UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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:
In the Matter of :
: CERTIFICATE PURSUANT
ENTERGY LOUISIANA, INC. : TO
: RULE 24
File No. 70-9141 :
:
(Public Utility Holding Company Act of 1935) :
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This is to certify, pursuant to Rule 24 under the Public
Utility Holding Company Act of 1935, as amended, that the
transactions described below, which were proposed by Entergy
Louisiana, Inc. (the "Company") in its Application-Declaration,
as amended, in the above file, have been carried out in
accordance with the terms and conditions of and for the purposes
represented by said Application-Declaration, as amended, and
pursuant to the order of the Securities and Exchange Commission
with respect thereto dated March 12, 1998.
On October 7, 1999, the Parish of St. Charles, State of
Louisiana (the "Parish") issued and sold, to Goldman, Sachs & Co.
Incorporated, Lehman Brothers, Inc., Morgan Keegan & Company,
Inc., ABN AMRO Incorporated and BNY Capital Markets, Inc., as
underwriters, pursuant to a Bond Purchase Agreement dated
September 30, 1999, $110,950,000 aggregate principal amount of
its Pollution Control Revenue Refunding Bonds (Entergy Louisiana,
Inc. Project) Series 1999-C, issued pursuant to the Trust
Indenture (Series 1999-C), dated as of October 1, 1999 between
the Parish and The Bank of New York, as trustee.
The proceeds of such sale are to be used to redeem (i)
$3,385,000 in aggregate principal amount of the Parish's
Pollution Control Revenue Bonds (Louisiana Power & Light Company
Project) Series 1977, (ii) $2,565,000 in aggregate principal
amount of the Parish's Pollution Control Revenue Bonds (Louisiana
Power & Light Company Project) Series 1979, and (iii)
$105,000,000 in aggregate principal amount of the Parish's
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Louisiana
Power & Light Company Project) Second Series 1984 pursuant to the
Refunding Agreement (Series 1999-C), dated as of October 1, 1999
between the Parish and the Company.
Attached hereto and incorporated by reference are:
Exhibit B-5(c) - Execution form of the Trust
Indenture (Series 1999-C) between the
Parish and The Bank of New York,
Indenture Trustee.
Exhibit B-11(a) - Execution form of the Refunding
Agreement (Series 1999-C) between the
Company and the Parish.
Exhibit F-1(d) - Post-effective opinion of Ann G.
Roy, Esq., Senior Counsel-Corporate and
Securities, Entergy Services, Inc.,
counsel for the Company.
Exhibit F-2(d) - Post-effective opinion of Thelen
Reid & Priest LLP, counsel for the
Company.
IN WITNESS WHEREOF, Entergy Louisiana, Inc. has caused
this certificate to be executed this 15th day of October 1999.
ENTERGY LOUISIANA, INC.
By: /s/ Nathan E. Langston
Nathan E. Langston
Vice President and
Chief Accounting Officer
Exhibit B-5(c)
Trust Indenture
(Series 1999-C)
between
Parish of St. Charles, State of Louisiana
and
The Bank of New York
Dated as of October 1, 1999
$110,950,000
Parish of St. Charles, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Entergy Louisiana, Inc. Project)
Series 1999-C
<PAGE>
Trust Indenture
(Series 1999-C)
This Trust Indenture (Series 1999-C) dated as of October 1,
1999 between the Parish of St. Charles, State of Louisiana, a
political subdivision of the State of Louisiana (the "Issuer"),
and The Bank of New York, a banking corporation organized and
existing under and by virtue of the laws of the State of New York
and duly authorized to accept and execute trusts, as trustee (the
"Trustee").
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Louisiana, authorized and empowered by law, including
particularly the provisions of Sections 991 to 1001, inclusive,
of Title 39 of the Louisiana Revised Statutes of 1950, as
amended, and certain related constitutional and statutory
authority (the "Industrial Inducement Act"), to issue its revenue
bonds for the purpose of using the funds derived from the sale
thereof to acquire, purchase, construct or improve industrial
plant sites and industrial plant buildings, pollution abatement
and control facilities, and necessary property and appurtenances
thereto; and
WHEREAS, pursuant to the provisions of the Industrial
Inducement Act and a Trust Indenture dated as of July 1, 1977
(the "1977 Indenture") by and between the Issuer and Bank One
Trust Company, N. A. (formerly First National Bank of Commerce),
as trustee, the Issuer issued its Pollution Control Revenue Bonds
(Louisiana Power & Light Company Project) Series 1977 (the "1977
Bonds") in the aggregate principal amount of $4,000,000 for the
purpose of providing funds to finance the cost of acquiring
certain pollution control facilities at the Little Gypsy Steam
Electric Generating Station (the "Little Gypsy Station") and
Units 1 and 2 of the Waterford Steam Electric Generating Station
(the "Waterford Station") of Entergy Louisiana, Inc. (formerly
Louisiana Power & Light Company), a Louisiana corporation (the
"Company"), in the geographic limits of the Issuer; and
WHEREAS, pursuant to the provisions of the Industrial
Inducement Act and a Trust Indenture dated as of October 1, 1979
(the "1979 Indenture") by and between the Issuer and Bank One
Trust Company, N. A. (formerly First National Bank of Commerce),
as trustee, the Issuer issued its Pollution Control Revenue Bonds
(Louisiana Power & Light Company Project) Series 1979 (the "1979
Bonds") in the aggregate principal amount of $3,000,000 for the
purpose of providing funds to finance the cost of acquiring
certain pollution control facilities at the Little Gypsy Station
and Units 1 and 2 of the Waterford Station; and
WHEREAS, pursuant to the provisions of the Industrial
Inducement Act and a Trust Indenture dated as of December 1, 1984
(the "1984 Indenture") by and between the Issuer and Bank One
Trust Company, N. A. (formerly First National Bank of Commerce),
as trustee, the Issuer issued its Adjustable/Fixed Rate Pollution
Control Revenue Bonds (Louisiana Power & Light Company Project)
Second Series 1984 (the "1984 Bonds") in the aggregate principal
amount of $105,000,000 for the purpose of providing funds to
finance the cost of acquiring certain pollution control
facilities and solid waste disposal facilities at Unit 3
(Nuclear) of the Waterford Station; and
WHEREAS, the facilities financed with the proceeds of the
1977 Bonds, the 1979 Bonds and the 1984 Bonds are herein
collectively called the "Facilities", the trustees for said Bonds
are hereinafter collectively referred to as the "Prior Trustee",
and the 1977 Indenture, the 1979 Indenture and the 1984 Indenture
are hereinafter collectively referred to as the "Prior
Indenture"; and
WHEREAS, the 1984 Bonds were initially issued as adjustable
rate bonds but were converted to fixed rate bonds on December 1,
1989 pursuant to the provisions of the 1984 Indenture; and
WHEREAS, in furtherance of the statutory purposes of the
Industrial Inducement Act, the Issuer entered into separate Sale
Agreements pertaining to the 1977 Bonds, the 1979 Bonds and the
1984 Bonds, dated as of April 1, 1977, September 1, 1979 and
November 1, 1984, respectively, with the Company, pursuant to
which the Issuer acquired the respective Facilities from the
Company and resold such Facilities to the Company, as more fully
described therein; and
WHEREAS, $3,385,000 of the 1977 Bonds, $2,565,000 of the
1979 Bonds and $105,000,000 of the 1984 Bonds (collectively, the
"Prior Bonds") are currently outstanding, and the Company has
requested that the Issuer refund all of the outstanding Prior
Bonds in order to achieve interest cost savings through the
issuance by the Issuer of $110,950,000 aggregate principal amount
of its Pollution Control Revenue Refunding Bonds (Entergy
Louisiana, Inc. Project) Series 1999-C (the "Bonds"); and
WHEREAS, the Issuer is authorized and empowered by law,
including particularly the provisions of Chapter 14-A of Title 39
of the Louisiana Revised Statutes of 1950, as amended (the
"Act"), to issue its refunding bonds for the purpose of
refunding, readjusting, restructuring, refinancing, extending, or
unifying the whole or any part of outstanding securities of the
Issuer in an amount sufficient to provide funds necessary to
effectuate the purpose for which the refunding bonds are being
issued; and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue the Bonds for the
purpose of refunding all of the Prior Bonds; and
WHEREAS, the Bonds bear interest, mature and are subject to
redemption and purchase as set forth in this Trust Indenture; and
WHEREAS, in consideration of the issuance of the Bonds by
the Issuer, the Company will agree to make payments in an amount
sufficient to pay the principal of, premium, if any, Purchase
Price and interest on the Bonds pursuant to a Refunding Agreement
(Series 1999-C) dated as of October 1, 1999 (the "Refunding
Agreement") between the Issuer and the Company, said Bonds to be
paid solely from the revenues derived by the Issuer from said
payments by the Company pursuant to the Refunding Agreement and
any moneys held under this Indenture, and said Bonds shall not
constitute an indebtedness or pledge of the general credit of the
Issuer or the State of Louisiana, within the meaning of any
constitutional or statutory limitation of indebtedness or
otherwise; and
WHEREAS, all consents and approvals required to be given by
public bodies in connection with the authorization, issuance and
sale of the Bonds herein authorized as required by the Act have
been or will be secured prior to the delivery of such Bonds; and
WHEREAS, the execution and delivery of this Indenture under
the Act have been in all respects duly and validly authorized by
ordinance of the Parish Council of the Parish of St. Charles,
State of Louisiana, duly adopted; and
WHEREAS, all other things necessary to make the Bonds, when
issued, executed and delivered by the Issuer and authenticated
pursuant to this Indenture, the valid, legal and binding obliga
tions of the Issuer, and to constitute this Indenture a valid
pledge of the Revenues (as hereinafter defined) and other amounts
pledged hereunder as security for the payment of the principal
of, premium, if any, and interest on the Bonds authenticated and
delivered under this Indenture, have been performed, and the
creation, execution and delivery of this Indenture and the
creation, execution and issuance of the Bonds, subject to the
terms hereof, have in all respects been duly authorized;
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH that in
consideration of the premises and the acceptance by the Trustee
of the trusts hereby created and of the purchase and acceptance
of the Bonds by the holders and owners thereof, and for other
good and valuable consideration, the receipt of which is hereby
acknowledged, and in order to provide for the payment of
principal, purchase price and redemption price (as the case may
be) in respect of all Bonds issued and outstanding under this
Indenture, together with interest thereon, and in order to secure
the rights of the Bondholders and the performance of the
covenants contained in the Bonds and herein, the Issuer does
hereby grant, bargain, sell, convey, pledge, transfer and assign
unto the Trustee, its successors in the trust and their assigns
forever (i) all of the right, title and interest of the Issuer in
and to the Revenues, (ii) the Refunding Agreement and all right,
title and interest of the Issuer under and pursuant to the
Refunding Agreement, insofar as they relate to all Bonds issued
and outstanding under this Indenture (except for the
indemnification and expense reimbursement rights and other rights
contained in Sections 4.4, 4.5, 4.6 and 8.5 thereof and any
rights of the Issuer to receive notices, certificates, requests,
requisitions, directions and other communications under the
Refunding Agreement), including, without limitation, all Payments
to be received under and pursuant to and subject to the
provisions of the Refunding Agreement, (iii) all amounts on
deposit in the Bond Fund or other funds created under this
Indenture other than the Bond Purchase Fund which is not pledged
hereunder and does not constitute security for the Bonds, and
(iv) all moneys, securities and obligations from time to time
held by the Trustee under the terms of this Trust Indenture and
any and all real and personal property of every kind and nature
from time to time hereafter by delivery or by writing of any kind
conveyed, mortgaged, pledged, assigned or transferred, as and for
additional security hereunder by the Issuer or by anyone in its
behalf or with its written consent to the Trustee, which is
hereby authorized to receive any and all such property at any and
all times and to hold and apply the same subject to the terms
hereof; except for moneys, securities or obligations deposited
with or paid to the Trustee for redemption or payment of Bonds
which have been redeemed or matured or which are deemed to have
been paid in accordance with Article XV hereof, which shall be
held by the Trustee for the benefit of said owners in accordance
with the provisions of said Article XV or Section 6.2, as the
case may be (collectively, the "Trust Estate"); provided,
however, that nothing in the Bonds or in this Indenture shall be
construed as pledging the general credit or taxing power of the
Issuer or the State of Louisiana, nor shall this Indenture or the
Bonds give rise to a pecuniary liability of the Issuer.
TO HAVE AND TO HOLD all of the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or intended
so to be, to the Trustee and its successors in said trust and to
them and their assigns forever.
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit, security and
protection of all holders and owners of the Bonds issued under
and secured by this Indenture without privilege, preference,
priority or distinction as to the lien or otherwise of any of the
Bonds over any of the other Bonds.
PROVIDED, HOWEVER, that if the Issuer, its successors or
assigns, shall well and truly pay, or cause to be paid, the
principal of, premium, if any, and interest on the Bonds due or
to become due thereon, at the times and in the manner mentioned
in the Bonds, according to the true intent and meaning thereof,
and shall cause the payments to be made into the Bond Fund as
required under Article VI hereof, or shall provide, as permitted
hereby, for the payment thereof by depositing with the Trustee
the entire amount due or to become due thereon, and shall well
and truly keep, perform and observe all the covenants and
conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid
to the Trustee all sums of money due or to become due in
accordance with the terms and provisions hereof, then upon such
final payments this Indenture and the rights hereby granted shall
cease, terminate and be void; otherwise this Indenture to be and
remain in full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered, and all said revenues and
receipts hereby pledged and assigned are to be dealt with and
disposed of under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purposes
hereinafter expressed, and the Issuer has agreed and covenanted,
and does hereby agree and covenant, with the Trustee and with the
respective holders and owners, from time to time, of the Bonds,
as follows (provided that, in the performance of the agreements
of the Issuer herein contained, any obligation it may thereby
incur for the payment of money shall not be a general debt on its
part or a charge against its general credit but shall be payable
solely from the Trust Estate, including the Revenues):
<PAGE>
ARTICLE I
DEFINITIONS
SECTION I.1. Definitions.
Unless otherwise defined herein, all words and phrases
defined in the preamble hereto or in the Refunding Agreement
shall have the same meaning in this Indenture. In this Indenture
and any indenture supplemental hereto (except as otherwise
expressly provided for or unless the context otherwise requires)
the singular includes the plural, the masculine includes the
feminine, and each of the following terms shall have the
following meanings:
"Act" means Chapter 14-A of Title 39 of the Louisiana
Revised Statutes of 1950, as amended, and all future acts
supplemental thereto or amendatory thereof.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to the Refunding
Agreement, this Indenture and any transaction or event
contemplated by the Refunding Agreement or this Indenture
including the compensation and reimbursement of expenses and
advances payable to the Trustee, any Paying Agent, any Co-Paying
Agent, any Authenticating Agent, the Remarketing Agent and the
Bond Registrar under this Indenture.
"Administrative Fee Fund" means the fund created pursuant to
Section 6.4 hereof.
"Agreement" or "Refunding Agreement" means the Refunding
Agreement (Series 1999-C) dated as of October 1, 1999 between the
Company and the Issuer which relates to the Bonds, as amended or
supplemented from time to time.
"Authenticating Agent" means the Trustee and any agent so
designated in and appointed pursuant to Section 2.6 hereof.
"Authorized Company Representative" means the President, any
Vice President, the Treasurer, the Secretary, any Assistant
Secretary or any Assistant Treasurer of the Company or the person
or persons at the time designated to act on behalf of the Company
by any one of said officers, such designation in each case to be
evidenced by a certificate furnished to the Issuer and the
Trustee containing the specimen signature of such person or
persons and signed on behalf of the Company by said officer.
"Bonds" means the $110,950,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Entergy Louisiana,
Inc. Project) Series 1999-C authorized to be issued under this
Indenture. "Bond" means any one of such Bonds.
"Bond Counsel" means any firm of nationally recognized
municipal bond counsel selected by the Issuer and acceptable to
the Company and the Trustee.
"Bond Fund" means the trust fund so designated which is
established pursuant to Section 6.1 hereof.
"Bondholder" or "holder of Bonds" or "owner of Bonds" or
"Registered Owner" or "Owner" means the registered owner of any
Bond other than the registered owner of any Bond which has been
purchased pursuant to Section 4.3 and not surrendered for payment
of the Purchase Price thereof.
"Bond Purchase Fund" means the special fund of that name
created pursuant to Section 4.4 hereof.
"Bond Register" and "Bond Registrar" shall have the
respective meanings specified in Section 2.3 hereof.
"Business Day" or "business day" means any day other than
(i) a Saturday or Sunday or legal holiday or a day on which
banking institutions in the city of New York, New York or in the
city in which the Principal Offices of the Trustee or the Paying
Agent are located are authorized or required by law to close or
(ii) a day on which the New York Stock Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Commercial Paper Rate" means the interest rate for each
Bond as determined with respect to such Bond as provided in
Section 3.2 hereof.
"Commercial Paper Rate Conversion Date" means the day on
which the Bonds commence to accrue interest at a Commercial Paper
Rate pursuant to Section 3.3 which is immediately preceded by a
day on which the Bonds did not accrue interest at a Commercial
Paper Rate.
"Commercial Paper Rate Period" means with respect to any
Bond, each period determined for such Bond as provided in Section
3.2 hereof.
"Company" means Entergy Louisiana, Inc., a Louisiana
corporation, and its permitted successors and assigns.
"Conversion Date" means the day on which a particular type
of interest rate becomes effective for the Bonds which is not
immediately preceded by a day on which the Bonds have accrued
interest at the same type of interest rate (and, when used with
respect to any Multiannual Rate Period, a date which is not
preceded by a Multiannual Rate Period of the same duration).
Each Conversion Date shall be an Interest Payment Date for the
Rate Period from which the Bonds are converted.
"Counsel" means an attorney at law or law firm (who may be
counsel for the Issuer or the Company).
"Daily Rate" means the interest rate to be determined for
the Bonds on each Business Day pursuant to Section 3.2 hereof.
"Daily Rate Conversion Date" means the day on which the
Bonds commence to accrue interest at a Daily Rate pursuant to
Section 3.3 which is immediately preceded by a day on which the
Bonds did not accrue interest at a Daily Rate.
