43.97727320%
2 Sep 2004 43.99992843%
2 Oct 2004 44.02278241%
2 Nov 2004 44.04583687%
2 Dec 2004 44.06909359%
2 Jan 2005 44.09255433%
2 Feb 2005 44.09872089%
2 Mar 2005 44.12259506%
2 Apr 2005 44.14667868%
2 May 2005 44.17097358%
2 Jun 2005 44.19548160%
2 Jul 2005 44.22020463%
2 Aug 2005 44.22764455%
2 Sep 2005 44.25280326%
2 Oct 2005 44.27818268%
2 Nov 2005 44.30378474%
2 Dec 2005 44.32961141%
2 Jan 2006 44.35566464%
2 Feb 2006 44.10694643%
2 Mar 2006 44.13345878%
2 Apr 2006 44.16020372%
2 May 2006 44.18718328%
2 Jun 2006 44.21439953%
2 Jul 2006 44.24185454%
2 Aug 2006 43.99455041%
2 Sep 2006 44.02248923%
2 Oct 2006 44.05067316%
2 Nov 2006 44.07910434%
2 Dec 2006 44.10778494%
2 Jan 2007 44.13671714%
2 Feb 2007 43.84090316%
2 Mar 2007 43.87034522%
2 Apr 2007 43.90004557%
2 May 2007 43.93000646%
2 Jun 2007 43.96023020%
2 Jul 2007 43.99071908%
2 Aug 2007 43.69647543%
2 Sep 2007 43.72750159%
2 Oct 2007 43.75879994%
2 Nov 2007 43.79037286%
2 Dec 2007 43.82222277%
2 Jan 2008 43.85435208%
2 Feb 2008 43.28676325%
2 Mar 2008 43.31945875%
2 Apr 2008 43.35244109%
2 May 2008 43.38571277%
2 Jun 2008 43.41927633%
2 Jul 2008 43.45313433%
2 Aug 2008 42.88728936%
2 Sep 2008 42.92174402%
2 Oct 2008 42.95650095%
2 Nov 2008 42.99156278%
2 Dec 2008 43.02693221%
2 Jan 2009 43.06261192%
2 Feb 2009 41.84860463%
2 Mar 2009 41.88491310%
2 Apr 2009 41.92154010%
2 May 2009 41.95848841%
2 Jun 2009 41.99576086%
2 Jul 2009 42.03336028%
2 Aug 2009 40.82128956%
2 Sep 2009 40.85955158%
2 Oct 2009 40.89814926%
2 Nov 2009 40.93708555%
2 Dec 2009 40.97636341%
2 Jan 2010 41.01598585%
2 Feb 2010 39.80595589%
2 Mar 2010 39.84627657%
2 Apr 2010 39.88695097%
2 May 2010 39.92798219%
2 Jun 2010 39.96937337%
2 Jul 2010 40.01669174%
2 Aug 2010 38.80881233%
2 Sep 2010 38.85130243%
2 Oct 2010 38.89416529%
2 Nov 2010 38.93740417%
2 Dec 2010 38.98102237%
2 Jan 2011 39.03621355%
2 Feb 2011 36.73060041%
2 Mar 2011 36.77537666%
2 Apr 2011 36.82054572%
2 May 2011 36.86611104%
2 Jun 2011 36.91207608%
2 Jul 2011 36.97774485%
2 Aug 2011 34.67451991%
2 Sep 2011 34.72170531%
2 Oct 2011 34.76930466%
2 Nov 2011 34.81732158%
2 Dec 2011 34.86575974%
2 Jan 2012 34.94212409%
2 Feb 2012 32.64141585%
2 Mar 2012 32.69114003%
2 Apr 2012 32.74130042%
2 May 2012 32.79190086%
2 Jun 2012 32.84294520%
2 Jul 2012 32.91530577%
2 Aug 2012 30.61724963%
2 Sep 2012 30.66964918%
2 Oct 2012 30.72250842%
2 Nov 2012 30.77583137%
2 Dec 2012 30.82962211%
2 Jan 2013 30.89804624%
2 Feb 2013 29.57778490%
2 Mar 2013 29.63300377%
2 Apr 2013 29.68870706%
2 May 2013 29.74489901%
2 Jun 2013 29.80158393%
2 Jul 2013 29.87292761%
2 Aug 2013 28.55561144%
2 Sep 2013 28.61380132%
2 Oct 2013 28.67250168%
2 Nov 2013 28.73171701%
2 Dec 2013 28.79145181%
2 Jan 2014 28.86587214%
2 Feb 2014 27.42665961%
2 Mar 2014 27.48798035%
2 Apr 2014 27.54983904%
2 May 2014 27.61224040%
2 Jun 2014 27.67518919%
2 Jul 2014 27.75349182%
2 Aug 2014 26.31754992%
2 Sep 2014 26.38216998%
2 Oct 2014 26.44735693%
2 Nov 2014 26.51311574%
2 Dec 2014 26.57945144%
2 Jan 2015 26.66181798%
2 Feb 2015 25.22932268%
2 Mar 2015 25.29741957%
2 Apr 2015 25.36611385%
2 May 2015 25.43541078%
2 Jun 2015 25.50531562%
2 Jul 2015 25.59128261%
2 Aug 2015 24.16241934%
2 Sep 2015 24.23418014%
2 Oct 2015 24.30657047%
2 Nov 2015 24.37959586%
2 Dec 2015 24.45326188%
2 Jan 2016 24.54302305%
2 Feb 2016 23.11798724%
2 Mar 2016 23.19360907%
2 Apr 2016 23.26989430%
2 May 2016 23.34684877%
2 Jun 2016 23.42447833%
2 Jul 2016 23.50278892%
2 Aug 2016 22.08178650%
2 Sep 2016 22.16147711%
2 Oct 2016 22.24186682%
2 Nov 2016 22.32296176%
2 Dec 2016 22.40476812%
2 Jan 2017 22.48729215%
2 Feb 2017 22.47657052%
2 Mar 2017 22.56054881%
2 Apr 2017 22.64526383%
2 May 2017 22.78493096%
2 Jun 2017 22.92595357%
2 Jul 2017 23.14012193%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART D
Percentage of
DATE Facility Cost
2 Oct 1989 17.35853489%
2 Nov 1989 17.70475838%
2 Dec 1989 18.05483836%
2 Jan 1990 18.37140144%
2 Feb 1990 21.36997398%
2 Mar 1990 21.74811269%
2 Apr 1990 22.12630674%
2 May 1990 22.47525474%
2 Jun 1990 22.82808901%
2 Jul 1990 23.15139359%
2 Aug 1990 28.60731075%
2 Sep 1990 29.04219065%
2 Oct 1990 29.44845738%
2 Nov 1990 29.85925032%
2 Dec 1990 30.27461995%
2 Jan 1991 30.49395344%
2 Feb 1991 30.88205675%
2 Mar 1991 31.27476824%
2 Apr 1991 31.65707780%
2 May 1991 32.01300419%
2 Jun 1991 32.37289336%
2 Jul 1991 32.70614855%
2 Aug 1991 33.04311291%
2 Sep 1991 33.38382778%
2 Oct 1991 33.69769401%
2 Nov 1991 34.01505234%
2 Dec 1991 34.33594168%
2 Jan 1992 34.62976042%
2 Feb 1992 34.92684682%
2 Mar 1992 35.22723728%
2 Apr 1992 35.51735038%
2 May 1992 35.79182094%
2 Jun 1992 36.06934238%
2 Jul 1992 36.33108028%
2 Aug 1992 36.59572649%
2 Sep 1992 36.86331338%
2 Oct 1992 37.11500526%
2 Nov 1992 37.36949277%
2 Dec 1992 37.62680698%
2 Jan 1993 38.74278541%
2 Feb 1993 38.99040903%
2 Mar 1993 39.24078220%
2 Apr 1993 39.48816729%
2 May 1993 39.71996074%
2 Jun 1993 39.95432637%
2 Jul 1993 40.17295456%
2 Aug 1993 40.39400748%
2 Sep 1993 40.61751207%
2 Oct 1993 40.82515737%
2 Nov 1993 41.03510418%
2 Dec 1993 41.24737805%
2 Jan 1994 41.44366663%
2 Feb 1994 41.64212930%
2 Mar 1994 41.84279020%
2 Apr 1994 42.04340508%
2 May 1994 42.22920539%
2 Jun 1994 42.41706190%
2 Jul 1994 42.58996093%
2 Aug 1994 42.76477164%
2 Sep 1994 42.94151521%
2 Oct 1994 43.10317656%
2 Nov 1994 43.26662347%
2 Dec 1994 43.43187569%
2 Jan 1995 43.58191674%
2 Feb 1995 43.73361293%
2 Mar 1995 43.88698255%
2 Apr 1995 44.04204414%
2 May 1995 44.18320324%
2 Jun 1995 44.32591743%
2 Jul 1995 44.45459077%
2 Aug 1995 44.58467930%
2 Sep 1995 44.71619864%
2 Oct 1995 44.83355140%
2 Nov 1995 44.95219225%
2 Dec 1995 45.07213537%
2 Jan 1996 45.17778195%
2 Feb 1996 45.28458517%
2 Mar 1996 45.39255775%
2 Apr 1996 45.50171255%
2 May 1996 45.59857024%
2 Jun 1996 45.69648551%
2 Jul 1996 45.78197763%
2 Aug 1996 45.86839989%
2 Sep 1996 45.95576245%
2 Oct 1996 46.03058327%
2 Nov 1996 46.10621431%
2 Dec 1996 46.18266438%
2 Jan 1997 46.24645009%
2 Feb 1997 46.31092200%
2 Mar 1997 46.37608756%
2 Apr 1997 46.44195426%
2 May 1997 46.49220806%
2 Jun 1997 46.54299588%
2 Jul 1997 46.57800181%
2 Aug 1997 49.23285383%
2 Sep 1997 49.32234181%
2 Oct 1997 49.39647963%
2 Nov 1997 49.47141716%
2 Dec 1997 49.54716309%
2 Jan 1998 49.60740453%
2 Feb 1998 49.66828963%
2 Mar 1998 49.72982532%
2 Apr 1998 49.79201861%
2 May 1998 49.83836856%
2 Jun 1998 49.88520588%
2 Jul 1998 49.91602773%
2 Aug 1998 49.94716288%
2 Sep 1998 49.97861456%
2 Oct 1998 49.99387801%
2 Nov 1998 50.00928008%
2 Dec 1998 50.02482202%
2 Jan 1999 50.03847768%
2 Feb 1999 50.05225313%
2 Mar 1999 50.06614942%
2 Apr 1999 50.08016764%
2 May 1999 50.09430881%
2 Jun 1999 50.10857406%
2 Jul 1999 50.12296444%
2 Aug 1999 50.13748106%
2 Sep 1999 50.15212504%
2 Oct 1999 50.16689749%
2 Nov 1999 50.18179953%
2 Dec 1999 50.19683230%
2 Jan 2000 50.21199694%
2 Feb 2000 50.22729463%
2 Mar 2000 50.24272652%
2 Apr 2000 50.25829378%
2 May 2000 50.27399762%
2 Jun 2000 50.28983921%
2 Jul 2000 50.30581978%
2 Aug 2000 50.32194054%
2 Sep 2000 50.33820272%
2 Oct 2000 50.35460758%
2 Nov 2000 50.37115634%
2 Dec 2000 50.38785028%
2 Jan 2001 50.40469068%
2 Feb 2001 50.42167881%
2 Mar 2001 50.43881596%
2 Apr 2001 50.45610347%
2 May 2001 50.47354262%
2 Jun 2001 50.49113478%
2 Jul 2001 50.50888125%
2 Aug 2001 50.52678341%
2 Sep 2001 50.54484263%
2 Oct 2001 50.56306027%
2 Nov 2001 50.58143773%
2 Dec 2001 50.59997641%
2 Jan 2002 50.61867772%
2 Feb 2002 50.63754310%
2 Mar 2002 50.65657397%
2 Apr 2002 50.67577180%
2 May 2002 50.69513804%
2 Jun 2002 50.71467418%
2 Jul 2002 50.73438171%
2 Aug 2002 50.75426212%
2 Sep 2002 50.77431694%
2 Oct 2002 50.79454769%
2 Nov 2002 50.81495593%
2 Dec 2002 50.83554319%
2 Jan 2003 50.85631107%
2 Feb 2003 49.34892779%
2 Mar 2003 49.37006165%
2 Apr 2003 49.39138089%
2 May 2003 49.41288717%
2 Jun 2003 49.43458213%
2 Jul 2003 49.45880241%
2 Aug 2003 47.95254634%
2 Sep 2003 47.97481728%
2 Oct 2003 47.99728361%
2 Nov 2003 48.01994701%
2 Dec 2003 48.04280924%
2 Jan 2004 48.07056815%
2 Feb 2004 47.86458327%
2 Mar 2004 47.88805249%
2 Apr 2004 47.91172758%
2 May 2004 47.93561038%
2 Jun 2004 47.95970270%
2 Jul 2004 47.98400636%
2 Aug 2004 48.00852324%
2 Sep 2004 48.03325520%
2 Oct 2004 48.05820413%
2 Nov 2004 48.08337192%
2 Dec 2004 48.10876050%
2 Jan 2005 48.13437181%
2 Feb 2005 48.14110364%
2 Mar 2005 48.16716627%
2 Apr 2005 48.19345756%
2 May 2005 48.21997949%
2 Jun 2005 48.24673408%
2 Jul 2005 48.27372339%
2 Aug 2005 48.28184530%
2 Sep 2005 48.30931023%
2 Oct 2005 48.33701609%
2 Nov 2005 48.36496501%
2 Dec 2005 48.39315912%
2 Jan 2006 48.42160057%
2 Feb 2006 48.15008319%
2 Mar 2006 48.17902583%
2 Apr 2006 48.20822239%
2 May 2006 48.23767508%
2 Jun 2006 48.26738615%
2 Jul 2006 48.29735787%
2 Aug 2006 48.02738420%
2 Sep 2006 48.05788408%
2 Oct 2006 48.08865153%
2 Nov 2006 48.11968890%
2 Dec 2006 48.15099856%
2 Jan 2007 48.18258288%
2 Feb 2007 47.85965262%
2 Mar 2007 47.89179353%
2 Apr 2007 47.92421641%
2 May 2007 47.95692372%
2 Jun 2007 47.98991797%
2 Jul 2007 48.02320166%
2 Aug 2007 47.70198568%
2 Sep 2007 47.73585590%
2 Oct 2007 47.77002327%
2 Nov 2007 47.80449037%
2 Dec 2007 47.83925986%
2 Jan 2008 47.87433435%
2 Feb 2008 47.25471655%
2 Mar 2008 47.29040914%
2 Apr 2008 47.32641486%
2 May 2008 47.36273644%
2 Jun 2008 47.39937666%
2 Jul 2008 47.43633831%
2 Aug 2008 46.81862422%
2 Sep 2008 46.85623722%
2 Oct 2008 46.89418020%
2 Nov 2008 46.93245603%
2 Dec 2008 46.97106766%
2 Jan 2009 47.01001801%
2 Feb 2009 45.68472672%
2 Mar 2009 45.72436347%
2 Apr 2009 45.76434794%
2 May 2009 45.80468318%
2 Jun 2009 45.84537227%
2 Jul 2009 45.88641831%
2 Aug 2009 44.56324110%
2 Sep 2009 44.60501047%
2 Oct 2009 44.64714628%
2 Nov 2009 44.68965173%
2 Dec 2009 44.73253006%
2 Jan 2010 44.77578455%
2 Feb 2010 43.45483518%
2 Mar 2010 43.49885192%
2 Apr 2010 43.54325481%
2 May 2010 43.58804722%
2 Jun 2010 43.63323260%
2 Jul 2010 43.68488848%
2 Aug 2010 42.36628679%
2 Sep 2010 42.41267182%
2 Oct 2010 42.45946377%
2 Nov 2010 42.50666622%
2 Dec 2010 42.55428275%
2 Jan 2011 42.61453313%
2 Feb 2011 40.09757211%
2 Mar 2011 40.14645285%
2 Apr 2011 40.19576241%
2 May 2011 40.24550455%
2 Jun 2011 40.29568305%
2 Jul 2011 40.36737146%
2 Aug 2011 37.85301757%
2 Sep 2011 37.90452830%
2 Oct 2011 37.95649092%
2 Nov 2011 38.00890939%
2 Dec 2011 38.06178772%
2 Jan 2012 38.14515213%
2 Feb 2012 35.63354564%
2 Mar 2012 35.68782787%
2 Apr 2012 35.74258629%
2 May 2012 35.79782511%
2 Jun 2012 35.85354851%
2 Jul 2012 35.93254213%
2 Aug 2012 33.42383085%
2 Sep 2012 33.48103369%
2 Oct 2012 33.53873836%
2 Nov 2012 33.59694925%
2 Dec 2012 33.65567080%
2 Jan 2013 33.73036715%
2 Feb 2013 32.28908185%
2 Mar 2013 32.34936245%
2 Apr 2013 32.41017187%
2 May 2013 32.47151475%
2 Jun 2013 32.53339579%
2 Jul 2013 32.61127931%
2 Aug 2013 31.17320916%
2 Sep 2013 31.23673311%
2 Oct 2013 31.30081433%
2 Nov 2013 31.36545774%
2 Dec 2013 31.43066823%
2 Jan 2014 31.51191042%
2 Feb 2014 29.94077007%
2 Mar 2014 30.00771188%
2 Apr 2014 30.07524095%
2 May 2014 30.14336244%
2 Jun 2014 30.21208153%
2 Jul 2014 30.29756190%
2 Aug 2014 28.72999200%
2 Sep 2014 28.80053556%
2 Oct 2014 28.87169798%
2 Nov 2014 28.94348468%
2 Dec 2014 29.01590116%
2 Jan 2015 29.10581796%
2 Feb 2015 27.54201059%
2 Mar 2015 27.61634970%
2 Apr 2015 27.69134095%
2 May 2015 27.76699010%
2 Jun 2015 27.84330289%
2 Jul 2015 27.93715018%
2 Aug 2015 26.37730778%
2 Sep 2015 26.45564665%
2 Oct 2015 26.53467276%
2 Nov 2015 26.61439215%
2 Dec 2015 26.69481089%
2 Jan 2016 26.79280016%
2 Feb 2016 25.23713607%
2 Mar 2016 25.31968990%
2 Apr 2016 25.40296794%
2 May 2016 25.48697657%
2 Jun 2016 25.57172218%
2 Jul 2016 25.65721124%
2 Aug 2016 24.10595026%
2 Sep 2016 24.19294585%
2 Oct 2016 24.28070461%
2 Nov 2016 24.36923325%
2 Dec 2016 24.45853853%
2 Jan 2017 24.54862726%
2 Feb 2017 24.53692282%
2 Mar 2017 24.62859912%
2 Apr 2017 24.72107968%
2 May 2017 24.87354963%
2 Jun 2017 25.02749931%
2 Jul 2017 25.26129977%
<PAGE>
Schedule U3S
<PAGE>
Schedule A-1
to
Appendix A
<PAGE>
COLLATERAL TRUST INDENTURE
dated as of July 1, 1997
among
W3A FUNDING CORPORATION,
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company)
and
BANKERS TRUST COMPANY,
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
ENTERGY LOUISIANA, INC.
Reconciliation and tie between Indenture
dated as of July 1, 1997
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>
COLLATERAL TRUST INDENTURE
Collateral Trust Indenture, dated as of July 1, 1997, 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,
Entergy Louisiana, Inc. (formerly Louisiana Power & Light
Company), a Louisiana corporation ("ELI"), 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.
RECITALS
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:
GRANTING CLAUSES
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; and
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 ELI, the board of directors of ELI, 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 ELI, 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 any other city in which any Corporate Trust Office
(as defined in the respective Lease Indentures) of a Lease
Indenture Trustee is 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, ELI and each Securityholder.
"ELI" shall mean Entergy Louisiana, Inc. (formerly Louisiana
Power & Light Company), a Louisiana corporation, and its
permitted successors and assigns.
"ELI Request" means a written request or order, signed in the
name of ELI 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 ELI, and delivered to the Trustee.
"Event of Default" has the meaning specified in Section 8.01.
"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.
"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.
"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 mean the "Indenture Estate" as
defined 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 ELI and any successor to the obligations of ELI
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 ELI as an Obligor herein shall be
construed as implying any guaranty or assumption of the
Securities or the obligations represented thereby by ELI.
"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 ELI, 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 ELI, 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 ELI, 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 ELI, 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.
"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.
"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 and terms 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
ELI to the Trustee to take any action under any provision of this
Indenture, the Company, such Lessor or ELI, 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 ELI 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 ELI, 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 ELI, 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 ELI. 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
ELI, 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 ELI.
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 ELI 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 ELI 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 ELI by
the Company for such purpose, or
(c) ELI 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 ELI 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 ELI
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, ELI 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 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 and (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;
(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;
(d) the Pledged Lessor Bonds relating to the Securities
of such series in an aggregate principal amount not less
than the aggregate principal amount of such series of
Securities proposed to be authenticated and delivered;
(e) signed copies, either addressed to the Trustee or
accompanied by statements that the Trustee may rely on such
documents, of all certificates and opinions of counsel
delivered (i) to the Company in connection with its receipt
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 ELI
(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; and
(f) 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
accountant (who shall not be an employee of the Company, or
ELI 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 ELI 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
ELI (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 ELI 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, ELI 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 issued under such Lease Indenture.
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,
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 thereto. 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, and prompt notice to the Holders in the manner specified
in Section 1.06, of the location, and of any change in the
location, of each such office or agency. 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 at 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 ELI 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 ELI 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 and provided to it for its execution. The Trustee
shall have no duty to monitor the necessity of filing any such
financing statement, continuation statement or other instrument
referred to in 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 ELI 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 ELI 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 ELI 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.
ELI 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, ELI 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 ELI 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 ELI 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 ELI 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, ELI 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 ELI Order, as the case may be, shall first
select such Securities for redemption. Any such Company Order or
ELI 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 ELI 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 ELI, as the case may be,
by the Trustee, or to the Company or ELI, 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 ELI, 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
United States 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 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 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 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 ELI, 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 ELI 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.
In 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 ELI 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 ELI 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, ELI 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, ELI, 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
ELI, 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 ELI 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 ELI
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or an ELI Request or ELI
Order, in the case of a request or direction of either the
Company or ELI, as the case may be, and any resolution of
the Board of Directors of the Company or ELI may be
sufficiently evidenced by a Board Resolution of the Company
or ELI, 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 ELI;
(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 ELI,
personally or by agent or attorney at the sole cost and
expense of the Company or ELI, 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 ELI, 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 ELI 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 ELI 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 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.
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 ELI. If an instrument of
acceptance by a successor Trustee shall not have been delivered
to the Company, ELI 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 ELI.
(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, ELI 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) ELI, 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, ELI, 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, ELI 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 ELI. If no successor Trustee
shall have been so appointed by ELI, 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, ELI 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, ELI 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 ELI, (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, ELI and the
Company. The Company may, and at the request of the Trustee or
ELI 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 ELI 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 ELI 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 ELI 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 ELI or the Company; and ELI 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) ELI, 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
ELI, 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 ELI 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 ELI
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 ELI,
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 ELI
Section 10.01. ELI to Furnish Trustee Names and Addresses of
Holders.
Semiannually, not later than March 31 and September 30 in
each year, commencing March 31, 1998 and at such other times as
the Trustee may request in writing, ELI 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 be
preserved 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 ELI.
Section 10.02. Reports by Trustee and ELI.
If required by Section 313 (a) of the Trust Indenture Act,
within thirty days after December 1 in each year commencing
December 1, 1997, 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 ELI 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; Amendments
Section 11.01. Supplemental Indentures Without Consent of
Holders.
Without the consent of the Holders of any Securities, ELI,
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
ELI and the assumption by any such successor of the
covenants of ELI 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 ELI, 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 ELI; 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, ELI 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, ELI 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, ELI and the
Trustee, the Company and ELI, 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 ELI 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 ELI, bear
a notation in form approved by such Lessor, the Company, ELI 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 ELI shall so determine, new
Securities so modified as to conform, in the opinion of such
Owner Trustee, the Company, ELI 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.
Section 11.08. Trustee may Join in Amendments.
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, any Participation Agreement.
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,
(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; and
(z) if such deposit shall have been made or if such
pledged Lessor Bonds are so deemed to have been paid, in
either case, prior to the Stated Maturity of principal or
Redemption Date of such Securities, an Opinion of Counsel
to the effect that such deposit or deemed payment, as the
case may be, and satisfaction and discharge of indebtedness
shall not be deemed to be, or result in, a taxable event
with respect to the holders of such Securities for purposes
of United States Federal income taxation; provided that
such Opinion of Counsel need not address the matters
specified in this clause (z) if the Trustee shall have
received documentary evidence that each Holder of such
Security either is not subject to, or is exempt from,
United States Federal income taxation.
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, ELI 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
ELI, 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, ELI, 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 ELI 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 have
proceeded to cause the meeting to be held as provided herein,
then the Company, ELI 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 ELI, 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, ELI 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, ELI 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, ELI, 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, ELI 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 ELI, 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 ELI
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 ELI.
In no event shall any provision of this Indenture or the
Securities constitute a guaranty or assumption by ELI of the
Securities or the indebtedness represented thereby (it being
understood that, in accordance with Section 2.16 of each Lease
Indenture, ELI 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
Entergy Louisiana, Inc.
By
------------------------------------
Title: Vice President and Treasurer
Bankers Trust Company, 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.
---------------------------------
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 Entergy Louisiana, Inc., 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 __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.
--------------------------------
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 ELI 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, as amended, among the Owner
Participant, the Company, the Trustee, First National Bank of
Commerce, individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and ELI.
PART II
Lease - Facility Lease No. 2, dated as of September 1, 1989,
as amended and supplemented, between ELI 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 and Stanley Burg, 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, as amended, among the Owner
Participant, the Company, the Trustee, First National Bank of
Commerce, individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and ELI.
PART III
Lease - Facility Lease No. 3, dated as of September 1, 1989,
as amended and supplemented, between ELI 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, as amended, among the Owner
Participant, the Company, the Trustee, First National Bank of
Commerce, individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and ELI.
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1
dated as of July 1, 1997
to
COLLATERAL TRUST INDENTURE
dated as of July 1, 1997
among
W3A FUNDING CORPORATION,
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company)
and
BANKERS TRUST COMPANY,
as Trustee
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>
SUPPLEMENTAL INDENTURE NO. 1, dated as of July 1, 1997,
among W3A FUNDING CORPORATION, a Delaware corporation (the
"Company"), ENTERGY LOUISIANA, INC. (formerly Louisiana Power &
Light Company), a Louisiana corporation ("ELI"), and BANKERS
TRUST COMPANY, a New York banking corporation, not in its
individual capacity but solely as trustee (the "Trustee").
WHEREAS, the Company and ELI have heretofore executed
and delivered to the Trustee a Collateral Trust Indenture, dated
as of July 1, 1997 (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, ELI 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 ELI (a) desire the issuance by
the Company of a separate 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 ELI
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 ELI 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 is hereby created and established a separate
series of Securities designated "Waterford 3 Secured Lease
Obligation Bonds, 8.09% Series due 2017" (the "Bonds"). The
Bonds shall be issued in the aggregate principal amount, shall
bear interest at the rate per annum and shall have the Stated
Maturity of principal set forth below:
Original Interest Final
Principal Amount Rate Maturity
----------------- --------- --------
Bonds $307,632,000 8.09% January 2, 2017
The Bonds shall be substantially in the form of Exhibit A hereto.
The interest on the 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 January 2 and July 2 in each
year (commencing January 2, 1998), until the principal amount of
the Bonds 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 (i) payments of interest and Installment Payment Amounts on
such Bonds, 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 (ii) 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 ELI,
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 equal (subject to adjustment as set forth in Section
1.02(b)) 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,
means the principal amount identified as such on the face of such
Bond.