"Daily Rate Period" means each period during which the Bonds
accrue interest at a particular Daily Rate.
"Default" means any event which with the giving of notice or
the lapse of time or both would constitute an Event of Default.
"DTC" means The Depository Trust Company, New York, New
York.
"Electronic" notice means notice transmitted through a
time-sharing terminal or facsimile machine, if operative as
between any two parties, or if not operative, in writing or by
telephone (promptly confirmed in writing).
"Event of Default" means any of the events specified in
Section 10.1 hereof to be an Event of Default.
"Facilities" has the meaning set forth in the fifth Whereas
clause hereof.
"Favorable Opinion of Bond Counsel" means an opinion of Bond
Counsel addressed to the Issuer, the Company and the Trustee and
stating, unless otherwise specified herein, that the action
proposed to be taken is authorized or permitted by the laws of
the State and this Indenture and such action will not adversely
affect the exclusion from gross income of interest on the Bonds
for federal income tax purposes (other than as held by a
"substantial user" of the Facilities or a "related person" within
the meaning of the Code).
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or specific interest or principal
payments shall be a bank or trust company organized under the
laws of the United States of America or of any state or territory
thereof or of the District of Columbia, with a combined capital
stock, surplus and undivided profits of at least $50,000,000; and
provided, further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instruments the
full amount received by such custodian in respect of such
obligations or specific payments and shall not be permitted to
make any deduction therefrom.
"Indenture" means this Trust Indenture (Series 1999-C), as
amended or supplemented.
"Interest Payment Date" means (a) when used with respect to
any particular Bond accruing interest at a Commercial Paper Rate,
the day after the last day of each Commercial Paper Rate Period
applicable thereto; (b) when used with respect to Bonds accruing
interest at Daily or Weekly Rates, the first Business Day of each
calendar month following a month in which interest at such rate
has accrued; (c) when used with respect to Bonds accruing
interest at a Multiannual Rate, each April 1 and October 1, and
after any Multiannual Rate Conversion Date or the commencement
date of a Multiannual Rate Period preceded by a Multiannual Rate
Period of the same duration, the first day of the sixth calendar
month following the month in which the Multiannual Rate
Conversion Date or such commencement date occurs and the first
day of each sixth month thereafter to which interest at such rate
has accrued and the day after the last day of each Multiannual
Rate Period, except that the last Interest Payment Date for any
Multiannual Rate Period which is followed by a Commercial Paper,
Daily or Weekly Rate Period shall be the first Business Day of
the sixth month following the preceding Interest Payment Date;
and (d) the Maturity Date.
"Interest Period" means the period from and including any
Interest Payment Date to and including the day immediately
preceding the next following Interest Payment Date.
"Interest Rate" or "interest rate" means a Commercial Paper,
Daily, Weekly or Multiannual Rate.
"Issue Date" means, for each Bond, the actual date of first
authentication and delivery of the Bonds.
"Issuer" means the Parish of St. Charles, State of
Louisiana, a political subdivision under the Constitution and
laws of the State of Louisiana.
"Letter of Representations" means the letter agreement among
the Issuer, the Trustee, the Paying Agent and the Remarketing
Agent, and accepted by DTC, entered into in connection with DTC's
book-entry-only system.
"Maturity Date" means October 1, 2029.
"Moody's" means Moody's Investors Service, its successors
and assigns, and, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a
securities rating agency, "Moody's" shall be deemed to refer to
any other nationally recognized securities rating agency
designated by the Company, with the consent of the Remarketing
Agent.
"Multiannual Rate" means the interest rate to be determined
for the Bonds for a term of one or more years pursuant to Section
3.2 hereof.
"Multiannual Rate Conversion Date" means each day on which
the Bonds commence to accrue interest at a Multiannual Rate
pursuant to Section 3.3 hereof which is immediately preceded by a
day on which the Bonds did not accrue interest at a Multiannual
Rate or accrued interest at a Multiannual Rate for a Multiannual
Rate Period of a different duration.
"Multiannual Rate Period" means each period during which the
Bonds accrue interest at a particular Multiannual Rate.
"Outstanding" or "outstanding", in connection with Bonds
means, as of the time in question, all Bonds authenticated and
delivered under the Indenture, except:
(a) Bonds theretofore cancelled or required to be cancelled
under Section 2.11 hereof;
(b) Bonds which are deemed to have been paid in accordance
with Article XV hereof;
(c) Bonds in lieu of or in exchange or in substitution for
which other Bonds have been authenticated and delivered pursuant
to Article II hereof;
(d) Bonds registered in the name of the Issuer; and
(e) On or after any Purchase Date for Bonds pursuant to
Article IV hereof, all Bonds (or portions of Bonds) which are
tendered or deemed to have been tendered for purchase on such
date, provided that funds sufficient for such purchase are on
deposit with the Paying Agent.
In determining whether the owners of a requisite aggregate
principal amount of Bonds outstanding have concurred in any
request, demand, authorization, direction, notice, consent or
waiver under the provisions hereof, Bonds which are held by or on
behalf of the Company or any affiliates thereof (unless all of
the outstanding Bonds are then owned by said parties) shall be
disregarded for the purpose of any such determination.
Notwithstanding the foregoing, Bonds so owned which have been
pledged in good faith shall not be disregarded as aforesaid if
the pledgee has established to the satisfaction of the Bond
Registrar the pledgee's right so to act with respect to such
Bonds and that the pledgee is not the Company or an affiliate
thereof.
"Paying Agent", "paying agent", "Co-Paying Agent" or "co-
paying agent" means any national banking association, bank or
trust company appointed pursuant to Section 9.1 hereof. The
Trustee is the original Paying Agent.
"Payments" means the payments payable by the Company
pursuant to and as required by Section 4.2 of the Refunding
Agreement.
"Person" means an individual, a corporation, a partnership,
a limited liability company, an association, a joint stock
company, a trust, an unincorporated organization, a governmental
body or a political subdivision, a municipal corporation, a
public corporation or any other group or organization of
individuals.
"Plant" means, collectively, the Little Gypsy Station and
the Waterford Station described in the preamble hereto, owned and
operated by the Company and located in the geographic limits of
the Parish of St. Charles, State of Louisiana.
"Prior Bonds" has the meaning set forth in the fifth Whereas
clause hereof.
"Prior Indenture" has the meaning set forth in the fifth
Whereas clause hereof.
"Prior Trustee" has the meaning set forth in the fifth
Whereas clause hereof.
"Principal Office of the Paying Agent" or "Principal Office
of the Co-Paying Agent" shall mean the office thereof designated
in writing to the Trustee.
"Purchase Date" means, with respect to each Bond, each day
that such Bond is subject to purchase pursuant to Section 4.1 or
4.2 hereof.
"Purchase Price" or "purchase price" for any Bond shall
equal 100% of the principal amount of such Bond plus accrued
interest, if any, to the Purchase Date, plus in the case of a
Bond converted from a Multiannual Rate Period on a date when such
Bond is also subject to optional redemption at a premium, an
amount equal to the premium that would be payable on such Bond if
redeemed on such date.
"Rate Period" means the period during which a particular
rate of interest determined for the Bonds is to remain in effect
pursuant to Article III hereof.
"Record Date" means, as the case may be, the applicable
Regular or Special Record Date.
"Refunding Date" means December 1, 1999 with respect to the
1984 Bonds and January 1, 2000 with respect to the 1977 Bonds and
the 1979 Bonds, or such later date or dates as may be established
by the Company; provided, however, that the Refunding Date shall
not be later than ninety (90) days following the date of delivery
of the Bonds to the Underwriters.
"Refunding Fund" shall mean the fund by that name created
and established in Section 5.1 hereof.
"Regular Record Date" means the close of business on either
(a) the day (whether or not a Business Day) immediately preceding
an Interest Payment Date in the case of Bonds accruing interest
at Commercial Paper, Daily or Weekly Rates or (b) the fifteenth
day (whether or not a Business Day) of the calendar month
immediately preceding the Interest Payment Date in the case of
Bonds accruing interest at Multiannual Rates.
"Remarketing Agent" means Goldman, Sachs & Co., and its
successors as provided in Section 12.1 hereof. "Principal Office
of the Remarketing Agent" means the office designated in writing
to the Issuer, the Trustee and the Company.
"Remarketing Agreement" means the Remarketing Agreement
dated as of October 1, 1999 between the Company and the
Remarketing Agent, as the same may be amended from time to time,
and any remarketing agreement between the Company and a successor
Remarketing Agent.
"Revenues" means all amounts paid or payable by the Company
pursuant to Section 4.2 of the Refunding Agreement, and all
receipts of the Trustee credited under the provisions of this
Indenture against such payments.
"S&P" means Standard & Poor's Ratings Services, a Division
of The McGraw-Hill Companies, Inc., a New York corporation, its
successors and assigns, and, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions
of a securities rating agency, "S&P" shall be deemed to refer to
any other nationally recognized securities rating agency
designated by the Company, with the consent of the Remarketing
Agent.
"Securities Depository" means any "clearing agency"
registered under Section 17A of the Securities Exchange Act of
1934, as amended.
"Special Record Date" means such date as may be fixed for
the payment of defaulted interest in accordance with Section 2.7
hereof.
"State" means the State of Louisiana.
"Trustee" means The Bank of New York, and its successor for
the time being in the trust hereunder. "Principal Office of the
Trustee" means the principal corporate trust office of the
Trustee.
"Underwriters" means Goldman, Sachs & Co., Lehman Brothers
Inc., Morgan Keegan & Company, Inc., ABN AMRO Incorporated and
BNY Capital Markets, Inc.
"Weekly Rate" means the interest rate to be determined for
the Bonds on a weekly basis pursuant to Section 3.2 hereof.
"Weekly Rate Conversion Date" means each day on which the
Bonds commence to accrue interest at a Weekly Rate pursuant to
Section 3.3 hereof which is immediately preceded by a day on
which the Bonds did not accrue interest at a Weekly Rate.
"Weekly Rate Period" means the period during which the Bonds
accrue interest at a particular Weekly Rate.
"Written Order" means a written order or other written
instructions signed in the name of the Issuer by the Parish
President and delivered to the Trustee.
The words "hereof", "herein", "hereto", "hereby" and "hereun
der" and other equivalent words and phrases (except in the form
of Bond) refer to the entire Indenture. Unless otherwise noted,
all Section and Article references are to sections and articles
in this Indenture.
<PAGE>
ARTICLE II
THE BONDS
SECTION II.1. Amount, Terms, and Issuance of Bonds. The
Bonds shall, except as provided in Section 2.9 hereof, be limited
to $110,950,000 in aggregate principal amount and shall contain
substantially the terms recited in the form of bond attached
hereto as Exhibit A with such changes and variations as may be
necessary to conform to the provisions hereof. The Bonds may
have such additional legends thereon as shall be customary in the
industry or deemed necessary by the Trustee in order to provide
for an orderly transition of Bonds bearing interest at a
Commercial Paper Rate to Bonds bearing interest at a Daily Rate
or Weekly Rate as permitted by Section 3.2(b). No bonds other
than the Bonds may be issued under this Indenture. No Bonds may
be issued under this Indenture except in accordance with this
Article.
Pursuant to recommendations promulgated by the Committee on
Uniform Security Identification Procedures, "CUSIP" numbers may
be printed on the Bonds. The Bonds may bear such endorsement or
legend satisfactory to the Trustee as may be required to conform
to usage or law with respect thereto.
The Issuer may issue the Bonds upon the execution of this
Indenture, and the Trustee shall, at the Issuer's request
evidenced by a Written Order, authenticate the Bonds and deliver
them as specified in the request.
SECTION II.2. Designation, Denominations, Maturity and
Form. The Bonds shall be designated "Parish of St. Charles,
State of Louisiana Pollution Control Revenue Refunding Bonds
(Entergy Louisiana, Inc. Project) Series 1999-C".
All Bonds shall be dated the date of their authentication.
The Bonds shall mature on the Maturity Date.
All Bonds accruing interest at Daily or Weekly Rates shall
be issued in denominations of $100,000 and whole multiples
thereof. All Bonds accruing interest at Commercial Paper Rates
shall be issued in denominations of $100,000 and any integral
multiples of $1,000 in excess thereof. All Bonds accruing
interest at a Multiannual Rate shall be in denominations of
$5,000 and whole multiples thereof.
SECTION II.3. Registered Bonds Required; Bond Registrar and
Bond Register. All Bonds shall be issued in fully registered
form without coupons. The Bonds shall be registered upon
original issuance and upon subsequent transfer or exchange as
provided in this Indenture.
The Issuer shall designate, at the direction of the Company,
one or more persons to act as "Bond Registrar" for the Bonds
provided that the Bond Registrar appointed for the Bonds shall be
either the Trustee, the Paying Agent or a person which would meet
the requirements for qualification as a successor trustee imposed
by Section 11.8. The Issuer hereby appoints the Trustee as
initial Bond Registrar. Any Person other than the Trustee
undertaking to act as Bond Registrar shall first execute a
written agreement, in form satisfactory to the Trustee and the
Company, to perform the duties of a Bond Registrar under this
Indenture, which agreement shall be filed with the Trustee and
the Company. The Paying Agent and Bond Registrar, in performing
their respective duties hereunder, shall be entitled to the same
protective provisions in the performance of their respective
duties as are specified in Article XI of this Indenture with
respect to the Trustee hereunder to the same extent and as fully
for all intents and purposes as though the Paying Agent and Bond
Registrar had been expressly named therein in place of such
Trustee and as though the applicable provisions of Article XI of
this Indenture had been set forth herein at length.
The Bond Registrar shall act as registrar and transfer agent
for the Bonds. The Issuer shall cause to be kept at an office of
the Bond Registrar a register (herein sometimes referred to as
the "Bond Register") in which, subject to such reasonable
regulations as it, the Trustee or the Bond Registrar may
prescribe, the Issuer shall provide for the registration of the
Bonds and for the registration of transfers of the Bonds. The
Issuer shall cause the Bond Registrar to designate, by a written
notification to the Trustee, a specific office location (which
may be changed from time to time, upon similar notification) at
which the Bond Register is kept.
The Bond Registrar shall at any time as reasonably requested
by the Trustee, the Paying Agent or the Remarketing Agent,
certify and furnish to the Trustee, the Paying Agent, the
Remarketing Agent and any Paying Agent as the Trustee shall
specify, the names, addresses, and holdings of Bondholders and
any other relevant information reflected in the Bond Register,
and the Trustee, the Remarketing Agent and any such Paying Agent
shall for all purposes be fully entitled to rely upon the
information so furnished to them and shall have no liability or
responsibility in connection with the preparation thereof.
SECTION II.4. Transfer and Exchange. Upon surrender for
registration of transfer of any Bond at the designated office of
the Bond Registrar, the Issuer shall execute and the Trustee or
its Authenticating Agent shall authenticate and deliver in the
name of the transferee or transferees, one or more new fully
registered Bonds of authorized denomination for the aggregate
principal amount which the Registered Owner is entitled to
receive.
At the option of the owner, Bonds may be exchanged for other
Bonds of any other authorized denomination, of a like aggregate
principal amount and accruing interest at the same Interest Rate,
upon surrender of the Bonds to be exchanged at the office of the
Bond Registrar. Whenever any Bonds are so surrendered for
exchange, the Issuer shall execute, and the Trustee or the
Authenticating Agent shall authenticate and deliver, the Bonds
which the Bondholder making the exchange is entitled to receive.
All Bonds presented for registration of transfer or exchange
shall be accompanied by a written instrument or instruments of
transfer or authorization for exchange, in form and with guaranty
of signature satisfactory to the Bond Registrar, duly executed by
the owner or by his attorney duly authorized in writing, and such
documentation as the Bond Registrar shall reasonably require.
No service charge shall be made to a Bondholder for any
exchange or registration of transfer of Bonds, but the Issuer or
the Bond Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto.
New Bonds delivered upon any registration of transfer or
exchange shall be valid obligations of the Issuer, evidencing the
same debt as the Bonds surrendered, shall be secured by this
Indenture and shall be entitled to all of the security and
benefits hereof to the same extent as the Bonds surrendered.
Except as provided above or in Article IV hereof, the
Trustee shall not be required to effect any transfer or exchange
during the 15 days immediately preceding the date of mailing of
any notice of redemption or at any time following the mailing of
any such notice in the case of Bonds selected for such
redemption.
SECTION II.5. Execution. All the Bonds shall, from time to
time, be executed on behalf of the Issuer by the manual or
facsimile signature of the Parish President, its seal (which may
be in facsimile) shall be thereunto affixed (or printed or
engraved or otherwise reproduced thereon if in facsimile), and
attested by the manual or facsimile signature of the Secretary of
the Parish Council. A facsimile signature shall have the same
force and effect as if personally signed.
If any of the officers whose manual or facsimile signatures
shall be upon the Bonds shall cease to be such officers of the
Issuer before such Bonds shall have been actually authenticated
by the Trustee or delivered by the Issuer, such Bonds
nevertheless may be authenticated, issued and delivered with the
same force and effect as though the person or persons whose
signature shall be upon such Bonds had not ceased to be such
officer or officers of the Issuer; and also any such Bonds may be
signed and sealed on behalf of the Issuer by those persons who,
at the actual date of the execution of such Bond, shall be the
proper officers of the Issuer, although at the nominal date of
such Bonds any such person shall not have been such officer of
the Issuer.
SECTION II.6. Authentication; Authenticating Agent. No
Bond shall be valid for any purpose until the Certificate of
Authentication substantially in the form set forth in Exhibit A
attached hereto has been duly executed in accordance herewith by
the Trustee, and such authentication shall be conclusive proof
that such Bond has been duly authenticated and delivered under
this Indenture and that the owner thereof is entitled to the
benefit of the trust hereby created.
If the Bond Registrar is other than the Trustee, the Trustee
may appoint the Bond Registrar as an Authenticating Agent with
the power to act on the Trustee's behalf and subject to its
direction in the authentication and delivery of Bonds in
connection with the registration of transfers and exchanges under
Section 2.4 hereof, and the authentication and delivery of Bonds
by an Authenticating Agent pursuant to this Section shall, for
all purposes of this Indenture, be deemed to be the
authentication and delivery "by the Trustee".