Installment Installment Payment
Payment Date Percentage
January 2, 1999 8.205086597%
January 2, 2000 6.682958210%
January 2, 2001 6.682957885%
January 2, 2002 6.682958210%
January 2, 2003 10.824584244%
January 2, 2004 5.353311749%
January 2, 2005 0.203574401%
January 2, 2006 0.864755617%
January 2, 2007 0.989230639%
January 2, 2008 1.710452749%
January 2, 2009 3.631649503%
January 2, 2010 4.847784366%
January 2, 2011 7.737269855%
January 2, 2012 4.543215595%
January 2, 2013 3.328583177%
January 2, 2014 4.481746047%
January 2, 2015 4.111220549%
January 2, 2016 0.430046614%
January 2, 2017 18.688613993%
(b) Certain Adjustments to Installment Payments and
Stated Maturity. (i) The principal amount of Bonds to be paid in
installments on Installment Payment Dates and at Stated Maturity,
and the Stated Maturity, shall be adjusted (a "Payment
Adjustment") at the direction of the Company, so as to correlate,
as to amounts and dates, to any adjustment to the principal
amortization and maturity schedule of the Pledged Lessor Bonds
issued under any Lease Indenture pursuant to Section 2.17 of 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 (calculated in accordance
with generally accepted financial practice from the date of
initial issuance) by more than 6 months or extend the final
maturity of the Bonds and (B) the Company shall be obligated 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 ELI at least 40 days prior to the first payment date proposed
to be affected by such adjustment, a Company Request (A) stating
that the Company is obligated 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 as to which a Payment Adjustment is to be made,
(C) attaching a copy of the revised principal schedule or
schedules for the corresponding Pledged Lessor Bonds, and
(D) attaching calculations showing that (x) the average life of
the Bonds 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 ELI, send to each Holder of Bonds in respect of which
a Payment Adjustment has been made at least 30 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 (other than pursuant to principal
installment payments), each Installment Payment Amount for each
Bond 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 redeemed pursuant to such partial
redemption, and the denominator shall be the aggregate unpaid
principal amount of Bonds 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 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 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 Pledged 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 Pledged Lessor Bonds are to be prepaid, at a
Redemption Price equal to 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
pursuant to Section 14 of such Lease, to the right of ELI to
assume such Pledged 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 shall be subject to redemption, at the option
of the Company, with the written consent of the Lessee and the
Owner Trustee, 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 January 22, 2008, 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 Stated
Maturity, 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 plus .125%, 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. "Investment
Banker" shall mean an independent investment banking institution
of national standing appointed by ELI 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 are to be redeemed, the particular Bonds 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, ELI 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
ENTERGY LOUISIANA, INC.
By
-------------------------
Title: Vice President
BANKERS TRUST COMPANY, 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 ENTERGY LOUISIANA, INC., 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, 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
Number Amount Rate Maturity
------ --------- -------- --------
R-1A-1 174,000,000 8.09% January 2, 2017
Lessor Bonds Issued Under Lease Indenture No. 2
Principal Interest
Number Amount Rate Maturity
------ ---------- --------- --------
R-2B-1 87,000,000 8.09% January 2, 2017
Lessor Bonds Issued Under Lease Indenture No. 3
Principal Interest
Number Amount Rate Maturity
------ ---------- --------- --------
R-3C-1 46,632,000 8.09% January 2, 2017
<PAGE>
EXHIBIT A
FORM OF BOND
NUMBER
R-
________________________
WATERFORD 3
SECURED LEASE OBLIGATION BOND,
8.09 % SERIES DUE 2017
STATED
INTEREST RATE MATURITY CUSIP
8.09% January 2, 2017
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 below, all
capitalized terms used herein without definition herein having
the meanings ascribed thereto in such Indenture), 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 below with the final
installment due and payable on the Stated Maturity (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 January 2, 1998, the date of
the original issuance of Bonds of this series, semiannually on
January 2 and July 2 in each year, commencing January 2, 1998 at
the Interest Rate (stated above) per annum, until the principal
hereof is paid in full or made available for payment.
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
(i) payment of interest and Installment Payment Amounts (other
than such amounts payable on the Stated Maturity hereof) shall be
made, without presentation or surrender hereof, by check mailed
to the address of the Holder of this Bond at the close of
business on the Regular Record Date for such payment, whether or
not such Regular Record Date is a Business Day, as such address
shall appear in the Security Register and (ii) 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 ELI (as
hereinafter defined), the Trustee and such Holder. The Regular
Record Date for a January 2 payment shall be December 15 and the
Regular Record Date for a July 2 payment shall be June 15.
Notwithstanding the foregoing, any interest or Installment
Payment Amount not 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.
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.
This Bond is one of an authorized issue of Securities
of the Company known as its "Waterford 3 Secured Lease Obligation
Bonds, 8.09 % Series due 2017" (the "Bonds"). The Bonds are
issued under and secured by a Collateral Trust Indenture, dated
as of July 1, 1997 (the "Original Indenture"), among the Company,
Entergy Louisiana, Inc. (formerly Louisiana Power & Light
Company), a Louisiana corporation ("ELI"), and Bankers Trust
Company, 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 July 1,
1997 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
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 ("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, 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 Corporate Indenture 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 ELI 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 Bond 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 aggregate 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
January 2, 1999 8.205086597% 0.9179491
January 2, 2000 6.682958210% 0.8511196
January 2, 2001 6.682957885% 0.7842900
January 2, 2002 6.682958210% 0.7174604
January 2, 2003 10.824584244% 0.6092145
January 2, 2004 5.353311749% 0.5556814
January 2, 2005 0.203574401% 0.5536457
January 2, 2006 0.864755617% 0.5449981
January 2, 2007 0.989230639% 0.5351058
January 2, 2008 1.710452749% 0.5180013
January 2, 2009 3.631649503% 0.4816848
January 2, 2010 4.847784366% 0.4332070
January 2, 2011 7.737269855% 0.3558343
January 2, 2012 4.543215595% 0.3104021
January 2, 2013 3.328583177% 0.2771163
January 2, 2014 4.481746047% 0.2322988
January 2, 2015 4.111220549% 0.1911866
January 2, 2016 0.430046614% 0.1868861
January 2, 2017 18.688613993% 0.0000000
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 this series
(calculated in accordance with generally accepted financial
practice from the date of initial issuance) by more than 6 months
or extend the Stated Maturity of Bonds of this series.
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 the 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 Pledged Lessor Bonds are to be prepaid, at a
redemption price equal to 100% of 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 ELI to assume such
Pledged 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 Company, with the prior written
consent of the Lessee and the Owner Trustee, 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 Bonds to be so redeemed, plus
accrued interest, if any, thereon to the Redemption Date, plus,
if such redemption is made prior to January 22, 2008, 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 30 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.
The obligation of the Company to pay the principal of
and premium, if any, and interest on this Bond, and the lien of
the Indenture, is subject to being legally discharged prior to
the Stated Maturity of this Bond upon the deposit with the
Trustee of cash or certain securities sufficient to pay this Bond
when due in accordance with the terms of 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, except to the extent that laws of
other jurisdictions are mandatorily applicable.
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 the Indenture, or be valid
or obligatory for any purpose.
<PAGE>
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>
AMENDMENT NO. 1
dated as of July 1, 1997
to
TAX INDEMNIFICATION AGREEMENT No. 2
dated as of September 1, 1989
between
ESSL 2, INC.
Beneficiary under Trust Agreement No. 2,
dated as of September 1, 1989
with
FIRST NATIONAL BANK OF COMMERCE
AS OWNER TRUSTEE,
Lessor,
and
ENTERGY LOUISIANA, INC.
(formerly 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 July 1, 1997 ("TIA
Amendment No. 1"), to TAX INDEMNIFICATION AGREEMENT No. 2, 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
ENTERGY LOUISIANA, INC. (formerly 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 the Participation Agreement
No. 2, dated as of September 1, 1989, (as amended by Amendment
No. 1 thereto, dated as of the date hereof and as otherwise
modified, amended or supplemented pursuant to the terms thereof;
the "Participation Agreement") among the Owner Participant, the
Lessor, BANKER'S TRUST COMPANY, not in its individual capacity
but solely as successor Corporate Indenture Trustee under
Indenture No. 2, and STANLEY BURG, not in his individual capacity
but solely as successor Individual Indenture Trustee under
Indenture No. 2, and the Lessee, or the Refunding Agreement.
WHEREAS, pursuant to Participation Agreement No. 2, 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 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 1997 Bonds in amounts which,
when added to the Additional Equity Investment made by the Owner
Participant and any Rent paid by the Lessee, will be sufficient
to redeem the Initial Series Bonds, including any premium and
accrued interest thereon and to pay the Refunding Expenses; and
WHEREAS, the Owner Participant and the Lessee have
heretofore executed Tax Indemnification Agreement No. 2 and
desire to amend Tax Indemnification Agreement No. 2 as
hereinafter provided to clarify their respective rights and
obligations arising from the transactions contemplated by
Refunding Agreement No. 2 (the "Refunding");
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
Tax Indemnification Agreement No. 2 is hereby amended,
effective upon the execution and delivery of this Agreement, as
follows:
1. Section 1.1(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 Amendment No. 1 to the Participation Agreement"
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 3.01 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 in
accordance with the accrual method of tax accounting."
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) Assuming that the Facility Lease is a "true" lease
for federal income tax purposes, 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".
<PAGE>
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.
ENTERGY LOUISIANA, INC.
________________________________
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 ENTERGY LOUISIANA, 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:
_________ __, ____
Exhibit 4
REFUNDING AGREEMENT NO. 3
dated as of June 27, 1997
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 Corporate Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 3,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and as Collateral Trust Trustee
under Collateral Trust Indenture to be dated as of
July 1, 1997, with the Lessee and Funding Corporation,
STANLEY BURG,
as Individual Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 3,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company),
as Lessee
<PAGE>
This REFUNDING AGREEMENT NO. 3, dated as of June 27,
1997, 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 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
Individual Indenture Trustee under the Indenture, and ENTERGY
LOUISIANA, INC. (formerly 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. 3, dated as of September
1, 1989 (as the same may be amended, modified or supplemented
from time to time, 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 (together, the "1997 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 June 20, 1997, 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 July 17, 1997 (the "Refunding Date"), and the Indenture
Trustee gave notice of such redemption to the Holders of such
Bonds on June 27, 1997, 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 and the payment of a portion
of the premium related thereto, such loan to be evidenced by
Additional 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 date hereof (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 July 1, 1997,
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 establish 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
July 1, 1997 ("Supplemental Indenture No. 2"), providing, among
other things, for the issuance of 1997 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 July 1, 1997
("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 July 1, 1997 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
1
1.11. 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 $46,632,000,
and shall receive the Owner Trustee's 1997 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.
1.12. Issuance of Refunding Bonds; Additional Equity
Investment; 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; and (b)(i) the Owner Participant shall pay to
the Owner Trustee an additional equity investment of $774,228
("Additional Equity Investment"), (ii) the Lessee shall make a
Supplemental Rent payment in the amount of $198,614.92 and (iii)
the Owner Trustee shall issue the 1997 Bonds in the principal
amount of $46,632,000 and apply the Refunding Loan, the
Additional Equity Investment and the Supplemental Rent payment to
redeem the Initial Series Bonds then Outstanding maturing in 2005
("Series 2005 Bonds") for an amount equal to 102.060% of the
outstanding principal amount thereof (such outstanding principal
amount being $19,656,000) plus accrued interest thereon and to
redeem the Initial Series Bonds then Outstanding maturing in 2017
("Series 2017 Bonds") for an amount equal to 106.402% of the
outstanding principal amount thereof (such outstanding principal
amount being $25,700,000) 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 $46,632,000 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 1997 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 Portion of 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 1997 Bonds to Funding Corporation, Funding Corporation shall
pledge such 1997 Bonds in accordance with the terms of the
Collateral Trust Indenture.
1.13. 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
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 1997 Bonds as contemplated by the Refunding Documents
and request the Indenture Trustee (x) to authenticate and deliver
the 1997 Bonds pursuant to Section 2.05 of the Indenture and
(y) in view of the fact that Funding Corporation is to pledge
such 1997 Bonds to the Collateral Trust Trustee, cause such 1997
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 1997 Bonds,
as security for Funding Corporation's obligations under the
related Refunding Collateral Bonds (as hereinafter defined) and
under the Collateral Trust Indenture. Accordingly, Funding
Corporation hereby consents to the Owner Trustee's issuance of
the 1997 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 in
the amount of $29,288,143.97, 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 as contemplated by the last
sentence of Section 16(e)(4) of the Participation Agreement.
(g) Terms of 1997 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 1997 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
2
2.11. 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 $307,632,000 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.
2.12. 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 of the Lessee 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), (5), (7) 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 set forth 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 set
forth 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.
2.13. Conditions to Obligation of Owner Trustee.
The obligation of the Owner Trustee to issue and deliver the
1997 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 by the Owner Trustee of a direction from the Owner
Participant in conformance with Section 1.03.
2.14. 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
3
3.11. 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 Lessor's Percentage (as defined in
Section 13(a) of the Participation Agreement) of the following
costs and expenses ("Refunding Expenses") without duplication of
amounts payable with respect to any other refunding of bonds on
the Refunding Date utilizing the proceeds of the Refunding
Collateral Bonds:
(i) the reasonable legal fees and
disbursements of the Owner Participant's
Special Counsel (in an amount not to exceed
the amount agreed to by the Owner Participant
and the Lessee), the Owner's Participant's
Louisiana Counsel, 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;
(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 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).
Notwithstanding anything in this Section 3.01 to the
contrary, the amount of Refunding Expenses payable by the Owner
Trustee shall not exceed $483,821.86. Subject to the provisions
of paragraphs (b) and (c) below, funds for the payment of
Refunding Expenses will be provided by the Owner Participant and
the Owner Trustee will promptly disburse funds for the payment of
such expenses in accordance with written authorization from the
Owner Participant.
(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.
(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.
(d) Furthermore, in the event that the Lessor's Percentage
of 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.
(e) Promptly after the payment of the Refunding Expenses,
any adjustments to Basic Rent and the Value Schedules as are
required by Section 3(e)(ii) of the Facility Lease shall be made.
ARTICLE FOUR
MISCELLANEOUS
4
4.11. 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.
4.12. Governing Law.
This Refunding Agreement shall be governed by, and be
construed in accordance with, the laws of the State of New York.
4.13. 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. Notwithstanding anything herein to the
contrary, 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Refunding Agreement to be duly executed by their respective
officers thereunto duly authorized as of the date first set forth
above.
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
ENTERGY LOUISIANA, INC., as Lessee
By
-------------------------------
Name:
Title:
<PAGE>
SCHEDULE 1
Recordations and Filings
<PAGE>
AMENDMENT NO. 1
dated as of July 1, 1997
to
PARTICIPATION AGREEMENT NO. 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 Corporate Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 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 July 1, 1997
with the Lessee and Funding Corporation,
STANLEY BURG,
as Individual Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. 3,
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company),
as Lessee
<PAGE>
This AMENDMENT NO. 1, dated as of July 1, 1997 ("PA
Amendment No. 1"), to PARTICIPATION AGREEMENT NO. 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, as Owner Trustee, BANKERS TRUST
COMPANY, as Corporate Indenture Trustee under the Indenture and
as Collateral Trust Trustee under the Collateral Trust Indenture,
STANLEY BURG, as Individual Indenture Trustee under the
Indenture, and ENTERGY LOUISIANA, INC. (formerly 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. 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 July 1, 1997, 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 and for the payment of
certain expenses incurred in connection therewith, such loan to
be evidenced by Additional Bonds issued by the Owner Trustee to
or upon the order of Funding Corporation; and
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
1
1.11. 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 by deleting paragraphs (b), (c)
and (d) and inserting the following 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")
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).
(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 the proceeds thereof to 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. 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. Not less
than three Business Days prior to the Refunding Date,
Funding Corporation and Lessee shall deliver to the
Owner Participant and the Owner Trustee a certificate
setting forth the terms of the Additional Bonds which
Lessee may determine as provided below. 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 Section 2.17 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 Section 2.17. 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, the Indenture Trustee, the Collateral
Trust Trustee 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. Notwithstanding the foregoing,
nothing herein shall prohibit the Owner Participant
from otherwise participating in any such action
initiated by any other person.
(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) and, as to FNBC, (4), (6), (7) and
(8), and the Owner Trustee agrees as set forth in
clauses (2) and (5), and, as to the Owner Trustee, (4),
(6), (7) and (8) 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.
Notwithstanding the foregoing, nothing herein shall
prohibit FNBC or the Owner Trustee from otherwise
participating in any such action initiated by any other
person.
(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. Notwithstanding
the foregoing, nothing herein shall prohibit the
corporate Indenture Trustee or the Individual Indenture
Trustee from otherwise participating in any such action
initiated by any other person.
(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 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 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 or is to become a party on or
before the Refunding Date 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 with, or results 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.
(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 (i) it shall have received the
prior written consent of the Owner Participant and (ii)
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,
purchase or directly or indirectly acquire any
Collateral Bond issued in connection with any Bond
without the prior written 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 as contemplated by
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.
The Collateral Trust Trustee represents and warrants
that:
(a) Due Organization. The 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 a party.
(b) Due Authorization. The execution, delivery and
performance by the Collateral Trust Trustee of the
Collateral Trust Indenture, this Participation Agreement,
the Refunding Agreement and each other Transaction Document
to which the Collateral Trust Trustee is a party have been
duly authorized by all necessary corporate action of the
Collateral Trust Trustee and each has been duly executed and
delivered by the Collateral Trust Trustee.
(c) Execution; Authentication of Bonds. (i) Each of
the Collateral Trust Indenture, this Participation
Agreement, the Refunding Agreement and each other
Transaction Document to which the Collateral Trust Trustee
is a party has been duly executed and delivered by the
Collateral Trust Trustee and constitutes the legal, valid
and binding agreement of the Collateral Trust Trustee,
enforceable against the Collateral Trust Trustee in
accordance with its terms; and (ii) each officer of the
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, a Responsible Officer.
(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, directly or indirectly, any of the bonds or
Collateral Bonds, or any interest therein, without the
written consent of the Owner Participant; provided,
however, that the Lessee may purchase Collateral Bonds
for application in accordance with the sinking fund
provisions of the Collateral Trust Indenture so long as
(A) the amount of Collateral Bonds held at any time by
the Lessee (and any Affiliates) does not exceed the sum
of the amounts due as Basic Rent for the next two
consecutive Basic Rent Payment Dates and (B) none of
the Collateral Bonds purchased are held by the Lessee
(or any Affiliate) for a period in excess of 12 months.
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.
Notwithstanding the foregoing, nothing herein shall
prohibit the Lessee from otherwise participating in any
such action initiated by any other person.
(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. 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, Lessee's Special Counsel, and, if Funding
Corporation is being utilized in connection with a
refunding, Reid & Priest LLP, counsel to Funding
Corporation, 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 (5), (7) and (9) of Section 6(a), subclauses
(1) through (10) of Section 7(a), and subclauses (1)
through (5), (10), (11), (12), (15), (16), (19) and
(20) 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
and all references to the Disclosure Documents being
deemed to refer to the 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 on or prior 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 (5),
(10), (11), (12), (15), (16), (19) and (20) 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 and
all references to the Disclosure Documents being deemed
to refer to the 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 and
prior 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 the matters set forth in
paragraph (3) above); 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 any 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) 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, (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, (e) any
transfer of all or any part of the right, title and
interest of the Owner Trustee in the Undivided Interest
or 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 or Refunding
Expenses, (ii) that the fees, expenses, disbursements
and costs of the Owner Participant in connection with
any refunding or reoptimization which does not require
the utilization of Funding Corporation or any amendment
to the documents 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, Four Albany Street, New York, New York 10006,
Attention: Corporate and Agency Group - Public Utilities
Group; (iv) if to Funding Corporation, at c/o National
Corporate Research, Ltd., 19 East Loockerman Street, Dover,
Delaware 19901; (v) if to the Collateral Trust Trustee at
Four Albany Street, New York, New York 10006, Attention:
Corporate and Agency Group - Public Utilities Group; and
(vi) if to the Lessee, at 639 Loyola Avenue, New Orleans,
Louisiana 70113, 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) Schedule 7 to the Participation is hereby amended in
its entirety to read as set forth in Schedule 2 hereto.
(p) Appendix A to the Participation Agreement is hereby
amended as set forth in Schedule A-1 to Appendix A attached
hereto.
ARTICLE TWO
MISCELLANEOUS
2
2.11. 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.
2.12. 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.
2.13. 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.
<PAGE>
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
ENTERGY LOUISIANA, INC., 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 July 1, 1997, 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:
3 Refunding Date: July 17, 1997
4 Interest Rate and
Amortization of
1997 Bonds: See Supplemental Indenture No. 2,
dated as of July 1, 1997
5 Refunding Expenses: $483,821.86
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).
6 Accrued Interest: $198,614.92
paid by the Owner Trustee on the
Refunding Date from Supplemental
Rent paid by the Lessee as interest from
July 2, 1997 to the Refunding Date on the
Initial Series Bonds which are redeemed on
the Refunding Date.
7 Premium: $2,050,227.60
paid by the Owner Trustee on the
Refunding Date from a portion of the
proceeds of the 1997 Bonds and the
Additional Equity Investment in respect
of the premium on the Initial Series
Bonds redeemed on the Refunding Date.
8 1997 Bonds: $46,632,000
issued by the Owner Trustee in accordance
with the Refunding Agreement, Supplemental
Indenture No. 2, dated as of July 1, 1997,
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.
9 Supplemental Rent: $198,614.92 paid
by the Lessee on the Refunding Date.
8. Additional Equity Investment: $774,227.60
funded by the Owner Participant on the
Refunding Date.
9. Owner Participant's
Marginal Federal Tax
Rate as of 1993: 35%
10. Owner Participant's
Marginal State Tax Rate
- as of 1989: 17.53%
- as of 1991: 17%
11. Tax Payment Method
- as of 1992: 93/7
- as of 1993: 97/3
- as of 1994: 100/0
<PAGE>
SCHEDULE 7
TO
PARTICIPATION
AGREEMENT
MODIFIED CASUALTY VALUES
Percentage of
DATE Facility Cost
2 Oct 1989 15.35952855%
2 Nov 1989 15.67197774%
2 Dec 1989 15.98791855%
2 Jan 1990 16.27311638%
2 Feb 1990 19.01496153%
2 Mar 1990 19.35647834%
2 Apr 1990 19.69800342%
2 May 1990 20.01269741%
2 Jun 1990 20.33090811%
2 Jul 1990 20.62202718%
2 Aug 1990 25.61451484%
2 Sep 1990 26.00774757%
2 Oct 1990 26.37472705%
2 Nov 1990 26.74580751%
2 Dec 1990 27.12103481%
2 Jan 1991 27.31664091%
2 Feb 1991 27.66601253%
2 Mar 1991 28.02033077%
2 Apr 1991 28.36507412%
2 May 1991 28.68560401%
2 Jun 1991 29.00971582%
2 Jul 1991 29.30938360%
2 Aug 1991 29.61240017%
2 Sep 1991 29.91880295%
2 Oct 1991 30.20056380%
2 Nov 1991 30.48547333%
2 Dec 1991 30.77356673%
2 Jan 1992 31.03681359%
2 Feb 1992 31.30300224%
2 Mar 1992 31.57216555%
2 Apr 1992 31.83186299%
2 May 1992 32.07717791%
2 Jun 1992 32.32523423%
2 Jul 1992 32.55877794%
2 Aug 1992 32.79493151%
2 Sep 1992 33.03372409%
2 Oct 1992 33.25790054%
2 Nov 1992 33.48458217%
2 Dec 1992 33.71379696%
2 Jan 1993 34.72955015%
2 Feb 1993 34.94977548%
2 Mar 1993 35.17246182%
2 Apr 1993 35.39235265%
2 May 1993 35.59790174%
2 Jun 1993 35.80574785%
2 Jul 1993 35.99911764%
2 Aug 1993 36.19464833%
2 Sep 1993 36.39236407%
2 Oct 1993 36.57549028%
2 Nov 1993 36.76066293%
2 Dec 1993 36.94790488%
2 Jan 1994 37.12044026%
2 Feb 1994 37.29490371%
2 Mar 1994 37.47131680%
2 Apr 1994 37.64762307%
2 May 1994 37.81029044%
2 Jun 1994 37.97477562%
2 Jul 1994 38.12548980%
2 Aug 1994 38.27788821%
2 Sep 1994 38.43198967%
2 Oct 1994 38.57220409%
2 Nov 1994 38.71398541%
2 Dec 1994 38.85735113%
2 Jan 1995 38.98670985%
2 Feb 1995 39.11751414%
2 Mar 1995 39.24978017%
2 Apr 1995 39.38352428%
2 May 1995 39.50446234%
2 Jun 1995 39.62675189%
2 Jul 1995 39.73610738%
2 Aug 1995 39.84668492%
2 Sep 1995 39.95849816%
2 Oct 1995 40.05726029%
2 Nov 1995 40.15712607%
2 Dec 1995 40.25810786%
2 Jan 1996 40.34591749%
2 Feb 1996 40.43470838%
2 Mar 1996 40.52449152%
2 Apr 1996 40.61527798%
2 May 1996 40.69471923%
2 Jun 1996 40.77504823%
2 Jul 1996 40.84391517%
2 Aug 1996 40.91355169%
2 Sep 1996 40.98396640%
2 Oct 1996 41.04280824%
2 Nov 1996 41.10230764%
2 Dec 1996 41.16247195%
2 Jan 1997 41.21094884%
2 Feb 1997 41.25996746%
2 Mar 1997 41.30953387%
2 Apr 1997 41.35965418%
2 May 1997 41.39538364%
2 Jun 1997 41.43151237%
2 Jul 1997 41.45309390%
2 Aug 1997 43.87064090%
2 Sep 1997 43.94186786%
2 Oct 1997 43.99893984%
2 Nov 1997 44.05664959%
2 Dec 1997 44.11500425%
2 Jan 1998 44.15906008%
2 Feb 1998 44.20360824%
2 Mar 1998 44.24865422%
2 Apr 1998 44.29420359%
2 May 1998 44.32514012%
2 Jun 1998 44.35642237%
2 Jul 1998 44.37293236%
2 Aug 1998 44.38962684%
2 Sep 1998 44.40650788%
2 Oct 1998 44.40845572%
2 Nov 1998 44.41042534%
2 Dec 1998 44.41241695%
2 Jan 1999 44.41241695%
2 Feb 1999 44.41241695%
2 Mar 1999 44.41241695%
2 Apr 1999 44.41241695%
2 May 1999 44.41241695%
2 Jun 1999 44.41241695%
2 Jul 1999 44.41241695%
2 Aug 1999 44.41241695%
2 Sep 1999 44.41241695%
2 Oct 1999 44.41241695%
2 Nov 1999 44.41241695%
2 Dec 1999 44.41241695%
2 Jan 2000 44.41241695%
2 Feb 2000 44.41241695%
2 Mar 2000 44.41241695%
2 Apr 2000 44.41241695%
2 May 2000 44.41241695%
2 Jun 2000 44.41241695%
2 Jul 2000 44.41241695%
2 Aug 2000 44.41241695%
2 Sep 2000 44.41241695%
2 Oct 2000 44.41241695%
2 Nov 2000 44.41241695%
2 Dec 2000 44.41241695%
2 Jan 2001 44.41241695%
2 Feb 2001 44.41241695%
2 Mar 2001 44.41241695%
2 Apr 2001 44.41241695%
2 May 2001 44.41241695%
2 Jun 2001 44.41241695%
2 Jul 2001 44.41241695%
2 Aug 2001 44.41241695%
2 Sep 2001 44.41241695%
2 Oct 2001 44.41241695%
2 Nov 2001 44.41241695%
2 Dec 2001 44.41241695%
2 Jan 2002 44.41241695%
2 Feb 2002 44.41241695%
2 Mar 2002 44.41241695%
2 Apr 2002 44.41241695%
2 May 2002 44.41241695%
2 Jun 2002 44.41241695%
2 Jul 2002 44.41241695%
2 Aug 2002 44.41241695%
2 Sep 2002 44.41241695%
2 Oct 2002 44.41241695%
2 Nov 2002 44.41241695%
2 Dec 2002 44.41241695%
2 Jan 2003 44.41241695%
2 Feb 2003 43.01316322%
2 Mar 2003 43.01316322%
2 Apr 2003 43.01316322%
2 May 2003 43.01316322%
2 Jun 2003 43.01316322%
2 Jul 2003 43.01534853%
2 Aug 2003 41.61609480%
2 Sep 2003 41.61609480%
2 Oct 2003 41.61609480%
2 Nov 2003 41.61609480%
2 Dec 2003 41.61609480%
2 Jan 2004 41.62048984%
2 Feb 2004 41.40593760%
2 Mar 2004 41.40593760%
2 Apr 2004 41.40593760%
2 May 2004 41.40593760%
2 Jun 2004 41.40593760%
2 Jul 2004 41.40593760%
2 Aug 2004 41.40593760%
2 Sep 2004 41.40593760%
2 Oct 2004 41.40593760%
2 Nov 2004 41.40593760%
2 Dec 2004 41.40593760%
2 Jan 2005 41.40593760%
2 Feb 2005 41.38821372%
2 Mar 2005 41.38821372%
2 Apr 2005 41.38821372%
2 May 2005 41.38821372%
2 Jun 2005 41.38821372%
2 Jul 2005 41.38821372%
2 Aug 2005 41.37048984%
2 Sep 2005 41.37048984%
2 Oct 2005 41.37048984%
2 Nov 2005 41.37048984%
2 Dec 2005 41.37048984%
2 Jan 2006 41.37048984%
2 Feb 2006 41.10929581%
2 Mar 2006 41.10929581%
2 Apr 2006 41.10929581%
2 May 2006 41.10929581%
2 Jun 2006 41.10929581%
2 Jul 2006 41.10929581%
2 Aug 2006 40.84810178%
2 Sep 2006 40.84810178%
2 Oct 2006 40.84810178%
2 Nov 2006 40.84810178%
2 Dec 2006 40.84810178%
2 Jan 2007 40.84810178%
2 Feb 2007 40.54959431%
2 Mar 2007 40.54959431%
2 Apr 2007 40.54959431%
2 May 2007 40.54959431%
2 Jun 2007 40.54959431%
2 Jul 2007 40.54959431%
2 Aug 2007 40.25108685%
2 Sep 2007 40.25108685%
2 Oct 2007 40.25108685%
2 Nov 2007 40.25108685%
2 Dec 2007 40.25108685%
2 Jan 2008 40.25108685%
2 Feb 2008 39.65407193%
2 Mar 2008 39.65407193%
2 Apr 2008 39.65407193%
2 May 2008 39.65407193%
2 Jun 2008 39.65407193%
2 Jul 2008 39.65407193%
2 Aug 2008 39.05705700%
2 Sep 2008 39.05705700%
2 Oct 2008 39.05705700%
2 Nov 2008 39.05705700%
2 Dec 2008 39.05705700%
2 Jan 2009 39.05705700%
2 Feb 2009 37.80705700%
2 Mar 2009 37.80705700%
2 Apr 2009 37.80705700%
2 May 2009 37.80705700%
2 Jun 2009 37.80705700%
2 Jul 2009 37.80705700%
2 Aug 2009 36.55705700%
2 Sep 2009 36.55705700%
2 Oct 2009 36.55705700%
2 Nov 2009 36.55705700%
2 Dec 2009 36.55705700%
2 Jan 2010 36.55705700%
2 Feb 2010 35.30705700%
2 Mar 2010 35.30705700%
2 Apr 2010 35.30705700%
2 May 2010 35.30705700%
2 Jun 2010 35.30705700%
2 Jul 2010 35.31527847%
2 Aug 2010 34.06527847%
2 Sep 2010 34.06527847%
2 Oct 2010 34.06527847%
2 Nov 2010 34.06527847%
2 Dec 2010 34.06527847%
2 Jan 2011 34.08181327%
2 Feb 2011 31.74972372%
2 Mar 2011 31.74972372%
2 Apr 2011 31.74972372%
2 May 2011 31.74972372%
2 Jun 2011 31.74972372%
2 Jul 2011 31.77123864%
2 Aug 2011 29.43914909%
2 Sep 2011 29.43914909%
2 Oct 2011 29.43914909%
2 Nov 2011 29.43914909%
2 Dec 2011 29.43914909%
2 Jan 2012 29.46569977%
2 Feb 2012 27.13361021%
2 Mar 2012 27.13361021%
2 Apr 2012 27.13361021%
2 May 2012 27.13361021%
2 Jun 2012 27.13361021%
2 Jul 2012 27.15269180%
2 Aug 2012 24.82060225%
2 Sep 2012 24.82060225%
2 Oct 2012 24.82060225%
2 Nov 2012 24.82060225%
2 Dec 2012 24.82060225%
2 Jan 2013 24.83213128%
2 Feb 2013 23.71272829%
2 Mar 2013 23.71272829%
2 Apr 2013 23.71272829%
2 May 2013 23.71272829%
2 Jun 2013 23.71272829%
2 Jul 2013 23.72425732%
2 Aug 2013 22.60485433%
2 Sep 2013 22.60485433%
2 Oct 2013 22.60485433%
2 Nov 2013 22.60485433%
2 Dec 2013 22.60485433%
2 Jan 2014 22.61638336%
2 Feb 2014 20.83466694%
2 Mar 2014 20.83466694%
2 Apr 2014 20.83466694%
2 May 2014 20.83466694%
2 Jun 2014 20.83466694%
2 Jul 2014 20.84958769%
2 Aug 2014 19.06787127%
2 Sep 2014 19.06787127%
2 Oct 2014 19.06787127%
2 Nov 2014 19.06787127%
2 Dec 2014 19.06787127%
2 Jan 2015 19.08622164%
2 Feb 2015 17.30450522%
2 Mar 2015 17.30450522%
2 Apr 2015 17.30450522%
2 May 2015 17.30450522%
2 Jun 2015 17.30450522%
2 Jul 2015 17.32285559%
2 Aug 2015 15.54113917%
2 Sep 2015 15.54113917%
2 Oct 2015 15.54113917%
2 Nov 2015 15.54113917%
2 Dec 2015 15.54113917%
2 Jan 2016 15.55948954%
2 Feb 2016 13.77777313%
2 Mar 2016 13.77777313%
2 Apr 2016 13.77777313%
2 May 2016 13.77777313%
2 Jun 2016 13.77777313%
2 Jul 2016 13.77777313%
2 Aug 2016 11.99605671%
2 Sep 2016 11.99605671%
2 Oct 2016 11.99605671%
2 Nov 2016 11.99605671%
2 Dec 2016 11.99605671%
2 Jan 2017 11.99605671%
2 Feb 2017 11.96077734%
2 Mar 2017 11.96077733%
2 Apr 2017 11.96077733%
2 May 2017 12.00875795%
2 Jun 2017 12.05727476%
2 Jul 2017 12.17360056%
<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) "Additional Equity Investment" shall have the
meaning ascribed thereto in the Refunding Agreement.
(2) "Collateral Bonds" shall mean all bonds, notes and
other evidences of indebtedness from time to time issued and
outstanding under the Collateral Trust Indenture.
(3) "Collateral Trust Indenture" shall mean (x) in
respect of the refunding of the Initial Series Bonds, the
Collateral Trust Indenture, dated as of July 1, 1997, 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.
(4) "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,
Bankers Trust Company, a New York banking corporation, 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.
(5) "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.
(6) "LP&L" means Entergy Louisiana, Inc. (formerly
Louisiana Power & Light Company), a Louisiana corporation, and
its permitted successors and assigns.
(7) "1997 Bonds" shall have the meaning set forth in
the Refunding Agreement.
(8) "Refunding Agreement" shall mean the Refunding
Agreement No. 3, dated as of June 27, 1997, among the Owner
Participant, the Owner Trustee, Funding Corporation, the
Indenture Trustee, the Collateral Trust Trustee and the Lessee.
(9) "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.
(10) "Refunding Expenses" shall have the meaning set
forth in Section 3.01 of the Refunding Agreement.
(11) "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 1997 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 or 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
1997 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 1997 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 1997 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 "Obligor" is amended and
restated as follows:
"Obligor", when used with reference to the
Bonds, the Indenture, the Collateral Bonds or the
Collateral Trust Indenture, means the Lessee and any
successor to the obligations of the Lessee under the
Lease, and does not include the Indenture Trustee, the
Collateral Trust Trustee, the Funding Corporation, the
Owner Trustee or the Owner Participant so long as none
of the foregoing shall have assumed such obligations;
provided, however, that no reference in the Indenture
to the Lessee as an Obligor shall be construed as
implying any guaranty or assumption by the Lessee of
the Bonds or the Collateral Trust Bonds or the
obligations represented thereby.
(4) 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.
(5) 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.
(6) 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.
(7) 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".
(8) 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.
<PAGE>
SUPPLEMENTAL INDENTURE NO. 2
dated as of July 1, 1997
to
INDENTURE OF MORTGAGE AND
DEED OF TRUST NO. 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. 3,
dated as of September 1, 1989, with
the Owner Participant,
and
BANKERS TRUST COMPANY,
as Corporate Indenture Trustee,
and
STANLEY BURG,
as 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
<PAGE>
The Supplemental Indenture No. 2, dated as of July 1, 1997, to
Indenture of Mortgage and Deed of Trust No. 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 Schedule A-1 being
attached hereto as Exhibit C), Bankers Trust Company, a New York
banking corporation and successor in interest under the Indenture
to First Trust of New York, National Association, as Corporate
Indenture Trustee (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 Patrick J. Crowley as Individual Indenture Trustee
(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 have 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
June 27, 1997;
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 and the
Indenture 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
1. 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 if made in the manner provided in this
Section."
(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 of interest or principal, or both, and premium, if
any, 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 or otherwise except in
compliance with Section 2.08 of the Indenture.
(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."
(c) Notwithstanding the foregoing, no Bond
issued to Funding Corporation shall be transferred
without the prior written consent of the Owner Trustee,
provided, however, that each Bond may be pledged with
the Collateral Trust Trustee and sold by the Collateral
Trust Trustee in accordance with the Collateral Trust
Indenture.
(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 40 days prior to the first payment date
proposed to be affected by such adjustment, an Owner Trustee
Request, 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 and maturity
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 Request and shall have no duty with
respect to the calculations referred to in the foregoing
clause (z), other than to make such Owner Trustee Request
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 Request, and in any event at least thirty (30)
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 Bonds after giving effect to such
adjustment."
(d) Article Three is amended to add the following 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."
(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 conclusively
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 referred to
herein of the Owner Trustee 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 receive
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 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 (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. In addition, the obligations of the
Owner Trustee under Section 8.07 shall survive the
earlier resignation or removal of the Indenture
Trustee."
(2) 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 1997 Bonds
2.
2.01 The 1997 Bonds.
(a) There is hereby created and established a separate series
of Additional Bonds designated, "Waterford 3 Secured Lease
Obligation Bonds, 8.09% Series C due 2017" (the "1997 Bonds").
The 1997 Bonds shall be issued in the aggregate principal amount,
shall bear interest at the rate per annum and shall have the
final maturity set forth below:
Original
Principal Interest Final
Amount Rate Maturity
---------- -------- --------
1997 Bonds $046,632,000 8.09% January 2, 2017
The 1997 Bonds shall be substantially in the form of Exhibit
A hereto.
(b) Each 1997 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 January 2, 1998
and on each January 2 and July 2 thereafter to and including the
final maturity date thereof, unless paid in full prior to such
date as provided herein and in such 1997 Bond.
(c) The original principal amount of each 1997 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 1997 Bond. Installments of principal of
and premium, if any, and interest on each 1997 Bond shall be due
and payable on the payment dates specified in Schedule 1 attached
thereto.
(d) Each 1997 Bond shall be subject to redemption as set forth
in such 1997 Bond. There shall not be a Sinking Fund for the
1997 Bonds.
ARTICLE THREE
Miscellaneous
3.
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.
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.
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
Corporate Indenture Trustee
- ------------------------------
[Seal]
By:
----------------------------
Name:
Title:
--------------------------------
Stanley Burg,
as Individual Indenture Trustee
<PAGE>
ACKNOWLEDGMENT
State Of )
) ss.:
County Of )
On this ___ day of _________, 1997, 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 _________, 1997, 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, 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 _________, 1997, 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 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 A
TO
SUPPLEMENTAL INDENTURE NO. 2
FORM OF 1997 BOND
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 OR OTHERWISE EXCEPT IN COMPLIANCE
WITH SECTION 2.08 OF THE INDENTURE
WATERFORD 3 SECURED LEASE
OBLIGATION BOND, 8.09% SERIES C
DUE 2017
(DUE JANUARY 2, 2017)
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. 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 January 2 and July 2
in each year, commencing January 2, 1998, at the rate of 8.09%
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. 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 July 1, 1997 (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 Corporate and Individual Indenture Trustee,
respectively (together, the "Indenture Trustee"), shall be made
only from the Indenture Estate or the income and proceeds
received by the Indenture Trustee therefrom, 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 Indenture 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
at a price equal to 100% of the unpaid principal amount hereof
plus accrued and unpaid interest hereon as provided in Section
7.16 of the Indenture. This Bond is also subject to redemption
in full, at 100% of 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 to be redeemed 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 and limitations provided in
Section 2.09 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.
<PAGE>
IN WITNESS WHEREOF, the Owner Trustee has caused this
Bond to be duly executed as of the date hereof.
Attest: FIRST NATIONAL BANK OF COMMERCE,
not in its individual capacity but
solely as Owner Trustee
By:
_____________________________ ------------------------------
[SEAL] Authorized Officer
This Bond is one of the Waterford 3 Secured Lease
Obligation Bonds, 8.09% Series C Due 2017 referred to in the
within-mentioned Indenture.
BANKERS TRUST COMPANY, as
Corporate Indenture Trustee
Dated:__________________ By:________________________________
Title:
<PAGE>
SCHEDULE 1
TO
EXHIBIT A
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Principal Amount Principal
Date Payable Balance
--------------- ---------------- ----------
January 2, 1999 3,824,485 42,807,515
January 2, 2000 3,116,397 39,691,118
January 2, 2001 3,116,397 36,574,721
January 2, 2002 3,116,397 33,458,324
January 2, 2003 5,041,869 28,416,455
January 2, 2004 2,498,738 25,917,717
January 2, 2005 95,160 25,822,557
January 2, 2006 389,111 25,433,446
January 2, 2007 434,161 24,999,285
January 2, 2008 794,560 24,204,725
January 2, 2009 1,582,935 22,621,790
January 2, 2010 2,471,176 20,150,614
January 2, 2011 3,407,468 16,743,146
January 2, 2012 2,050,373 14,692,773
January 2, 2013 1,411,340 13,281,433
January 2, 2014 2,577,416 10,704,017
January 2, 2015 2,202,742 8,501,275
January 2, 2016 220,181 8,281,094
January 2, 2017 8,281,094 0
<PAGE>
EXHIBIT B
to
Supplemental Indenture No. 2
Reference is made to Indenture of Mortgage and Deed of
Trust No. 3, dated as of September 1, 1989 (the "Original
Indenture"), as supplemented by Supplemental Indenture No. 1,
dated as of September 1, 1989 ("Supplemental Indenture No. 1";
the Original Indenture, as supplemented by Supplemental Indenture
No. 1, and as it may be further supplemented or amended from time
to time by all other supplemental indentures thereto being
hereinafter referred to as the "Indenture"), among First National
Bank of Commerce, as 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 Indenture as
modified by Schedule A-1 thereto), and Entergy Louisiana, Inc.,
as Lessee.
Pursuant to Sections 8.10 and 8.11 of the Original
Indenture and effective as of June , 1997:
1. First Trust of New York, National Association, as
Corporate Indenture Trustee, and Patrick Crowley, as
Individual Indenture Trustee, hereby resign as Corporate
Indenture Trustee and Individual Indenture Trustee,
respectively, under the Indenture; and
2. Bankers Trust Company and Stanley Burg hereby
accept their appointment as successor Corporate Indenture
Trustee and successor Individual Indenture Trustee,
respectively, under the Indenture.
The Owner Trustee and the Lessee hereby acknowledge and
accept such resignation and appointment.
The parties hereto may execute this instrument in
separate counterparts.
<PAGE>
First Trust of New York,
National Association, as Corporate
Indenture Trustee
By:
------------------------------
Name:
Title:
Patrick J. Crowley, as Individual
Indenture Trustee
By:
------------------------------
Name:
Title:
Bankers Trust Company, as successor
Corporate Indenture Trustee
By:
------------------------------
Name:
Title:
Stanley Burg, as successor Individual
Indenture Trustee
By:
------------------------------
Name:
Title:
First National Bank of Commerce, as
Owner Trustee
By:
------------------------------
Name:
Title:
Entergy Louisiana, Inc., as Lessee
By:
------------------------------
Name:
Title:
<PAGE>
EXHIBIT C
TO
SUPPLEMENTAL INDENTURE NO. 2
[Schedule A-1 to Appendix A (Definitions)]
<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. 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 July 1, 1997
to
FACILITY LEASE NO. 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. 3, dated as of September 1, 1989,
with the Owner Participant,
Lessor
and
ENTERGY LOUISIANA, INC.
(formerly 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. 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 July 1, 1997
to
FACILITY LEASE NO. 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. 3, dated as
of September 1, 1989, with the Owner Participant,
Lessor
and
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company),
Lessee
Original Facility Lease Recorded on
[September 28, 1989] at _________________
<PAGE>
This LEASE SUPPLEMENT NO. 1, dated as of July 1, 1997
("Lease Supplement No. 1"), to FACILITY LEASE NO. 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 ENTERGY LOUISIANA, INC.
(formerly 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,
Funding Corporation, the Collateral Trust Trustee and the
Indenture Trustee have entered into a Refunding Agreement No. 3,
dated as of July 1, 1997, 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 July
1, 1997, 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:
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.
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 13(g) of the Facility Lease is hereby amended
by adding, after the second sentence thereof, the following
sentence:
For purposes of the
preceding sentence, Casualty Value
shall be determined in accordance
with Schedule 2 to this Facility
Lease as in effect on the date of
the original execution and delivery
hereof, without regard to the
changes to such Schedule effected
by Lease Supplement No. 1 hereto.
(d) 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
Facility 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.
(e) 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, except that solely for purposes
of Section 13(g) of the Facility Lease, Schedule 2 shall remain
unchanged.
(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.
(f) Schedule U3S to the Facility Lease is attached hereto.
(g) Appendix A to the Facility Lease is hereby amended as
set forth in Schedule A-1 to Appendix A attached hereto.
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.
(d) Concerning the Lessor. FNBC is entering into this
Lease Supplement No. 1 solely as Owner Trustee under the Trust
Agreement and not in its individual capacity. Notwithstanding
anything herein to the contrary, all and each of the agreements
and obligations herein made or undertaken on the part of the
Lessor are made or undertaken not as personal agreements of FNBC,
but are made and undertaken solely for the purpose of binding the
Trust Estate, and nothing contained in this Lease Supplement No.
1 shall entitle any person to claim against FNBC in its
individual capacity or any of its assets.
<PAGE>
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
ENTERGY LOUISIANA, INC.
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 Parish 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 Parish 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 _______________ of ENTERGY
LOUISIANA, INC., 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>
<TABLE>
<CAPTION>
SCHEDULE 1
TO
LEASE
BASIC RENT PERCENTAGES
<S> <C> <C> <C>
Basic Rent Percentage of
Payment Facility Cost Advance Arrears
Date
2 Jul 1990 .00000000% .00000000% .00000000%
2 Jan 1991 4.60463162% .00000000% 100.00000000%
2 Jul 1991 4.60733209% .03137885% 99.96862115%
2 Jan 1992 4.60340858% 100.00000000% .00000000%
2 Jul 1992 4.60713993% .03204266% 99.96795734%
2 Jan 1993 4.60694776% 100.00000000% .00000000%
2 Jul 1993 4.60302425% .02021059% 99.97978941%
2 Jan 1994 4.60675560% 100.00000000% .00000000%
2 Jul 1994 4.60283209% .00000000% 100.00000000%
2 Jan 1995 4.60842910% 100.00000000% .00000000%
2 Jul 1995 4.60254384% .00988503% 99.99011497%
2 Jan 1996 5.38239459% 100.00000000% .00000000%
2 Jul 1996 4.56238153% .00397352% 99.99602648%
2 Jan 1997 6.81051586% 100.00000000% .00000000%
2 Jul 1997 4.44660261% .00000000% 100.00000000%
2 Jan 1998 3.22588750% 100.00000000% .00000000%
2 Jul 1998 3.51915000% .00000000% 100.00000000%
2 Jan 1999 10.65438321% 100.00000000% .00000000%
2 Jul 1999 3.23052982% .00000000% 100.00000000%
2 Jan 2000 9.04470332% 100.00000000% .00000000%
2 Jul 2000 2.99534650% .00000000% 100.00000000%
2 Jan 2001 8.80952001% 100.00000000% .00000000%
2 Jul 2001 2.76016318% .00000000% 100.00000000%
2 Jan 2002 8.57433669% 100.00000000% .00000000%
2 Jul 2002 2.52497986% .00000000% 100.00000000%
2 Jan 2003 13.33070561% 100.00000000% .00000000%
2 Jul 2003 3.54374180% .00000000% 100.00000000%
2 Jan 2004 7.02086493% 100.00000000% .00000000%
2 Jul 2004 1.95591726% .00000000% 100.00000000%
2 Jan 2005 2.15117846% 100.00000000% .00000000%
2 Jul 2005 1.96645976% .00000000% 100.00000000%
2 Jan 2006 2.93588327% 100.00000000% .00000000%
2 Jul 2006 2.18056509% .00000000% 100.00000000%
2 Jan 2007 3.02788039% 100.00000000% .00000000%
2 Jul 2007 2.18511395% .00000000% 100.00000000%
2 Jan 2008 3.96600947% 100.00000000% .00000000%
2 Jul 2008 2.42365882% .00000000% 100.00000000%
2 Jan 2009 6.02988083% 100.00000000% .00000000%
2 Jul 2009 2.95718546% .00000000% 100.00000000%
2 Jan 2010 7.56758844% 100.00000000% .00000000%
2 Jul 2010 2.77069466% .00000000% 100.00000000%
2 Jan 2011 10.21000063% 100.00000000% .00000000%
2 Jul 2011 3.59563481% .00000000% 100.00000000%
2 Jan 2012 7.42095757% 100.00000000% .00000000%
2 Jul 2012 3.44090050% .00000000% 100.00000000%
2 Jan 2013 4.86131095% 100.00000000% .00000000%
2 Jul 2013 2.12170516% .00000000% 100.00000000%
2 Jan 2014 7.59263053% 100.00000000% .00000000%
2 Jul 2014 2.58951024% .00000000% 100.00000000%
2 Jan 2015 6.69910352% 100.00000000% .00000000%
2 Jul 2015 2.42327719% .00000000% 100.00000000%
2 Jan 2016 2.83406264% 100.00000000% .00000000%
1 Jul 2016 2.40666092% .00000000% 100.00000000%
2 Jan 2017 16.11008359% 100.00000000% .00000000%
2 Jul 2017 12.17354308% .00000000% 100.00000000%
<PAGE>
SCHEDULE 2
TO
LEASE
SCHEDULE OF CASUALTY VALUES
PART A
Percentage of
DATE Facility Cost
2 Oct 1989 104.22081231%
2 Nov 1989 105.31009994%
2 Dec 1989 106.40296316%
2 Jan 1990 107.46516811%
2 Feb 1990 108.58000321%
2 Mar 1990 109.69869878%
2 Apr 1990 110.81748958%
2 May 1990 111.90953701%
2 Jun 1990 113.00518962%
2 Jul 1990 114.07383988%
2 Aug 1990 115.24034803%
2 Sep 1990 116.41129283%
2 Oct 1990 117.55607600%
2 Nov 1990 118.70505261%
2 Dec 1990 119.85826929%
2 Jan 1991 120.83195885%
2 Feb 1991 117.35590806%
2 Mar 1991 118.48850037%
2 Apr 1991 119.61161436%
2 May 1991 120.71061229%
2 Jun 1991 121.81329040%
2 Jul 1991 122.89162362%
2 Aug 1991 119.36604151%
2 Sep 1991 120.45127857%
2 Oct 1991 121.51197546%
2 Nov 1991 122.57592368%
2 Dec 1991 123.64315932%
2 Jan 1992 124.68565289%
2 Feb 1992 121.12778504%
2 Mar 1992 122.17640672%
2 Apr 1992 123.21566978%
2 May 1992 124.24065850%
2 Jun 1992 125.26849773%
2 Jul 1992 126.28193444%
2 Aug 1992 122.69092010%
2 Sep 1992 123.70979672%
2 Oct 1992 124.71417021%
2 Nov 1992 125.72116287%
2 Dec 1992 126.73080370%
2 Jan 1993 128.52709893%
2 Feb 1993 124.92100352%
2 Mar 1993 125.92443495%
2 Apr 1993 126.92518994%
2 May 1993 127.91172333%
2 Jun 1993 128.90067491%
2 Jul 1993 129.87527242%
2 Aug 1993 126.24912989%
2 Sep 1993 127.22832107%
2 Oct 1993 128.19304822%
2 Nov 1993 129.15994838%
2 Dec 1993 130.12904556%
2 Jan 1994 131.08356498%
2 Feb 1994 127.43335481%
2 Mar 1994 128.39198096%
2 Apr 1994 129.35063255%
2 May 1994 130.29577863%
2 Jun 1994 131.24287710%
2 Jul 1994 132.17634032%
2 Aug 1994 128.50879262%
2 Sep 1994 129.44591821%
2 Oct 1994 130.36929613%
2 Nov 1994 131.29438152%
2 Dec 1994 132.22119313%
2 Jan 1995 133.13414078%
2 Feb 1995 129.44020119%
2 Mar 1995 130.35629802%
2 Apr 1995 131.27401978%
2 May 1995 132.17908364%
2 Jun 1995 133.08564842%
2 Jul 1995 133.97942991%
2 Aug 1995 130.27204168%
2 Sep 1995 131.16858642%
2 Oct 1995 132.05223478%
2 Nov 1995 132.93714293%
2 Dec 1995 133.82332457%
2 Jan 1996 134.69649290%
2 Feb 1996 130.18171446%
2 Mar 1996 131.05048452%
2 Apr 1996 131.92042099%
2 May 1996 132.77917676%
2 Jun 1996 133.63898624%
2 Jul 1996 134.48750107%
2 Aug 1996 130.77457284%
2 Sep 1996 131.62497469%
2 Oct 1996 132.46397553%
2 Nov 1996 133.30380730%
2 Dec 1996 134.14447886%
2 Jan 1997 134.97363943%
2 Feb 1997 128.97370736%
2 Mar 1997 129.78501846%
2 Apr 1997 130.59706457%
2 May 1997 131.39490252%
2 Jun 1997 132.19332404%
2 Jul 1997 132.97738428%
2 Aug 1997 133.64375399%
2 Sep 1997 134.32326096%
2 Oct 1997 134.98880380%
2 Nov 1997 135.65517693%
2 Dec 1997 136.32238919%
2 Jan 1998 136.97549853%
2 Feb 1998 134.40341033%
2 Mar 1998 135.05790683%
2 Apr 1998 135.71310784%
2 May 1998 136.35389889%
2 Jun 1998 136.99524033%
2 Jul 1998 137.62201595%
2 Aug 1998 134.73003434%
2 Sep 1998 135.35759940%
2 Oct 1998 135.97044318%