Any corporation into which any Authenticating 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 Authenticating Agent shall be a party, or
any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of the
Authenticating Agent hereunder, if such successor corporation is
otherwise eligible as a Bond Registrar under Section 2.3, without
the execution or filing of any further act on the part of the
parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee, the Issuer and the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent, the Issuer and the Company. Upon
receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent
shall cease to be eligible under this Section, the Trustee may,
with the consent of the Company (which shall not be unreasonably
withheld) appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Issuer, and shall mail
notice of such appointment to all owners of Bonds as the names
and addresses of such owners appear on the Bond Register.
SECTION II.7. Payment of Principal and Interest; Interest
Rights Preserved. (a) The principal or redemption price of any
Bond shall be payable in any coin or currency of the United
States of America which, at the time of payment, is legal tender
for the payment of public or private debts upon presentation and
surrender of such Bond to the Principal Office of the Paying
Agent or the Principal Office of the Co-Paying Agent. The
principal or redemption price of (and related interest on) the
Bonds shall be payable in immediately available funds. Such
payment shall be made to the Registered Owner of the Bond so
delivered, as shown on the registration books maintained by the
Bond Registrar.
(b) Subject to the further provisions of Article III
hereof, each Bond shall accrue interest and be payable as to
interest as follows:
(i) Each Bond shall accrue interest (at the applicable
rate determined pursuant to Article III hereof) (A) from the
date of authentication, if authenticated on an Interest
Payment Date to which interest has been paid or duly
provided for, or (B) from the last preceding Interest
Payment Date to which interest has been paid in full or duly
provided for (or the Issue Date if no interest thereon has
been paid or duly provided for) in all other cases.
(ii) Subject to the provisions of paragraph (c) below,
the interest due on any Bond on any Interest Payment Date
(except on the Maturity Date) shall be payable for the
immediately preceding Interest Period and will be paid to
the Registered Owner of such Bond as shown on the
registration books kept by the Bond Registrar as of the
Regular Record Date. The amount of interest so payable on
any Interest Payment Date shall be computed (A) on the basis
of a 365- or 366-day year, as appropriate, for the actual
number of days elapsed during Daily Rate Periods, Commercial
Paper Rate Periods or Weekly Rate Periods, and (B) on the
basis of a 360-day year of twelve 30-day months during
Multiannual Rate Periods.
(iii) So long as the Bonds are held in book-entry-
only form, all payments of interest on the Bonds shall be
paid to the Registered Owners entitled thereto in
immediately available funds by wire transfer to a bank
within the continental United States or deposited to a
designated account if such account is maintained with the
Paying Agent as directed by the Registered Owner in writing;
otherwise all payments of interest on the Bonds (except at
the Maturity Date or at redemption of the Bonds) shall be
paid by check mailed to the address of the Registered Owner,
as such address shall appear on the books maintained by the
Bond Registrar.
(iv) Interest accrued during any Commercial Paper
Rate Period or due on the Maturity Date or at redemption of
the Bonds shall be paid only upon presentation and surrender
of Bonds and shall be paid to the Registered Owner of the
Bond so delivered, as shown on the registration books
maintained by the Bond Registrar.
(c) Any interest on any Bond which is payable, but is not
punctually paid or provided for, on any Interest Payment Date
(except on the Maturity Date) and within any applicable grace
period (herein called "Defaulted Interest") shall forthwith cease
to be payable to the owner of such Bond on the relevant Regular
Record Date by virtue of having been such owner, and such
Defaulted Interest shall be paid to the person in whose name the
Bond is registered at the close of business on a Special Record
Date to be fixed by the Trustee, such date to be no more than 15
nor fewer than 10 days prior to the date of proposed payment.
The Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first class postage prepaid, to each Bondholder at his
address as it appears in the Bond Register, not fewer than 10
days prior to such Special Record Date.
Subject to the foregoing provisions of this Section, each
Bond delivered under this Indenture upon registration of transfer
of or exchange for or in lieu of any other Bond shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Bond.
SECTION II.8. Persons Deemed Owners. The Issuer, the
Trustee, any Paying Agent, the Bond Registrar and any
Authenticating Agent may deem and treat the person in whose name
any Bond is registered as the absolute owner thereof (whether or
not such Bond shall be overdue and notwithstanding any notation
of ownership or other writing thereon made by anyone other than
the Issuer, the Trustee, any Paying Agent, the Bond Registrar or
the Authenticating Agent) for the purpose of receiving payment of
or on account of the principal of and (subject to Section 2.7)
interest on, such Bond, and for all other purposes, and neither
the Issuer, the Trustee, any Paying Agent, the Bond Registrar,
the Remarketing Agent nor the Authenticating Agent shall be
affected by any notice to the contrary. All such payments so
made to any such Registered Owner shall be valid and, to the
extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Bond.
SECTION II.9. Mutilated, Destroyed, Lost or Stolen Bonds.
(a) If any Bond shall become mutilated, lost, stolen or
destroyed, the affected Bondholder shall be entitled to the
issuance of a substitute Bond only as follows:
(A) in the case of a lost, stolen or destroyed Bond,
the Bondholder shall (i) provide notice of the loss, theft
or destruction to the Trustee within a reasonable time after
the Bondholder receives notice of the loss, theft or destruc
tion, (ii) request the issuance of a substitute Bond and
(iii) provide evidence, satisfactory to the Trustee, of the
ownership and the loss, theft or destruction of the affected
Bond;
(B) in the case of a mutilated Bond, the Bondholder
shall surrender the Bond to the Trustee for cancellation;
and
(C) in all cases, the Bondholder shall provide indem
nity against any and all claims arising out of or otherwise
related to the issuance of substitute Bonds pursuant to this
Section 2.9 satisfactory to the Issuer, the Trustee and the
Company.
Upon compliance with the foregoing, a new Bond of like tenor
and denomination, executed by the Issuer, shall be authenticated
by the Trustee or Authenticating Agent and delivered to the
Bondholder, all at the expense of the Bondholder to whom the
substitute Bond is delivered.
Notwithstanding the foregoing, the Trustee or Authenticating
Agent shall not be required to authenticate and deliver any
substitute Bond for a Bond which has been called for redemption
or which has matured or is about to mature or which shall have
been purchased pursuant to Section 4.3 hereof and, in any such
case, the principal, redemption price or Purchase Price and
interest then due or becoming due shall be paid by the Trustee or
a Paying Agent in accordance with the terms of the mutilated,
lost, stolen or destroyed Bond without substitution therefor.
(b) Every substituted Bond issued pursuant to this Section
shall constitute an additional contractual obligation of the
Issuer and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Bonds duly issued hereunder unless the Bond alleged to have been
destroyed, lost or stolen shall be at any time enforceable by a
bona fide purchaser for value without notice. In the event the
Bond alleged to have been destroyed, lost or stolen shall be
enforceable by anyone, the Issuer may recover the substitute Bond
from the Bondholder to whom it was issued or from anyone taking
under the Bondholder except a bona fide purchaser for value
without notice.
(c) All Bonds shall be held and owned upon the express
condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed,
lost or stolen Bonds, and shall preclude any and all other rights
or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or investment or other
securities without their surrender.
SECTION II.10. Temporary Bonds. Pending preparation of
definitive Bonds, or by agreement with the purchasers of all
Bonds, the Issuer may issue, and, upon its request, the Trustee
or Authenticating Agent shall authenticate, in lieu of definitive
Bonds one or more temporary printed or typewritten Bonds of
substantially the tenor recited above in any denomination
authorized under Section 2.2. Upon request of the Issuer, the
Trustee shall authenticate definitive Bonds in exchange for and
upon surrender of an equal principal amount of temporary Bonds.
Until so exchanged, temporary Bonds shall have the same rights,
remedies and security hereunder as definitive Bonds.
SECTION II.11. Cancellation of Surrendered Bonds. Bonds
surrendered for payment, redemption, transfer or exchange and
Bonds surrendered to the Trustee by the Issuer or by the Company
for cancellation shall be cancelled by the Trustee and a
certificate of cancellation shall be delivered to the Company.
SECTION II.12. Limited Obligation. The Bonds, together with
interest thereon, shall be payable from the Trust Estate and
shall be a valid claim of the holders thereof only against the
Trust Estate, including, without limitation, the Revenues pledged
to the Bonds, which Revenues are pledged and assigned for the
equal and ratable payment of the Bonds (principal, premium, if
any, and interest) and shall be used for no other purpose than to
pay the principal of, premium, if any, and interest on the Bonds,
except as may be otherwise expressly authorized in this
Indenture. The Bonds (including premium, if any) and interest
thereon shall not constitute an indebtedness or pledge of the
general credit of the Issuer or the State, within the meaning of
any constitutional or statutory provision and shall never be paid
in whole or in part out of any funds raised or to be raised by
taxation or any other funds of the Issuer.
SECTION II.13. Book-Entry Registration of Bonds. The Bonds
shall be initially registered in the name of Cede & Co., as
nominee for DTC, as registered owner of the Bonds, and held in
the custody of DTC. The Issuer, the Trustee, the Paying Agent
and the Remarketing Agent acknowledge that the Issuer has
executed and delivered the Letter of Representations and that the
terms and provisions of the Letter of Representations shall
govern in the event of any inconsistency between the provisions
of this Indenture and the Letter of Representations, including,
without limitation, the terms and provisions thereof relating to
payment of the principal, premium, if any, interest, or Purchase
Price with respect to the Bonds. A single bond certificate for
the Bonds will be issued and delivered to DTC. The beneficial
owners will not receive physical delivery of Bond certificates
except as provided in the Letter of Representations. Beneficial
owners are expected to receive a written confirmation of their
purchase providing details of each Bond acquired. For so long as
DTC shall continue to serve as Securities Depository for the
Bonds as provided herein, all transfers of beneficial ownership
interests will be made by book-entry only, and no investor or
other party purchasing, selling or otherwise transferring
beneficial ownership of Bonds is to receive, hold or physically
deliver any Bond certificate.
For every transfer and exchange of the Bonds, the beneficial
owner may be charged a sum sufficient to cover such beneficial
owner's allocable share of any tax, fee or other governmental
charge that may be imposed in relation thereto.
The Issuer, the Company, the Trustee and the Paying Agent
will recognize DTC or its nominee as the Bondholder for all
purposes under this Indenture, including notices and voting.
Neither the Issuer nor the Trustee are responsible for the
performance by DTC of any of its obligations, including, without
limitation, the payment of moneys received by DTC, the forwarding
of notices received by DTC or the giving of any consent or proxy
in lieu of consent.
Whenever during the term of the Bonds the beneficial
ownership thereof is determined by a book entry at DTC, the
requirements of this Indenture of holding, delivering or
transferring Bonds shall be deemed modified to require the
appropriate person to meet the requirements of DTC as to
registering or transferring the book entry to produce the same
effect.
If at any time DTC ceases to hold the Bonds, all references
herein to DTC shall be of no further force or effect.
<PAGE>
ARTICLE III
INTEREST RATES ON THE BONDS
SECTION III.1. Initial Interest Rate. All Bonds shall
accrue interest initially at a Multiannual Rate of 5.35% per
annum for an initial Multiannual Rate Period beginning on the
Issue Date and ending on September 30, 2003, and thereafter at a
Multiannual Rate determined by the Remarketing Agent in
accordance with the Indenture for Multiannual Rate Periods of
four (4) years each unless and until the Rate Period for the
Bonds is converted to a different Rate Period or to a Multiannual
Rate Period of a different duration pursuant to Section 3.3 or
until the Maturity Date. Overdue installments of interest on the
Bonds, if any, shall not bear interest.
SECTION III.2. Determination of Interest Rates.
(a) Determination by Remarketing Agent.
(i) The Interest Rate shall be determined by the
Remarketing Agent as the rate of interest which, in the
judgment of the Remarketing Agent, would cause the Bonds to
have a market value as of the date of determination equal to
the principal amount thereof, taking into account prevailing
market conditions, and with respect to Commercial Paper
Rates, the Remarketing Agent shall determine the Commercial
Paper Rate and the Commercial Paper Rate Period for each
Bond at such rate and for such period as it deems advisable
in order to minimize the net interest cost on the Bonds,
taking into account prevailing market conditions.
(ii) In the event the Remarketing Agent fails for any
reason to determine or notify the Trustee of the Interest
Rate for any Rate Period:
(1) The Interest Rate then in effect for Bonds
that accrue interest at Daily Rates will remain in
effect from day to day until the Trustee is notified of
a new Daily Rate determined by the Remarketing Agent.
(2) The Interest Rate then in effect for Bonds
that accrue interest at Weekly Rates will remain in
effect from week to week until the Trustee is notified
of a new Weekly Rate determined by the Remarketing
Agent.
(3) The Interest Rate for any Bond that accrues
interest at Commercial Paper Rates and for which a
Commercial Paper Rate and Commercial Paper Rate Period
is not determined shall be equal to 100% of the prime
commercial paper rate (30 days) shown in the table
captioned "short-term tax-exempt yields" in the edition
of The Bond Buyer published on the day on which such
rate is determined or, if such rate is not published on
that day, the most recent publication of such rate, and
the Rate Period for such Bond shall extend to the day
preceding the next Business Day, until the Trustee is
notified of a new Commercial Paper Rate and Commercial
Paper Rate Period determined for such Bond by the
Remarketing Agent.
(4) The Interest Rate then in effect for Bonds
that accrue interest at the Multiannual Rate will be
automatically converted to Commercial Paper Rates with
Commercial Paper Rate Periods of one Business Day until
the Trustee is notified of a new Interest Rate and Rate
Period by the Company and the Remarketing Agent.
(iii) All determinations of Interest Rates pursuant
to this Section shall be conclusive and binding upon the
Issuer, the Company, the Trustee, the Paying Agent, any Co-
Paying Agent and the Owners of the Bonds to which such rates
are applicable.
(iv) The Interest Rate in effect for Bonds during any
Rate Period shall be available to Owners on the date such
Interest Rate is determined, between 1:00 p.m. and 5:00
p.m., New York City time, from the Remarketing Agent or the
Trustee at their principal offices and shall also be
communicated by the Remarketing Agent to the Company by
telephonic or Electronic notice.
(v) During any transitional period for a conversion
from a Commercial Paper Rate Period to a Daily Rate or
Weekly Rate Period in which the Remarketing Agent is setting
different Commercial Paper Rate Periods in order to effect
an orderly transition of such conversion, Bonds bearing
interest at the Commercial Paper Rate shall be governed by
the provisions of this Indenture applicable to Commercial
Paper Rate Periods and Commercial Paper Rates, and Bonds
bearing interest at the Daily Rate or Weekly Rate, as
applicable, shall be governed by the provisions of this
Indenture applicable to such Daily Rates and Daily Rate
Periods or Weekly Rates and Weekly Rate Periods, as the case
may be.
(b) Commercial Paper Rates. The Bonds shall bear interest
at the Commercial Paper Rate for each Commercial Paper Rate
Period as determined in accordance with this subsection (b). The
Commercial Paper Rate borne by the Bonds shall not exceed 12% per
annum. Notwithstanding the foregoing, no Commercial Paper Rate
Period may be established which exceeds 270 days or, if the
Remarketing Agent has given or received notice of any conversion
to a Multiannual Rate Period, the remaining number of days prior
to the Conversion Date or, if the Remarketing Agent has given or
received notice of any conversion to a Daily Rate or Weekly Rate,
the length of each Commercial Paper Rate Period for each Bond
shall be determined by the Remarketing Agent to be either (A)
that length of period that, as soon as possible, shall enable the
Commercial Paper Rate Periods for all Bonds to end on the day
before the Conversion Date, or (B) that length of period which,
based on the Remarketing Agent's judgment, will best promote an
orderly transition to the next Rate Period.
Commercial Paper Rates on, and Commercial Paper Rate Periods
for, the Bonds shall be determined as follows:
(i) The Commercial Paper Rate on a Bond for a specific
Commercial Paper Rate Period shall be the rate established
by the Remarketing Agent no later than 1:00 p.m. (New York
City time) on the first Business Day of that Commercial
Paper Rate Period as the minimum rate of interest necessary,
in the judgment of the Remarketing Agent, to enable the
Remarketing Agent to sell such Bond on that day at a price
equal to the principal amount thereof, and such Commercial
Paper Rate shall be provided to the Trustee by the Remarket
ing Agent by telephonic or Electronic notice by 1:00 p.m.,
New York City time, on that same day. Unless the Bonds are
in book-entry form, the Trustee will deliver certificates
for such Bonds to the Remarketing Agent not later than 2:45
p.m., New York City time, on such Business Day against
receipt of payment therefor.
(ii) Each Commercial Paper Rate Period applicable to a
Bond shall be determined by the Remarketing Agent on or
prior to the first Business Day of such Commercial Paper
Rate Period (but no later than 1:00 p.m. (New York City
time) on the first Business Day of the Commercial Paper Rate
Period) as that period which together with all other
Commercial Paper Rate Periods for all Bonds then
Outstanding, will, in the judgment of the Remarketing Agent,
produce the greatest likelihood of the lowest net interest
cost during the term of the Bonds; provided that each
Commercial Paper Rate Period shall be from one to 270 days
in length, shall commence on a Business Day, shall end on a
day preceding a Business Day or the day preceding the
Maturity Date, and in any event shall end no later than the
day preceding the Maturity Date. Each Bond may bear
interest at a different Commercial Paper Rate and for a
Commercial Paper Rate Period different from any other Bond.
The Commercial Paper Rate Period shall be provided to the
Trustee by the Remarketing Agent by telephonic or Electronic
notice by 1:00 p.m., New York City time, on that same day.
The Remarketing Agent may, in the reasonable exercise
of its judgment, (1) determine Commercial Paper Rate Periods
that result in Commercial Paper Rates on the Bonds that are
higher than would be borne by Bonds with shorter Commercial
Paper Rate Periods in order to increase the likelihood of
achieving the lowest net interest cost during the term of
the Bonds by assuring the availability of such Commercial
Paper Rates for the longer Commercial Paper Rate Periods,
and (2) in view of the uncertainties involved in
anticipating Commercial Paper Rates, establish different
Commercial Paper Rate Periods for Bonds on the same date in
order to achieve an average of Commercial Paper Rate Periods
that, in the reasonable exercise of its judgment, is most
likely to achieve the lowest net interest cost during the
term of the Bonds.