2 Nov 1998 136.58352255%
2 Dec 1998 137.19683958%
2 Jan 1999 137.80838257%
2 Feb 1999 127.71765928%
2 Mar 1999 128.28153978%
2 Apr 1999 128.84564363%
2 May 1999 129.40997279%
2 Jun 1999 129.97452922%
2 Jul 1999 130.53931492%
2 Aug 1999 127.87380206%
2 Sep 1999 128.43905236%
2 Oct 1999 129.00453803%
2 Nov 1999 129.57026111%
2 Dec 1999 130.13622371%
2 Jan 2000 121.31073081%
2 Feb 2000 122.18497594%
2 Mar 2000 122.71247252%
2 Apr 2000 123.24021713%
2 May 2000 123.76821193%
2 Jun 2000 124.29645913%
2 Jul 2000 124.82496094%
2 Aug 2000 122.35837303%
2 Sep 2000 122.88739078%
2 Oct 2000 123.41666989%
2 Nov 2000 123.94621266%
2 Dec 2000 124.47602141%
2 Jan 2001 125.00609847%
2 Feb 2001 116.68772957%
2 Mar 2001 117.17915311%
2 Apr 2001 117.67085208%
2 May 2001 118.16282889%
2 Jun 2001 118.65508599%
2 Jul 2001 119.14762583%
2 Aug 2001 116.88028763%
2 Sep 2001 117.37340042%
2 Oct 2001 117.86680347%
2 Nov 2001 118.36049931%
2 Dec 2001 118.85449051%
2 Jan 2002 119.34877967%
2 Feb 2002 111.22983608%
2 Mar 2002 111.68553180%
2 Apr 2002 112.14153339%
2 May 2002 112.59784353%
2 Jun 2002 113.05446493%
2 Jul 2002 113.51140031%
2 Aug 2002 111.44367246%
2 Sep 2002 111.90124411%
2 Oct 2002 112.35913808%
2 Nov 2002 112.81735720%
2 Dec 2002 113.27590432%
2 Jan 2003 113.73478233%
2 Feb 2003 100.79987241%
2 Mar 2003 101.19600561%
2 Apr 2003 101.59247848%
2 May 2003 101.98929399%
2 Jun 2003 102.38645515%
2 Jul 2003 102.78615031%
2 Aug 2003 99.64027001%
2 Sep 2003 100.03848643%
2 Oct 2003 100.43706079%
2 Nov 2003 100.83599624%
2 Dec 2003 101.23529593%
2 Jan 2004 101.63935811%
2 Feb 2004 94.98710291%
2 Mar 2004 95.35608617%
2 Apr 2004 95.72544663%
2 May 2004 96.09518761%
2 Jun 2004 96.46531242%
2 Jul 2004 96.83582446%
2 Aug 2004 95.25080974%
2 Sep 2004 95.62210642%
2 Oct 2004 95.99380060%
2 Nov 2004 96.36589576%
2 Dec 2004 96.73839543%
2 Jan 2005 94.91123905%
2 Feb 2005 95.33224734%
2 Mar 2005 95.70478502%
2 Apr 2005 96.07774159%
2 May 2005 96.45112071%
2 Jun 2005 96.82492610%
2 Jul 2005 97.19916149%
2 Aug 2005 95.60737078%
2 Sep 2005 95.98247753%
2 Oct 2005 96.35802570%
2 Nov 2005 96.73401916%
2 Dec 2005 97.11046182%
2 Jan 2006 97.48735762%
2 Feb 2006 94.92393336%
2 Mar 2006 95.29685326%
2 Apr 2006 95.67023834%
2 May 2006 96.04409267%
2 Jun 2006 96.41842036%
2 Jul 2006 96.79322558%
2 Aug 2006 94.98794728%
2 Sep 2006 95.36372014%
2 Oct 2006 95.73998320%
2 Nov 2006 96.11674075%
2 Dec 2006 96.49399715%
2 Jan 2007 96.87175676%
2 Feb 2007 94.21668313%
2 Mar 2007 94.59000168%
2 Apr 2007 94.96383681%
2 May 2007 95.33819305%
2 Jun 2007 95.71307496%
2 Jul 2007 96.08848716%
2 Aug 2007 94.27932019%
2 Sep 2007 94.65580697%
2 Oct 2007 95.03283811%
2 Nov 2007 95.41041839%
2 Dec 2007 95.78855263%
2 Jan 2008 96.16724569%
2 Feb 2008 92.57049824%
2 Mar 2008 92.94032992%
2 Apr 2008 93.31073526%
2 May 2008 93.68171928%
2 Jun 2008 94.05328707%
2 Jul 2008 94.42544375%
2 Aug 2008 92.37453554%
2 Sep 2008 92.74788554%
2 Oct 2008 93.12184005%
2 Nov 2008 93.49640439%
2 Dec 2008 93.87158390%
2 Jan 2009 94.24738399%
2 Feb 2009 88.57401990%
2 Mar 2009 88.93116777%
2 Apr 2009 89.28895269%
2 May 2009 89.64738025%
2 Jun 2009 90.00645607%
2 Jul 2009 90.36618586%
2 Aug 2009 87.76938976%
2 Sep 2009 88.13044473%
2 Oct 2009 88.49217103%
2 Nov 2009 88.85457453%
2 Dec 2009 89.21766119%
2 Jan 2010 83.00368171%
2 Feb 2010 82.34723771%
2 Mar 2010 82.68132820%
2 Apr 2010 83.01612613%
2 May 2010 83.35163772%
2 Jun 2010 83.68786921%
2 Jul 2010 84.03304840%
2 Aug 2010 81.60004392%
2 Sep 2010 81.93847325%
2 Oct 2010 82.27764810%
2 Nov 2010 82.61757499%
2 Dec 2010 82.95826053%
2 Jan 2011 83.31624617%
2 Feb 2011 73.40561014%
2 Mar 2011 73.70575354%
2 Apr 2011 74.00668256%
2 May 2011 74.30840409%
2 Jun 2011 74.61092509%
2 Jul 2011 74.93576747%
2 Aug 2011 71.64427354%
2 Sep 2011 71.94923525%
2 Oct 2011 72.25502484%
2 Nov 2011 72.56164958%
2 Dec 2011 72.86911681%
2 Jan 2012 73.20398458%
2 Feb 2012 66.06641307%
2 Mar 2012 66.35066328%
2 Apr 2012 66.63578592%
2 May 2012 66.92178865%
2 Jun 2012 67.20867918%
2 Jul 2012 67.51554690%
2 Aug 2012 64.36333580%
2 Sep 2012 64.65293676%
2 Oct 2012 64.94345708%
2 Nov 2012 65.23490485%
2 Dec 2012 65.52728819%
2 Jan 2013 65.83214434%
2 Feb 2013 61.24736011%
2 Mar 2013 61.52484824%
2 Apr 2013 61.80330520%
2 May 2013 62.08273950%
2 Jun 2013 62.36315971%
2 Jul 2013 62.65610351%
2 Aug 2013 60.81681626%
2 Sep 2013 61.10024641%
2 Oct 2013 61.38469752%
2 Nov 2013 61.67017855%
2 Dec 2013 61.95669854%
2 Jan 2014 62.25579563%
2 Feb 2014 54.91937199%
2 Mar 2014 55.17664580%
2 Apr 2014 55.43499550%
2 May 2014 55.69443055%
2 Jun 2014 55.95496045%
2 Jul 2014 56.23151556%
2 Aug 2014 53.90475370%
2 Sep 2014 54.16862614%
2 Oct 2014 54.43363237%
2 Nov 2014 54.69978233%
2 Dec 2014 54.96708606%
2 Jan 2015 55.25390404%
2 Feb 2015 48.79673745%
2 Mar 2015 49.03985806%
2 Apr 2015 49.28417345%
2 May 2015 49.52969412%
2 Jun 2015 49.77643063%
2 Jul 2015 50.04274401%
2 Aug 2015 47.86866694%
2 Sep 2015 48.11911535%
2 Oct 2015 48.37082284%
2 Nov 2015 48.62380044%
2 Dec 2015 48.87805930%
2 Jan 2016 49.15196104%
2 Feb 2016 46.57198414%
2 Mar 2016 46.82738524%
2 Apr 2016 47.08411316%
2 May 2016 47.34217954%
2 Jun 2016 47.60159612%
2 Jul 2016 47.86237473%
2 Aug 2016 45.71786625%
2 Sep 2016 45.98140491%
2 Oct 2016 46.24634177%
2 Nov 2016 46.51268910%
2 Dec 2016 46.78045928%
2 Jan 2017 47.04966478%
2 Feb 2017 31.10613019%
2 Mar 2017 31.27408677%
2 Apr 2017 31.44351680%
2 May 2017 31.66241382%
2 Jun 2017 31.88334641%
2 Jul 2017 32.17360056%
<PAGE>
SCHEDULE 2
TO
LEASE
SCHEDULE OF CASUALTY VALUES
PART B
Percentage of
DATE Facility Cost
2 Oct 1989 116.72730979%
2 Nov 1989 117.94731193%
2 Dec 1989 119.17131874%
2 Jan 1990 120.36098828%
2 Feb 1990 121.60960360%
2 Mar 1990 122.86254263%
2 Apr 1990 124.11558833%
2 May 1990 125.33868145%
2 Jun 1990 126.56581237%
2 Jul 1990 127.76270067%
2 Aug 1990 129.06918979%
2 Sep 1990 130.38064797%
2 Oct 1990 131.66280512%
2 Nov 1990 132.94965892%
2 Dec 1990 134.24126160%
2 Jan 1991 135.33179391%
2 Feb 1991 131.43861703%
2 Mar 1991 132.70712041%
2 Apr 1991 133.96500808%
2 May 1991 135.19588576%
2 Jun 1991 136.43088525%
2 Jul 1991 137.63861845%
2 Aug 1991 133.68996649%
2 Sep 1991 134.90543200%
2 Oct 1991 136.09341252%
2 Nov 1991 137.28503452%
2 Dec 1991 138.48033844%
2 Jan 1992 139.64793124%
2 Feb 1992 135.66311924%
2 Mar 1992 136.83757553%
2 Apr 1992 138.00155015%
2 May 1992 139.14953752%
2 Jun 1992 140.30071746%
2 Jul 1992 141.43576657%
2 Aug 1992 137.41383051%
2 Sep 1992 138.55497233%
2 Oct 1992 139.67987064%
2 Nov 1992 140.80770241%
2 Dec 1992 141.93850014%
2 Jan 1993 143.95035080%
2 Feb 1993 139.91152394%
2 Mar 1993 141.03536714%
2 Apr 1993 142.15621273%
2 May 1993 143.26113013%
2 Jun 1993 144.36875590%
2 Jul 1993 145.46030511%
2 Aug 1993 141.39902548%
2 Sep 1993 142.49571960%
2 Oct 1993 143.57621401%
2 Nov 1993 144.65914219%
2 Dec 1993 145.74453103%
2 Jan 1994 146.81359278%
2 Feb 1994 142.72535739%
2 Mar 1994 143.79901868%
2 Apr 1994 144.87270846%
2 May 1994 145.93127207%
2 Jun 1994 146.99202235%
2 Jul 1994 148.03750116%
2 Aug 1994 143.92984773%
2 Sep 1994 144.97942840%
2 Oct 1994 146.01361167%
2 Nov 1994 147.04970730%
2 Dec 1994 148.08773631%
2 Jan 1995 149.11023767%
2 Feb 1995 144.97302533%
2 Mar 1995 145.99905378%
2 Apr 1995 147.02690215%
2 May 1995 148.04057368%
2 Jun 1995 149.05592623%
2 Jul 1995 150.05696150%
2 Aug 1995 145.90468668%
2 Sep 1995 146.90881679%
2 Oct 1995 147.89850295%
2 Nov 1995 148.88960008%
2 Dec 1995 149.88212352%
2 Jan 1996 150.86007205%
2 Feb 1996 145.80352020%
2 Mar 1996 146.77654266%
2 Apr 1996 147.75087151%
2 May 1996 148.71267797%
2 Jun 1996 149.67566459%
2 Jul 1996 150.62600120%
2 Aug 1996 146.46752158%
2 Sep 1996 147.41997165%
2 Oct 1996 148.35965259%
2 Nov 1996 149.30026418%
2 Dec 1996 150.24181632%
2 Jan 1997 151.17047616%
2 Feb 1997 144.45055224%
2 Mar 1997 145.35922068%
2 Apr 1997 146.26871232%
2 May 1997 147.16229082%
2 Jun 1997 148.05652292%
2 Jul 1997 148.93467039%
2 Aug 1997 149.68100447%
2 Sep 1997 150.44205228%
2 Oct 1997 151.18746026%
2 Nov 1997 151.93379816%
2 Dec 1997 152.68107589%
2 Jan 1998 153.41255835%
2 Feb 1998 150.53181957%
2 Mar 1998 151.26485565%
2 Apr 1998 151.99868078%
2 May 1998 152.71636676%
2 Jun 1998 153.43466917%
2 Jul 1998 154.13665786%
2 Aug 1998 150.89763846%
2 Sep 1998 151.60051133%
2 Oct 1998 152.28689636%
2 Nov 1998 152.97354526%
2 Dec 1998 153.66046033%
2 Jan 1999 154.34538848%
2 Feb 1999 143.04377839%
2 Mar 1999 143.67532455%
2 Apr 1999 144.30712087%
2 May 1999 144.93916952%
2 Jun 1999 145.57147273%
2 Jul 1999 146.20403271%
2 Aug 1999 143.21865831%
2 Sep 1999 143.85173864%
2 Oct 1999 144.48508259%
2 Nov 1999 145.11869244%
2 Dec 1999 145.75257056%
2 Jan 2000 135.86801851%
2 Feb 2000 136.84717305%
2 Mar 2000 137.43796922%
2 Apr 2000 138.02904319%
2 May 2000 138.62039736%
2 Jun 2000 139.21203423%
2 Jul 2000 139.80395625%
2 Aug 2000 137.04137779%
2 Sep 2000 137.63387767%
2 Oct 2000 138.22667028%
2 Nov 2000 138.81975818%
2 Dec 2000 139.41314398%
2 Jan 2001 140.00683029%
2 Feb 2001 130.69025712%
2 Mar 2001 131.24065148%
2 Apr 2001 131.79135433%
2 May 2001 132.34236836%
2 Jun 2001 132.89369631%
2 Jul 2001 133.44534093%
2 Aug 2001 130.90592215%
2 Sep 2001 131.45820847%
2 Oct 2001 132.01081989%
2 Nov 2001 132.56375923%
2 Dec 2001 133.11702937%
2 Jan 2002 133.67063323%
2 Feb 2002 124.57741641%
2 Mar 2002 125.08779562%
2 Apr 2002 125.59851740%
2 May 2002 126.10958475%
2 Jun 2002 126.62100072%
2 Jul 2002 127.13276835%
2 Aug 2002 124.81691316%
2 Sep 2002 125.32939340%
2 Oct 2002 125.84223465%
2 Nov 2002 126.35544006%
2 Dec 2002 126.86901284%
2 Jan 2003 127.38295621%
2 Feb 2003 112.89585710%
2 Mar 2003 113.33952628%
2 Apr 2003 113.78357590%
2 May 2003 114.22800927%
2 Jun 2003 114.67282977%
2 Jul 2003 115.12048835%
2 Aug 2003 111.59710241%
2 Sep 2003 112.04310480%
2 Oct 2003 112.48950808%
2 Nov 2003 112.93631579%
2 Dec 2003 113.38353144%
2 Jan 2004 113.83608108%
2 Feb 2004 106.38555526%
2 Mar 2004 106.79881651%
2 Apr 2004 107.21250023%
2 May 2004 107.62661012%
2 Jun 2004 108.04114991%
2 Jul 2004 108.45612340%
2 Aug 2004 106.68090691%
2 Sep 2004 107.09675919%
2 Oct 2004 107.51305667%
2 Nov 2004 107.92980325%
2 Dec 2004 108.34700288%
2 Jan 2005 106.30058774%
2 Feb 2005 106.77211702%
2 Mar 2005 107.18935922%
2 Apr 2005 107.60707058%
2 May 2005 108.02525520%
2 Jun 2005 108.44391723%
2 Jul 2005 108.86306087%
2 Aug 2005 107.08025527%
2 Sep 2005 107.50037483%
2 Oct 2005 107.92098878%
2 Nov 2005 108.34210146%
2 Dec 2005 108.76371724%
2 Jan 2006 109.18584053%
2 Feb 2006 106.31480536%
2 Mar 2006 106.73247565%
2 Apr 2006 107.15066694%
2 May 2006 107.56938379%
2 Jun 2006 107.98863080%
2 Jul 2006 108.40841265%
2 Aug 2006 106.38650095%
2 Sep 2006 106.80736656%
2 Oct 2006 107.22878118%
2 Nov 2006 107.65074964%
2 Dec 2006 108.07327681%
2 Jan 2007 108.49636757%
2 Feb 2007 105.52268511%
2 Mar 2007 105.94080188%
2 Apr 2007 106.35949723%
2 May 2007 106.77877622%
2 Jun 2007 107.19864396%
2 Jul 2007 107.61910562%
2 Aug 2007 105.59283861%
2 Sep 2007 106.01450381%
2 Oct 2007 106.43677868%
2 Nov 2007 106.85966860%
2 Dec 2007 107.28317895%
2 Jan 2008 107.70731517%
2 Feb 2008 103.67895803%
2 Mar 2008 104.09316951%
2 Apr 2008 104.50802349%
2 May 2008 104.92352559%
2 Jun 2008 105.33968152%
2 Jul 2008 105.75649700%
2 Aug 2008 103.45947980%
2 Sep 2008 103.87763180%
2 Oct 2008 104.29646086%
2 Nov 2008 104.71597292%
2 Dec 2008 105.13617397%
2 Jan 2009 105.55707007%
2 Feb 2009 99.20290229%
2 Mar 2009 99.60290790%
2 Apr 2009 100.00362701%
2 May 2009 100.40506588%
2 Jun 2009 100.80723080%
2 Jul 2009 101.21012816%
2 Aug 2009 98.30171653%
2 Sep 2009 98.70609810%
2 Oct 2009 99.11123155%
2 Nov 2009 99.51712347%
2 Dec 2009 99.92378053%
2 Jan 2010 92.96412352%
2 Feb 2010 92.22890624%
2 Mar 2010 92.60308758%
2 Apr 2010 92.97806127%
2 May 2010 93.35383425%
2 Jun 2010 93.73041352%
2 Jul 2010 94.11701421%
2 Aug 2010 91.39204919%
2 Sep 2010 91.77109004%
2 Oct 2010 92.15096587%
2 Nov 2010 92.53168399%
2 Dec 2010 92.91325179%
2 Jan 2011 93.31419571%
2 Feb 2011 82.21428336%
2 Mar 2011 82.55044396%
2 Apr 2011 82.88748447%
2 May 2011 83.22541258%
2 Jun 2011 83.56423610%
2 Jul 2011 83.92805957%
2 Aug 2011 80.24158636%
2 Sep 2011 80.58314348%
2 Oct 2011 80.92562782%
2 Nov 2011 81.26904753%
2 Dec 2011 81.61341083%
2 Jan 2012 81.98846273%
2 Feb 2012 73.99438264%
2 Mar 2012 74.31274287%
2 Apr 2012 74.63208023%
2 May 2012 74.95240329%
2 Jun 2012 75.27372068%
2 Jul 2012 75.61741253%
2 Aug 2012 72.08693610%
2 Sep 2012 72.41128917%
2 Oct 2012 72.73667193%
2 Nov 2012 73.06309343%
2 Dec 2012 73.39056277%
2 Jan 2013 73.73200166%
2 Feb 2013 68.59704332%
2 Mar 2013 68.90783003%
2 Apr 2013 69.21970182%
2 May 2013 69.53266824%
2 Jun 2013 69.84673888%
2 Jul 2013 70.17483593%
2 Aug 2013 68.11483421%
2 Sep 2013 68.43227598%
2 Oct 2013 68.75086122%
2 Nov 2013 69.07059998%
2 Dec 2013 69.39150236%
2 Jan 2014 69.72649111%
2 Feb 2014 61.50969663%
2 Mar 2014 61.79784330%
2 Apr 2014 62.08719496%
2 May 2014 62.37776222%
2 Jun 2014 62.66955570%
2 Jul 2014 62.97929743%
2 Aug 2014 60.37332414%
2 Sep 2014 60.66886128%
2 Oct 2014 60.96566825%
2 Nov 2014 61.26375621%
2 Dec 2014 61.56313639%
2 Jan 2015 61.88437252%
2 Feb 2015 54.65234594%
2 Mar 2015 54.92464103%
2 Apr 2015 55.19827426%
2 May 2015 55.47325741%
2 Jun 2015 55.74960231%
2 Jul 2015 56.04787329%
2 Aug 2015 53.61290697%
2 Sep 2015 53.89340919%
2 Oct 2015 54.17532158%
2 Nov 2015 54.45865649%
2 Dec 2015 54.74342642%
2 Jan 2016 55.05019636%
2 Feb 2016 52.16062224%
2 Mar 2016 52.44667147%
2 Apr 2016 52.73420674%
2 May 2016 53.02324108%
2 Jun 2016 53.31378765%
2 Jul 2016 53.60585970%
2 Aug 2016 51.20401020%
2 Sep 2016 51.49917350%
2 Oct 2016 51.79590278%
2 Nov 2016 52.09421179%
2 Dec 2016 52.39411439%
2 Jan 2017 52.69562455%
2 Feb 2017 34.83886581%
2 Mar 2017 35.02697718%
2 Apr 2017 35.21673882%
2 May 2017 35.46190348%
2 Jun 2017 35.70934798%
2 Jul 2017 36.03443263%
<PAGE>
SCHEDULE 3
TO
LEASE
SCHEDULE OF SPECIALTY CASUALTY VALUES
Percentage of
DATE Facility Cost
2 Oct 1989 103.67527677%
2 Nov 1989 104.75977858%
2 Dec 1989 105.84781399%
2 Jan 1990 106.90514877%
2 Feb 1990 108.01507099%
2 Mar 1990 109.12881058%
2 Apr 1990 110.24260191%
2 May 1990 111.32960602%
2 Jun 1990 112.42017107%
2 Jul 1990 113.48368913%
2 Aug 1990 114.64502006%
2 Sep 1990 115.81074221%
2 Oct 1990 116.95025693%
2 Nov 1990 118.09391887%
2 Dec 1990 119.24177425%
2 Jan 1991 120.21005548%
2 Feb 1991 116.72854891%
2 Mar 1991 117.85563758%
2 Apr 1991 118.97319965%
2 May 1991 120.06659695%
2 Jun 1991 121.16362531%
2 Jul 1991 122.23625921%
2 Aug 1991 118.70492777%
2 Sep 1991 119.78436507%
2 Oct 1991 120.83921133%
2 Nov 1991 121.89725759%
2 Dec 1991 122.95853949%
2 Jan 1992 123.99502708%
2 Feb 1992 120.43110057%
2 Mar 1992 121.47361045%
2 Apr 1992 122.50670808%
2 May 1992 123.52547728%
2 Jun 1992 124.54704244%
2 Jul 1992 125.55415003%
2 Aug 1992 121.95675105%
2 Sep 1992 122.96918702%
2 Oct 1992 123.96706336%
2 Nov 1992 124.96750187%
2 Dec 1992 125.97053105%
2 Jan 1993 127.76015663%
2 Feb 1993 124.14733306%
2 Mar 1993 125.14397730%
2 Apr 1993 126.13788556%
2 May 1993 127.11751216%
2 Jun 1993 128.09949636%
2 Jul 1993 129.06706536%
2 Aug 1993 125.43383267%
2 Sep 1993 126.40587149%
2 Oct 1993 127.36338352%
2 Nov 1993 128.32300528%
2 Dec 1993 129.28476020%
2 Jan 1994 130.23187295%
2 Feb 1994 126.57419114%
2 Mar 1994 127.52528010%
2 Apr 1994 128.47632837%
2 May 1994 129.41380444%
2 Jun 1994 130.35316560%
2 Jul 1994 131.27882364%
2 Aug 1994 127.60340229%
2 Sep 1994 128.53258516%
2 Oct 1994 129.44795067%
2 Nov 1994 130.36495336%
2 Dec 1994 131.28361137%
2 Jan 1995 132.18833390%
2 Feb 1995 128.48609702%
2 Mar 1995 129.39382377%
2 Apr 1995 130.30310202%
2 May 1995 131.19964830%
2 Jun 1995 132.09762078%
2 Jul 1995 132.98273460%
2 Aug 1995 129.26660265%
2 Sep 1995 130.15432696%
2 Oct 1995 131.02907752%
2 Nov 1995 131.90500981%
2 Dec 1995 132.78213685%
2 Jan 1996 133.64617115%
2 Feb 1996 129.12217854%
2 Mar 1996 129.98165360%
2 Apr 1996 130.84221352%
2 May 1996 131.69151049%
2 Jun 1996 132.54177820%
2 Jul 1996 133.38066754%
2 Aug 1996 129.65802938%
2 Sep 1996 130.49863612%
2 Oct 1996 131.32775592%
2 Nov 1996 132.15761997%
2 Dec 1996 132.98823637%
2 Jan 1997 133.80725356%
2 Feb 1997 127.79708912%
2 Mar 1997 128.59807809%
2 Apr 1997 129.39971152%
2 May 1997 130.18704544%
2 Jun 1997 130.97487079%
2 Jul 1997 131.74824189%
2 Aug 1997 132.40382870%
2 Sep 1997 133.07245816%
2 Oct 1997 133.72702807%
2 Nov 1997 134.38233201%
2 Dec 1997 135.03837797%
2 Jan 1998 135.68022306%
2 Feb 1998 133.09677179%
2 Mar 1998 133.73980553%
2 Apr 1998 134.38344321%
2 May 1998 135.01256951%
2 Jun 1998 135.64214385%
2 Jul 1998 136.25704915%
2 Aug 1998 133.35309309%
2 Sep 1998 133.96857864%
2 Oct 1998 134.56923695%
2 Nov 1998 135.17002394%
2 Dec 1998 135.77094077%
2 Jan 1999 136.36997476%
2 Feb 1999 126.26663274%
2 Mar 1999 126.81778381%
2 Apr 1999 127.36904656%
2 May 1999 127.92042195%
2 Jun 1999 128.47191099%
2 Jul 1999 129.02351466%
2 Aug 1999 126.34470413%
2 Sep 1999 126.89654010%
2 Oct 1999 127.44849375%
2 Nov 1999 128.00056612%
2 Dec 1999 128.55275824%
2 Jan 2000 129.10507116%
2 Feb 2000 120.57360604%
2 Mar 2000 121.08696654%
2 Apr 2000 121.60045106%
2 May 2000 122.11406068%
2 Jun 2000 122.62779649%
2 Jul 2000 123.14165961%
2 Aug 2000 120.66030459%
2 Sep 2000 121.17442567%
2 Oct 2000 121.68867744%
2 Nov 2000 122.20306104%
2 Dec 2000 122.71757763%
2 Jan 2001 123.23222837%
2 Feb 2001 114.89829783%
2 Mar 2001 115.37402320%
2 Apr 2001 115.84988629%
2 May 2001 116.32588831%
2 Jun 2001 116.80203046%
2 Jul 2001 117.27831399%
2 Aug 2001 114.99457686%
2 Sep 2001 115.47114686%
2 Oct 2001 115.94786199%
2 Nov 2001 116.42472351%
2 Dec 2001 116.90173272%
2 Jan 2002 117.37889091%
2 Feb 2002 109.24266606%
2 Mar 2002 109.68092892%
2 Apr 2002 110.11934471%
2 May 2002 110.55791478%
2 Jun 2002 110.99664047%
2 Jul 2002 111.43552316%
2 Aug 2002 109.34958425%
2 Sep 2002 109.78878507%
2 Oct 2002 110.22814705%
2 Nov 2002 110.66767161%
2 Dec 2002 111.10736017%
2 Jan 2003 111.54721417%
2 Feb 2003 98.59311336%
2 Mar 2003 98.96988730%
2 Apr 2003 99.34683108%
2 May 2003 99.72394618%
2 Jun 2003 100.10123411%
2 Jul 2003 100.48088169%
2 Aug 2003 97.31477795%
2 Sep 2003 97.69259350%
2 Oct 2003 98.07058803%
2 Nov 2003 98.44876310%
2 Dec 2003 98.82712029%
2 Jan 2004 99.21005625%
2 Feb 2004 92.53648949%
2 Mar 2004 92.88397424%
2 Apr 2004 93.23164758%
2 May 2004 93.57951118%
2 Jun 2004 93.92756670%
2 Jul 2004 94.27581584%
2 Aug 2004 92.66834290%
2 Sep 2004 93.01698436%
2 Oct 2004 93.36582456%
2 Nov 2004 93.71486526%
2 Dec 2004 94.06410821%
2 Jan 2005 94.41355518%
2 Feb 2005 92.61083282%
2 Mar 2005 92.95949633%
2 Apr 2005 93.30836928%
2 May 2005 93.65745350%
2 Jun 2005 94.00675086%
2 Jul 2005 94.35626323%
2 Aug 2005 92.73953260%
2 Sep 2005 93.08948064%
2 Oct 2005 93.43964939%
2 Nov 2005 93.79004079%
2 Dec 2005 94.14065678%
2 Jan 2006 94.49149935%
2 Feb 2006 91.90179330%
2 Mar 2006 92.24820085%
2 Apr 2006 92.59484099%
2 May 2006 92.94171575%
2 Jun 2006 93.28882720%
2 Jul 2006 93.63617741%
2 Aug 2006 91.80320325%
2 Sep 2006 92.15103727%
2 Oct 2006 92.49911640%
2 Nov 2006 92.84744278%
2 Dec 2006 93.19601858%
2 Jan 2007 93.54484598%
2 Feb 2007 90.86058634%
2 Mar 2007 91.20446283%
2 Apr 2007 91.54859762%
2 May 2007 91.89299296%
2 Jun 2007 92.23765113%
2 Jul 2007 92.58257445%
2 Aug 2007 90.74265114%
2 Sep 2007 91.08811174%
2 Oct 2007 91.43384453%
2 Nov 2007 91.77985189%
2 Dec 2007 92.12613623%
2 Jan 2008 92.47269999%
2 Feb 2008 88.84354136%
2 Mar 2008 89.18067754%
2 Apr 2008 89.51810054%
2 May 2008 89.85581289%
2 Jun 2008 90.19381711%
2 Jul 2008 90.53211579%
2 Aug 2008 88.44705255%
2 Sep 2008 88.78594788%
2 Oct 2008 89.12514547%
2 Nov 2008 89.46464798%
2 Dec 2008 89.80445807%
2 Jan 2009 90.14457845%
2 Feb 2009 84.43522164%
2 Mar 2009 84.75606104%
2 Apr 2009 85.07721897%
2 May 2009 85.39869821%
2 Jun 2009 85.72050159%
2 Jul 2009 86.04263195%
2 Aug 2009 83.40790657%
2 Sep 2009 83.73069952%
2 Oct 2009 84.05382813%
2 Nov 2009 84.37729535%
2 Dec 2009 84.70110415%
2 Jan 2010 85.02525752%
2 Feb 2010 77.75108819%
2 Mar 2010 78.04485801%
2 Apr 2010 78.33898154%
2 May 2010 78.63346190%
2 Jun 2010 78.92830221%
2 Jul 2010 79.23172710%
2 Aug 2010 76.75660203%
2 Sep 2010 77.05254127%
2 Oct 2010 77.34885326%
2 Nov 2010 77.64554127%
2 Dec 2010 77.94260860%
2 Jan 2011 78.25659339%
2 Feb 2011 68.30157051%
2 Mar 2011 68.55693766%
2 Apr 2011 68.81269762%
2 May 2011 69.06885383%
2 Jun 2011 69.32540978%
2 Jul 2011 69.60388388%
2 Aug 2011 66.26561489%
2 Sep 2011 66.52339119%
2 Oct 2011 66.78158144%
2 Nov 2011 67.04018926%
2 Dec 2011 67.29921832%
2 Jan 2012 67.58522299%
2 Feb 2012 60.39835973%
2 Mar 2012 60.63288576%
2 Apr 2012 60.86784801%
2 May 2012 61.10325030%
2 Jun 2012 61.33909650%
2 Jul 2012 61.59447208%
2 Aug 2012 58.39031711%
2 Sep 2012 58.62751852%
2 Oct 2012 58.86517961%
2 Nov 2012 59.10330442%
2 Dec 2012 59.34189702%
2 Jan 2013 59.59249053%
2 Feb 2013 54.95296764%
2 Mar 2013 55.17523690%
2 Apr 2013 55.39799057%
2 May 2013 55.62123292%
2 Jun 2013 55.84496822%
2 Jul 2013 56.08072982%
2 Aug 2013 54.18375874%
2 Sep 2013 54.40899901%
2 Oct 2013 54.63474975%
2 Nov 2013 54.86101546%
2 Dec 2013 55.08780065%
2 Jan 2014 55.32663890%
2 Feb 2014 47.92942779%
2 Mar 2014 48.12538086%
2 Apr 2014 48.32187187%
2 May 2014 48.51890556%
2 Jun 2014 48.71648667%
2 Jul 2014 48.92954076%
2 Aug 2014 46.53872081%
2 Sep 2014 46.73797320%
2 Oct 2014 46.93779247%
2 Nov 2014 47.13818362%
2 Dec 2014 47.33915164%
2 Jan 2015 47.55905198%
2 Feb 2015 41.03438070%
2 Mar 2015 41.20940441%
2 Apr 2015 41.38502552%
2 May 2015 41.56124926%
2 Jun 2015 41.73808093%
2 Jul 2015 41.93387622%
2 Aug 2015 39.68866242%
2 Sep 2015 39.86735003%
2 Oct 2015 40.04666719%
2 Nov 2015 40.22661940%
2 Dec 2015 40.40721225%
2 Jan 2016 40.60680171%
2 Feb 2016 37.95186062%
2 Mar 2016 38.13163989%
2 Apr 2016 38.31208258%
2 May 2016 38.49319449%
2 Jun 2016 38.67498150%
2 Jul 2016 38.85744953%
2 Aug 2016 36.63394347%
2 Sep 2016 36.81779152%
2 Oct 2016 37.00233867%
2 Nov 2016 37.18759106%
2 Dec 2016 37.37355487%
2 Jan 2017 37.56023635%
2 Feb 2017 21.53345376%
2 Mar 2017 21.61743205%
2 Apr 2017 21.70214707%
2 May 2017 21.83558588%
2 Jun 2017 21.97031058%
2 Jul 2017 22.17360056%
<PAGE>
SCHEDULE 4
TO
LEASE
SCHEDULE OF NET CASUALTY VALUES
PART A
Percentage of
DATE Facility Cost
2 Oct 1989 16.93735710%
2 Nov 1989 17.26890623%
2 Dec 1989 17.60413673%
2 Jan 1990 17.90780183%
2 Feb 1990 20.74089205%
2 Mar 1990 21.10271927%
2 Apr 1990 21.46464454%
2 May 1990 21.79903512%
2 Jun 1990 22.13713757%
2 Jul 1990 22.44743869%
2 Aug 1990 27.59831009%
2 Sep 1990 28.01393255%
2 Oct 1990 28.40261927%
2 Nov 1990 28.79562352%
2 Dec 1990 29.19299330%
2 Jan 1991 29.40552392%
2 Feb 1991 29.77646751%
2 Mar 1991 30.15260266%
2 Apr 1991 30.51897904%
2 May 1991 30.86052579%
2 Jun 1991 31.20586161%
2 Jul 1991 31.52613220%
2 Aug 1991 31.84995361%
2 Sep 1991 32.17736528%
2 Oct 1991 32.47951067%
2 Nov 1991 32.78500360%
2 Dec 1991 33.09388122%
2 Jan 1992 33.37728466%
2 Feb 1992 33.66382544%
2 Mar 1992 33.95353833%
2 Apr 1992 34.23361569%
2 May 1992 34.49899633%
2 Jun 1992 34.76731183%
2 Jul 1992 35.02079866%
2 Aug 1992 35.27708689%
2 Sep 1992 35.53620756%
2 Oct 1992 35.78039598%
2 Nov 1992 36.02728106%
2 Dec 1992 36.27689266%
2 Jan 1993 37.33643501%
2 Feb 1993 37.57703108%
2 Mar 1993 37.82028251%
2 Apr 1993 38.06077833%
2 May 1993 38.28663174%
2 Jun 1993 38.51497490%
2 Jul 1993 38.72853925%
2 Aug 1993 38.94445542%
2 Sep 1993 39.16274939%
2 Oct 1993 39.36615132%
2 Nov 1993 39.57179058%
2 Dec 1993 39.77969186%
2 Jan 1994 39.97258404%
2 Feb 1994 40.16759516%
2 Mar 1994 40.36474856%
2 Apr 1994 40.56192814%
2 May 1994 40.74520261%
2 Jun 1994 40.93048723%
2 Jul 1994 41.10173315%
2 Aug 1994 41.27485413%
2 Sep 1994 41.44987080%
2 Oct 1994 41.61073300%
2 Nov 1994 41.77335319%
2 Dec 1994 41.93775069%
2 Jan 1995 42.08787402%
2 Feb 1995 42.23963428%
2 Mar 1995 42.39304942%
2 Apr 1995 42.54813757%
2 May 1995 42.69019327%
2 Jun 1995 42.83379433%
2 Jul 1995 42.96423384%
2 Aug 1995 43.09608813%
2 Sep 1995 43.22937265%
2 Oct 1995 43.34937921%
2 Nov 1995 43.47068282%
2 Dec 1995 43.59329760%
2 Jan 1996 43.70251404%
2 Feb 1996 43.81290578%
2 Mar 1996 43.92448557%
2 Apr 1996 44.03726629%
2 May 1996 44.13853548%
2 Jun 1996 44.24088957%
2 Jul 1996 44.33161480%
2 Aug 1996 44.42330626%
2 Sep 1996 44.51597435%
2 Oct 1996 44.59690409%
2 Nov 1996 44.67868934%
2 Dec 1996 44.76133923%
2 Jan 1997 44.83213753%
2 Feb 1997 44.90367682%
2 Mar 1997 44.97596495%
2 Apr 1997 45.04900983%
2 May 1997 45.10742616%
2 Jun 1997 45.16644333%
2 Jul 1997 45.21067427%
2 Aug 1997 47.72195809%
2 Sep 1997 47.81769130%
2 Oct 1997 47.89904720%
2 Nov 1997 47.98125797%
2 Dec 1997 48.06433269%
2 Jan 1998 48.13288719%
2 Feb 1998 48.20215207%
2 Mar 1998 48.27213479%
2 Apr 1998 48.34284285%
2 May 1998 48.39871458%
2 Jun 1998 48.45515299%
2 Jul 1998 48.49659459%
2 Aug 1998 48.53844058%
2 Sep 1998 48.58069496%
2 Oct 1998 48.60779250%
2 Nov 1998 48.63513259%
2 Dec 1998 48.66271737%
2 Jan 1999 48.68847562%
2 Feb 1999 48.71445983%
2 Mar 1999 48.74067200%
2 Apr 1999 48.76711412%
2 May 1999 48.79378821%
2 Jun 1999 48.82069631%
2 Jul 1999 48.84784045%
2 Aug 1999 48.87522273%
2 Sep 1999 48.90284523%
2 Oct 1999 48.93071005%
2 Nov 1999 48.95881931%
2 Dec 1999 48.98717518%
2 Jan 2000 49.01577980%
2 Feb 2000 49.04463536%
2 Mar 2000 49.07374406%
2 Apr 2000 49.10310812%
2 May 2000 49.13272979%
2 Jun 2000 49.16261133%
2 Jul 2000 49.19275500%
2 Aug 2000 49.22316310%
2 Sep 2000 49.25383798%
2 Oct 2000 49.28478196%
2 Nov 2000 49.31599739%
2 Dec 2000 49.34748667%
2 Jan 2001 49.37925220%
2 Feb 2001 49.41129640%
2 Mar 2001 49.44362172%
2 Apr 2001 49.47623060%
2 May 2001 49.50912557%
2 Jun 2001 49.54230911%
2 Jul 2001 49.57578376%
2 Aug 2001 49.60955207%
2 Sep 2001 49.64361662%
2 Oct 2001 49.67798002%
2 Nov 2001 49.71264486%
2 Dec 2001 49.74761382%
2 Jan 2002 49.78288954%
2 Feb 2002 49.81847473%
2 Mar 2002 49.85437210%
2 Apr 2002 49.89058439%
2 May 2002 49.92711436%
2 Jun 2002 49.96396480%
2 Jul 2002 50.00113850%
2 Aug 2002 50.03863832%
2 Sep 2002 50.07646712%
2 Oct 2002 50.11462779%
2 Nov 2002 50.15312322%
2 Dec 2002 50.19195636%
2 Jan 2003 50.23113018%
2 Feb 2003 48.82999135%
2 Mar 2003 48.86985550%
2 Apr 2003 48.91006937%
2 May 2003 48.95063602%
2 Jun 2003 48.99155855%
2 Jul 2003 49.03509005%
2 Aug 2003 47.63607743%
2 Sep 2003 47.67808644%
2 Oct 2003 47.72046398%
2 Nov 2003 47.76321330%
2 Dec 2003 47.80633764%
2 Jan 2004 47.85436537%
2 Feb 2004 47.67734902%
2 Mar 2004 47.72161830%
2 Apr 2004 47.76627593%
2 May 2004 47.81132535%
2 Jun 2004 47.85676995%
2 Jul 2004 47.90261323%
2 Aug 2004 47.94885868%
2 Sep 2004 47.99550984%
2 Oct 2004 48.04257024%
2 Nov 2004 48.09004349%
2 Dec 2004 48.13793322%
2 Jan 2005 48.18624306%
2 Feb 2005 48.21672840%
2 Mar 2005 48.26588959%
2 Apr 2005 48.31548204%
2 May 2005 48.36550955%
2 Jun 2005 48.41597595%
2 Jul 2005 48.46688506%
2 Aug 2005 48.49999249%
2 Sep 2005 48.55179874%
2 Oct 2005 48.60405949%
2 Nov 2005 48.65677870%
2 Dec 2005 48.70996040%
2 Jan 2006 48.76360864%
2 Feb 2006 48.54880502%
2 Mar 2006 48.60339868%
2 Apr 2006 48.65847127%
2 May 2006 48.71402700%
2 Jun 2006 48.77007009%
2 Jul 2006 48.82660485%
2 Aug 2006 48.61471306%
2 Sep 2006 48.67224407%
2 Oct 2006 48.73027980%
2 Nov 2006 48.78882467%
2 Dec 2006 48.84788313%
2 Jan 2007 48.90745968%
2 Feb 2007 48.66021888%
2 Mar 2007 48.72084532%
2 Apr 2007 48.78200362%
2 May 2007 48.84369845%
2 Jun 2007 48.90593450%
2 Jul 2007 48.96871653%
2 Aug 2007 48.72470933%
2 Sep 2007 48.78859772%
2 Oct 2007 48.85304660%
2 Nov 2007 48.91806087%
2 Dec 2007 48.98364548%
2 Jan 2008 49.04980545%
2 Feb 2008 48.50186580%
2 Mar 2008 48.56919167%
2 Apr 2008 48.63710817%
2 May 2008 48.70562049%
2 Jun 2008 48.77473383%
2 Jul 2008 48.84445350%
2 Aug 2008 48.30010476%
2 Sep 2008 48.37105305%
2 Oct 2008 48.44262373%
2 Nov 2008 48.51482231%
2 Dec 2008 48.58765424%
2 Jan 2009 48.66112512%
2 Feb 2009 47.44825423%
2 Mar 2009 47.52301983%
2 Apr 2009 47.59844134%
2 May 2009 47.67452449%
2 Jun 2009 47.75127510%
2 Jul 2009 47.82869902%
2 Aug 2009 46.61981585%
2 Sep 2009 46.69860417%
2 Oct 2009 46.77808366%
2 Nov 2009 46.85826042%
2 Dec 2009 46.93914054%
2 Jan 2010 47.02073019%
2 Feb 2010 45.81604930%
2 Mar 2010 45.89907676%
2 Apr 2010 45.98283260%
2 May 2010 46.06732320%
2 Jun 2010 46.15255501%
2 Jul 2010 46.24699926%
2 Aug 2010 45.04674677%
2 Sep 2010 45.13424145%
2 Oct 2010 45.22250371%
2 Nov 2010 45.31154025%
2 Dec 2010 45.40135791%
2 Jan 2011 45.50898755%
2 Feb 2011 43.19929415%
2 Mar 2011 43.29149642%
2 Apr 2011 43.38450756%
2 May 2011 43.47833466%
2 Jun 2011 43.57298488%
2 Jul 2011 43.69061695%
2 Aug 2011 41.38584129%
2 Sep 2011 41.48300444%
2 Oct 2011 41.58101997%
2 Nov 2011 41.67989535%
2 Dec 2011 41.77963816%
2 Jan 2012 41.90759227%
2 Feb 2012 39.60799892%
2 Mar 2012 39.71038986%
2 Apr 2012 39.81367904%
2 May 2012 39.91787436%
2 Jun 2012 40.02298374%
2 Jul 2012 40.14866142%
2 Aug 2012 37.85452923%
2 Sep 2012 37.96242924%
2 Oct 2012 38.07127582%
2 Nov 2012 38.18107728%
2 Dec 2012 38.29184200%
2 Jan 2013 38.41544858%
2 Feb 2013 37.37564020%
2 Mar 2013 37.48934567%
2 Apr 2013 37.60404867%
2 May 2013 37.71975791%
2 Jun 2013 37.83648224%
2 Jul 2013 37.96610072%
2 Aug 2013 36.93235697%
2 Sep 2013 37.05218029%
2 Oct 2013 37.17305479%
2 Nov 2013 37.29498969%
2 Dec 2013 37.41799428%
2 Jan 2014 37.55394811%
2 Feb 2014 35.84468465%
2 Mar 2014 35.97095497%
2 Apr 2014 36.09833303%
2 May 2014 36.22682854%
2 Jun 2014 36.35645131%
2 Jul 2014 36.50257345%
2 Aug 2014 34.80004478%
2 Sep 2014 34.93310899%
2 Oct 2014 35.06734053%
2 Nov 2014 35.20274965%
2 Dec 2014 35.33934667%
2 Jan 2015 35.49603534%
2 Feb 2015 33.80060383%
2 Mar 2015 33.94082746%
2 Apr 2015 34.08228123%
2 May 2015 34.22497593%
2 Jun 2015 34.36892245%
2 Jul 2015 34.53302511%
2 Aug 2015 32.84507261%
2 Sep 2015 32.99284086%
2 Oct 2015 33.14190544%
2 Nov 2015 33.29227773%
2 Dec 2015 33.44396918%
2 Jan 2016 33.61588472%
2 Feb 2016 31.93581363%
2 Mar 2016 32.09153245%
2 Apr 2016 32.24861734%
2 May 2016 32.40708029%
2 Jun 2016 32.56693339%
2 Jul 2016 32.72818883%
2 Aug 2016 31.05642322%
2 Sep 2016 31.22052037%
2 Oct 2016 31.38605709%
2 Nov 2016 31.55304602%
2 Dec 2016 31.72149990%
2 Jan 2017 31.89143157%
2 Feb 2017 32.02653075%
2 Mar 2017 32.19945701%
2 Apr 2017 32.37390031%
2 May 2017 32.59927428%
2 Jun 2017 32.82674406%
2 Jul 2017 33.12558655%
<PAGE>
SCHEDULE 4
TO
LEASE
SCHEDULE OF NET CASUALTY VALUES
PART B
Percentage of
DATE Facility Cost
2 Oct 1989 18.42467159%
2 Nov 1989 18.78533493%
2 Dec 1989 19.15000292%
2 Jan 1990 19.48033366%
2 Feb 1990 22.56220509%
2 Mar 1990 22.95580532%
2 Apr 1990 23.34951221%
2 May 1990 23.71326652%
2 Jun 1990 24.08105865%
2 Jul 1990 24.41860813%
2 Aug 1990 30.02179128%
2 Sep 1990 30.47391066%
2 Oct 1990 30.89672900%
2 Nov 1990 31.32424400%
2 Dec 1990 31.75650788%
2 Jan 1991 31.98770138%
2 Feb 1991 32.39121852%
2 Mar 1991 32.80038310%
2 Apr 1991 33.19893196%
2 May 1991 33.57047084%
2 Jun 1991 33.94613152%
2 Jul 1991 34.29452592%
2 Aug 1991 34.64678296%
2 Sep 1991 35.00294552%
2 Oct 1991 35.33162311%
2 Nov 1991 35.66394218%
2 Dec 1991 35.99994317%
2 Jan 1992 36.30823302%
2 Feb 1992 36.61993571%
2 Mar 1992 36.93508906%
2 Apr 1992 37.23976076%
2 May 1992 37.52844518%
2 Jun 1992 37.82032219%
2 Jul 1992 38.09606837%
2 Aug 1992 38.37486195%
2 Sep 1992 38.65673670%
2 Oct 1992 38.92236795%
2 Nov 1992 39.19093267%
2 Dec 1992 39.46246333%
2 Jan 1993 40.61504692%
2 Feb 1993 40.87677037%
2 Mar 1993 41.14138236%
2 Apr 1993 41.40299676%
2 May 1993 41.64868296%
2 Jun 1993 41.89707754%
2 Jul 1993 42.12939555%
2 Aug 1993 42.36427189%
2 Sep 1993 42.60173483%
2 Oct 1993 42.82299803%
2 Nov 1993 43.04669503%
2 Dec 1993 43.27285267%
2 Jan 1994 43.48268323%
2 Feb 1994 43.69481879%
2 Mar 1994 43.90928475%
2 Apr 1994 44.12377920%
2 May 1994 44.32314749%
2 Jun 1994 44.52470244%
2 Jul 1994 44.71098593%
2 Aug 1994 44.89930912%
2 Sep 1994 45.08969447%
2 Oct 1994 45.26468241%
2 Nov 1994 45.44158272%
2 Dec 1994 45.62041640%
2 Jan 1995 45.78372245%
2 Feb 1995 45.94880919%
2 Mar 1995 46.11569612%
2 Apr 1995 46.28440298%
2 May 1995 46.43893297%
2 Jun 1995 46.59514402%
2 Jul 1995 46.73703777%
2 Aug 1995 46.88047054%
2 Sep 1995 47.02545913%
2 Oct 1995 47.15600378%
2 Nov 1995 47.28795939%
2 Dec 1995 47.42134130%
2 Jan 1996 47.54014832%
2 Feb 1996 47.66023386%
2 Mar 1996 47.78161176%
2 Apr 1996 47.90429606%
2 May 1996 48.01445797%
2 Jun 1996 48.12580004%
2 Jul 1996 48.22449210%
2 Aug 1996 48.32423523%
2 Sep 1996 48.42504075%
2 Oct 1996 48.51307714%
2 Nov 1996 48.60204418%
2 Dec 1996 48.69195177%
2 Jan 1997 48.76896706%
2 Feb 1997 48.84678841%
2 Mar 1997 48.92542435%
2 Apr 1997 49.00488350%
2 May 1997 49.06842952%
2 Jun 1997 49.13262915%
2 Jul 1997 49.18074412%
2 Aug 1997 51.91255047%
2 Sep 1997 52.01669028%
2 Oct 1997 52.10519024%
2 Nov 1997 52.19462016%
2 Dec 1997 52.28498989%
2 Jan 1998 52.35956435%
2 Feb 1998 52.43491157%
2 Mar 1998 52.51103965%
2 Apr 1998 52.58795678%
2 May 1998 52.64873476%
2 Jun 1998 52.71012917%
2 Jul 1998 52.75520986%
2 Aug 1998 52.80073046%
2 Sep 1998 52.84669532%
2 Oct 1998 52.87617236%
2 Nov 1998 52.90591326%
2 Dec 1998 52.93592033%
2 Jan 1999 52.96394048%
2 Feb 1999 52.99220643%
2 Mar 1999 53.02072037%
2 Apr 1999 53.04948444%
2 May 1999 53.07850085%
2 Jun 1999 53.10777182%
2 Jul 1999 53.13729957%
2 Aug 1999 53.16708636%
2 Sep 1999 53.19713446%
2 Oct 1999 53.22744616%
2 Nov 1999 53.25802377%
2 Dec 1999 53.28886965%
2 Jan 2000 53.31998612%
2 Feb 2000 53.35137556%
2 Mar 2000 53.38304037%
2 Apr 2000 53.41498297%
2 May 2000 53.44720580%
2 Jun 2000 53.47971131%
2 Jul 2000 53.51250197%
2 Aug 2000 53.54558030%
2 Sep 2000 53.57894882%
2 Oct 2000 53.61261007%
2 Nov 2000 53.64656661%
2 Dec 2000 53.68082105%
2 Jan 2001 53.71537600%
2 Feb 2001 53.75023408%
2 Mar 2001 53.78539797%
2 Apr 2001 53.82087033%
2 May 2001 53.85665389%
2 Jun 2001 53.89275137%
2 Jul 2001 53.92916552%
2 Aug 2001 53.96589911%
2 Sep 2001 54.00295496%
2 Oct 2001 54.04033590%
2 Nov 2001 54.07804475%
2 Dec 2001 54.11608443%
2 Jan 2002 54.15445781%
2 Feb 2002 54.19316783%
2 Mar 2002 54.23221745%
2 Apr 2002 54.27160963%
2 May 2002 54.31134740%
2 Jun 2002 54.35143376%
2 Jul 2002 54.39187179%
2 Aug 2002 54.43266457%
2 Sep 2002 54.47381522%
2 Oct 2002 54.51532688%
2 Nov 2002 54.55720269%
2 Dec 2002 54.59944588%
2 Jan 2003 54.64205965%
2 Feb 2003 53.11788309%
2 Mar 2003 53.16124781%
2 Apr 2003 53.20499297%
2 May 2003 53.24912189%
2 Jun 2003 53.29363794%
2 Jul 2003 53.34099205%
2 Aug 2003 51.81912840%
2 Sep 2003 51.86482634%
2 Oct 2003 51.91092516%
2 Nov 2003 51.95742841%
2 Dec 2003 52.00433961%
2 Jan 2004 52.05658479%
2 Feb 2004 51.86402416%
2 Mar 2004 51.91218085%
2 Apr 2004 51.96075998%
2 May 2004 52.00976530%
2 Jun 2004 52.05920052%
2 Jul 2004 52.10906942%
2 Aug 2004 52.15937581%
2 Sep 2004 52.21012353%
2 Oct 2004 52.26131643%
2 Nov 2004 52.31295843%
2 Dec 2004 52.36505348%
2 Jan 2005 52.41760554%
2 Feb 2005 52.45076788%
2 Mar 2005 52.50424604%
2 Apr 2005 52.55819334%
2 May 2005 52.61261391%
2 Jun 2005 52.66751189%
2 Jul 2005 52.72289147%
2 Aug 2005 52.75890614%
2 Sep 2005 52.81526164%
2 Oct 2005 52.87211154%
2 Nov 2005 52.92946017%
2 Dec 2005 52.98731190%
2 Jan 2006 53.04567113%
2 Feb 2006 52.81200503%
2 Mar 2006 52.87139271%
2 Apr 2006 52.93130137%
2 May 2006 52.99173560%
2 Jun 2006 53.05269999%
2 Jul 2006 53.11419921%
2 Aug 2006 52.88370063%
2 Sep 2006 52.94628360%
2 Oct 2006 53.00941560%
2 Nov 2006 53.07310145%
2 Dec 2006 53.13734599%
2 Jan 2007 53.20215412%
2 Feb 2007 52.93320245%
2 Mar 2007 52.99915265%
2 Apr 2007 53.06568142%
2 May 2007 53.13279384%
2 Jun 2007 53.20049501%
2 Jul 2007 53.26879010%
2 Aug 2007 53.00335597%
2 Sep 2007 53.07285458%
2 Oct 2007 53.14296288%
2 Nov 2007 53.21368622%
2 Dec 2007 53.28503000%
2 Jan 2008 53.35699965%
2 Feb 2008 52.76094396%
2 Mar 2008 52.83418189%
2 Apr 2008 52.90806232%
2 May 2008 52.98259089%
2 Jun 2008 53.05777326%
2 Jul 2008 53.13361519%
2 Aug 2008 52.54146574%
2 Sep 2008 52.61864419%
2 Oct 2008 52.69649969%
2 Nov 2008 52.77503821%
2 Dec 2008 52.85426571%
2 Jan 2009 52.93418826%
2 Feb 2009 51.61481194%
2 Mar 2009 51.69614292%
2 Apr 2009 51.77818738%
2 May 2009 51.86095160%
2 Jun 2009 51.94444189%
2 Jul 2009 52.02866461%
2 Aug 2009 50.71362619%
2 Sep 2009 50.79933311%
2 Oct 2009 50.88579191%
2 Nov 2009 50.97300920%
2 Dec 2009 51.06099162%
2 Jan 2010 51.14974588%
2 Feb 2010 49.83927875%
2 Mar 2010 49.92959708%
2 Apr 2010 50.02070773%
2 May 2010 50.11261768%
2 Jun 2010 50.20533392%
2 Jul 2010 50.30807158%
2 Aug 2010 49.00242171%
2 Sep 2010 49.09759953%
2 Oct 2010 49.19361234%
2 Nov 2010 49.29046742%
2 Dec 2010 49.38817220%
2 Jan 2011 49.50525309%
2 Feb 2011 46.99273935%
2 Mar 2011 47.09303815%
2 Apr 2011 47.19421684%
2 May 2011 47.29628315%
2 Jun 2011 47.39924486%
2 Jul 2011 47.52720652%
2 Aug 2011 45.02004236%
2 Sep 2011 45.12573766%
2 Oct 2011 45.23236020%
2 Nov 2011 45.33991810%
2 Dec 2011 45.44841959%
2 Jan 2012 45.58760968%
2 Feb 2012 43.08608292%
2 Mar 2012 43.19746507%
2 Apr 2012 43.30982435%
2 May 2012 43.42316934%
2 Jun 2012 43.53750866%
2 Jul 2012 43.67422242%
2 Aug 2012 41.17863637%
2 Sep 2012 41.29601137%
2 Oct 2012 41.41441606%
2 Nov 2012 41.53385948%
2 Dec 2012 41.65435074%
2 Jan 2013 41.78881155%
2 Feb 2013 40.65769482%
2 Mar 2013 40.78138508%
2 Apr 2013 40.90616044%
2 May 2013 41.03203042%
2 Jun 2013 41.15900463%
2 Jul 2013 41.30000525%
2 Aug 2013 40.17548571%
2 Sep 2013 40.30583104%
2 Oct 2013 40.43731984%
2 Nov 2013 40.56996217%
2 Dec 2013 40.70376812%
2 Jan 2014 40.85166043%
2 Feb 2014 38.99230198%
2 Mar 2014 39.12966044%
2 Apr 2014 39.26822390%
2 May 2014 39.40800295%
2 Jun 2014 39.54900824%
2 Jul 2014 39.70796175%
2 Aug 2014 37.85592950%
2 Sep 2014 38.00067843%
2 Oct 2014 38.14669720%
2 Nov 2014 38.29399696%
2 Dec 2014 38.44258892%
2 Jan 2015 38.61303685%
2 Feb 2015 36.76872498%
2 Mar 2015 36.92126201%
2 Apr 2015 37.07513722%
2 May 2015 37.23036232%
2 Jun 2015 37.38694916%
2 Jul 2015 37.56546212%
2 Aug 2015 35.72928601%
2 Sep 2015 35.89003019%
2 Oct 2015 36.05218453%
2 Nov 2015 36.21576140%
2 Dec 2015 36.38077328%
2 Jan 2016 36.56778518%
2 Feb 2016 34.74018258%
2 Mar 2016 34.90957548%
2 Apr 2016 35.08045442%
2 May 2016 35.25283242%
2 Jun 2016 35.42672264%
2 Jul 2016 35.60213835%
2 Aug 2016 33.78357055%
2 Sep 2016 33.96207751%
2 Oct 2016 34.14215045%
2 Nov 2016 34.32380312%
2 Dec 2016 34.50704938%
2 Jan 2017 34.69190321%
2 Feb 2017 34.83886581%
2 Mar 2017 35.02697718%
2 Apr 2017 35.21673882%
2 May 2017 35.46190348%
2 Jun 2017 35.70934798%
2 Jul 2017 36.03443263%
<PAGE>
SCHEDULE 4
TO
LEASE
SCHEDULE OF NET CASUALTY VALUES
PART C
Percentage of
DATE Facility Cost
2 Oct 1989 16.45059963%
2 Nov 1989 16.77262047%
2 Dec 1989 17.09821689%
2 Jan 1990 17.39315505%
2 Feb 1990 20.14482597%
2 Mar 1990 20.49625475%
2 Apr 1990 20.84777876%
2 May 1990 21.17255939%
2 Jun 1990 21.50094522%
2 Jul 1990 21.80232869%
2 Aug 1990 26.80517079%
2 Sep 1990 27.20884880%
2 Oct 1990 27.58636518%
2 Nov 1990 27.96807500%
2 Dec 1990 28.35402489%
2 Jan 1991 28.56044766%
2 Feb 1991 28.92073082%
2 Mar 1991 29.28605634%
2 Apr 1991 29.64190354%
2 May 1991 29.97363468%
2 Jun 1991 30.30904600%
2 Jul 1991 30.62011243%
2 Aug 1991 30.93462764%
2 Sep 1991 31.25262993%
2 Oct 1991 31.54609206%
2 Nov 1991 31.84280552%
2 Dec 1991 32.14280640%
2 Jan 1992 32.41806520%
2 Feb 1992 32.69637117%
2 Mar 1992 32.97775809%
2 Apr 1992 33.24978639%
2 May 1992 33.50754034%
2 Jun 1992 33.76814481%
2 Jul 1992 34.01434676%
2 Aug 1992 34.26326960%
2 Sep 1992 34.51494348%
2 Oct 1992 34.75211424%
2 Nov 1992 34.99190417%
2 Dec 1992 35.23434226%
2 Jan 1993 36.26343475%
2 Feb 1993 36.49711640%
2 Mar 1993 36.73337711%
2 Apr 1993 36.96696139%
2 May 1993 37.18632407%
2 Jun 1993 37.40810495%
2 Jul 1993 37.61553174%
2 Aug 1993 37.82524276%
2 Sep 1993 38.03726324%
2 Oct 1993 38.23481967%
2 Nov 1993 38.43454913%
2 Dec 1993 38.63647560%
2 Jan 1994 38.82382431%
2 Feb 1994 39.01323106%
2 Mar 1994 39.20471853%
2 Apr 1994 39.39623143%
2 May 1994 39.57423883%
2 Jun 1994 39.75419861%
2 Jul 1994 39.92052315%
2 Aug 1994 40.08866886%
2 Sep 1994 40.25865578%
2 Oct 1994 40.41489501%
2 Nov 1994 40.57284171%
2 Dec 1994 40.73251464%
2 Jan 1995 40.87832362%
2 Feb 1995 41.02572249%
2 Mar 1995 41.17472868%
2 Apr 1995 41.32535980%
2 May 1995 41.46333301%
2 Jun 1995 41.60280716%
2 Jul 1995 41.72949801%
2 Aug 1995 41.85756298%
2 Sep 1995 41.98701708%
2 Oct 1995 42.10357480%
2 Nov 1995 42.22139231%
2 Dec 1995 42.34048330%
2 Jan 1996 42.44656100%
2 Feb 1996 42.55378023%
2 Mar 1996 42.66215336%
2 Apr 1996 42.77169291%
2 May 1996 42.87005176%
2 Jun 1996 42.96946432%
2 Jul 1996 43.05758223%
2 Aug 1996 43.14663860%
2 Sep 1996 43.23664353%
2 Oct 1996 43.31524745%
2 Nov 1996 43.39468230%
2 Dec 1996 43.47495694%
2 Jan 1997 43.54372059%
2 Feb 1997 43.61320394%
2 Mar 1997 43.68341460%
2 Apr 1997 43.75436027%
2 May 1997 43.81109779%
2 Jun 1997 43.86841888%
2 Jul 1997 43.91137868%
2 Aug 1997 46.35049149%
2 Sep 1997 46.44347346%
2 Oct 1997 46.52249129%
2 Nov 1997 46.60233943%
2 Dec 1997 46.68302669%
2 Jan 1998 46.74961103%
2 Feb 1998 46.81688533%
2 Mar 1998 46.88485683%
2 Apr 1998 46.95353284%
2 May 1998 47.00779889%
2 Jun 1998 47.06261533%
2 Jul 1998 47.10286595%
2 Aug 1998 47.14350934%
2 Sep 1998 47.18454939%
2 Oct 1998 47.21086818%
2 Nov 1998 47.23742255%
2 Dec 1998 47.26421458%
2 Jan 1999 47.28923257%
2 Feb 1999 47.31447003%
2 Mar 1999 47.33992890%
2 Apr 1999 47.36561111%
2 May 1999 47.39151862%
2 Jun 1999 47.41765341%
2 Jul 1999 47.44401747%
2 Aug 1999 47.47061282%
2 Sep 1999 47.49744148%
2 Oct 1999 47.52450550%
2 Nov 1999 47.55180694%
2 Dec 1999 47.57934790%
2 Jan 2000 47.60713046%
2 Feb 2000 47.63515675%
2 Mar 2000 47.66342890%
2 Apr 2000 47.69194908%
2 May 2000 47.72071946%
2 Jun 2000 47.74974224%
2 Jul 2000 47.77901962%
2 Aug 2000 47.80855384%
2 Sep 2000 47.83834716%
2 Oct 2000 47.86840185%
2 Nov 2000 47.89872019%
2 Dec 2000 47.92930451%
2 Jan 2001 47.96015714%
2 Feb 2001 47.99128043%
2 Mar 2001 48.02267676%
2 Apr 2001 48.05434851%
2 May 2001 48.08629812%
2 Jun 2001 48.11852801%
2 Jul 2001 48.15104064%
2 Aug 2001 48.18383849%
2 Sep 2001 48.21692407%
2 Oct 2001 48.25029991%
2 Nov 2001 48.28396853%
2 Dec 2001 48.31793253%
2 Jan 2002 48.35219447%
2 Feb 2002 48.38675699%
2 Mar 2002 48.42162272%
2 Apr 2002 48.45679431%
2 May 2002 48.49227446%
2 Jun 2002 48.52806586%
2 Jul 2002 48.56417124%
2 Aug 2002 48.60059337%
2 Sep 2002 48.63733502%
2 Oct 2002 48.67439900%
2 Nov 2002 48.71178812%
2 Dec 2002 48.74950525%
2 Jan 2003 48.78755326%
2 Feb 2003 47.42668133%
2 Mar 2003 47.46539983%
2 Apr 2003 47.50445801%
2 May 2003 47.54385883%
2 Jun 2003 47.58360530%
2 Jul 2003 47.62588576%
2 Aug 2003 46.26707893%
2 Sep 2003 46.30788066%
2 Oct 2003 46.34904032%
2 Nov 2003 46.39056108%
2 Dec 2003 46.43244608%
2 Jan 2004 46.47909356%
2 Feb 2004 46.30716443%
2 Mar 2004 46.35016147%
2 Apr 2004 46.39353570%
2 May 2004 46.43729045%
2 Jun 2004 46.48142904%
2 Jul 2004 46.52595484%
2 Aug 2004 46.57087126%
2 Sep 2004 46.61618172%
2 Oct 2004 46.66188967%
2 Nov 2004 46.70799860%
2 Dec 2004 46.75451204%
2 Jan 2005 46.80143352%
2 Feb 2005 46.83104275%
2 Mar 2005 46.87879111%
2 Apr 2005 46.92695834%
2 May 2005 46.97554813%
2 Jun 2005 47.02456419%
2 Jul 2005 47.07401024%
2 Aug 2005 47.10616620%
2 Sep 2005 47.15648361%
2 Oct 2005 47.20724245%
2 Nov 2005 47.25844658%
2 Dec 2005 47.31009991%
2 Jan 2006 47.36220637%
2 Feb 2006 47.15357592%
2 Mar 2006 47.20660063%
2 Apr 2006 47.26009051%
2 May 2006 47.31404964%
2 Jun 2006 47.36848213%
2 Jul 2006 47.42339215%
2 Aug 2006 47.21758985%
2 Sep 2006 47.27346750%