The determination of the Commercial Paper Rate Periods
by the Remarketing Agent will be based upon the relative
market yields of Bonds bearing interest at a Commercial
Paper Rate and other securities that bear interest at a
variable rate or at fixed rates that, in the reasonable
exercise of the judgment of the Remarketing Agent, are
otherwise comparable to the Bonds, or any fact or
circumstance relating to the Bonds or affecting the market
for the Bonds or affecting such other comparable securities
in a manner that, in the reasonable exercise of the judgment
of the Remarketing Agent, will affect the market for the
Bonds. The Remarketing Agent, in its discretion, may
consider such information and resources as it deems
appropriate in making the determinations described in this
paragraph, including consultations with the Company, but the
Remarketing Agent's determination of the Commercial Paper
Rate Period for each Bond will be based solely upon the
reasonable exercise of the Remarketing Agent's judgment.
(c) Daily Rates. A Daily Rate shall be established for
each Daily Rate Period as follows:
(i) Daily Rate Periods shall commence on a Daily Rate
Conversion Date which shall be a Business Day and
thereafter, prior to the next Conversion Date, on each
Business Day thereafter until the Rate Period for the Bonds
is converted to another Rate Period and shall extend to, but
not include, the next succeeding Business Day.
(ii) The Daily Rate for each Daily Rate Period shall be
effective from and including the commencement date thereof
and shall remain in effect to, but not including, the next
succeeding Business Day. Each such Daily Rate shall be
determined by the Remarketing Agent not later than 10:30
a.m., New York City time, on the first Business Day of the
Daily Rate Period to which it relates and provided to the
Trustee by the Remarketing Agent by Electronic notice by
12:00 noon, New York City time, on that same day. The Daily
Rate borne by the Bonds shall not exceed 12% per annum.
(d) Weekly Rates. A Weekly Rate shall be determined for
each Weekly Rate Period as follows:
(i) Weekly Rate Periods shall commence on a Wednesday
and end on Tuesday of the following week, or, if earlier,
the day preceding the Maturity Date, and each Weekly Rate
Period shall be followed by another Weekly Rate Period until
the Rate Period of the Bonds is converted to another Rate
Period or until the Maturity Date; provided that (A) in the
case of a conversion to a Weekly Rate Period from a differ
ent Rate Period, the Weekly Rate Period shall commence on
the Weekly Rate Conversion Date and shall end on Tuesday of
the following week, or, if earlier, the day preceding the
Maturity Date; and (B) in the case of a conversion from a
Weekly Rate Period to a different Rate Period, the last
Weekly Rate Period prior to conversion shall end on the last
day immediately preceding the Conversion Date to the new
Rate Period.
(ii) The Weekly Rate for each Weekly Rate Period shall
be effective from and including the commencement date of
such period and shall remain in effect through and including
the last day thereof. Each such Weekly Rate shall be deter
mined by the Remarketing Agent not later than 10:00 a.m.,
New York City time, on the commencement date of the Weekly
Rate Period to which it relates and provided to the Trustee
by the Remarketing Agent by written or Electronic notice by
12:00 noon, New York City time, on such date. The Weekly
Rate borne by the Bonds shall not exceed 12% per annum.
(e) Multiannual Rates. The Multiannual Rate for the
Multiannual Rate Period commencing with the Issue Date and ending
on September 30, 2003 pursuant to Section 3.1 hereof shall be
5.35% per annum. Thereafter, the Multiannual Rate shall be
determined for each Multiannual Rate Period as follows:
(i) Except as provided in Section 3.1 hereof, each
Multiannual Rate Period shall be followed by another
Multiannual Rate Period of the same duration until the Rate
Period for the Bonds is converted to a different Rate Period
or a Multiannual Rate Period of a different duration or
until the Maturity Date.
(ii) Multiannual Rate Periods shall (A) remain in
effect for a term of twelve (12) calendar months or any
whole multiple thereof selected by the Company (except for a
Multiannual Rate Period ending on the Maturity Date), (B)
commence on a Multiannual Rate Conversion Date or the
commencement date of the following Multiannual Rate Period
of the same duration, and (C) end on the day preceding
either the commencement date of the following Multiannual
Rate Period, the Conversion Date on which a different Rate
Period shall become effective or the Maturity Date;
provided, however, that the initial Multiannual Rate Period
shall commence on the Issue Date and end on September 30,
2003 and shall be succeeded by Multiannual Rate Periods of
four (4) years each unless and until the Rate Period for the
Bonds is converted to a different Rate Period or to a
Multiannual Rate Period of a different duration pursuant to
Section 3.3 or until the Maturity Date.
(iii) The Multiannual Rate for each such
Multiannual Rate Period shall be determined by the
Remarketing Agent not later than 12:00 noon, New York City
time, on the Business Day immediately preceding the
commencement date of the Multiannual Rate Period to which it
relates and provided to the Trustee by the Remarketing Agent
by written or Electronic notice by the close of business on
such Business Day. The Multiannual Rate borne by the Bonds
shall not exceed 12% per annum.
The Multiannual Rate for each Multiannual Rate Period
shall be effective from and including the commencement date
of such period and remain in effect through and including
the last day thereof.
SECTION III.3. Conversions Between Rate Periods. The
Company may elect to convert the Bonds from one Rate Period to
another as follows:
(a) Conversion Dates.
(i) If the conversion is from Commercial Paper Rate
Periods, the Conversion Date, if the Bonds are being
converted to a Multiannual Rate, must be the date on which
interest is payable on all of the Bonds accruing interest at
Commercial Paper Rates, and if the conversion is from a
Commercial Paper Rate Period to a Daily Rate or Weekly Rate,
there may be more than one Conversion Date in accordance
with Section 3.2(b); however, the Conversion Date with
respect to each Bond must be the date on which interest at
the Commercial Paper Rate is payable on such Bonds.
(ii) If the conversion is from a Daily or Weekly Rate
Period, the Conversion Date must be an Interest Payment Date
on which interest is payable for the Daily or Weekly Rate
Period from which the conversion is made.
(iii) If the conversion is from a Multiannual Rate
Period, the Conversion Date may be the day following the end
of the Multiannual Rate Period or any date on which the
Bonds are also subject to optional redemption pursuant to
Section 8.1 hereof.
(b) Notices by Company. The Company shall give notice of
any proposed conversion to the Trustee and the Remarketing Agent
not fewer than three Business Days (unless a shorter notice shall
be accepted by the Trustee as sufficient) prior to the date the
notice to Bondholders must be given pursuant to Section 3.3(c) of
the proposed conversion from a Commercial Paper, Daily, Weekly or
Multiannual Rate Period or of a conversion of the Multiannual
Rate Period to a Multiannual Rate Period of a different duration
(other than a conversion pursuant to Section 3.2(a)(ii)(4) of
this Indenture).
(c) Notices by Trustee. The Trustee shall give notice by
first class mail, of the proposed conversion to the Registered
Owners of Bonds accruing interest at Commercial Paper, Daily or
Weekly Rates not less than 15 days before the proposed Conversion
Date and to Registered Owners of Bonds accruing interest at a
Multiannual Rate not less than 30 days before the proposed
Conversion Date (other than a conversion pursuant to Section
3.2(a)(ii)(4) of this Indenture). Such notice shall state:
(i) the proposed Conversion Date and the proposed
Interest Rate (i.e. whether the Bonds will bear interest at
a Daily Rate, Weekly Rate, Commercial Paper Rate or
Multiannual Rate and the duration of the Multiannual Rate
Period) to be effective on such date;
(ii) that the Bonds will be subject to mandatory tender
for purchase on the Conversion Date (except in the case of
conversions between Daily and Weekly Rate Periods);
(iii) the conditions, if any, to the conversion
pursuant to subsection (d) below;
(iv) if the Bonds are in certificated form, information
with respect to required delivery of Bond certificates and
payment of the Purchase Price; and
(v) the new Interest Payment Date or Dates and Regular
Record Dates.
(d) Conditions to Conversion. No conversion of Rate
Periods will become effective unless:
(i) if the conversion is from Commercial Paper Rate
Periods, the Trustee has received, prior to the date on
which notice of the proposed conversion is required to be
given to Registered Owners, written confirmation from the
Remarketing Agent that it has not established and will not
establish any Commercial Paper Rate Periods extending beyond
the day before the Conversion Date (or Conversion Dates if
the Remarketing Agent will be establishing Commercial Paper
Rate Periods in connection with a conversion to Daily or
Weekly Rate Periods pursuant to the first paragraph of
Section 3.2(b)); and
(ii) if the conversion is from a Commercial Paper,
Daily or Weekly Rate Period to a Multiannual Rate Period, or
from a Multiannual Rate Period to a Commercial Paper, Daily
or Weekly Rate Period (other than a conversion pursuant to
Section 3.2(a)(ii)(4) of this Indenture), the Trustee has
been provided, no later than one day before the Conversion
Date, with a Favorable Opinion of Bond Counsel with respect
to the conversion.
<PAGE>
ARTICLE IV
TENDER AND PURCHASE OF BONDS
SECTION IV.1. Optional Tenders for Purchase
(a) Purchase Dates. The owners or registered owners of
Bonds accruing interest at Daily or Weekly Rates may elect to
have their Bonds (or portions thereof in amounts equal to the
lowest denomination then authorized pursuant to Section 2.2
hereof or whole multiples of such lowest denomination) purchased
at the Purchase Price on the following Purchase Dates:
(i) Bonds accruing interest at Daily Rates may be
tendered for purchase at the Purchase Price payable in
immediately available funds on any Business Day upon written
or Electronic notice of tender given to the Paying Agent,
directly or through the owner's DTC Participant (as defined
in the Letter of Representations), not later than 11:00
a.m., New York City time, on the Purchase Date.
(ii) Bonds accruing interest at Weekly Rates may be
tendered for purchase at the Purchase Price payable in
immediately available funds on any Business Day upon written
or Electronic notice of tender given to the Paying Agent,
directly or through the Owner's DTC Participant, not later
than 5:00 p.m., New York City time, on a Business Day not
fewer than seven days prior to the Purchase Date.
(b) Notice of Tender. Each notice of tender:
(i) shall, in the case of a written notice, be
delivered to the Paying Agent at its principal office and be
in form satisfactory to the Paying Agent;
(ii) shall state, whether delivered in writing or
Electronically (A) the principal amount of the Bond to which
the notice relates, (B) that the Owner or Registered Owner
irrevocably demands purchase of such Bond or a specified
portion thereof in an amount equal to the lowest
denomination then authorized pursuant to Section 2.2 hereof
or a whole multiple of such lowest denomination, (C) the
date on which such Bond or portion is to be purchased, and
(D) payment instructions with respect to the Purchase Price;
and
(iii) shall automatically constitute, whether
delivered in writing or Electronically (A) an irrevocable
offer to sell the Bond (or portion thereof) to which the
notice relates on the Purchase Date at a Purchase Price
equal to the principal amount of such Bond (or portion
thereof) plus any interest thereon accrued and unpaid as of
the Purchase Date, (B) an irrevocable authorization and
instruction to the Paying Agent to effect transfer of such
Bond (or portion thereof) upon payment of the Purchase Price
to the Paying Agent on the Purchase Date, (C) an irrevocable
authorization and instruction to the Paying Agent to effect
the exchange of the Bond to be purchased in whole or in part
for other Bonds in an equal aggregate principal amount so as
to facilitate the sale of such Bond (or portion thereof to
be purchased), and (D) an acknowledgment that such Owner or
Registered Owner will have no further rights with respect to
such Bond (or portion thereof) upon payment of the Purchase
Price thereof to the Paying Agent on the Purchase Date,
except for the right of such Owner or Registered Owner to
receive such Purchase Price upon delivery of such Bond to
the Paying Agent. The determination of the Paying Agent as
to whether a notice of tender has been properly delivered
pursuant to the foregoing shall be conclusive and binding
upon the Owner or Registered Owner.
(c) Bonds to be Remarketed. Not later than 11:00 a.m., New
York City time, on the Business Day immediately following the
date of receipt of any notice of tender (or immediately upon such
receipt, in the case of Bonds accruing interest at Daily Rates),
the Paying Agent shall notify, by telephone, promptly confirmed
in writing, the Company, the Trustee and the Remarketing Agent of
the principal amount of Bonds (or portions thereof) to be
purchased and the Purchase Date.
(d) Trustee Reliance. In accepting a Notice of Tender
pursuant to Section 4.1 hereof, the Trustee and the Paying Agent
may conclusively assume that the person providing the Notice of
Tender is the beneficial owner of the Bonds and therefore
entitled to tender them. The Trustee and Paying Agent assumes no
liability to anyone in accepting a Notice of Tender from a person
whom it reasonably believes to be a beneficial owner of the
Bonds.
SECTION IV.2. Mandatory Tenders for Purchase
(a) Commercial Paper Rate Bonds. Each Bond accruing
interest at a Commercial Paper Rate is subject to mandatory
tender for purchase on each Interest Payment Date applicable to
such Bond, at a Purchase Price equal to 100% of the principal
amount thereof. The Registered Owner of any Bond accruing
interest at a Commercial Paper Rate and tendered for purchase as
provided in this subsection (a) shall provide the Paying Agent
with written payment instructions for the Purchase Price of its
Bond on or before tender thereof to the Paying Agent.
(b) Conversions between Rate Periods. Bonds to be
converted from one Rate Period to a different Rate Period (except
conversions from the Daily Rate to the Weekly Rate or from the
Weekly Rate to the Daily Rate) or from a Multiannual Rate Period
to a Multiannual Rate Period of different duration are subject to
mandatory tender for purchase on the Conversion Date at the
Purchase Price.
(c) Multiannual Rate Bonds. Bonds accruing interest at a
Multiannual Rate are subject to mandatory tender for purchase on
the Interest Payment Date following the end of each Multiannual
Rate Period at a Purchase Price equal to 100% of the principal
amount thereof. The Registered Owner of any Bond accruing
interest at a Multiannual Rate and tendered for purchase as
provided in this subsection (c) shall provide the Paying Agent
with written payment instructions for the Purchase Price of its
Bond on or before tender thereof to the Paying Agent. The
Trustee shall give notice by first class mail to the Registered
Owners of the mandatory tender of Bonds accruing interest at a
Multiannual Rate pursuant to this subsection (c) not less than 30
days before the tender date. Such notice shall state:
(i) the mandatory tender date;
(ii) that the Bonds will be subject to mandatory tender
for purchase on the mandatory tender date; and
(iii) if the Bonds are in certificated form, information
with respect to required delivery of Bond certificates and
payment of the Purchase Price.
SECTION IV.3. Remarketing and Purchase.
(a) Remarketing of Tendered Bonds. Unless otherwise
instructed by the Company, the Remarketing Agent shall offer for
sale and use its best efforts to find purchasers for all Bonds or
portions thereof for which notice of tender has been received
pursuant to Section 4.1(c) or which are subject to mandatory
tender pursuant to Section 4.2. The terms of any sale by the
Remarketing Agent shall provide for the payment of the Purchase
Price (other than that portion of the Purchase Price equal to the
premium that would be payable by the Company in the case of a
Bond converted from a Multiannual Rate Period on a date when such
Bond is also subject to optional redemption at a premium) for
tendered Bonds by the Remarketing Agent to the Paying Agent (i)
in immediately available funds at or before 2:15 p.m., New York
City time, on the Purchase Date, in the case of Bonds accruing
interest at Commercial Paper Rates or Daily Rates, and (ii) in
immediately available funds at or before 12:00 noon, New York
City time, on the Purchase Date, in the case of Bonds accruing
interest at Weekly Rates or Multiannual Rates. The Remarketing
Agent shall not sell any Bond as to which a notice of conversion
from one type of Rate Period to another has been given by the
Trustee unless the Remarketing Agent has advised the Person to
whom the sale is made of the conversion. The Remarketing Agent
shall not remarket any Bonds pursuant to this Section if an Event
of Default shall have occurred and be continuing hereunder with
respect to the Bonds.
(b) Purchase of Tendered Bonds.
(i) Notice. At or before 3:00 p.m., New York City
time, on the Business Day immediately preceding the Purchase
Date of tendered Bonds (or 12:45 p.m., New York City time,
on the Purchase Date in the case of Bonds accruing interest
at Daily or Commercial Paper Rates), the Remarketing Agent
shall give notice by telegram, telecopy, telex,
Electronically or by other similar communication to the
Trustee of the principal amount of tendered Bonds which were
remarketed. Not later than 5:00 p.m. (or 1:30 p.m., in the
case of Bonds accruing interest at Daily or Commercial Paper
Rates), New York City time, on the date of receipt of such
notice the Trustee shall give notice by telegram, telecopy,
Electronically or by other similar communication to the
Paying Agent and the Company, specifying the principal
amount of tendered Bonds as to which the Remarketing Agent
has not found a purchaser at that time. At or before 3:00
p.m., New York City time, on the Business Day prior to the
Purchase Date to the extent known to the Remarketing Agent,
but in any event, no later than 11:00 a.m. (or 1:00 p.m., in
the case of Bonds accruing interest at Daily or Commercial
Paper Rates), New York City time, on the Purchase Date, the
Remarketing Agent shall give notice to the Paying Agent by
telephone (promptly confirmed in writing or Electronically)
of the names, addresses and taxpayer identification numbers
of the purchasers, the denominations of Bonds to be
delivered to each purchaser and, if available, payment
instructions for regularly scheduled interest payments, or
of any changes in any such information previously
communicated.
(ii) Sources of Payments. The Remarketing Agent
shall cause to be paid to the Paying Agent on the Purchase
Date of tendered Bonds, all amounts representing proceeds of
the remarketing of such Bonds, such payments to be made in
the manner and at the time specified in subsection 4.3(a)
above. On each date Bonds are to be purchased pursuant to
Sections 4.1 and 4.2, the Paying Agent shall purchase, but
only from the funds listed below, such Bonds from the owners
thereof. Funds for the payment of such Purchase Price shall
be derived from the following sources in the order of
priority indicated:
(1) Proceeds of the sale of such Bonds, pursuant to
Section 4.3(a); and
(2) Moneys paid by the Company to pay the Purchase
Price, which are furnished by the Trustee to the Paying
Agent or furnished directly to the Paying Agent.