2 Oct 2006 47.32983536%
2 Nov 2006 47.38669772%
2 Dec 2006 47.44405892%
2 Jan 2007 47.50192332%
2 Feb 2007 47.26178790%
2 Mar 2007 47.32067201%
2 Apr 2007 47.38007270%
2 May 2007 47.43999450%
2 Jun 2007 47.50044197%
2 Jul 2007 47.56141973%
2 Aug 2007 47.32442497%
2 Sep 2007 47.38647730%
2 Oct 2007 47.44907400%
2 Nov 2007 47.51221984%
2 Dec 2007 47.57591964%
2 Jan 2008 47.64017826%
2 Feb 2008 47.10798568%
2 Mar 2008 47.17337669%
2 Apr 2008 47.23934136%
2 May 2008 47.30588472%
2 Jun 2008 47.37301184%
2 Jul 2008 47.44072785%
2 Aug 2008 46.91202298%
2 Sep 2008 46.98093231%
2 Oct 2008 47.05044615%
2 Nov 2008 47.12056983%
2 Dec 2008 47.19130867%
2 Jan 2009 47.26266809%
2 Feb 2009 46.08465352%
2 Mar 2009 46.15727046%
2 Apr 2009 46.23052445%
2 May 2009 46.30442107%
2 Jun 2009 46.37896597%
2 Jul 2009 46.45416483%
2 Aug 2009 45.28002338%
2 Sep 2009 45.35654742%
2 Oct 2009 45.43374278%
2 Nov 2009 45.51161536%
2 Dec 2009 45.59017109%
2 Jan 2010 45.66941596%
2 Feb 2010 44.49935603%
2 Mar 2010 44.57999739%
2 Apr 2010 44.66134619%
2 May 2010 44.74340864%
2 Jun 2010 44.82619100%
2 Jul 2010 44.91792105%
2 Aug 2010 43.75216224%
2 Sep 2010 43.83714244%
2 Oct 2010 43.92286816%
2 Nov 2010 44.00934591%
2 Dec 2010 44.09658232%
2 Jan 2011 44.20111883%
2 Feb 2011 41.95780299%
2 Mar 2011 42.04735549%
2 Apr 2011 42.13769361%
2 May 2011 42.22882424%
2 Jun 2011 42.32075434%
2 Jul 2011 42.43500582%
2 Aug 2011 40.19646639%
2 Sep 2011 40.29083720%
2 Oct 2011 40.38603589%
2 Nov 2011 40.48206973%
2 Dec 2011 40.57894606%
2 Jan 2012 40.70322293%
2 Feb 2012 38.46971689%
2 Mar 2012 38.56916524%
2 Apr 2012 38.66948603%
2 May 2012 38.77068691%
2 Jun 2012 38.87277559%
2 Jul 2012 38.99484145%
2 Aug 2012 36.76663962%
2 Sep 2012 36.87143872%
2 Oct 2012 36.97715720%
2 Nov 2012 37.08380311%
2 Dec 2012 37.19138459%
2 Jan 2013 37.31143888%
2 Feb 2013 36.30151323%
2 Mar 2013 36.41195096%
2 Apr 2013 36.52335754%
2 May 2013 36.63574145%
2 Jun 2013 36.74911128%
2 Jul 2013 36.87500469%
2 Aug 2013 35.87096938%
2 Sep 2013 35.98734914%
2 Oct 2013 36.10474986%
2 Nov 2013 36.22318051%
2 Dec 2013 36.34265011%
2 Jan 2014 36.47469681%
2 Feb 2014 34.81455534%
2 Mar 2014 34.93719682%
2 Apr 2014 35.06091420%
2 May 2014 35.18571692%
2 Jun 2014 35.31161450%
2 Jul 2014 35.45353728%
2 Aug 2014 33.79993705%
2 Sep 2014 33.92917717%
2 Oct 2014 34.05955107%
2 Nov 2014 34.19106871%
2 Dec 2014 34.32374011%
2 Jan 2015 34.47592576%
2 Feb 2015 32.82921873%
2 Mar 2015 32.96541251%
2 Apr 2015 33.10280109%
2 May 2015 33.24139493%
2 Jun 2015 33.38120461%
2 Jul 2015 33.54059118%
2 Aug 2015 31.90114822%
2 Sep 2015 32.04466981%
2 Oct 2015 32.18945047%
2 Nov 2015 32.33550125%
2 Dec 2015 32.48283329%
2 Jan 2016 32.64980820%
2 Feb 2016 31.01802016%
2 Mar 2016 31.16926382%
2 Apr 2016 31.32183430%
2 May 2016 31.47574323%
2 Jun 2016 31.63100236%
2 Jul 2016 31.78762353%
2 Aug 2016 30.16390228%
2 Sep 2016 30.32328349%
2 Oct 2016 30.48406290%
2 Nov 2016 30.64625279%
2 Dec 2016 30.80986552%
2 Jan 2017 30.97491358%
2 Feb 2017 31.10613019%
2 Mar 2017 31.27408677%
2 Apr 2017 31.44351680%
2 May 2017 31.66241382%
2 Jun 2017 31.88334641%
2 Jul 2017 32.17360056%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART A
Percentage of
DATE Facility Cost
2 Oct 1989 16.37567968%
2 Nov 1989 16.70230137%
2 Dec 1989 17.03256123%
2 Jan 1990 17.33121205%
2 Feb 1990 20.15924403%
2 Mar 1990 20.51596863%
2 Apr 1990 20.87274650%
2 May 1990 21.20194453%
2 Jun 1990 21.53480888%
2 Jul 1990 21.83982593%
2 Aug 1990 26.98536694%
2 Sep 1990 27.39561221%
2 Oct 1990 27.77887460%
2 Nov 1990 28.16640692%
2 Dec 1990 28.55825676%
2 Jan 1991 28.76521901%
2 Feb 1991 29.13054542%
2 Mar 1991 29.50101407%
2 Apr 1991 29.86167425%
2 May 1991 30.19745465%
2 Jun 1991 30.53697355%
2 Jul 1991 30.85137617%
2 Aug 1991 31.16927815%
2 Sep 1991 31.49071846%
2 Oct 1991 31.78684010%
2 Nov 1991 32.08625643%
2 Dec 1991 32.38900413%
2 Jan 1992 32.66622391%
2 Feb 1992 32.94652674%
2 Mar 1992 33.22994699%
2 Apr 1992 33.50367649%
2 May 1992 33.76265358%
2 Jun 1992 34.02450937%
2 Jul 1992 34.27147981%
2 Aug 1992 34.52119448%
2 Sep 1992 34.77368393%
2 Oct 1992 35.01118295%
2 Nov 1992 35.25131995%
2 Dec 1992 35.49412427%
2 Jan 1993 36.54679962%
2 Feb 1993 36.78046845%
2 Mar 1993 37.01673188%
2 Apr 1993 37.25017838%
2 May 1993 37.46892063%
2 Jun 1993 37.69009025%
2 Jul 1993 37.89641813%
2 Aug 1993 38.10503435%
2 Sep 1993 38.31596431%
2 Oct 1993 38.51193765%
2 Nov 1993 38.71008314%
2 Dec 1993 38.91042491%
2 Jan 1994 39.09569126%
2 Feb 1994 39.28300965%
2 Mar 1994 39.47240284%
2 Apr 1994 39.66175414%
2 May 1994 39.83713165%
2 Jun 1994 40.01445003%
2 Jul 1994 40.17765982%
2 Aug 1994 40.34267418%
2 Sep 1994 40.50951309%
2 Oct 1994 40.66212581%
2 Nov 1994 40.81642415%
2 Dec 1994 40.97242679%
2 Jan 1995 41.11408161%
2 Feb 1995 41.25729907%
2 Mar 1995 41.40209648%
2 Apr 1995 41.54849128%
2 May 1995 41.68177739%
2 Jun 1995 41.81653190%
2 Jul 1995 41.93804726%
2 Aug 1995 42.06089912%
2 Sep 1995 42.18510223%
2 Oct 1995 42.29594770%
2 Nov 1995 42.40800987%
2 Dec 1995 42.52130213%
2 Jan 1996 42.62111426%
2 Feb 1996 42.72201921%
2 Mar 1996 42.82402897%
2 Apr 1996 42.92715569%
2 May 1996 43.01868621%
2 Jun 1996 43.11121619%
2 Jul 1996 43.19203113%
2 Aug 1996 43.27372535%
2 Sep 1996 43.35630850%
2 Oct 1996 43.42706484%
2 Nov 1996 43.49858742%
2 Dec 1996 43.57088462%
2 Jan 1997 43.63123941%
2 Feb 1997 43.69224358%
2 Mar 1997 43.75390415%
2 Apr 1997 43.81622827%
2 May 1997 43.86382975%
2 Jun 1997 43.91193722%
2 Jul 1997 43.94516273%
2 Aug 1997 46.44534460%
2 Sep 1997 46.52987845%
2 Oct 1997 46.59993674%
2 Nov 1997 46.67075079%
2 Dec 1997 46.74232880%
2 Jan 1998 46.79928576%
2 Feb 1998 46.85685135%
2 Mar 1998 46.91503213%
2 Apr 1998 46.97383472%
2 May 1998 47.01769655%
2 Jun 1998 47.06201968%
2 Jul 1998 47.09123973%
2 Aug 1998 47.12075695%
2 Sep 1998 47.15057442%
2 Oct 1998 47.16512592%
2 Nov 1998 47.17980991%
2 Dec 1998 47.19462758%
2 Jan 1999 47.20750670%
2 Feb 1999 47.22049880%
2 Mar 1999 47.23360489%
2 Apr 1999 47.24682595%
2 May 1999 47.26016299%
2 Jun 1999 47.27361704%
2 Jul 1999 47.28718912%
2 Aug 1999 47.30088025%
2 Sep 1999 47.31469150%
2 Oct 1999 47.32862391%
2 Nov 1999 47.34267855%
2 Dec 1999 47.35685649%
2 Jan 2000 47.37115878%
2 Feb 2000 47.38558657%
2 Mar 2000 47.40014092%
2 Apr 2000 47.41482296%
2 May 2000 47.42963379%
2 Jun 2000 47.44457455%
2 Jul 2000 47.45964638%
2 Aug 2000 47.47485045%
2 Sep 2000 47.49018788%
2 Oct 2000 47.50565987%
2 Nov 2000 47.52126759%
2 Dec 2000 47.53701223%
2 Jan 2001 47.55289500%
2 Feb 2001 47.56891709%
2 Mar 2001 47.58507974%
2 Apr 2001 47.60138419%
2 May 2001 47.61783167%
2 Jun 2001 47.63442345%
2 Jul 2001 47.65116077%
2 Aug 2001 47.66804492%
2 Sep 2001 47.68507720%
2 Oct 2001 47.70225890%
2 Nov 2001 47.71959132%
2 Dec 2001 47.73707580%
2 Jan 2002 47.75471366%
2 Feb 2002 47.77250626%
2 Mar 2002 47.79045495%
2 Apr 2002 47.80856108%
2 May 2002 47.82682607%
2 Jun 2002 47.84525128%
2 Jul 2002 47.86383814%
2 Aug 2002 47.88258805%
2 Sep 2002 47.90150246%
2 Oct 2002 47.92058278%
2 Nov 2002 47.93983051%
2 Dec 2002 47.95924707%
2 Jan 2003 47.97883398%
2 Feb 2003 46.55793641%
2 Mar 2003 46.57786849%
2 Apr 2003 46.59797542%
2 May 2003 46.61825874%
2 Jun 2003 46.63872001%
2 Jul 2003 46.66161074%
2 Aug 2003 45.24177628%
2 Sep 2003 45.26278079%
2 Oct 2003 45.28396956%
2 Nov 2003 45.30534422%
2 Dec 2003 45.32690639%
2 Jan 2004 45.35318280%
2 Feb 2004 45.15422431%
2 Mar 2004 45.17635894%
2 Apr 2004 45.19868776%
2 May 2004 45.22121246%
2 Jun 2004 45.24393477%
2 Jul 2004 45.26685641%
2 Aug 2004 45.28997914%
2 Sep 2004 45.31330471%
2 Oct 2004 45.33683491%
2 Nov 2004 45.36057154%
2 Dec 2004 45.38451640%
2 Jan 2005 45.40867132%
2 Feb 2005 45.41478984%
2 Mar 2005 45.43937043%
2 Apr 2005 45.46416666%
2 May 2005 45.48918041%
2 Jun 2005 45.51441361%
2 Jul 2005 45.53986817%
2 Aug 2005 45.54729773%
2 Sep 2005 45.57320086%
2 Oct 2005 45.59933122%
2 Nov 2005 45.62569083%
2 Dec 2005 45.65228168%
2 Jan 2006 45.67910580%
2 Feb 2006 45.43724274%
2 Mar 2006 45.46453956%
2 Apr 2006 45.49207586%
2 May 2006 45.51985372%
2 Jun 2006 45.54787527%
2 Jul 2006 45.57614265%
2 Aug 2006 45.33573549%
2 Sep 2006 45.36450101%
2 Oct 2006 45.39351887%
2 Nov 2006 45.42279130%
2 Dec 2006 45.45232054%
2 Jan 2007 45.48210881%
2 Feb 2007 45.20481841%
2 Mar 2007 45.23513162%
2 Apr 2007 45.26571078%
2 May 2007 45.29655819%
2 Jun 2007 45.32767621%
2 Jul 2007 45.35906723%
2 Aug 2007 45.08339362%
2 Sep 2007 45.11533781%
2 Oct 2007 45.14756225%
2 Nov 2007 45.18006939%
2 Dec 2007 45.21286170%
2 Jan 2008 45.24594169%
2 Feb 2008 44.66463184%
2 Mar 2008 44.69829478%
2 Apr 2008 44.73225303%
2 May 2008 44.76650919%
2 Jun 2008 44.80106586%
2 Jul 2008 44.83592569%
2 Aug 2008 44.25641131%
2 Sep 2008 44.29188545%
2 Oct 2008 44.32767080%
2 Nov 2008 44.36377008%
2 Dec 2008 44.40018606%
2 Jan 2009 44.43692150%
2 Feb 2009 43.18699290%
2 Mar 2009 43.22437570%
2 Apr 2009 43.26208646%
2 May 2009 43.30012803%
2 Jun 2009 43.33850334%
2 Jul 2009 43.37721529%
2 Aug 2009 42.12928056%
2 Sep 2009 42.16867471%
2 Oct 2009 42.20841446%
2 Nov 2009 42.24850284%
2 Dec 2009 42.28894289%
2 Jan 2010 42.32973772%
2 Feb 2010 41.08390414%
2 Mar 2010 41.12541787%
2 Apr 2010 41.16729578%
2 May 2010 41.20954108%
2 Jun 2010 41.25215698%
2 Jul 2010 41.30361148%
2 Aug 2010 40.05999208%
2 Sep 2010 40.10373942%
2 Oct 2010 40.14787055%
2 Nov 2010 40.19238882%
2 Dec 2010 40.23729765%
2 Jan 2011 40.29962450%
2 Feb 2011 37.94423088%
2 Mar 2011 37.99033201%
2 Apr 2011 38.03683758%
2 May 2011 38.08375113%
2 Jun 2011 38.13107624%
2 Jul 2011 38.20096804%
2 Aug 2011 35.84803328%
2 Sep 2011 35.89661485%
2 Oct 2011 35.94562262%
2 Nov 2011 35.99506032%
2 Dec 2011 36.04493172%
2 Jan 2012 36.12257692%
2 Feb 2012 33.77223332%
2 Mar 2012 33.82342879%
2 Apr 2012 33.87507338%
2 May 2012 33.92717104%
2 Jun 2012 33.97972573%
2 Jul 2012 34.05238766%
2 Aug 2012 31.70477465%
2 Sep 2012 31.75872466%
2 Oct 2012 31.81314794%
2 Nov 2012 31.86804868%
2 Dec 2012 31.92343103%
2 Jan 2013 31.99116941%
2 Feb 2013 30.89500269%
2 Mar 2013 30.95185543%
2 Apr 2013 31.00920693%
2 May 2013 31.06706155%
2 Jun 2013 31.12542371%
2 Jul 2013 31.19616804%
2 Aug 2013 30.10303364%
2 Sep 2013 30.16294529%
2 Oct 2013 30.22338255%
2 Nov 2013 30.28434999%
2 Dec 2013 30.34585229%
2 Jan 2014 30.41976429%
2 Feb 2014 28.64791470%
2 Mar 2014 28.71104986%
2 Apr 2014 28.77473889%
2 May 2014 28.83898665%
2 Jun 2014 28.90379803%
2 Jul 2014 28.98454023%
2 Aug 2014 27.21605804%
2 Sep 2014 27.28259014%
2 Oct 2014 27.34970591%
2 Nov 2014 27.41741047%
2 Dec 2014 27.48570898%
2 Jan 2015 27.57349999%
2 Feb 2015 25.80856639%
2 Mar 2015 25.87867820%
2 Apr 2015 25.94940508%
2 May 2015 26.02075244%
2 Jun 2015 26.09272570%
2 Jul 2015 26.18422369%
2 Aug 2015 24.42302960%
2 Sep 2015 24.49691372%
2 Oct 2015 24.57144601%
2 Nov 2015 24.64663215%
2 Dec 2015 24.72247788%
2 Jan 2016 24.81788232%
2 Feb 2016 23.06062892%
2 Mar 2016 23.13848833%
2 Apr 2016 23.21703078%
2 May 2016 23.29626226%
2 Jun 2016 23.37618880%
2 Jul 2016 23.45681653%
2 Aug 2016 21.70371587%
2 Sep 2016 21.78576445%
2 Oct 2016 21.86853281%
2 Nov 2016 21.95202727%
2 Dec 2016 22.03625421%
2 Jan 2017 22.12122004%
2 Feb 2017 22.17060801%
2 Mar 2017 22.25707114%
2 Apr 2017 22.34429279%
2 May 2017 22.48167993%
2 Jun 2017 22.62039100%
2 Jul 2017 22.82969614%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART B
Percentage of
DATE Facility Cost
2 Oct 1989 17.81367178%
2 Nov 1989 18.16897499%
2 Dec 1989 18.52823585%
2 Jan 1990 18.85311200%
2 Feb 1990 21.92948100%
2 Mar 1990 22.31753054%
2 Apr 1990 22.70563802%
2 May 1990 23.06374381%
2 Jun 1990 23.42583787%
2 Jul 1990 23.75763928%
2 Aug 1990 29.35502396%
2 Sep 1990 29.80129396%
2 Oct 1990 30.21821164%
2 Nov 1990 30.63977421%
2 Dec 1990 31.06603343%
2 Jan 1991 31.29116959%
2 Feb 1991 31.68857628%
2 Mar 1991 32.09157678%
2 Apr 1991 32.48390749%
2 May 1991 32.84917366%
2 Jun 1991 33.21850662%
2 Jul 1991 33.56051777%
2 Aug 1991 33.90633557%
2 Sep 1991 34.25600241%
2 Oct 1991 34.57812728%
2 Nov 1991 34.90383616%
2 Dec 1991 35.23316895%
2 Jan 1992 35.53473213%
2 Feb 1992 35.83964910%
2 Mar 1992 36.14795724%
2 Apr 1992 36.44572365%
2 May 1992 36.72744221%
2 Jun 1992 37.01229226%
2 Jul 1992 37.28094983%
2 Aug 1992 37.55259262%
2 Sep 1992 37.82725383%
2 Oct 1992 38.08560828%
2 Nov 1992 38.34683235%
2 Dec 1992 38.61095796%
2 Jan 1993 39.75607154%
2 Feb 1993 40.01025945%
2 Mar 1993 40.26726981%
2 Apr 1993 40.52121586%
2 May 1993 40.75916646%
2 Jun 1993 40.99975757%
2 Jul 1993 41.22420365%
2 Aug 1993 41.45113902%
2 Sep 1993 41.68059130%
2 Oct 1993 41.89377358%
2 Nov 1993 42.10931875%
2 Dec 1993 42.32725307%
2 Jan 1994 42.52878815%
2 Feb 1994 42.73255547%
2 Mar 1994 42.93857978%
2 Apr 1994 43.14455852%
2 May 1994 43.33533640%
2 Jun 1994 43.52822557%
2 Jul 1994 43.70576726%
2 Aug 1994 43.88527196%
2 Sep 1994 44.06676145%
2 Oct 1994 44.23277550%
2 Nov 1994 44.40062319%
2 Dec 1994 44.57032484%
2 Jan 1995 44.72441874%
2 Feb 1995 44.88021251%
2 Mar 1995 45.03772496%
2 Apr 1995 45.19697508%
2 May 1995 45.34196540%
2 Jun 1995 45.48855306%
2 Jul 1995 45.62073901%
2 Aug 1995 45.75437882%
2 Sep 1995 45.88948853%
2 Oct 1995 46.01006764%
2 Nov 1995 46.13197029%
2 Dec 1995 46.25521105%
2 Jan 1996 46.36378795%
2 Feb 1996 46.47355363%
2 Mar 1996 46.58452113%
2 Apr 1996 46.69670369%
2 May 1996 46.79627175%
2 Jun 1996 46.89692703%
2 Jul 1996 46.98483854%
2 Aug 1996 47.07370656%
2 Sep 1996 47.16354156%
2 Oct 1996 47.24051119%
2 Nov 1996 47.31831437%
2 Dec 1996 47.39696017%
2 Jan 1997 47.46261488%
2 Feb 1997 47.52897598%
2 Mar 1997 47.59605114%
2 Apr 1997 47.66384810%
2 May 1997 47.71562960%
2 Jun 1997 47.76796151%
2 Jul 1997 47.80410464%
2 Aug 1997 50.52383414%
2 Sep 1997 50.61579114%
2 Oct 1997 50.69200144%
2 Nov 1997 50.76903385%
2 Dec 1997 50.84689733%
2 Jan 1998 50.90885583%
2 Feb 1998 50.97147640%
2 Mar 1998 51.03476619%
2 Apr 1998 51.09873240%
2 May 1998 51.14644585%
2 Jun 1998 51.19466111%
2 Jul 1998 51.22644705%
2 Aug 1998 51.25855626%
2 Sep 1998 51.29099208%
2 Oct 1998 51.30682138%
2 Nov 1998 51.32279481%
2 Dec 1998 51.33891366%
2 Jan 1999 51.35292373%
2 Feb 1999 51.36705671%
2 Mar 1999 51.38131367%
2 Apr 1999 51.39569571%
2 May 1999 51.41020391%
2 Jun 1999 51.42483940%
2 Jul 1999 51.43960328%
2 Aug 1999 51.45449667%
2 Sep 1999 51.46952072%
2 Oct 1999 51.48467657%
2 Nov 1999 51.49996538%
2 Dec 1999 51.51538832%
2 Jan 2000 51.53094654%
2 Feb 2000 51.54664127%
2 Mar 2000 51.56247368%
2 Apr 2000 51.57844498%
2 May 2000 51.59455640%
2 Jun 2000 51.61080914%
2 Jul 2000 51.62720447%
2 Aug 2000 51.64374365%
2 Sep 2000 51.66042790%
2 Oct 2000 51.67725853%
2 Nov 2000 51.69423680%
2 Dec 2000 51.71136402%
2 Jan 2001 51.72864150%
2 Feb 2001 51.74607053%
2 Mar 2001 51.76365247%
2 Apr 2001 51.78138866%
2 May 2001 51.79928043%
2 Jun 2001 51.81732918%
2 Jul 2001 51.83553624%
2 Aug 2001 51.85390305%
2 Sep 2001 51.87243097%
2 Oct 2001 51.89112144%
2 Nov 2001 51.90997587%
2 Dec 2001 51.92899571%
2 Jan 2002 51.94818240%
2 Feb 2002 51.96753741%
2 Mar 2002 51.98706222%
2 Apr 2002 52.00675831%
2 May 2002 52.02662718%
2 Jun 2002 52.04667037%
2 Jul 2002 52.06688939%
2 Aug 2002 52.08728578%
2 Sep 2002 52.10786111%
2 Oct 2002 52.12861693%
2 Nov 2002 52.14955484%
2 Dec 2002 52.17067643%
2 Jan 2003 52.19198332%
2 Feb 2003 50.64631294%
2 Mar 2003 50.66799531%
2 Apr 2003 50.68986788%
2 May 2003 50.71193234%
2 Jun 2003 50.73419037%
2 Jul 2003 50.75909120%
2 Aug 2003 49.21457728%
2 Sep 2003 49.23742626%
2 Oct 2003 49.26047567%
2 Nov 2003 49.28372729%
2 Dec 2003 49.30718289%
2 Jan 2004 49.33576670%
2 Feb 2004 49.11933714%
2 Mar 2004 49.14341547%
2 Apr 2004 49.16770505%
2 May 2004 49.19220770%
2 Jun 2004 49.21692532%
2 Jul 2004 49.24185977%
2 Aug 2004 49.26701296%
2 Sep 2004 49.29238682%
2 Oct 2004 49.31798327%
2 Nov 2004 49.34380427%
2 Dec 2004 49.36985180%
2 Jan 2005 49.39612783%
2 Feb 2005 49.40278363%
2 Mar 2005 49.42952270%
2 Apr 2005 49.45649635%
2 May 2005 49.48370663%
2 Jun 2005 49.51115562%
2 Jul 2005 49.53884542%
2 Aug 2005 49.54692738%
2 Sep 2005 49.57510514%
2 Oct 2005 49.60353008%
2 Nov 2005 49.63220440%
2 Dec 2005 49.66113025%
2 Jan 2006 49.69030987%
2 Feb 2006 49.42720817%
2 Mar 2006 49.45690201%
2 Apr 2006 49.48685634%
2 May 2006 49.51707345%
2 Jun 2006 49.54755565%
2 Jul 2006 49.57830526%
2 Aug 2006 49.31678731%
2 Sep 2006 49.34807880%
2 Oct 2006 49.37964480%
2 Nov 2006 49.41148772%
2 Dec 2006 49.44360999%
2 Jan 2007 49.47601406%
2 Feb 2007 49.17437404%
2 Mar 2007 49.20734914%
2 Apr 2007 49.24061353%
2 May 2007 49.27416974%
2 Jun 2007 49.30802032%
2 Jul 2007 49.34216786%
2 Aug 2007 49.04228662%
2 Sep 2007 49.07703592%
2 Oct 2007 49.11209007%
2 Nov 2007 49.14745175%
2 Dec 2007 49.18312364%
2 Jan 2008 49.21910847%
2 Feb 2008 48.58675226%
2 Mar 2008 48.62337123%
2 Apr 2008 48.66031144%
2 May 2008 48.69757572%
2 Jun 2008 48.73516691%
2 Jul 2008 48.77308788%
2 Aug 2008 48.14268479%
2 Sep 2008 48.18127401%
2 Oct 2008 48.22020177%
2 Nov 2008 48.25947102%
2 Dec 2008 48.29908478%
2 Jan 2009 48.33904606%
2 Feb 2009 46.97935789%
2 Mar 2009 47.02002338%
2 Apr 2009 47.06104562%
2 May 2009 47.10242772%
2 Jun 2009 47.14417287%
2 Jul 2009 47.18628422%
2 Aug 2009 45.82876501%
2 Sep 2009 45.87161848%
2 Oct 2009 45.91484788%
2 Nov 2009 45.95845652%
2 Dec 2009 46.00244772%
2 Jan 2010 46.04682486%
2 Feb 2010 44.69159130%
2 Mar 2010 44.73675046%
2 Apr 2010 44.78230579%
2 May 2010 44.82826076%
2 Jun 2010 44.87461888%
2 Jul 2010 44.93059173%
2 Aug 2010 43.57776679%
2 Sep 2010 43.62535570%
2 Oct 2010 43.67336211%
2 Nov 2010 43.72178965%
2 Dec 2010 43.77064204%
2 Jan 2011 43.83844198%
2 Feb 2011 41.27621496%
2 Mar 2011 41.32636436%
2 Apr 2011 41.37695371%
2 May 2011 41.42798686%
2 Jun 2011 41.47946771%
2 Jul 2011 41.55549690%
2 Aug 2011 38.99594467%
2 Sep 2011 39.04879232%
2 Oct 2011 39.10210359%
2 Nov 2011 39.15588254%
2 Dec 2011 39.21013328%
2 Jan 2012 39.29459671%
2 Feb 2012 36.73786318%
2 Mar 2012 36.79355426%
2 Apr 2012 36.84973389%
2 May 2012 36.90640639%
2 Jun 2012 36.96357605%
2 Jul 2012 37.04261861%
2 Aug 2012 34.48885544%
2 Sep 2012 34.54754295%
2 Oct 2012 34.60674529%
2 Nov 2012 34.66646700%
2 Dec 2012 34.72671263%
2 Jan 2013 34.80039929%
2 Feb 2013 33.60797525%
2 Mar 2013 33.66982039%
2 Apr 2013 33.73220807%
2 May 2013 33.79514305%
2 Jun 2013 33.85863015%
2 Jul 2013 33.93558673%
2 Aug 2013 32.74646128%
2 Sep 2013 32.81163394%
2 Oct 2013 32.87737835%
2 Nov 2013 32.94369951%
2 Dec 2013 33.01060249%
2 Jan 2014 33.09100490%
2 Feb 2014 31.16356448%
2 Mar 2014 31.23224371%
2 Apr 2014 31.30152544%
2 May 2014 31.37141496%
2 Jun 2014 31.44191761%
2 Jul 2014 31.52974999%
2 Aug 2014 29.60597266%
2 Sep 2014 29.67834713%
2 Oct 2014 29.75135651%
2 Nov 2014 29.82500639%
2 Dec 2014 29.89930237%
2 Jan 2015 29.99480254%
2 Feb 2015 28.07488542%
2 Mar 2015 28.15115393%
2 Apr 2015 28.22809153%
2 May 2015 28.30570409%
2 Jun 2015 28.38399751%
2 Jul 2015 28.48353019%
2 Aug 2015 26.56768094%
2 Sep 2015 26.64805303%
2 Oct 2015 26.72913020%
2 Nov 2015 26.81091864%
2 Dec 2015 26.89342458%
2 Jan 2016 26.99720673%
2 Feb 2016 25.08564424%
2 Mar 2016 25.17034069%
2 Apr 2016 25.25578016%
2 May 2016 25.34196916%
2 Jun 2016 25.42891427%
2 Jul 2016 25.51662213%
2 Aug 2016 23.60957703%
2 Sep 2016 23.69883051%
2 Oct 2016 23.78886699%
2 Nov 2016 23.87969332%
2 Dec 2016 23.97131644%
2 Jan 2017 24.06374336%
2 Feb 2017 24.11746821%
2 Mar 2017 24.21152390%
2 Apr 2017 24.30640472%
2 May 2017 24.45585619%
2 Jun 2017 24.60674785%
2 Jul 2017 24.83443263%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART C
Percentage of
DATE Facility Cost
2 Oct 1989 15.90506409%
2 Nov 1989 16.22229910%
2 Dec 1989 16.54306772%
2 Jan 1990 16.83313571%
2 Feb 1990 19.57989375%
2 Mar 1990 19.92636655%
2 Apr 1990 20.27289109%
2 May 1990 20.59262840%
2 Jun 1990 20.91592667%
2 Jul 1990 21.21217793%
2 Aug 1990 26.20984282%
2 Sep 1990 26.60829818%
2 Oct 1990 26.98054611%
2 Nov 1990 27.35694126%
2 Dec 1990 27.73752985%
2 Jan 1991 27.93854428%
2 Feb 1991 28.29337168%
2 Mar 1991 28.65319355%
2 Apr 1991 29.00348883%
2 May 1991 29.32961934%
2 Jun 1991 29.65938091%
2 Jul 1991 29.96474801%
2 Aug 1991 30.27351390%
2 Sep 1991 30.58571644%
2 Oct 1991 30.87332793%
2 Nov 1991 31.16413943%
2 Dec 1991 31.45818656%
2 Jan 1992 31.72743940%
2 Feb 1992 31.99968670%
2 Mar 1992 32.27496182%
2 Apr 1992 32.54082469%
2 May 1992 32.79235912%
2 Jun 1992 33.04668952%
2 Jul 1992 33.28656235%
2 Aug 1992 33.52910055%
2 Sep 1992 33.77433378%
2 Oct 1992 34.00500739%
2 Nov 1992 34.23824317%
2 Dec 1992 34.47406961%
2 Jan 1993 35.49649245%
2 Feb 1993 35.72344594%
2 Mar 1993 35.95291947%
2 Apr 1993 36.17965702%
2 May 1993 36.39211291%
2 Jun 1993 36.60692640%
2 Jul 1993 36.80732469%
2 Aug 1993 37.00994555%
2 Sep 1993 37.21481366%
2 Oct 1993 37.40515498%
2 Nov 1993 37.59760603%
2 Dec 1993 37.79219024%
2 Jan 1994 37.97213228%
2 Feb 1994 38.15406738%
2 Mar 1994 38.33801766%
2 Apr 1994 38.52192725%
2 May 1994 38.69226464%
2 Jun 1994 38.86448712%
2 Jul 1994 39.02300648%
2 Aug 1994 39.18327854%
2 Sep 1994 39.34532272%
2 Oct 1994 39.49354955%
2 Nov 1994 39.64341356%
2 Dec 1994 39.79493289%
2 Jan 1995 39.93251673%
2 Feb 1995 40.07161831%
2 Mar 1995 40.21225443%
2 Apr 1995 40.35444204%
2 May 1995 40.48389768%
2 Jun 1995 40.61477952%
2 Jul 1995 40.73280269%
2 Aug 1995 40.85212395%
2 Sep 1995 40.97275762%
2 Oct 1995 41.08041754%
2 Nov 1995 41.18925919%
2 Dec 1995 41.29929558%
2 Jan 1996 41.39623924%
2 Feb 1996 41.49424431%
2 Mar 1996 41.59332244%
2 Apr 1996 41.69348544%
2 May 1996 41.78238549%
2 Jun 1996 41.87225628%
2 Jul 1996 41.95074870%
2 Aug 1996 42.03009514%
2 Sep 1996 42.11030496%
2 Oct 1996 42.17902785%
2 Nov 1996 42.24849497%
2 Dec 1996 42.31871444%
2 Jan 1997 42.37733471%
2 Feb 1997 42.43658570%
2 Mar 1997 42.49647423%
2 Apr 1997 42.55700723%
2 May 1997 42.60324071%
2 Jun 1997 42.64996563%
2 Jul 1997 42.68223629%
2 Aug 1997 45.11056620%
2 Sep 1997 45.19267066%
2 Oct 1997 45.26071557%
2 Nov 1997 45.32949451%
2 Dec 1997 45.39901547%
2 Jan 1998 45.45433556%
2 Feb 1998 45.51024679%
2 Mar 1998 45.56675553%
2 Apr 1998 45.62386821%
2 May 1998 45.66646951%
2 Jun 1998 45.70951885%
2 Jul 1998 45.73789915%
2 Aug 1998 45.76656809%
2 Sep 1998 45.79552864%
2 Oct 1998 45.80966195%
2 Nov 1998 45.82392394%
2 Dec 1998 45.83831577%
2 Jan 1999 45.85082476%
2 Feb 1999 45.86344349%
2 Mar 1999 45.87617292%
2 Apr 1999 45.88901403%
2 May 1999 45.90196778%
2 Jun 1999 45.91503518%
2 Jul 1999 45.92821721%
2 Aug 1999 45.94151488%
2 Sep 1999 45.95492921%
2 Oct 1999 45.96846122%
2 Nov 1999 45.98211195%
2 Dec 1999 45.99588243%
2 Jan 2000 46.00977370%
2 Feb 2000 46.02378685%
2 Mar 2000 46.03792293%
2 Apr 2000 46.05218302%
2 May 2000 46.06656821%
2 Jun 2000 46.08107959%
2 Jul 2000 46.09571828%
2 Aug 2000 46.11048540%
2 Sep 2000 46.12538205%
2 Oct 2000 46.14040940%
2 Nov 2000 46.15556857%
2 Dec 2000 46.17086073%
2 Jan 2001 46.18628705%
2 Feb 2001 46.20184869%
2 Mar 2001 46.21754685%
2 Apr 2001 46.23338273%
2 May 2001 46.24935753%
2 Jun 2001 46.26547248%
2 Jul 2001 46.28172879%
2 Aug 2001 46.29812772%
2 Sep 2001 46.31467051%
2 Oct 2001 46.33135843%
2 Nov 2001 46.34819274%
2 Dec 2001 46.36517474%
2 Jan 2002 46.38230571%
2 Feb 2002 46.39958697%
2 Mar 2002 46.41701984%
2 Apr 2002 46.43460563%
2 May 2002 46.45234570%
2 Jun 2002 46.47024140%
2 Jul 2002 46.48829410%
2 Aug 2002 46.50650516%
2 Sep 2002 46.52487599%
2 Oct 2002 46.54340797%
2 Nov 2002 46.56210254%
2 Dec 2002 46.58096110%
2 Jan 2003 46.59998511%
2 Feb 2003 45.21992227%
2 Mar 2003 45.23928153%
2 Apr 2003 45.25881061%
2 May 2003 45.27851102%
2 Jun 2003 45.29838426%
2 Jul 2003 45.32061714%
2 Aug 2003 43.94158686%
2 Sep 2003 43.96198773%
2 Oct 2003 43.98256756%
2 Nov 2003 44.00332794%
2 Dec 2003 44.02427044%
2 Jan 2004 44.04979170%
2 Feb 2004 43.85655102%
2 Mar 2004 43.87804953%
2 Apr 2004 43.89973665%
2 May 2004 43.92161402%
2 Jun 2004 43.94368332%
2 Jul 2004 43.96594622%
2 Aug 2004 43.98840443%
2 Sep 2004 44.01105966%
2 Oct 2004 44.03391363%
2 Nov 2004 44.05696810%
2 Dec 2004 44.08022482%
2 Jan 2005 44.10368556%
2 Feb 2005 44.10962824%
2 Mar 2005 44.13350241%
2 Apr 2005 44.15758603%
2 May 2005 44.18188092%
2 Jun 2005 44.20638895%
2 Jul 2005 44.23111198%
2 Aug 2005 44.23832802%
2 Sep 2005 44.26348673%
2 Oct 2005 44.28886614%
2 Nov 2005 44.31446821%
2 Dec 2005 44.34029487%
2 Jan 2006 44.36634810%
2 Feb 2006 44.13143587%
2 Mar 2006 44.15794822%
2 Apr 2006 44.18469316%
2 May 2006 44.21167272%
2 Jun 2006 44.23888897%
2 Jul 2006 44.26634398%
2 Aug 2006 44.03284581%
2 Sep 2006 44.06078464%
2 Oct 2006 44.08896857%
2 Nov 2006 44.11739975%
2 Dec 2006 44.14608035%
2 Jan 2007 44.17501255%
2 Feb 2007 43.90569111%
2 Mar 2007 43.93513316%
2 Apr 2007 43.96483351%
2 May 2007 43.99479441%
2 Jun 2007 44.02501814%
2 Jul 2007 44.05550702%
2 Aug 2007 43.78775591%
2 Sep 2007 43.81878207%
2 Oct 2007 43.85008042%
2 Nov 2007 43.88165335%
2 Dec 2007 43.91350325%
2 Jan 2008 43.94563256%
2 Feb 2008 43.38102880%
2 Mar 2008 43.41372431%
2 Apr 2008 43.44670664%
2 May 2008 43.47997832%
2 Jun 2008 43.51354188%
2 Jul 2008 43.54739989%
2 Aug 2008 42.98453999%
2 Sep 2008 43.01899465%
2 Oct 2008 43.05375158%
2 Nov 2008 43.08881341%
2 Dec 2008 43.12418284%
2 Jan 2009 43.15986255%
2 Feb 2009 41.94585526%
2 Mar 2009 41.98216373%
2 Apr 2009 42.01879073%
2 May 2009 42.05573904%
2 Jun 2009 42.09301149%
2 Jul 2009 42.13061091%
2 Aug 2009 40.91854019%
2 Sep 2009 40.95680221%
2 Oct 2009 40.99539989%
2 Nov 2009 41.03433618%
2 Dec 2009 41.07361404%
2 Jan 2010 41.11323648%
2 Feb 2010 39.90320652%
2 Mar 2010 39.94352720%
2 Apr 2010 39.98420160%
2 May 2010 40.02523282%
2 Jun 2010 40.06662400%
2 Jul 2010 40.11659976%
2 Aug 2010 38.90872035%
2 Sep 2010 38.95121045%
2 Oct 2010 38.99407331%
2 Nov 2010 39.03731219%
2 Dec 2010 39.08093039%
2 Jan 2011 39.14146605%
2 Feb 2011 36.85376336%
2 Mar 2011 36.89853961%
2 Apr 2011 36.94370867%
2 May 2011 36.98927398%
2 Jun 2011 37.03523903%
2 Jul 2011 37.10312223%
2 Aug 2011 34.81780774%
2 Sep 2011 34.86499314%
2 Oct 2011 34.91259249%
2 Nov 2011 34.96060941%
2 Dec 2011 35.00904757%
2 Jan 2012 35.08446135%
2 Feb 2012 32.80166355%
2 Mar 2012 32.85138773%
2 Apr 2012 32.90154812%
2 May 2012 32.95214856%
2 Jun 2012 33.00319290%
2 Jul 2012 33.07376662%
2 Aug 2012 30.79362093%
2 Sep 2012 30.84602049%
2 Oct 2012 30.89887972%
2 Nov 2012 30.95220268%
2 Dec 2012 31.00599342%
2 Jan 2013 31.07178508%
2 Feb 2013 30.00712076%
2 Mar 2013 30.06233963%
2 Apr 2013 30.11804292%
2 May 2013 30.17423487%
2 Jun 2013 30.23091978%
2 Jul 2013 30.29963101%
2 Aug 2013 29.23791186%
2 Sep 2013 29.29610173%
2 Oct 2013 29.35480210%
2 Nov 2013 29.41401742%
2 Dec 2013 29.47375222%
2 Jan 2014 29.54554009%
2 Feb 2014 27.82461114%
2 Mar 2014 27.88593188%
2 Apr 2014 27.94779057%
2 May 2014 28.01019193%
2 Jun 2014 28.07314072%
2 Jul 2014 28.15156249%
2 Aug 2014 26.43390416%
2 Sep 2014 26.49852422%
2 Oct 2014 26.56371117%
2 Nov 2014 26.62946999%
2 Dec 2014 26.69580569%
2 Jan 2015 26.78107370%
2 Feb 2015 25.06686198%
2 Mar 2015 25.13495887%
2 Apr 2015 25.20365315%
2 May 2015 25.27295008%
2 Jun 2015 25.34285492%
2 Jul 2015 25.43172338%
2 Aug 2015 23.72114370%
2 Sep 2015 23.79290449%
2 Oct 2015 23.86529482%
2 Nov 2015 23.93832021%
2 Dec 2015 24.01198623%
2 Jan 2016 24.10464887%
2 Feb 2016 22.39789664%
2 Mar 2016 22.47351847%
2 Apr 2016 22.54980371%
2 May 2016 22.62675818%
2 Jun 2016 22.70438774%
2 Jul 2016 22.78269833%
2 Aug 2016 21.07997949%
2 Sep 2016 21.15967010%
2 Oct 2016 21.24005981%
2 Nov 2016 21.32115475%
2 Dec 2016 21.40296111%
2 Jan 2017 21.48548514%
2 Feb 2017 21.53345376%
2 Mar 2017 21.61743205%
2 Apr 2017 21.70214707%
2 May 2017 21.83558588%
2 Jun 2017 21.97031058%
2 Jul 2017 22.17360056%
<PAGE>
SCHEDULE 5
TO
LEASE
SCHEDULE OF NET SPECIALTY CASUALTY VALUES
PART D
Percentage of
DATE Facility Cost
2 Oct 1989 17.36302830%
2 Nov 1989 17.70934318%
2 Dec 1989 18.05951559%
2 Jan 1990 18.37617315%
2 Feb 1990 21.37471734%
2 Mar 1990 21.75295015%
2 Apr 1990 22.13123944%
2 May 1990 22.48028600%
2 Jun 1990 22.83321995%
2 Jul 1990 23.15662757%
2 Aug 1990 28.61241175%
2 Sep 1990 29.04739218%
2 Oct 1990 29.45376284%
2 Nov 1990 29.86466088%
2 Dec 1990 30.28013675%
2 Jan 1991 30.49957751%
2 Feb 1991 30.88693075%
2 Mar 1991 31.27973629%
2 Apr 1991 31.66214197%
2 May 1991 32.01816778%
2 Jun 1991 32.37815749%
2 Jul 1991 32.71151658%
2 Aug 1991 33.04858601%
2 Sep 1991 33.38940711%
2 Oct 1991 33.70338299%
2 Nov 1991 34.02085221%
2 Dec 1991 34.34185366%
2 Jan 1992 34.63578801%
2 Feb 1992 34.93299131%
2 Mar 1992 35.23349999%
2 Apr 1992 35.52373362%
2 May 1992 35.79832537%
2 Jun 1992 36.07596939%
2 Jul 1992 36.33783057%
2 Aug 1992 36.60260143%
2 Sep 1992 36.87031438%
2 Oct 1992 37.12213307%
2 Nov 1992 37.37674879%
2 Dec 1992 37.63419266%
2 Jan 1993 38.75033759%
2 Feb 1993 38.99809515%
2 Mar 1993 39.24860375%
2 Apr 1993 39.49612558%
2 May 1993 39.72805659%
2 Jun 1993 39.96256132%
2 Jul 1993 40.18132945%
2 Aug 1993 40.40252389%
2 Sep 1993 40.62617158%
2 Oct 1993 40.83396085%
2 Nov 1993 41.04405325%
2 Dec 1993 41.25647435%
2 Jan 1994 41.45291107%
2 Feb 1994 41.65152356%
2 Mar 1994 41.85233595%
2 Apr 1994 42.05310391%
2 May 1994 42.23905557%
2 Jun 1994 42.42706511%
2 Jul 1994 42.60011541%
2 Aug 1994 42.77507907%
2 Sep 1994 42.95197730%
2 Oct 1994 43.11379159%
2 Nov 1994 43.27739314%
2 Dec 1994 43.44280174%
2 Jan 1995 43.59299743%
2 Feb 1995 43.74484999%
2 Mar 1995 43.89837775%
2 Apr 1995 44.05359923%
2 May 1995 44.19492163%
2 Jun 1995 44.33780098%
2 Jul 1995 44.46664294%
2 Aug 1995 44.59690198%
2 Sep 1995 44.72859374%
2 Oct 1995 44.84612248%
2 Nov 1995 44.96494128%
2 Dec 1995 45.08506434%
2 Jan 1996 45.19089450%
2 Feb 1996 45.29788337%
2 Mar 1996 45.40604366%
2 Apr 1996 45.51538827%
2 May 1996 45.61243749%
2 Jun 1996 45.71054644%
2 Jul 1996 45.79623400%
2 Aug 1996 45.88285386%
2 Sep 1996 45.97041625%
2 Oct 1996 46.04543874%
2 Nov 1996 46.12127368%
2 Dec 1996 46.19792993%
2 Jan 1997 46.26192373%
2 Feb 1997 46.32660606%
2 Mar 1997 46.39198437%
2 Apr 1997 46.45806623%
2 May 1997 46.50853778%
2 Jun 1997 46.55954581%
2 Jul 1997 46.59477462%
2 Aug 1997 49.24570144%
2 Sep 1997 49.33533214%
2 Oct 1997 49.40961450%
2 Nov 1997 49.48469817%
2 Dec 1997 49.56059189%
2 Jan 1998 49.62098299%
2 Feb 1998 49.68201941%
2 Mar 1998 49.74370812%
2 Apr 1998 49.80605613%
2 May 1998 49.85256255%
2 Jun 1998 49.89955808%
2 Jul 1998 49.93053991%
2 Aug 1998 49.96183683%
2 Sep 1998 49.99345210%
2 Oct 1998 50.00888096%
2 Nov 1998 50.02445030%
2 Dec 1998 50.04016138%
2 Jan 1999 50.05381703%
2 Feb 1999 50.06759248%
2 Mar 1999 50.08148877%
2 Apr 1999 50.09550698%
2 May 1999 50.10964816%
2 Jun 1999 50.12391340%
2 Jul 1999 50.13830379%
2 Aug 1999 50.15282041%
2 Sep 1999 50.16746439%
2 Oct 1999 50.18223683%
2 Nov 1999 50.19713888%
2 Dec 1999 50.21217165%
2 Jan 2000 50.22733629%
2 Feb 2000 50.24263398%
2 Mar 2000 50.25806587%
2 Apr 2000 50.27363313%
2 May 2000 50.28933696%
2 Jun 2000 50.30517855%
2 Jul 2000 50.32115912%
2 Aug 2000 50.33727990%
2 Sep 2000 50.35354207%
2 Oct 2000 50.36994693%
2 Nov 2000 50.38649569%
2 Dec 2000 50.40318963%
2 Jan 2001 50.42003003%
2 Feb 2001 50.43701815%
2 Mar 2001 50.45415531%
2 Apr 2001 50.47144281%
2 May 2001 50.48888197%
2 Jun 2001 50.50647412%
2 Jul 2001 50.52422060%
2 Aug 2001 50.54212276%
2 Sep 2001 50.56018197%
2 Oct 2001 50.57839962%
2 Nov 2001 50.59677707%
2 Dec 2001 50.61531576%
2 Jan 2002 50.63401707%
2 Feb 2002 50.65288244%
2 Mar 2002 50.67191333%
2 Apr 2002 50.69111115%
2 May 2002 50.71047739%
2 Jun 2002 50.73001353%
2 Jul 2002 50.74972106%
2 Aug 2002 50.76960147%
2 Sep 2002 50.78965629%
2 Oct 2002 50.80988703%
2 Nov 2002 50.83029527%
2 Dec 2002 50.85088253%
2 Jan 2003 50.87165041%
2 Feb 2003 49.36508181%
2 Mar 2003 49.38621567%
2 Apr 2003 49.40753492%
2 May 2003 49.42904120%
2 Jun 2003 49.45073615%
2 Jul 2003 49.47500704%
2 Aug 2003 47.96956566%
2 Sep 2003 47.99183661%
2 Oct 2003 48.01430292%
2 Nov 2003 48.03696633%
2 Dec 2003 48.05982856%
2 Jan 2004 48.08768927%
2 Feb 2004 47.87673486%
2 Mar 2004 47.90020407%
2 Apr 2004 47.92387918%
2 May 2004 47.94776197%
2 Jun 2004 47.97185429%
2 Jul 2004 47.99615796%
2 Aug 2004 48.02067484%
2 Sep 2004 48.04540680%
2 Oct 2004 48.07035571%
2 Nov 2004 48.09552351%
2 Dec 2004 48.12091210%
2 Jan 2005 48.14652340%
2 Feb 2005 48.15301083%
2 Mar 2005 48.17907346%
2 Apr 2005 48.20536475%
2 May 2005 48.23188667%
2 Jun 2005 48.25864127%
2 Jul 2005 48.28563058%
2 Aug 2005 48.29350809%
2 Sep 2005 48.32097301%
2 Oct 2005 48.34867887%
2 Nov 2005 48.37662780%
2 Dec 2005 48.40482190%
2 Jan 2006 48.43326334%
2 Feb 2006 48.17681749%
2 Mar 2006 48.20576014%
2 Apr 2006 48.23495670%
2 May 2006 48.26440939%
2 Jun 2006 48.29412046%
2 Jul 2006 48.32409218%
2 Aug 2006 48.06919001%
2 Sep 2006 48.09968990%
2 Oct 2006 48.13045736%
2 Nov 2006 48.16149473%
2 Dec 2006 48.19280438%
2 Jan 2007 48.22438870%
2 Feb 2007 47.93037946%
2 Mar 2007 47.96252037%
2 Apr 2007 47.99494325%
2 May 2007 48.02765056%
2 Jun 2007 48.06064480%
2 Jul 2007 48.09392850%
2 Aug 2007 47.80163354%
2 Sep 2007 47.83550376%
2 Oct 2007 47.86967113%
2 Nov 2007 47.90413824%
2 Dec 2007 47.93890771%
2 Jan 2008 47.97398221%
2 Feb 2008 47.35762311%
2 Mar 2008 47.39331571%
2 Apr 2008 47.42932142%
2 May 2008 47.46564300%
2 Jun 2008 47.50228322%
2 Jul 2008 47.53924488%
2 Aug 2008 46.92478949%
2 Sep 2008 46.96240249%
2 Oct 2008 47.00034547%
2 Nov 2008 47.03862131%
2 Dec 2008 47.07723293%
2 Jan 2009 47.11618328%
2 Feb 2009 45.79089199%
2 Mar 2009 45.83052874%
2 Apr 2009 45.87051321%
2 May 2009 45.91084845%
2 Jun 2009 45.95153754%
2 Jul 2009 45.99258358%
2 Aug 2009 44.66940637%
2 Sep 2009 44.71117575%
2 Oct 2009 44.75331155%
2 Nov 2009 44.79581700%
2 Dec 2009 44.83869533%
2 Jan 2010 44.88194982%
2 Feb 2010 43.56100045%
2 Mar 2010 43.60501719%
2 Apr 2010 43.64942008%
2 May 2010 43.69421250%
2 Jun 2010 43.73939787%
2 Jul 2010 43.79395474%
2 Aug 2010 42.47535305%
2 Sep 2010 42.52173807%
2 Oct 2010 42.56853003%
2 Nov 2010 42.61573247%
2 Dec 2010 42.66334901%
2 Jan 2011 42.72943377%
2 Feb 2011 40.23202500%
2 Mar 2011 40.28090574%
2 Apr 2011 40.33021530%
2 May 2011 40.37995743%
2 Jun 2011 40.43013594%
2 Jul 2011 40.50424177%
2 Aug 2011 38.00944012%
2 Sep 2011 38.06095084%
2 Oct 2011 38.11291347%
2 Nov 2011 38.16533194%
2 Dec 2011 38.21821026%
2 Jan 2012 38.30053697%
2 Feb 2012 35.80848271%
2 Mar 2012 35.86276494%
2 Apr 2012 35.91752336%
2 May 2012 35.97276218%
2 Jun 2012 36.02848558%
2 Jul 2012 36.10552856%
2 Aug 2012 33.61636952%
2 Sep 2012 33.67357237%
2 Oct 2012 33.73127703%
2 Nov 2012 33.78948793%
2 Dec 2012 33.84820948%
2 Jan 2013 33.92003205%
2 Feb 2013 32.75777350%
2 Mar 2013 32.81805410%
2 Apr 2013 32.87886352%
2 May 2013 32.94020640%
2 Jun 2013 33.00208743%
2 Jul 2013 33.07709719%
2 Aug 2013 31.91805378%
2 Sep 2013 31.98157772%
2 Oct 2013 32.04565896%
2 Nov 2013 32.11030235%
2 Dec 2013 32.17551284%
2 Jan 2014 32.25388126%
2 Feb 2014 30.37520049%
2 Mar 2014 30.44214230%
2 Apr 2014 30.50967137%
2 May 2014 30.57779286%
2 Jun 2014 30.64651195%
2 Jul 2014 30.73212238%
2 Aug 2014 28.85701204%
2 Sep 2014 28.92755561%
2 Oct 2014 28.99871803%
2 Nov 2014 29.07050474%
2 Dec 2014 29.14292121%
2 Jan 2015 29.23600546%
2 Feb 2015 27.36465766%
2 Mar 2015 27.43899677%
2 Apr 2015 27.51398802%
2 May 2015 27.58963717%
2 Jun 2015 27.66594995%
2 Jul 2015 27.76296469%
2 Aug 2015 25.89558187%
2 Sep 2015 25.97392073%
2 Oct 2015 26.05294685%
2 Nov 2015 26.13266623%
2 Dec 2015 26.21308497%
2 Jan 2016 26.31424168%
2 Feb 2016 24.45103717%
2 Mar 2016 24.53359100%
2 Apr 2016 24.61686905%
2 May 2016 24.70087768%
2 Jun 2016 24.78562328%
2 Jul 2016 24.87111234%
2 Aug 2016 23.01231094%
2 Sep 2016 23.09930653%
2 Oct 2016 23.18706529%
2 Nov 2016 23.27559394%
2 Dec 2016 23.36489921%
2 Jan 2017 23.45498794%
2 Feb 2017 23.50735369%
2 Mar 2017 23.59902999%
2 Apr 2017 23.69151055%
2 May 2017 23.83718125%
2 Jun 2017 23.98425572%
2 Jul 2017 24.20618061%
<PAGE>
Schedule U3S
<PAGE>
Schedule A-1
to
Appendix A
<PAGE>
COLLATERAL TRUST INDENTURE
dated as of July 1, 1997
among
W3A FUNDING CORPORATION,
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company)
and
BANKERS TRUST COMPANY,
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
ENTERGY LOUISIANA, INC.
Reconciliation and tie between Indenture
dated as of July 1, 1997
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>
COLLATERAL TRUST INDENTURE
Collateral Trust Indenture, dated as of July 1, 1997, 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,
Entergy Louisiana, Inc. (formerly Louisiana Power & Light
Company), a Louisiana corporation ("ELI"), 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.
RECITALS
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:
GRANTING CLAUSES
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; and
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 ELI, the board of directors of ELI, 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 ELI, 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 any other city in which any Corporate Trust Office
(as defined in the respective Lease Indentures) of a Lease
Indenture Trustee is 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, ELI and each Securityholder.
"ELI" shall mean Entergy Louisiana, Inc. (formerly Louisiana
Power & Light Company), a Louisiana corporation, and its
permitted successors and assigns.
"ELI Request" means a written request or order, signed in the
name of ELI 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 ELI, and delivered to the Trustee.
"Event of Default" has the meaning specified in Section 8.01.
"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.
"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.
"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 mean the "Indenture Estate" as
defined 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 ELI and any successor to the obligations of ELI
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 ELI as an Obligor herein shall be
construed as implying any guaranty or assumption of the
Securities or the obligations represented thereby by ELI.
"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 ELI, 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 ELI, 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 ELI, 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 ELI, 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.
"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.
"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 and terms 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
ELI to the Trustee to take any action under any provision of this
Indenture, the Company, such Lessor or ELI, 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 ELI 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 ELI, 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 ELI, 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 ELI. 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
ELI, 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 ELI.
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 ELI 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 ELI 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 ELI by
the Company for such purpose, or
(c) ELI 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 ELI 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 ELI
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, ELI 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 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 and (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;
(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;
(d) the Pledged Lessor Bonds relating to the Securities
of such series in an aggregate principal amount not less
than the aggregate principal amount of such series of
Securities proposed to be authenticated and delivered;
(e) signed copies, either addressed to the Trustee or
accompanied by statements that the Trustee may rely on such
documents, of all certificates and opinions of counsel
delivered (i) to the Company in connection with its receipt
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 ELI
(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; and
(f) 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
accountant (who shall not be an employee of the Company, or
ELI 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 ELI 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
ELI (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 ELI 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, ELI 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 issued under such Lease Indenture.
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,
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 thereto. 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, and prompt notice to the Holders in the manner specified
in Section 1.06, of the location, and of any change in the
location, of each such office or agency. 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 at 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 ELI 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 ELI 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 and provided to it for its execution. The Trustee
shall have no duty to monitor the necessity of filing any such
financing statement, continuation statement or other instrument
referred to in 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 ELI 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 ELI 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 ELI 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.
ELI 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, ELI 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 ELI 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 ELI 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 ELI 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, ELI 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 ELI Order, as the case may be, shall first
select such Securities for redemption. Any such Company Order or
ELI 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 ELI 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 ELI, as the case may be,
by the Trustee, or to the Company or ELI, 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 ELI, 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
United States 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 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 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 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 ELI, 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 ELI 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.
In 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 ELI 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 ELI 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, ELI 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, ELI, 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
ELI, 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 ELI 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 ELI
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or an ELI Request or ELI
Order, in the case of a request or direction of either the
Company or ELI, as the case may be, and any resolution of
the Board of Directors of the Company or ELI may be
sufficiently evidenced by a Board Resolution of the Company
or ELI, 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 ELI;
(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 ELI,
personally or by agent or attorney at the sole cost and