On each Purchase Date, except to the extent that the
Trustee shall have received Electronic notice (promptly
confirmed by telephone) from the Remarketing Agent on or
prior to 10:00 a.m. (New York City time) on each Purchase
Date that such Bonds shall have been remarketed pursuant to
Section 4.3 hereof, that the moneys described in clause (1)
above will be sufficient to pay the Purchase Price of such
Bonds and that such moneys are on deposit with the
Remarketing Agent to pay such Purchase Price, the Company
shall deliver or cause to be delivered such amounts and at
such times so that there will be delivered to the Paying
Agent (A) immediately available funds in an amount equal to
such deficiency prior to 2:30 p.m., New York City time, on
the Purchase Date of tendered Bonds accruing interest at
Daily Rates (3:00 p.m., New York City time, in the case of
Bonds accruing interest at Commercial Paper Rates), and (B)
immediately available funds in an amount equal to such
deficiency prior to 12:15 p.m., New York City time, on the
Purchase Date of tendered Bonds accruing interest at Weekly
Rates or Multiannual Rates (the obligation of the Company to
deliver such moneys not being conditioned on receipt by the
Company of the foregoing notice from the Trustee). All
moneys received by the Paying Agent as remarketing proceeds
and additional amounts, if any, received from the Company,
as the case may be, shall be deposited by the Paying Agent
in the appropriate account of the Bond Purchase Fund to be
used solely for the payment of the Purchase Price of
tendered Bonds and shall not be commingled with other funds
held by the Paying Agent and shall not be invested.
(iii) Payments by the Paying Agent. At or before
3:30 p.m., New York City time, on the Purchase Date for
tendered Bonds and upon receipt by the Paying Agent of 100%
of the aggregate Purchase Price of the tendered Bonds, the
Paying Agent shall pay or receipt the Purchase Price of such
Bonds to the Registered Owners thereof. Such payments shall
be made in immediately available funds (or by wire
transfer). The Paying Agent shall apply in order (A) moneys
paid to it by the Remarketing Agent as proceeds of the
remarketing of such Bonds by the Remarketing Agent, and (B)
other moneys made available by the Company.
(iv) Registration and Delivery of Tendered or Purchased
Bonds. On the Purchase Date, the Paying Agent shall register and
deliver (or hold) or cancel all Bonds purchased on any Purchase
Date as follows: (A) Bonds purchased or remarketed by the
Remarketing Agent shall be registered and made available to the
Remarketing Agent by 3:15 p.m., New York City time, in accordance
with the instructions of the Remarketing Agent, and (B) Bonds
purchased with amounts provided by the Company shall be
registered in the name of the Company and shall be delivered to
the Trustee to be held in trust by the Trustee on behalf of the
Company and shall not be released from such trust unless the
Trustee shall have received written instructions from the
Company. Notwithstanding anything herein to the contrary, so
long as the Bonds are held in book-entry-only form in accordance
with Section 2.13 hereof, Bonds will not be delivered as set
forth above; rather, transfers of beneficial ownership of the
Bonds to the person indicated above will be effected on the
registration books of DTC pursuant to its rules and procedures
and the Letter of Representations.
(v) Resale of Bonds Purchased by the Company. In the
event that any Bonds are registered to the Company pursuant
to subparagraph (iv) above to the extent requested by the
Company, the Remarketing Agent shall offer for sale and use
its best efforts to sell such Bonds at a price equal to the
principal amount thereof plus accrued interest.
(vi) Delivery of Tendered Bonds; Effect of Failure to
Surrender Bonds. All Bonds to be purchased on any date
shall be required to be delivered to the principal office of
the Paying Agent at or before (A) 1:00 p.m., New York City
time, on the Purchase Date in the case of Bonds accruing
interest at Commercial Paper Rates or Daily Rates; (B) 12:00
noon, New York City time, on the Purchase Date in the case
of Bonds accruing interest at Weekly Rates; or (C) 3:00
p.m., New York City time, on the Purchase Date in the case
of Bonds accruing interest at Multiannual Rates. If the
Owner of any Bond (or portion thereof) in certificated form
that is subject to optional or mandatory purchase pursuant
to this Article fails to deliver such Bond to the Paying
Agent for purchase on the Purchase Date, and if the Paying
Agent is in receipt of the Purchase Price therefor, such
Bond (or portion thereof) shall nevertheless be deemed
purchased on the Purchase Date thereof and ownership of such
Bond (or portion thereof) shall be transferred to the
purchaser thereof as provided in subsection (ii) above. Any
Owner who fails to deliver such Bond for purchase shall have
no further rights thereunder except the right to receive the
Purchase Price thereof upon presentation and surrender of
said Bond to the Paying Agent. The Paying Agent shall, as
to any tendered Bonds which have not been delivered to it
(i) promptly notify the Remarketing Agent of such
nondelivery, and (ii) place or cause to be placed a stop
transfer against an appropriate amount of Bonds registered
in the name of such Registered Owner(s) on the bond
registration books. The Paying Agent shall place or cause
to be placed such stop(s) commencing with the lowest serial
number Bond registered in the name of such Registered
Owner(s) until stop transfers have been placed against an
appropriate amount of Bonds until the appropriate tendered
Bonds are delivered to the Paying Agent. Upon such
delivery, the Paying Agent shall make or cause the Bond
Registrar to make any necessary adjustments to the bond
registration books. Notwithstanding anything herein to the
contrary, so long as the Bonds are held in book-entry-only
form in accordance with Section 2.13 hereof, Bonds will not
be delivered as set forth above; rather, transfers of
beneficial ownership of the Bonds to the person indicated
above will be effected on the registration books of DTC
pursuant to its rules and procedures and the Letter of
Representations.
SECTION IV.4. Bond Purchase Fund. There is hereby created
and ordered to be established with the Paying Agent a segregated
trust fund to be designated the "Bond Purchase Fund". The Bond
Purchase Fund shall consist of the sub-accounts to be designated
respectively the "Remarketing Account" and the "Company Purchase
Account".
The Paying Agent shall deposit or cause to be deposited into
the Remarketing Account, when and as received, all moneys
delivered to the Paying Agent for the Purchase Price of
remarketed Bonds by or on behalf of the Remarketing Agent. The
Paying Agent shall disburse moneys from the Remarketing Account
to pay the Purchase Price of Bonds properly tendered for purchase
upon surrender of such Bonds pursuant to Section 4.3(b)(vi).
The Trustee or Paying Agent, as the case may be, shall
deposit or cause to be deposited into the Company Purchase
Account, when and as received, all moneys delivered to the
Trustee or the Paying Agent, as the case may be, for the account
of the Company pursuant to Section 4.2 of the Refunding
Agreement. The Paying Agent shall disburse moneys from the
Company Purchase Account to pay the Purchase Price of Bonds
properly tendered for purchase by or on behalf of the Company
upon surrender of such Bonds pursuant to Section 4.3(b)(vi).
The funds held by the Paying Agent in the Bond Purchase Fund
shall not constitute part of the trust estate which is subject to
the lien of this Indenture. The moneys in the Bond Purchase Fund
shall be used solely to pay the Purchase Price of Bonds as
aforesaid and may not be used for any other purposes. It shall
be the duty of the Paying Agent to hold the moneys in the Bond
Purchase Fund, without liability for interest thereon, for the
benefit of the Registered Owners of Bonds which have been
properly tendered for purchase or deemed tendered on the Purchase
Date, and if sufficient funds to pay the Purchase Price for such
tendered Bonds shall be held by the Paying Agent in the Bond
Purchase Fund for the benefit of the Registered Owners thereof,
each such Registered Owner shall thereafter be restricted
exclusively to the Bond Purchase Fund for any claim of whatever
nature on such Registered Owner's part under this Indenture or
on, or with respect to, such tendered Bond. The provisions of
Section 6.3 hereof shall govern any funds held in the Bond
Purchase Fund for such Registered Owners of the Bonds which
remain unclaimed for a period of one year after the applicable
Purchase Date.
<PAGE>
ARTICLE V
REFUNDING FUND
SECTION V.1. Creation of Refunding Fund. There is hereby
created and ordered to be established with the Trustee a trust
fund of and in the name of the Issuer to be designated "Parish of
St. Charles Pollution Control Revenue Refunding Bonds (Entergy
Louisiana, Inc. Project) Series 1999-C Refunding Fund".
SECTION V.2. Deposit of Proceeds of Bonds. All of the
proceeds of the Bonds shall be deposited in the Refunding Fund.
The Trustee shall transfer out of the Refunding Fund the proceeds
of the Bonds on or before the Refunding Date to the Prior Trustee
for disbursement and investment in accordance with the Prior
Indenture in order to redeem, together with moneys of the Company
deposited therein if necessary, all of the Prior Bonds on the
Refunding Date.
<PAGE>
ARTICLE VI
REVENUES AND APPLICATION THEREOF
SECTION VI.1. Bond Fund. (a) There is hereby created and
ordered to be established with the Trustee a Bond Fund, the
moneys from which the Trustee shall make available to the Paying
Agent or Agents in accordance with subsection (c) below to pay
(i) the principal or redemption price of Bonds as they mature or
become due, upon presentation and surrender thereof and (ii) the
interest on Bonds as it becomes payable. Moneys in the Bond Fund
shall not be applied to pay the Purchase Price of the Bonds.
(b) There shall be deposited into the Bond Fund from time
to time all payments of principal, redemption price or interest
under the Refunding Agreement and all other moneys received by
the Trustee under and pursuant to the provisions of this
Indenture or any of the provisions of the Refunding Agreement,
when accompanied by directions from the person depositing such
moneys that such moneys are to be paid into the Bond Fund.
(c) Except as provided in Sections 6.3 and 11.7, moneys in
the Bond Fund shall be used solely for the payment of the
principal or redemption price of the Bonds and interest on the
Bonds.
SECTION VI.2. Revenues to Be Held for All Bondholders;
Certain Exceptions. Until applied as provided in this Indenture
to the payment of Bonds or transferred to the Company pursuant to
Section 6.3, Revenues shall be held by the Trustee in trust in
the Bond Fund for the benefit of the owners of all Outstanding
Bonds, except that any portion of the Revenues representing
principal or redemption price of any Bonds, and interest on any
Bonds previously matured or called for redemption in accordance
with Article VIII of this Indenture, shall be held for the
benefit of the owners or the former owners of such Bonds only.
SECTION VI.3. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund after payment in full of (i) the Bonds
(or the provision for payment thereof having been made in
accordance with the provisions hereof), (ii) all Administration
Expenses, and (iii) all other amounts required to be paid under
the Agreement and this Indenture, shall be paid to the Company.
Should the holders of any Bonds fail or neglect to present their
Bonds for payment within one year from the date such Bonds become
due and payable, whether by redemption or at maturity, the
Trustee shall, at the end of such period, remit to the Company in
trust for the holders of the Bonds the money then held for such
Bonds; and the holders of such Bonds shall thereafter have
recourse only to the Company for payment thereof.
SECTION VI.4. Creation of Administrative Fee Fund and
Disbursements from Administrative Fee Fund. There is hereby
created and ordered to be established with the Trustee a special
trust fund in the name of the Issuer to be designated
"Administrative Fee Fund (Entergy Louisiana, Inc. Project) Series
1999-C". Pursuant to the provisions of Section 10.15 of the
Refunding Agreement, the Company is required to make a deposit
into the Administrative Fee Fund on the date of initial issuance
and delivery of the Bonds. Such deposit shall be held by the
Trustee uninvested and disbursed to Bond Counsel described in
Exhibit B hereto and to the Issuer (with respect to the Issuer
Counsel fee) in an amount not exceeding the amounts set forth on
Exhibit B hereto upon submission to the Trustee of statements or
invoices by Bond Counsel or the Issuer, as the case may be. Any
amounts remaining in the Administrative Fee Fund six months after
the date of initial issuance and delivery of the Bonds shall be
transferred to the Company.
<PAGE>
ARTICLE VII
INVESTMENT OR DEPOSIT OF MONEYS
SECTION VII.1. Deposits. All moneys received by the Trustee
under this Indenture shall be deposited with the Trustee, until
or unless invested or deposited as provided in Section 7.2 or as
otherwise provided herein. All deposits with the Trustee shall
be secured as required by applicable law for such trust deposits.
The Trustee may deposit such moneys with any other depository
which is authorized to receive them and is subject to supervision
by public banking authorities. The moneys on deposit in the Bond
Purchase Fund shall not be invested.
SECTION VII.2. Investment of Moneys in Bond Fund and
Refunding Fund. (a) Moneys held for the credit of the Bond Fund
and the Refunding Fund shall, upon direction by the Authorized
Company Representative, be invested and reinvested by the Trustee
in any one or more of the following obligations or securities on
which neither the Company nor any of its subsidiaries is the
obligor: (i) Government Securities; (ii) interest bearing deposit
accounts (which may be represented by certificates of deposit) in
national or state banks (which may include the Trustee, any
Paying Agent, and the Bond Registrar) having a combined capital
and surplus of not less than $10,000,000, or savings and loan
associations having total assets of not less than $40,000,000;
(iii) bankers' acceptances drawn on and accepted by commercial
banks (which may include the Trustee, any Paying Agent, and the
Bond Registrar) having a combined capital and surplus of not less
than $10,000,000; (iv) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed
by, any state of the United States of America, the District of
Columbia or the Commonwealth of Puerto Rico, or any political
subdivision of any of the foregoing, which are rated in any of
the three highest rating categories by a nationally recognized
rating agency; (v) obligations of federal agencies which
obligations represent the full faith and credit of the United
States of America; (vi) commercial or finance company paper which
is rated in any of the three highest rating categories by a
nationally recognized rating agency; (vii) corporate debt
securities rated in any of the three highest rating categories by
a nationally recognized rating agency; (viii) money market funds,
including those for which the Trustee or any affiliate receives
compensation with respect to such investment, which (x) are rated
in the highest rating category by S&P or Moody's or (y) are
comprised in their entirety of U. S. Treasury obligations, and
(ix) repurchase agreements with banking or financial institutions
having a combined capital and surplus of not less than
$10,000,000 (which may include the Trustee, any Paying Agent, and
the Bond Registrar) with respect to any of the foregoing
obligations or securities. As used above, the reference to
rating categories shall mean generic categories which may include
numerical or other qualifications of ratings within each such
generic rating category such as "+" or "-". Such investments
shall have maturity dates, or shall be subject to redemption by
the holder at the option of the holder, on or prior to the dates
the moneys invested therein will be needed as reflected by a
statement of the Authorized Company Representative, which
statement must be on file with the Trustee prior to any
investment. Such investments shall not be subject to redemption
by the issuer at the option of the issuer. The Trustee shall not
be responsible for any loss in connection with making any
investments hereunder.
(b) Obligations so purchased as an investment of moneys in
any fund or account shall be deemed at all times a part of such
fund or account. Any profit and income realized from such
investments shall be credited to such fund or account and any
loss shall be charged to such fund or account.
SECTION VII.3. Arbitrage Bond Covenant. With respect to the
authority to invest funds granted in this Indenture, the Issuer
and the Trustee hereby covenant with the holders of the Bonds
that, subject to the Company's written direction of the
investment of funds, they will make no use of the proceeds of the
Bonds, or any other funds which may be deemed to be proceeds of
the Bonds pursuant to Section 148 of the Code, which would cause
the Bonds to be "arbitrage bonds" within the meaning of such
Section.
The Company has agreed in the Refunding Agreement to comply
with the rebate requirements of Section 148(f) of the Code. The
Trustee shall maintain such records and provide such information
as the Company may request to enable the Company to calculate the
amount of gross earnings on the Bond Fund and, from time to time,
the value of investments held therein.
<PAGE>
ARTICLE VIII
REDEMPTION OF BONDS
SECTION VIII.1. Bonds Subject to Redemption. (a)
Optional Redemption. The Bonds shall be subject to redemption at
the option of the Issuer, in whole at any time or in part from
time to time, and if in part at the lowest authorized
denomination or any whole multiple thereof, at the direction of
the Company, from funds available for such purpose in the Bond
Fund, as follows:
(i) If the Bonds accrue interest at Commercial Paper,
Daily or Weekly Rates, the Bonds shall be subject to
optional redemption on any Interest Payment Date (with
respect to a Bond accruing interest at a Commercial Paper
Rate, on the Interest Payment Date applicable to that Bond)
at an optional redemption price equal to 100% of the
principal amount being redeemed, together with accrued
interest to the redemption date.
(ii) If the Bonds accrue interest at a Multiannual
Rate, the Bonds shall be subject to optional redemption (A)
at any time on and after the dates and at the optional
redemption prices (expressed as percentages of the principal
amount being redeemed) set forth below plus accrued
interest, if any, to the redemption date and (B) on the day
after the end of each Multiannual Rate Period at the
redemption price of 100% of the principal amount being
redeemed plus accrued interest, if any, to the redemption
date:
Length of Commencement of
Multiannual Rate Multiannual
Period Redemption Period Redemption Price
Greater than or Fifth anniversary of 102%, declining by
equal to 6 years the commencement of 1% on each
Multiannual Rate succeeding
Period anniversary of the
first da of the
redemption period
until reaching 100%
and thereafter at
100%
Lass than 6 Years Bonds not subject to
optional redemption
until commencement
of next Multiannual
Rate Period
(b) Extraordinary Optional Redemption. If the Bonds accrue
interest at a Multiannual Rate, the Bonds shall be subject to
extraordinary optional redemption by the Issuer, at the direction
of the Company, in whole but not in part, at any time, at a
redemption price equal to the principal amount being redeemed
plus accrued interest to the redemption date, if:
(i) the Company shall have determined that the
continued operation of the Facilities or the Plant is
impracticable, uneconomical or undesirable for any reason;
(ii) all or substantially all of the Facilities or the
Plant shall have been condemned or taken by eminent domain;
or
(iii) the operation of the Facilities or the Plant
shall have been enjoined or shall have otherwise been
prohibited by any order, decree, rule or regulation of any
court or of any federal, state or local regulatory body,
administrative agency or other governmental body.
In addition, if the Bonds accrue interest at a Multiannual
Rate, the Bonds shall be subject to extraordinary optional
redemption by the Issuer, at the direction of the Company, in
whole or in part, at any time prior to the first date on which
the Bonds are subject to redemption pursuant to Section
8.1(a)(ii), at a redemption price equal to 102% of the principal
amount being redeemed plus accrued interest to the redemption
date, if the Company delivers to the Trustee a written
certificate (i) to the effect that by reason of a change in use
of the Facilities or any portion thereof, the Company has been
unable, after reasonable effort, to obtain an opinion of Bond
Counsel to the effect that a court, in a properly presented case,
should decide that Section 150 of the Code (or successor
provision of similar import), does not prevent that portion of
the Payments payable under the Refunding Agreement and
attributable to interest on the Bonds from being deductible by
the Company for federal income tax purposes, (ii) specifying that
as a result of its inability to obtain such opinion of Bond
Counsel, the Company has elected to prepay amounts due under the
Refunding Agreement equal to the redemption price of the Bonds to
be so redeemed and (iii) specifying the principal amount of the
Bonds which the Company has determined to be the minimum
necessary to be so redeemed in order for the Company to retain
its rights to such interest deductions (which principal amount of
the Bonds will be so redeemed).
(c) Extraordinary Mandatory Redemption. The Bonds shall be
subject to mandatory redemption, at a redemption price equal to
the principal amount being redeemed plus accrued interest to the
redemption date, on the one hundred eightieth day (or such
earlier date as may be designated by the Company) after a final
determination by a court of competent jurisdiction or an
administrative agency to the effect that solely as a result of a
failure by the Company to perform or observe any covenant,
agreement or representation contained in the Refunding Agreement,
the interest payable on the Bonds is included for federal income
tax purposes in the gross income of the owners thereof, other
than any owner who is a "substantial user" of the Facilities or
a "related person" within the meaning of Section 147(a) of the
Code. No determination by any court or administrative agency
will be considered final unless the Company has participated in
the proceeding which resulted in such determination, either
directly or, at the option of the Company, through a Bondholder,
to a degree it reasonably deems sufficient and until the
conclusion of any appellate review sought by any party to such
proceeding or the expiration of the time for seeking such review.
Subject to the foregoing provisions of this subsection (c), the
Bonds shall be redeemed in whole unless, in the opinion of Bond
Counsel mutually acceptable to the Issuer, the Trustee and the
Company, the redemption of a portion of such Bonds would have the
result that interest payable on the Bonds remaining outstanding
after such redemption would not be includable in the gross income
for federal income tax purposes of any owner of any such Bonds.
Any such partial redemption shall be by lot in such amount as is
necessary to accomplish such result.
SECTION VIII.2. Company Direction of Optional
Redemption. The Trustee shall call Bonds for optional redemption
when and only when it shall have been notified by the Company to
do so. The Company will give written notice of any optional
redemption to the Trustee and the Issuer as provided in Section
9.1 of the Agreement.
SECTION VIII.3. Selection of Bonds to be Called for
Redemption. Except as otherwise provided herein or in the Bonds,
if less than all the Bonds are to be redeemed, the particular
Bonds to be called for redemption shall be selected by lot or any
other method determined by the Trustee to be fair and reasonable;
provided, however, that if, as stated in a certificate of the
Company delivered to the Trustee, the Company shall have offered
to purchase all Bonds then Outstanding and less than all of such
Bonds shall have been tendered to the Company for such purchase,
the Trustee, at the direction of the Company, shall select for
redemption all such Bonds which have not been so tendered. If
less than all the Bonds are to be redeemed, the Bonds that remain
outstanding shall be in authorized denominations.
SECTION VIII.4. Notice of Redemption. (a) The Company
shall deliver notice to the Trustee of its intention to prepay
the principal of, premium, if any, and interest on the Bonds and
cause the Bonds to be called for optional redemption at least 15
days prior to the date on which the Trustee is required to give
notice of redemption of the Bonds to the Registered Owners
thereof (unless a shorter notice shall be accepted by the Trustee
as sufficient). The Trustee shall cause notice of any redemption
of Bonds hereunder to be mailed by first class mail, postage
prepaid (except when DTC is the Registered Owner of all of the
Bonds and except for persons or entities owning or providing
evidence of ownership satisfactory to the Trustee of a legal or
beneficial ownership in at least $1,000,000 aggregate principal
amount of Bonds who so request, in which cases, by certified
mail, return receipt requested), to the Registered Owners of all
Bonds to be redeemed at the registered addresses appearing in the
registration books kept for such purpose pursuant to Article II
hereof. Each such notice shall (i) be mailed at least 15 days
prior to the redemption date for Bonds accruing interest at
Daily, Weekly or Commercial Paper Rates and at least 25 days
prior to the redemption date for Bonds accruing interest at
Multiannual Rates, (ii) identify the Bonds to be redeemed if less
than all Bonds are to be redeemed (specifying the CUSIP numbers,
if any, assigned to the Bonds), (iii) specify the redemption date
and the redemption price, (iv) state whether the notice is
conditional or not as permitted by paragraph (b) of hereof, and
(v) state that on the redemption date the Bonds called for
redemption will be payable at the principal office of the
Trustee, that from that date interest will cease to accrue and
that no representation is made as to the accuracy or correctness
of the CUSIP numbers printed therein or on the Bonds; provided,
however, that so long as DTC or its nominee is the sole
Registered Owner of the Bonds under the book-entry-only system,
redemption notices will be sent to Cede & Co. Any failure on the
part of DTC, a direct participant or indirect participant to give
such notice to the Owner or any defect therein shall not affect
the sufficiency or validity of any proceedings for the redemption
of the Bonds. No defect affecting any Bond, whether in the
notice of redemption or mailing thereof (including any failure to
mail such notice), shall affect the validity of the redemption
proceedings for any other Bonds.
(b) If at the time of mailing of any notice of an optional
redemption there shall not have been deposited with the Trustee
moneys sufficient to redeem all the Bonds called for redemption,
such notice shall state that it is conditional, that is, subject
to the deposit of the redemption moneys with the Trustee on or
prior to the redemption date, and such notice shall be of no
effect unless such moneys are so deposited on or prior to the
redemption date. If such redemption is not effected, the Trustee
shall, within five days thereafter, give notice in the manner in
which the notice of redemption was given that such moneys were
not so received.
SECTION VIII.5. Redemption Payments. Subject to the
provisions of Section 8.4(b), on or prior to the date fixed for
redemption, funds shall be deposited with the Trustee to pay, and
the Trustee is hereby authorized and directed to apply such funds
to the payment of, the Bonds or portions thereof to be redeemed,
together with accrued interest thereon to the redemption date and
any required premium. Upon the giving of notice and the deposit
of funds for redemption, interest on the Bonds or portions
thereof thus redeemed shall no longer accrue after the date fixed
for redemption.
<PAGE>
ARTICLE IX
COVENANTS OF THE ISSUER
SECTION IX.1. Payment of Principal of, Premium, if any, and
Interest on Bonds; Appointment of Paying Agent. The Issuer
covenants that it will promptly pay or cause to be paid the
principal of, premium, if any, and interest on every Bond issued
under this Indenture at the place, on the dates and in the manner
provided herein and in the Bond according to the true intent and
meaning thereof; provided, however, that the obligation of the
Issuer hereunder to make or cause to be made any payment to the
Trustee in respect of the principal of, premium, if any, or
interest on the Bonds shall be reduced by the amount of moneys,
if any, on deposit in the Bond Fund and available to be applied
by the Trustee toward the payment of the principal of, premium,
if any, or interest on the Bonds. The principal and interest are
payable solely from the Trust Estate, including Revenues, which
Revenues are specifically pledged and assigned for the payment
thereof in the manner and to the extent herein specified, and
nothing in the Bonds or this Indenture should be considered as
assigning or pledging any funds or assets of the Issuer other
than the Trust Estate in the manner and to the extent herein
specified. Anything in this Indenture to the contrary
notwithstanding, it is understood that whenever the Issuer makes
any covenant involving financial commitments, it pledges no funds
or assets other than the Trust Estate in the manner and to the
extent herein specified, but nothing herein shall be construed as
prohibiting the Issuer from using any other funds or assets.
The Issuer shall, with the approval of the Company, appoint
one or more Paying Agents for such purpose, each such agent to be
a national banking association, a bank and trust company or a
trust company. The Issuer hereby appoints the Trustee as Paying
Agent and designates the office of the Trustee at Tower Marc
Plaza, 10161 Centurion Parkway, Jacksonville, Florida 32256, as
the place of payment, such appointment and designation to remain
in effect until notice of change is filed with the Trustee. The
Issuer shall give prompt written notice to the Trustee of the
designation of each such Paying Agent and of its designated
office location for purposes of such agency, and of any change in
the Paying Agent or of its designated office location. Any Paying
Agent other than the Trustee shall be a person which meets the
requirements for qualifications of a paying agent imposed by
Section 12.2 hereof.
SECTION IX.2. Compliance with Laws. The Issuer covenants
that it will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in
this Indenture, in any and every Bond executed, authenticated and
delivered hereunder and in all ordinances pertaining thereto.
The Issuer covenants that it is duly authorized under the
Constitution and laws of the State, including particularly and
without limitation the Act, to issue Bonds authorized hereby and
to execute this Indenture and to make the pledge and covenants in
the manner and to the extent herein set forth; that all action on
its part for the issuance of the Bonds and the execution and
delivery of this Indenture has been duly and effectively taken;
and that the Bonds in the hands of the holders and owners thereof
are and will be valid and enforceable obligations of the Issuer
according to the import thereof.
SECTION IX.3. Enforcement of Agreement; Prohibition Against
Amendments of Agreement; Notice of Default. The Issuer shall
cooperate with the Trustee in enforcing the payment of all
amounts under the Agreement and shall require the Company to
perform its obligations under the Agreement. So long as no Event
of Default hereunder shall have occurred and be continuing, the
Issuer may exercise all its rights under the Agreement as amended
or supplemented from time to time, including the right to amend
the Agreement; provided that it shall not amend the Agreement
without the consent of the Trustee pursuant to Section 14.3. The
Issuer shall give prompt notice to the Trustee of any default
known to the Issuer under the Agreement.
SECTION IX.4. Further Assurances. Except to the extent
otherwise provided in this Indenture, the Issuer shall not enter
into any contract or take any action by which the rights of the
Trustee, the Bondholders or the Company may be impaired and
shall, from time to time, execute and deliver such further
instruments and take such further action as may be required to
carry out the purposes of this Indenture.
SECTION IX.5. Prohibited Activities. The Issuer and the
Trustee covenant that neither of them shall take any action or
suffer or permit any action to be taken or condition to exist
which causes or may cause the interest payable on the Bonds to be
includable in gross income for purposes of federal income
taxation. Without limiting the generality of the foregoing, the
Issuer and the Trustee covenant that (a) the proceeds of the sale
of the Bonds, the earnings thereon, and any other moneys on
deposit in any fund or account maintained in respect of the Bonds
(whether such moneys were derived from the proceeds of the sale
of the Bonds or from other sources) will not be used in a manner
which would cause the Bonds to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Code, and (b) all action
with respect to the Bonds required by Section 148(f) of the Code
shall be taken in a timely manner.
SECTION IX.6. Administration Expenses. It is understood
and agreed that pursuant to the provisions of Section 4.4 of the
Refunding Agreement, the Company agrees to pay the Administration
Expenses.
SECTION IX.7. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee or any
Paying Agent for deposit into the Bond Fund, the Bond Purchase
Fund or the Refunding Fund (until disbursed in accordance with
the provisions of this Indenture) under any provision of this
Indenture and all moneys withdrawn from the Bond Fund and held by
any Paying Agent, shall be held by the Trustee or such Paying
Agent in trust, and except for moneys deposited in the Bond
Purchase Fund, or deposited with or paid to the Trustee for the
redemption of Bonds, notice of which redemption has been duly
given, and for moneys deposited with or paid to the Trustee
pursuant to Article XV hereof, shall, while held by the Trustee
or any Paying Agent, constitute part of the Trust Estate and be
subject to the lien hereof. Any moneys received by or paid to
the Trustee pursuant to any provision of the Refunding Agreement
calling for the Trustee to hold, administer and disburse the same
in accordance with the specific provisions of the Refunding
Agreement shall be held, administered and disbursed pursuant to
such provisions. The Issuer agrees that if it shall receive any
moneys pursuant to applicable provisions of the Refunding
Agreement (other than Sections 4.4, 4.5, 4.6 and 8.5 thereof), it
will forthwith upon receipt thereof pay the same over to the
Trustee to be held, administered and disbursed by the Trustee in
accordance with the provisions of the Refunding Agreement
pursuant to which the Issuer may have received the same.
Furthermore, if for any reason the Refunding Agreement ceases to
be in force and effect while any Bonds are outstanding, the
Issuer agrees that if it shall receive any moneys derived from
the Facilities, it will forthwith upon receipt thereof pay the
same over to the Trustee to be held, administered and disbursed
by the Trustee in accordance with provisions of the Refunding
Agreement that would be applicable if the Refunding Agreement
were then in force and effect, and if there be no such provisions
which would be so applicable, then the Trustee shall hold,
administer and disburse such moneys solely for the discharge of
the Issuer's obligations under this Indenture.
SECTION IX.8. Rights of Company Under Refunding Agreement.
Nothing herein contained shall be deemed to impair the rights and
privileges of the Company set forth in the Refunding Agreement,
and an Event of Default hereunder shall not constitute an "Event
of Default" under the Refunding Agreement unless by the terms of
the Refunding Agreement it constitutes an "Event of Default"
thereunder. The Issuer and the Trustee agree that the Company in
its own name or in the name of the Issuer may enforce all of the
rights of the Issuer, all obligations of the Trustee, and all of
the Company's rights provided for in this Indenture.
SECTION IX.9. Recordation and Other Instruments. The
Issuer and the Trustee covenant that they will cooperate with the
Company in causing this Indenture, the Refunding Agreement, such
security agreements, financing statements and all supplements
thereto and other instruments as may be required from time to
time to be kept, to be recorded and filed in such manner and in
such places as may be required by law in order to fully preserve
and protect the security of the holders and owners of the Bonds
and the rights of the Trustee hereunder, and to perfect the
security interest created by this Indenture.
SECTION IX.10. Inspection of Books. The Issuer and the
Trustee covenant and agree that all books and documents in their
possession relating to the Facilities and the revenues derived
from the Facilities shall be open to inspection at all reasonable
times by such accountants or other agencies as the other party
may from time to time designate and by the Company.
SECTION IX.11. Rights of Trustee Under Refunding Agreement.
The Refunding Agreement, a duly executed counterpart of which has
been filed with the Trustee, sets forth covenants and obligations
of the Issuer and the Company, including provisions that
subsequent to the issuance of Bonds and prior to their payment in
full or provision for payment thereof in accordance with the
provisions of the Refunding Agreement may not be effectively
amended, changed, modified, altered or terminated, or any
provision waived without the written consent of the Trustee, and
reference is hereby made to the same for a detailed statement of
said covenants and obligations of the Company thereunder, and the
Issuer agrees that the Trustee in its name or in the name of the
Issuer may enforce all rights of the Issuer and all obligations
of the Company under and pursuant to the Refunding Agreement, for
and on behalf of the bondholders, whether or not the Issuer is in
default hereunder.
<PAGE>
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
SECTION X.1. Events of Default Defined. Each of the
following shall be an "Event of Default" hereunder:
(a) Payment of the principal or redemption price of
any Bond is not made when it becomes due and payable at the
Maturity Date or upon call for redemption or upon a
declaration of acceleration; or
(b) Payment of any interest on any Bond is not made
within sixty (60) days after it becomes due and payable; or
(c) The occurrence and continuance of any "Event of
Default" under Section 8.1(a), (c) or (d) of the Agreement;
or
(d) Default in the payment of any other amount
required to be paid under this Indenture or in the
performance or observance of any other of the covenants,
agreements or conditions contained in this Indenture, or in
the Bonds issued under this Indenture, and continuance
thereof for a period of ninety (90) days after written
notice specifying such failure and requesting that it be
remedied shall have been given to the Issuer and the Company
by the Trustee, which may give such notice in its discretion
and shall give such notice at the written request of the
holders of not less than ten percent (10%) in aggregate
principal amount of the Bonds then outstanding, unless the
Trustee, or the Trustee and holders of an aggregate
principal amount of Bonds not less than the aggregate
principal amount of Bonds the holders of which requested
such notice, as the case may be, shall agree in writing to
an extension of such period prior to its expiration;
provided, however, that the Trustee, or the Trustee and the
holders of such principal amount of Bonds, as the case may
be, shall be deemed to have agreed to an extension of such
period if corrective action is instituted by the Issuer, or
the Company on behalf of the Issuer, within such period and
is being diligently pursued; or
(e) If payment of the Purchase Price of any Bond
required to be purchased pursuant to Section 4.3 is not made
when such payment becomes due and payable.
SECTION X.2. Acceleration and Annulment Thereof. If any
Event of Default described in clause (a), (b), (c) or (e) of
Section 10.1 hereof occurs and is continuing, the Trustee may,
and upon request of the owners of at least a majority in
aggregate principal amount of all Bonds then Outstanding shall,
by notice in writing to the Issuer and the Company, declare the
principal of all Bonds then Outstanding to be immediately due and
payable; and upon such declaration the said principal, together
with interest accrued thereon to the date of acceleration, shall
become due and payable immediately at the place of payment
provided therein, anything in the Indenture or in the Bonds to
the contrary notwithstanding. Upon the occurrence of any
acceleration hereunder, the Trustee shall immediately declare all
payments under the Agreement pursuant to Section 4.2 thereof to
be due and payable immediately.
Immediately after any acceleration hereunder, the Trustee,
to the extent it has not already done so, shall notify in writing
the Issuer, the Company, the Paying Agent and the Remarketing
Agent of the occurrence of such acceleration. Upon the
occurrence of any acceleration hereunder, the Trustee shall
notify by first class mail, postage prepaid, the owners of all
Bonds Outstanding of the occurrence of such acceleration.