expense of the Company or ELI, 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 ELI, 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 ELI 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 ELI 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 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.
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 ELI. If an instrument of
acceptance by a successor Trustee shall not have been delivered
to the Company, ELI 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 ELI.
(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, ELI 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) ELI, 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, ELI, 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, ELI 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 ELI. If no successor Trustee
shall have been so appointed by ELI, 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, ELI 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, ELI 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 ELI, (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, ELI and the
Company. The Company may, and at the request of the Trustee or
ELI 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 ELI 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 ELI 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 ELI 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 ELI or the Company; and ELI 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) ELI, 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
ELI, 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 ELI 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 ELI
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 ELI,
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 ELI
Section 10.01. ELI to Furnish Trustee Names and Addresses of
Holders.
Semiannually, not later than March 31 and September 30 in
each year, commencing March 31, 1998 and at such other times as
the Trustee may request in writing, ELI 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 be
preserved 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 ELI.
Section 10.02. Reports by Trustee and ELI.
If required by Section 313 (a) of the Trust Indenture Act,
within thirty days after December 1 in each year commencing
December 1, 1997, 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 ELI 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; Amendments
Section 11.01. Supplemental Indentures Without Consent of
Holders.
Without the consent of the Holders of any Securities, ELI,
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
ELI and the assumption by any such successor of the
covenants of ELI 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 ELI, 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 ELI; 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, ELI 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, ELI 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, ELI and the
Trustee, the Company and ELI, 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 ELI 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 ELI, bear
a notation in form approved by such Lessor, the Company, ELI 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 ELI shall so determine, new
Securities so modified as to conform, in the opinion of such
Owner Trustee, the Company, ELI 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.
Section 11.08. Trustee may Join in Amendments.
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, any Participation Agreement.
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,
(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; and
(z) if such deposit shall have been made or if such
pledged Lessor Bonds are so deemed to have been paid, in
either case, prior to the Stated Maturity of principal or
Redemption Date of such Securities, an Opinion of Counsel
to the effect that such deposit or deemed payment, as the
case may be, and satisfaction and discharge of indebtedness
shall not be deemed to be, or result in, a taxable event
with respect to the holders of such Securities for purposes
of United States Federal income taxation; provided that
such Opinion of Counsel need not address the matters
specified in this clause (z) if the Trustee shall have
received documentary evidence that each Holder of such
Security either is not subject to, or is exempt from,
United States Federal income taxation.
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, ELI 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
ELI, 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, ELI, 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 ELI 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 have
proceeded to cause the meeting to be held as provided herein,
then the Company, ELI 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 ELI, 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, ELI 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, ELI 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, ELI, 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, ELI 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 ELI, 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 ELI
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 ELI.
In no event shall any provision of this Indenture or the
Securities constitute a guaranty or assumption by ELI of the
Securities or the indebtedness represented thereby (it being
understood that, in accordance with Section 2.16 of each Lease
Indenture, ELI 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
Entergy Louisiana, Inc.
By
------------------------------------
Title: Vice President and Treasurer
Bankers Trust Company, 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.
---------------------------------
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 Entergy Louisiana, Inc., 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 __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.
--------------------------------
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 ELI 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, as amended, among the Owner
Participant, the Company, the Trustee, First National Bank of
Commerce, individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and ELI.
PART II
Lease - Facility Lease No. 2, dated as of September 1, 1989,
as amended and supplemented, between ELI 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 and Stanley Burg, 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, as amended, among the Owner
Participant, the Company, the Trustee, First National Bank of
Commerce, individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and ELI.
PART III
Lease - Facility Lease No. 3, dated as of September 1, 1989,
as amended and supplemented, between ELI 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, as amended, among the Owner
Participant, the Company, the Trustee, First National Bank of
Commerce, individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and ELI.
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1
dated as of July 1, 1997
to
COLLATERAL TRUST INDENTURE
dated as of July 1, 1997
among
W3A FUNDING CORPORATION,
ENTERGY LOUISIANA, INC.
(formerly Louisiana Power & Light Company)
and
BANKERS TRUST COMPANY,
as Trustee
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>
SUPPLEMENTAL INDENTURE NO. 1, dated as of July 1, 1997,
among W3A FUNDING CORPORATION, a Delaware corporation (the
"Company"), ENTERGY LOUISIANA, INC. (formerly Louisiana Power &
Light Company), a Louisiana corporation ("ELI"), and BANKERS
TRUST COMPANY, a New York banking corporation, not in its
individual capacity but solely as trustee (the "Trustee").
WHEREAS, the Company and ELI have heretofore executed
and delivered to the Trustee a Collateral Trust Indenture, dated
as of July 1, 1997 (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, ELI 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 ELI (a) desire the issuance by
the Company of a separate 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 ELI
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 ELI 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 is hereby created and established a separate
series of Securities designated "Waterford 3 Secured Lease
Obligation Bonds, 8.09% Series due 2017" (the "Bonds"). The
Bonds shall be issued in the aggregate principal amount, shall
bear interest at the rate per annum and shall have the Stated
Maturity of principal set forth below:
Original Interest Final
Principal Amount Rate Maturity
----------------- --------- --------
Bonds $307,632,000 8.09% January 2, 2017
The Bonds shall be substantially in the form of Exhibit A hereto.
The interest on the 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 January 2 and July 2 in each
year (commencing January 2, 1998), until the principal amount of
the Bonds 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 (i) payments of interest and Installment Payment Amounts on
such Bonds, 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 (ii) 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 ELI,
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 equal (subject to adjustment as set forth in Section
1.02(b)) 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,
means the principal amount identified as such on the face of such
Bond.
Installment Installment Payment
Payment Date Percentage
January 2, 1999 8.205086597%
January 2, 2000 6.682958210%
January 2, 2001 6.682957885%
January 2, 2002 6.682958210%
January 2, 2003 10.824584244%
January 2, 2004 5.353311749%
January 2, 2005 0.203574401%
January 2, 2006 0.864755617%
January 2, 2007 0.989230639%
January 2, 2008 1.710452749%
January 2, 2009 3.631649503%
January 2, 2010 4.847784366%
January 2, 2011 7.737269855%
January 2, 2012 4.543215595%
January 2, 2013 3.328583177%
January 2, 2014 4.481746047%
January 2, 2015 4.111220549%
January 2, 2016 0.430046614%
January 2, 2017 18.688613993%
(b) Certain Adjustments to Installment Payments and
Stated Maturity. (i) The principal amount of Bonds to be paid in
installments on Installment Payment Dates and at Stated Maturity,
and the Stated Maturity, shall be adjusted (a "Payment
Adjustment") at the direction of the Company, so as to correlate,
as to amounts and dates, to any adjustment to the principal
amortization and maturity schedule of the Pledged Lessor Bonds
issued under any Lease Indenture pursuant to Section 2.17 of 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 (calculated in accordance
with generally accepted financial practice from the date of
initial issuance) by more than 6 months or extend the final
maturity of the Bonds and (B) the Company shall be obligated 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 ELI at least 40 days prior to the first payment date proposed
to be affected by such adjustment, a Company Request (A) stating
that the Company is obligated 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 as to which a Payment Adjustment is to be made,
(C) attaching a copy of the revised principal schedule or
schedules for the corresponding Pledged Lessor Bonds, and
(D) attaching calculations showing that (x) the average life of
the Bonds 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 ELI, send to each Holder of Bonds in respect of which
a Payment Adjustment has been made at least 30 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 (other than pursuant to principal
installment payments), each Installment Payment Amount for each
Bond 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 redeemed pursuant to such partial
redemption, and the denominator shall be the aggregate unpaid
principal amount of Bonds 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 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 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 Pledged 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 Pledged Lessor Bonds are to be prepaid, at a
Redemption Price equal to 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
pursuant to Section 14 of such Lease, to the right of ELI to
assume such Pledged 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 shall be subject to redemption, at the option
of the Company, with the written consent of the Lessee and the
Owner Trustee, 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 January 22, 2008, 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 Stated
Maturity, 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 plus .125%, 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. "Investment
Banker" shall mean an independent investment banking institution
of national standing appointed by ELI 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 are to be redeemed, the particular Bonds 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, ELI 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
ENTERGY LOUISIANA, INC.
By
-------------------------
Title: Vice President
BANKERS TRUST COMPANY, 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 ENTERGY LOUISIANA, INC., 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, 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
Number Amount Rate Maturity
------ --------- -------- --------
R-1A-1 174,000,000 8.09% January 2, 2017
Lessor Bonds Issued Under Lease Indenture No. 2
Principal Interest
Number Amount Rate Maturity
------ ---------- --------- --------
R-2B-1 87,000,000 8.09% January 2, 2017
Lessor Bonds Issued Under Lease Indenture No. 3
Principal Interest
Number Amount Rate Maturity
------ ---------- --------- --------
R-3C-1 46,632,000 8.09% January 2, 2017
<PAGE>
EXHIBIT A
FORM OF BOND
NUMBER
R-
________________________
WATERFORD 3
SECURED LEASE OBLIGATION BOND,
8.09 % SERIES DUE 2017
STATED
INTEREST RATE MATURITY CUSIP
8.09% January 2, 2017
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 below, all
capitalized terms used herein without definition herein having
the meanings ascribed thereto in such Indenture), 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 below with the final
installment due and payable on the Stated Maturity (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 January 2, 1998, the date of
the original issuance of Bonds of this series, semiannually on
January 2 and July 2 in each year, commencing January 2, 1998 at
the Interest Rate (stated above) per annum, until the principal
hereof is paid in full or made available for payment.
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
(i) payment of interest and Installment Payment Amounts (other
than such amounts payable on the Stated Maturity hereof) shall be
made, without presentation or surrender hereof, by check mailed
to the address of the Holder of this Bond at the close of
business on the Regular Record Date for such payment, whether or
not such Regular Record Date is a Business Day, as such address
shall appear in the Security Register and (ii) 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 ELI (as
hereinafter defined), the Trustee and such Holder. The Regular
Record Date for a January 2 payment shall be December 15 and the
Regular Record Date for a July 2 payment shall be June 15.
Notwithstanding the foregoing, any interest or Installment
Payment Amount not 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.
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.
This Bond is one of an authorized issue of Securities
of the Company known as its "Waterford 3 Secured Lease Obligation
Bonds, 8.09 % Series due 2017" (the "Bonds"). The Bonds are
issued under and secured by a Collateral Trust Indenture, dated
as of July 1, 1997 (the "Original Indenture"), among the Company,
Entergy Louisiana, Inc. (formerly Louisiana Power & Light
Company), a Louisiana corporation ("ELI"), and Bankers Trust
Company, 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 July 1,
1997 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
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 ("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, 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 Corporate Indenture 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 ELI 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 Bond 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 aggregate 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
January 2, 1999 8.205086597% 0.9179491
January 2, 2000 6.682958210% 0.8511196
January 2, 2001 6.682957885% 0.7842900
January 2, 2002 6.682958210% 0.7174604
January 2, 2003 10.824584244% 0.6092145
January 2, 2004 5.353311749% 0.5556814
January 2, 2005 0.203574401% 0.5536457
January 2, 2006 0.864755617% 0.5449981
January 2, 2007 0.989230639% 0.5351058
January 2, 2008 1.710452749% 0.5180013
January 2, 2009 3.631649503% 0.4816848
January 2, 2010 4.847784366% 0.4332070
January 2, 2011 7.737269855% 0.3558343
January 2, 2012 4.543215595% 0.3104021
January 2, 2013 3.328583177% 0.2771163
January 2, 2014 4.481746047% 0.2322988
January 2, 2015 4.111220549% 0.1911866
January 2, 2016 0.430046614% 0.1868861
January 2, 2017 18.688613993% 0.0000000
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 this series
(calculated in accordance with generally accepted financial
practice from the date of initial issuance) by more than 6 months
or extend the Stated Maturity of Bonds of this series.
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 the 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 Pledged Lessor Bonds are to be prepaid, at a
redemption price equal to 100% of 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 ELI to assume such
Pledged 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 Company, with the prior written
consent of the Lessee and the Owner Trustee, 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 Bonds to be so redeemed, plus
accrued interest, if any, thereon to the Redemption Date, plus,
if such redemption is made prior to January 22, 2008, 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 30 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.
The obligation of the Company to pay the principal of
and premium, if any, and interest on this Bond, and the lien of
the Indenture, is subject to being legally discharged prior to
the Stated Maturity of this Bond upon the deposit with the
Trustee of cash or certain securities sufficient to pay this Bond
when due in accordance with the terms of 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, except to the extent that laws of
other jurisdictions are mandatorily applicable.
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 the Indenture, or be valid
or obligatory for any purpose.
<PAGE>
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>
AMENDMENT NO. 1
dated as of July 1, 1997
to
TAX INDEMNIFICATION AGREEMENT No. 3
dated as of September 1, 1989
between
ESSL 2, INC.
Beneficiary under Trust Agreement No. 3,
dated as of September 1, 1989
with
FIRST NATIONAL BANK OF COMMERCE
AS OWNER TRUSTEE,
Lessor,
and
ENTERGY LOUISIANA, INC.
(formerly 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 July 1, 1997 ("TIA
Amendment No. 1"), to TAX INDEMNIFICATION AGREEMENT No. 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
ENTERGY LOUISIANA, INC. (formerly 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 the Participation Agreement
No. 3, dated as of September 1, 1989, (as amended by Amendment
No. 1 thereto, dated as of the date hereof and as otherwise
modified, amended or supplemented pursuant to the terms thereof;
the "Participation Agreement") among the Owner Participant, the
Lessor, BANKER'S TRUST COMPANY, not in its individual capacity
but solely as successor Corporate Indenture Trustee under
Indenture No. 3 and STANLEY BURG, not in his individual capacity
but solely as successor Individual Indenture Trustee under
Indenture No. 3, and the Lessee, or the Refunding Agreement.
WHEREAS, pursuant to Participation Agreement No. 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 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 1997 Bonds in amounts which,
when added to the Additional Equity Investment made by the Owner
Participant and any Rent paid by the Lessee, will be sufficient
to redeem the Initial Series Bonds, including any premium and
accrued interest thereon and to pay the Refunding Expenses; and
WHEREAS, the Owner Participant and the Lessee have
heretofore executed Tax Indemnification Agreement No. 3 and
desire to amend Tax Indemnification Agreement No. 3 as
hereinafter provided to clarify their respective rights and
obligations arising from the transactions contemplated by
Refunding Agreement No. 3 (the "Refunding");
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
Tax Indemnification Agreement No. 3 is hereby amended,
effective upon the execution and delivery of this Agreement, as
follows:
1. Section 1.1(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 Amendment No. 1 to the Participation Agreement"
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 3.01 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 in
accordance with the accrual method of tax accounting."
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) Assuming that the Facility Lease is a "true" lease
for federal income tax purposes, 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".
<PAGE>
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.
ENTERGY LOUISIANA, INC.
__________________________________
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 ENTERGY LOUISIANA, 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:
_________ __, ____
</TABLE>