If, after the principal of the Bonds has become due and
payable, all arrears of interest upon the Bonds are paid by the
Issuer, and the Issuer also performs all other things in respect
to which it may have been in default hereunder and pays the
reasonable charges of the Trustee, and the Bondholders, including
reasonable and necessary attorneys' fees, then, and in every such
case, the owners of a majority in principal amount of the Bonds
then Outstanding, by notice to the Issuer and to the Trustee, may
annul such acceleration and its consequences, and such annulment
shall be binding upon the Trustee and upon all owners of Bonds
issued hereunder. No such annulment shall extend to or affect
any subsequent default or impair any right or remedy consequent
thereon. The Trustee shall forward a copy of any notice from
Bondholders received by it pursuant to this paragraph to the
Company. Immediately upon such annulment, the Trustee shall
cancel, by notice to the Company, any demand for prepayment of
all amounts due under the Agreement made by the Trustee pursuant
to this Section. The Trustee shall promptly give written notice
of such annulment to the Issuer, the Company, the Paying Agent,
the Remarketing Agent, and, if notice of the acceleration of the
Bonds shall have been given to the Bondholders, shall give notice
thereof to the Bondholders.
SECTION X.3. Other Remedies. If any Event of Default
occurs and is continuing, the Trustee, before or after the
principal of the Bonds becomes immediately due and payable, may
enforce each and every right granted to it under the Agreement
and any supplements or amendments thereto. In exercising such
rights and the rights given the Trustee under this Article, the
Trustee shall take such action as, in the judgment of the Trustee
applying the standards described in Section 11.1, would best
serve the interests of the Bondholders.
SECTION X.4. Legal Proceedings by Trustee. If any Event
of Default has occurred and is continuing, the Trustee in its
discretion may, and upon the written request of the Owners of a
majority in principal amount of all Bonds then Outstanding and
receipt of indemnity to its satisfaction shall, in its own name:
(1) By mandamus, or other suit, action or proceeding
at law or in equity, enforce all rights of the Bondholders,
including the right to require the Issuer to enforce any
rights under the Agreement and to require the Issuer to
carry out any other provisions of this Indenture for the
benefit of the Bondholders and to perform its duties under
the Act;
(2) Bring suit to enforce the Bonds;
(3) By action or suit in equity require the Issuer to
account as if it were the trustee of an express trust for
the Bondholders; and
(4) By action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights
of the Bondholders.
SECTION X.5. Discontinuance of Proceedings by Trustee. If
any proceeding commenced by the Trustee on account of any Event
of Default is discontinued or is determined adversely to the
Trustee, then the Company, the Issuer, the Trustee and the
Bondholders shall be restored to their former positions and
rights hereunder as though no such proceedings had been
commenced.
SECTION X.6. Bondholders May Direct Proceedings. The
owners of a majority in principal amount of the Bonds Outstanding
shall have the right, after furnishing indemnity satisfactory to
the Trustee, to direct the method and place of conducting all
remedial proceedings to be taken in connection with the
enforcement of the terms and conditions of this Indenture or any
other proceedings hereunder, provided that such direction shall
not be in conflict with any rule of law or with this Indenture or
unduly prejudice the rights of minority Bondholders.
SECTION X.7. Limitations on Actions by Bondholders No
Bondholder shall have any right to pursue any remedy hereunder
unless:
(a) the Trustee shall have been given written notice
of an Event of Default or the Trustee shall, pursuant to
Section 11.6, be deemed to have notice thereof,
(b) the Owners of a majority in principal amount of
all Bonds then Outstanding shall have requested the Trustee,
in writing, to exercise the powers hereinabove granted or to
pursue such remedy in its or their name or names,
(c) the Trustee shall have been offered indemnity
satisfactory to it against reasonable costs, expenses and
liabilities, including, without limitation, reasonable costs
and expenses of its counsel, except that no offer of
indemnification shall be required for a declaration of
acceleration under Section 10.2, and
(d) the Trustee shall have failed to comply with such
request within a reasonable time.
Notwithstanding the foregoing provisions of this Section or
any other provision of this Indenture, the obligation of the
Issuer shall be absolute and unconditional to pay hereunder, but
solely from the Revenues and other funds pledged under this
Indenture, the principal or redemption price of, and interest on,
the Bonds to the respective owners thereof on the respective due
dates thereof, and nothing herein shall affect or impair the
right of action, which is absolute and unconditional, of such
owners to enforce such payment.
SECTION X.8. Trustee May Enforce Rights Without Possession
of Bonds. All rights under the Indenture and the Bonds may be
enforced by the Trustee without the possession of any Bonds or
the production thereof at the trial or other proceedings relative
thereto, and any proceeding instituted by the Trustee shall be
brought in its name for the ratable benefit of the owners of the
Bonds.
SECTION X.9. Remedies Not Exclusive. No remedy herein
conferred is intended to be exclusive of any other remedy or
remedies, and each remedy is in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity
or by statute.
SECTION X.10. Delays and Omissions Not to Impair RightsNo
delays or omission in respect of exercising any right or power
accruing upon any default shall impair such right or power or be
a waiver of such default, and every remedy given by this Article
may be exercised from time to time and as often as may be deemed
expedient.
SECTION X.11. Application of Moneys in Event of Default.
Any moneys received by the Trustee under this Article shall be
applied in the following order:
(1) To the payment of all amounts due and owing the
Trustee under Section 11.7 hereof, including, but not
limited to, the reasonable costs and expenses of the Trustee
in pursuing remedies under this Article X, including
reasonable counsel fees, any disbursements of the Trustee
with interest thereon at the prime rate of the Trustee and
its reasonable compensation; and
(2) To the payment of principal or redemption price
(as the case may be) and interest then owing on the Bonds,
and in case such moneys shall be insufficient to pay the
same in full, then to the payment of principal or redemption
price and interest ratably, without preference or priority
of one over another or of any installment of interest over
any other installment of interest; and
(3) To the payment of reasonable costs and expenses of
the Issuer, including reasonable counsel fees, incurred in
connection with the Event of Default.
The surplus, if any, shall be paid to the Company.
Funds on deposit in the Bond Purchase Fund shall be applied
in accordance with Section 4.4 hereof.
SECTION X.12. Trustee and Bondholders Entitled to All
Remedies Under the Act. It is the purpose of this Article to
provide such remedies to the Trustee and the Bondholders as may
be lawfully granted under the provisions of the Act, but should
any remedy herein granted be held unlawful, the Trustee and the
Bondholders shall nevertheless be entitled to every other remedy
granted hereunder and every remedy provided by the Act. It is
further intended that, insofar as lawfully possible, the
provisions of this Article shall apply to and be binding upon any
trustee or receiver appointed under applicable law.
SECTION X.13. Waiver. In case of an Event of Default on
the part of the Issuer, as aforesaid, to the extent that such
rights may then lawfully be waived, neither the Issuer nor anyone
claiming through it or under it shall or will set up, claim, or
seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws now or hereafter in force, in order
to prevent or hinder the enforcement of this Indenture, but the
Issuer, for itself and all who may claim through or under it,
hereby waives, to the extent that it lawfully may do so, the
benefit of all such laws and all right of appraisement and
redemption to which it may be entitled under the laws of the
State of Louisiana.
<PAGE>
ARTICLE XI
THE TRUSTEE
SECTION XI.1. Duties of Trustee. (a) If an Event of
Default has occurred and is continuing, the Trustee shall
exercise its rights and powers and use the same degree of care
and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of
Default,
(i) the Trustee need perform only those duties
that are specifically set forth in this Indenture and
no others; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act
or its own willful misconduct, except that
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a responsible
officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with
respect to any action it takes or omits to take in good
faith in accordance with a direction received by it
pursuant to Section 10.6 hereof;
(iv) 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; and
(v) no provision of this Indenture shall require
the Trustee to provide a bond or other security with
respect to the performance of its duties under this
Indenture.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to all the paragraphs of
this Section.
(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense,
but the Trustee may not require indemnity as a condition to
declaring the principal of and interest on the Bonds to be
due immediately under Section 10.2 hereof.
SECTION XI.2. No Responsibility for Recitals, etc. The
recitals, statements and representations in this Indenture or in
the Bonds, save only the Trustee's Certificate of Authentication
upon the Bonds, have been made by the Issuer and not by the
Trustee; and the Trustee shall be under no responsibility for the
correctness thereof, or for the validity, priority, recording or
re-recording, filing or re-filing of this Indenture or the
Agreement or any financing statements, amendments thereto or
continuation statements, or for insuring the Facilities or
collecting any insurance moneys, or for the validity of the
execution by the Issuer of this Indenture or of any supplements
thereto or instruments of further assurance, or for the validity
or sufficiency of the security afforded by this Indenture or the
Bonds issued hereunder or intended to be secured hereby, or as to
the maintenance of the security hereof.
SECTION XI.3. Rights of Trustee. Subject to the foregoing
Section:
(a) The Trustee may rely on any document believed by
it to be genuine and to have been executed or presented by
the proper person. The Trustee need not investigate any
facts or matters stated in such document.
(b) Before the Trustee acts or refrains from acting,
it may require a certificate of an appropriate officer or
officers of the Issuer or the Company or a Favorable Opinion
of Bond Counsel or an opinion of counsel. The Trustee shall
not be liable for any action it takes or omits to take in
good faith in reliance on the certificate or such opinion of
counsel.
(c) The Trustee may execute any of its duties
hereunder through agents, attorneys-in-fact or co-trustees,
and shall not be responsible for the misconduct or
negligence of any agent, attorney-in-fact or co-trustee
selected by it with reasonable care.
SECTION XI.4. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or
pledgee of Bonds and may otherwise deal with the Issuer or with
the Company or its affiliates with the same rights it would have
if it were not Trustee. Any Paying Agent may do the same with
like rights.
SECTION XI.5. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture
or the Bonds and it shall not be responsible for any statement in
the Bonds other than its certificate of authentication.
SECTION XI.6. Notice of Defaults. The Trustee shall not be
required to take notice, or be deemed to have notice, of any
Event of Default under this Indenture, other than an Event of
Default under clause (a), (b) or (e) of Section 10.1 hereof (but,
with respect to an Event of Default under Section 10.1(e) hereof,
only to the extent that the Trustee has received notice thereof
from the Paying Agent) concerning which the Trustee shall be
deemed to have notice, unless the Trustee shall have been
specifically notified in writing of such an Event of Default. If
an Event of Default occurs and is continuing and if it is known
to or deemed to be known by the Trustee, the Trustee shall mail
to each Bondholder notice of the event within 90 days after it
occurs. Except in the case of a default in payment or purchase
of any Bonds, the Trustee may withhold the notice if and so long
as a committee of its responsible officers in good faith
determines that withholding the notice is in the interests of
Bondholders. If an Event of Default occurs or if an event occurs
which with the giving of notice or lapse of time or both would be
an Event of Default, the Trustee shall, immediately upon becoming
aware of such Event of Default or such event, give immediate
written notice thereof to the Remarketing Agent.
SECTION XI.7. Compensation of Trustee and Indemnity. (a)
For acting under this Indenture, the Trustee shall be entitled to
payment for its services and reimbursement of advances, counsel
fees and other expenses as shall be agreed to between the Trustee
and the Company or, in the absence of any such agreement, to
payment of such fees and expenses as may be reasonably made or
incurred by the Trustee and reasonable in amount in connection
with its services under this Indenture.
To secure the payment or reimbursement to the Trustee
provided for in this paragraph (a), the Trustee shall have a
prior lien on all money or property held or collected by the
Trustee, except moneys or obligations held in trust to pay
principal of, premium, if any, and interest on particular Bonds.
(b) Pursuant to the terms of Sections 4.4 and 4.5 of the
Refunding Agreement, the terms of which are incorporated herein
by reference, the Company will, among other things, indemnify and
hold the Trustee free and harmless from any loss, claim, damage,
tax, penalty, liability (including but not limited to liability
for any patent infringement), disbursement, litigation expenses,
attorneys' fees and expenses or court costs arising out of, or in
any way relating to, the execution or performance of the
Refunding Agreement, the issuance or sale of the Bonds, actions
taken under the Indenture, or any other cause whatsoever
pertaining to the Facilities, including without limitation,
recovery costs arising from the presence of hazardous substances,
except in any case as a result of the negligence or bad faith of
the Trustee.
SECTION XI.8. Eligibility of Trustee. This Indenture shall
always have a Trustee that is a corporation organized and doing
business under the laws of the United States or any state or the
District of Columbia, is authorized under such laws to exercise
corporate trust powers, is subject to supervision or examination
by United States or State authority and has a combined capital
and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition.
SECTION XI.9. Replacement of Trustee. The Trustee may
resign by notifying the Issuer and the Company. The owners of a
majority in principal amount of the Bonds then outstanding may
remove the Trustee by notifying the removed Trustee and may
appoint a successor Trustee with the Issuer's and Company's
consent. The Company may, with the consent of the Issuer (which
consent will not be unreasonably withheld), remove the Trustee so
long as no Event of Default (or any event which, with the passage
of time or the giving of notice or both, will become an Event of
Default) has occurred and is continuing. Notwithstanding the
foregoing, no resignation or removal of the Trustee shall be
effective until a successor is appointed.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Issuer, with the
consent of the Company, shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Issuer.
Immediately thereafter, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee, the
resignation or removal of the retiring Trustee shall then (but
only then) become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this
Indenture.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Issuer, the Company or the holders of a majority in
principal amount of the Bonds then outstanding may petition any
court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee no longer meets the qualifications in Section
11.8 hereof, any Bondholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.
SECTION XI.10. Merger of Trustee. Any corporation into
which any Trustee hereunder may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which any Trustee hereunder shall be a party,
shall be the successor trustee under the Indenture, without the
execution or filing of any paper or any further act on the part
of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION XI.11. Trustee Not Required to Expend or Risk Own
Funds. 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.
SECTION XI.12. Trust Estate may be Vested in Separate or Co-
Trustee. It is the purpose of this Indenture that there shall be
no violation of any law of any jurisdiction (including
particularly the law of the State) denying or restricting the
right of banking corporations or associations to transact
business as trustee in such jurisdiction. It is recognized that
in case of litigation under this Indenture or the Agreement, and
in particular in case of the enforcement of either on default, or
in case the Trustee deems that by reason of any present or future
law of any jurisdiction it may not exercise any of the powers,
rights or remedies herein granted to the Trustee or hold title to
the trust estate, in trust, as herein granted, or take any other
action which may be desirable or necessary in connection
therewith, it may be necessary that the Trustee appoint an
additional individual or institution as a separate or co-trustee.
The following provisions of this Section are adapted to these
ends.
In the event that the Trustee appoints an additional
individual or institution as a separate or co-trustee, each and
every remedy, power, right, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended
by this Indenture to be exercised by or vested in or conveyed to
the Trustee with respect thereto shall be exercisable by and
vested in such separate or co-trustee but only to the extent
necessary to enable such separate or co-trustee to exercise such
powers, rights and remedies, and every covenant and obligation
necessary to the exercise thereof by such separate or co-trustee
shall run to and be enforceable by either of them.
Should any deed, conveyance or instrument in writing from
the Issuer be required by the separate trustee or co-trustee so
appointed by the Trustee for more fully and certainly vesting in
and confirming to him such properties, rights, powers, trusts,
duties and obligations, any and all such deeds, conveyances and
instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer. In case any separate
trustee or co-trustee, or a successor to either, shall become
incapable of acting, resign or be removed, all the estate
properties, rights, powers, trusts, duties and obligations of
such separate trustee or co-trustee, so far as permitted by law,
shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate
trustee or co-trustee.
SECTION XI.13. Reliance Upon Counsel. The Trustee may
consult with counsel satisfactory to it, and the written opinion
of such counsel selected by the Trustee and reasonably acceptable
to the Company or any Favorable Opinion of Bond Counsel shall be
full and complete authorization and protection in respect of any
action taken or suffered by such Trustee hereunder in good faith
and in accordance with the opinion of such counsel.
<PAGE>
ARTICLE XII
THE REMARKETING AGENT AND THE PAYING AGENT
SECTION XII.1. The Remarketing Agent. (a) The initial
Remarketing Agent under this Indenture shall be Goldman, Sachs &
Co. The Remarketing Agent shall accept the duties and obliga
tions imposed on it under this Indenture pursuant to the
Remarketing Agreement.
(b) In addition to the other obligations imposed on the
Remarketing Agent hereunder, the Remarketing Agent shall agree to
keep such books and records as shall be consistent with prudent
industry practice and make such books and records available for
inspection by the Issuer, the Trustee and the Company at all
reasonable times.
(c) If at any time the Remarketing Agent is unable or
unwilling to act as Remarketing Agent, the Remarketing Agent,
upon 30 days' prior written notice to the Issuer, the Trustee,
the Paying Agent and the Company, may resign. The Remarketing
Agent may be removed at any time upon 5 days prior written notice
by the Company, by written notice signed by the Company delivered
to the Trustee and the Remarketing Agent, with a copy to the
Issuer. Upon resignation or removal of the Remarketing Agent,
the Company shall appoint a successor Remarketing Agent to act in
such capacity, and the Remarketing Agent shall assign and deliver
the Remarketing Agreement to the successor Remarketing Agent. No
resignation or removal will be effective until the successor has
delivered an acceptance of its appointment and the terms of the
Remarketing Agreement to the Trustee. Any successor Remarketing
Agent shall be a nationally recognized broker-dealer who engages
in the remarketing of securities similar to the Bonds and has
outstanding debt obligations assigned ratings no lower than
Baa3/P-3 or better by Moody's, if the Bonds are then rated by
Moody's, or BBB- by S&P, if the Bonds are then rated by S&P, or
be otherwise acceptable to Moody's, if the Bonds are then rated
by Moody's, and S&P, if the Bonds are then rated by S&P.
(d) In the event that the Company shall fail to appoint a
successor Remarketing Agent, upon the resignation or removal of
the Remarketing Agent or upon its dissolution, insolvency or
bankruptcy, the Trustee may either appoint a Remarketing Agent or
itself act as Remarketing Agent until the appointment of a
successor Remarketing Agent in accordance with this Section;
provided, however, that the Trustee, in its capacity as
Remarketing Agent, shall not be required to sell Bonds.
SECTION XII.2. The Paying Agent. (a) The Paying Agent
shall agree to
(i) hold all sums held by it for the payment of the
principal or redemption price of, or interest on, Bonds in
trust for the benefit of the owners of such Bonds until such
sums shall be paid to such owners or otherwise disposed of
as herein provided,
(ii) at any time during the continuance of any default
in the payment of principal or redemption price of or
interest on the Bonds, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent,
(iii) hold all Bonds delivered to it pursuant to
Sections 4.1 and 4.2, as agent and bailee of, and in escrow
for the benefit of, the respective owners thereof until
moneys representing the Purchase Price of such Bonds shall
have been delivered to or for the account of or to the order
of such owners;
(iv) hold all moneys (without investment thereof)
delivered to it hereunder for the purchase of Bonds pursuant
to Sections 4.1 and 4.2, as agent and bailee of, and in
escrow for, and for the benefit of, the person or entity
which shall have so delivered such moneys until the Bonds
purchased with such moneys shall have been delivered to or
for the account of such person or entity;
(v) hold Bonds for the account of the Company as
contemplated by Section 4.3 hereof; and
(vi) keep such books and records as shall be consistent
with prudent industry practice and to make such books and
records available for inspection by the Issuer, the Trustee
and the Company at all reasonable times.
(b) The Paying Agent shall be a corporation duly organized
under the laws of the United States of America or any state or
territory thereof, or a bank or trust company having a combined
capital stock, surplus and undivided profits of at least
$50,000,000 and authorized by law to perform all the duties
imposed upon it by this Indenture. The Paying Agent may at any
time resign and be discharged of the duties and obligations
created by this Indenture by giving at least 60 days' notice to
the Issuer, the Trustee, the Company and the Remarketing Agent.
In the event that the Issuer, at the request of the Company,
shall fail to appoint a successor Paying Agent, upon the
resignation or removal of the Paying Agent, the Trustee shall
either appoint a Paying Agent or itself act as Paying Agent until
the appointment of a successor Paying Agent. The Paying Agent
may be removed at any time by an instrument signed by the
Company, filed with the Issuer, the Trustee and the Remarketing
Agent.
In the event of the resignation or removal of the Paying
Agent, the Paying Agent shall deliver any Bonds and moneys held
by it in such capacity to its successor or, if there is no
successor, to the Trustee.
(c) The Paying Agent in performing its duties hereunder
shall be entitled to the same protective provisions in the
performance of its duties as are specified in Article XI of this
Indenture with respect to the Trustee hereunder to the same
extent and as fully for all intents and purposes as though the
Paying Agent had been expressly named therein in place of such
Trustee and as though the applicable provisions of Article XI of
this Indenture had been set forth herein at length.
SECTION XII.3. Notices. The Trustee shall, within 30 days
of the resignation or removal of the Remarketing Agent or the
Paying Agent or the appointment of a successor Remarketing Agent
or Paying Agent, give notice thereof by first class mail, postage
prepaid, to the owners of the Bonds.
<PAGE>
ARTICLE XIII
ACTS OF BONDHOLDERS; EVIDENCE OF OWNERSHIP
SECTION XIII.1. Acts of Bondholders; Evidence of
Ownership. Except as otherwise stated herein, any action to be
taken by Bondholders may be evidenced by one or more concurrent
written instruments of similar tenor signed or executed by such
Bondholders in person or by an agent appointed in writing. The
fact and date of the execution by any person of any such
instrument may be proved in any manner which the Trustee deems
sufficient. The ownership of the Bonds shall be proved by the
Bond Register. Any action by the owner of any Bond shall bind
all future owners of the same Bond in respect of anything done or
suffered by the Issuer or the Trustee in pursuance thereof.
<PAGE>
ARTICLE XIV
AMENDMENTS AND SUPPLEMENTS
SECTION XIV.1. Amendments and Supplements Without
Bondholders' Consent. This Indenture may be amended or
supplemented at any time and from time to time, without the
consent of the Bondholders, but with the consent of the
Remarketing Agent or the Paying Agent, as the case may be, if the
amendment or supplement would materially adversely affect or
alter the duties or obligations of the Remarketing Agent or the
Paying Agent under this Indenture, by a supplemental indenture
authorized by an ordinance of the Issuer and filed with the
Trustee, for one or more of the following purposes:
(a) to add additional covenants of the Issuer or to
surrender any right or power herein conferred upon the
Issuer;
(b) for any purpose not inconsistent with the terms of
this Indenture or to cure any ambiguity or to correct or
supplement any provision contained herein or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in
any supplemental indenture;
(c) to permit the Bonds to be converted to
certificateless securities or vice versa or securities
represented by a master certificate held in trust, ownership
of which, in either case, is evidenced by book entries on
the books of the Bond Registrar, for any period of time;
(d) to permit the appointment of a co-trustee under
this Indenture;
(e) to authorize different authorized denominations of
the Bonds and to make correlative amendments and modifica
tions to this Indenture regarding exchangeability of Bonds
of different authorized denominations, redemptions of
portions of Bonds of particular authorized denominations and
similar amendments and modifications of a technical nature;
(f) to modify, alter, supplement or amend this
Indenture in such manner as shall permit the qualification
hereof under the Trust Indenture Act of 1939, as from time
to time amended;
(g) to modify, alter, amend, supplement or restate the
Indenture in any and all respects necessary, desirable or
appropriate in connection with the delivery to the Trustee
of a letter of credit, liquidity facility, standby bond
purchase agreement or other security arrangement or credit
enhancement obtained or provided by the Company;
(h) to modify the provisions for optional redemption
set forth in Section 8.1(a)(ii) or extraordinary optional
redemption set forth in Section 8.1(b) at the commencement
of a Multiannual Rate Period; or
(i) to modify, alter, amend or supplement this
Indenture in any other respect which is not materially
adverse to the Bondholders and which does not involve a
change described in clauses (a) through (f) of Section 14.2.
Before the Issuer and the Trustee shall enter into any
supplemental indenture pursuant to this Section, there shall have
been delivered to the Trustee a Favorable Opinion of Bond Counsel
stating the requirements of such opinion and also stating that
such supplemental indenture will, upon the execution and delivery
thereof, be valid and binding upon the Issuer in accordance with
its terms.
SECTION XIV.2. Amendments With Bondholders' Consent. This
Indenture may be amended from time to time, except with respect
to (a) the principal, redemption price (except as provided in
Section 14.1(h)), Purchase Price and interest payable upon any
Bonds, (b) the Interest Payment Dates, the Maturity Date or the
redemption or purchase provisions of any Bonds (except as
provided in Section 14.1(h)), (c) this Article, (d) the creation
of any lien ranking prior to or on a parity with the lien of this
Indenture on the Trust Estate or any part thereof, except as
expressly permitted hereby, (e) a privilege or priority of any
Bond or Bonds over any other Bond or Bonds, and (f) depriving the
holder of any Bond then outstanding of the lien hereby created in
the Trust Estate, by a supplemental indenture consented to by the
Company, and if the amendment or supplement would materially
adversely affect or alter the duties or obligations of the
Remarketing Agent or the Paying Agent under this Indenture, with
the consent of the Remarketing Agent or the Paying Agent, as the
case may be, and approved by the owners of a majority in
aggregate principal amount of the Bonds then Outstanding which
would be affected by the action proposed to be taken. This
Indenture may be amended with respect to the matters enumerated
in clauses (a) through (f) of the preceding sentence with the
unanimous consent of all Bondholders, the Company and the Paying
Agent or the Remarketing Agent if required by the preceding
sentence of this Section.
Before the Issuer and the Trustee shall enter into any
supplemental indenture pursuant to this Section, there shall have
been delivered to the Trustee a Favorable Opinion of Bond Counsel
stating the requirements of such opinion and also stating that
such supplemental indenture will, upon the execution and delivery
thereof, be valid and binding upon the Issuer in accordance with
its terms.
Anything herein to the contrary notwithstanding, so long as
the Company is not in default under the Agreement, a supplemental
indenture under this Article which affects any right of the
Company shall not become effective unless and until the Company
shall have consented in writing to the execution and delivery of
such supplemental indenture.
SECTION XIV.3. Amendment of Agreement. The Issuer and the
Company may enter into, with the consent of the Trustee but
without the consent of the holders of the Bonds, any amendment,
change or modification of the Agreement to cure any ambiguity,
formal defect, omission or inconsistent provisions or to make any
other change that does not adversely affect the interests of the
Bondholders. If the Issuer and the Company propose to amend the
Agreement in such a manner as would adversely affect the
interests of the Bondholders, the Trustee shall notify
Bondholders of the proposed amendment and may consent thereto
with the consent of a majority in aggregate principal amount of
the Bonds then Outstanding which would be affected by the action
proposed to be taken; provided, that the Trustee shall not,
without the unanimous consent of the owners of all Bonds then
Outstanding, consent to any amendment which would (a) decrease
the Payments payable, or change the date Payments are so payable
by the Company under Section 4.2(a)(i), (ii), (iii) or (iv) of
the Agreement, (b) reduce the stated term of the Agreement, (c)
reduce the Company's obligations under Section 4.2 of the
Agreement, or (d) reduce the aforesaid aggregate principal amount
of the Bonds, the owners of which are required to consent to such
an amendment.
Before the Issuer and the Company enter into, or otherwise
agree to, any amendment, change or modification of the Agreement
pursuant to this Section, there shall have been delivered to the
Trustee a Favorable Opinion of Bond Counsel stating the
requirements of such opinion and also stating that such
amendment, change or modification will, upon the execution and
delivery thereof, be valid and binding upon the Issuer in
accordance with its terms.
SECTION XIV.4. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel. The Trustee is authorized to
join with the Issuer in the execution and delivery of any supple
mental indenture or amendment permitted by this Article and in so
doing shall be fully protected by a Favorable Opinion of Bond
Counsel that such supplemental indenture or amendment is so
permitted and has been duly authorized by the Issuer and that all
things necessary to make it a valid and binding agreement have
been done.
<PAGE>
ARTICLE XV
DEFEASANCE
SECTION XV.1. Defeasance. (a) If the Issuer shall pay or
cause to be paid to the holders and owners of the Bonds the
principal of, premium, if any, and interest to become due thereon
at the times and in the manner stipulated therein, and if the
Issuer shall keep, perform and observe all and singular the
covenants and promises in the Bonds and in this Indenture
expressed as to be kept, performed and observed by it on its part
and shall pay or cause to be paid or provide for the payment of
all other sums payable hereunder by the Issuer, then these
presents and the estate and rights hereby granted shall cease,
terminate and be void, and thereupon the Trustee shall cancel and
discharge the lien of this Indenture, and execute and deliver to
the Issuer such instruments in writing as shall be requisite to
satisfy the lien hereof, and reconvey to the Issuer the estate
hereby conveyed, and assign and deliver to the Issuer any
property at the time subject to the lien of this Indenture which
may then be in its possession, except moneys or Government
Securities held by it for the payment of the principal of,
premium, if any, and interest on the Bonds.
(b) Provision for the payment of Bonds shall be deemed to
have been made when the Trustee holds in the Bond Fund, in trust
and irrevocably set aside exclusively for such payment, (i)
moneys sufficient to make such payment and any payment of the
Purchase Price of Bonds pursuant to Sections 4.1 and 4.2; and/or
(ii) noncallable, nonprepayable Government Securities (provided
that in either case the Trustee shall have received a Favorable
Opinion of Bond Counsel) maturing as to principal and interest in
such amounts and at such times as will provide sufficient moneys
(without consideration of any reinvestment thereof) to make such
payment and any payment of the Purchase Price of Bonds pursuant
to Sections 4.1 and 4.2, and which are not subject to prepayment,
redemption or call prior to their stated maturity; provided that
the Trustee, S&P and Moody's shall have received a Favorable
Opinion of Bond Counsel to the effect that the Bonds are defeased
in accordance with the requirements of this Article.
No Bonds in respect of which a deposit under clause (i) or
(ii) above has been made shall be deemed paid within the meaning
of this Article unless the Trustee is satisfied that the amounts
deposited are sufficient to make all payments that might become
due on the Bonds, with respect to which the Trustee shall rely on
a certificate of independent certified public accountants, a copy
of which certificate shall also be furnished to Moody's, if the
Bonds are then rated by Moody's; provided that, notwithstanding
any other provision of this Indenture, any Bonds purchased with
such moneys pursuant to Section 4.3 shall be surrendered to the
Trustee for cancellation and shall not be remarketed, and
provided further that the Issuer shall, as a condition to
defeasance, obtain written evidence from S&P, if the Bonds are
then rated by S&P, and Moody's, if the Bonds are then rated by
Moody's, that such defeasance will not result in a reduction or
withdrawal of the then current rating on the Bonds. Neither the
obligations nor moneys deposited with the Trustee pursuant to
this Section shall be withdrawn or used for any purpose other
than, and shall be segregated and held in trust for, the payment
of the principal, redemption price or purchase price of and
interest on the Bonds with respect to which such deposit has been
made. In the event that such moneys or obligations are to be
applied to the payment of principal or redemption price of any
Bonds more than 60 days following the deposit thereof with the
Trustee, the Trustee shall mail a notice to the owners of the
Bonds to be redeemed or deemed paid, stating that such moneys or
obligations have been deposited and identifying the Bonds for the
payment of which such moneys or obligations are being held to all
owners of Bonds for the payment of which such moneys or
obligations are being held at their registered addresses and to
S&P, if the Bonds are then rated by S&P, and Moody's, if the
Bonds are then rated by Moody's.
(c) Anything in Article XV to the contrary notwithstanding,
if moneys or Government Securities have been deposited or set
aside with the Trustee pursuant to this Article for the payment
of the principal or redemption price of the Bonds and the
interest thereon and the principal or redemption price of such
Bonds and the interest thereon shall not have in fact been
actually paid in full, no amendment to the provisions of this
Article shall be made without the consent of the owner of each of
the Bonds affected thereby.
The Issuer or the Company may at any time surrender to the
Trustee for cancellation by it any Bonds previously authenticated
and delivered hereunder, which the Issuer or the Company may have
acquired in any manner whatsoever, and such Bonds, upon such
surrender and cancellation, shall be deemed to be paid and
retired.
<PAGE>
ARTICLE XVI
MISCELLANEOUS
SECTION XVI.1. No Personal Recourse. No recourse shall be
had for any claim based on the Agreement, the Indenture or the
Bonds against any member, officer or employee, past, present or
future, of the Issuer or of any successor body as such, either
directly or through the Issuer or any such successor body, under
any constitutional provision, statute or rule of law or by the
enforcement of any assessment or by any legal or equitable
proceeding or otherwise.
SECTION XVI.2. Deposit of Funds for Payment of Bonds. If
the principal or redemption price of any Bonds becoming due,
either at the Maturity Date or by call for redemption or
otherwise, together with all interest accruing thereon to the due
date, has been paid or provision therefor made in accordance with
Section 15.1, all interest on such Bonds shall cease to accrue on
the due date and all liability of the Issuer with respect to such
Bonds shall likewise cease, except as hereinafter provided.
Thereafter the owners of such Bonds shall be restricted
exclusively to the funds so deposited for any claim of whatsoever
nature with respect to such Bonds, and the Trustee shall hold
such funds in trust for such owners.
SECTION XVI.3. Effect of Purchase of Bonds. No purchase of
Bonds pursuant to Article IV shall be deemed to be a payment or
redemption of such Bonds or any portion thereof and such purchase
will not operate to extinguish or discharge the indebtedness
evidenced by such Bonds unless such Bonds are purchased by the
Company and delivered to the Trustee for cancellation.
SECTION XVI.4. No Rights Conferred on Others. Nothing
herein contained shall confer any right upon any person other
than the parties hereto, the Company and the owners of the Bonds.
SECTION XVI.5. Severability. If any term or provision of
this Indenture or the Bonds or the application thereof for any
reason or circumstance shall to any extent be held invalid or
unenforceable, the remaining provisions or the application of
such term or provision to persons and situations other than those
as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision hereof and thereof
shall be valid and enforced to the fullest extent permitted by
law.
SECTION XVI.6. Notices. Unless otherwise provided hereunder
or in the Agreement, all notices, certificates or other
communications hereunder to be given by any of the following
parties to any of the other following parties shall be deemed to
have been sufficiently given and received by such parties and if
sent by registered mail, by Electronic Notice, by telephone,
confirmed in writing, to the relevant party as follows:
Company: Entergy Louisiana, Inc.
c/o Entergy Services, Inc.
639 Loyola Avenue
New Orleans, LA 70113
Attention: Treasurer
Telephone number: (504) 576-4363
FAX number: (504) 576-4455
Issuer: Parish of St. Charles
P. O. Box 302
Hahnville, LA 70057
Attention: Secretary, Parish Council
Telephone number: (504) 783-5000
FAX number: (504) 783-2067
Trustee,Paying The Bank of New York
Agent, Bond c/o The Bank of New York Trust
Company of Florida, N. A.
Registrar: Tower Marc Plaza
10161 Centurion Parkway
Jacksonville, FL 32256
Attention: Corporate Trust Department
Telephone number: (904) 645-1846
FAX number: (904) 645-1979
Any Paying
Agent other
than the
Trustee: At the address designated to the
Issuer and the Trustee
Remarketing
Agent: Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Municipal Bond Department - Short-
Term Desk
Telephone number: (212) 902-6582
FAX number: (212) 902-3065
All notices or other communications by the Trustee to any
Bondholder hereunder shall be deemed to have been sufficiently
given and received by such Bondholder upon the mailing thereof by
first class mail.
The Issuer, the Company, the Trustee, the Paying Agent, the
Remarketing Agent and the Bond Registrar may, by notice given
hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be
sent.
SECTION XVI.7. Successors and Assigns. All the covenants,
promises and agreements in this Indenture contained by or on
behalf of the Issuer, or by or on behalf of the Trustee, shall
bind and inure to the benefit of their respective successors and
assigns, whether so expressed or not.
SECTION XVI.8. Headings for Convenience Only. The
descriptive headings in this Indenture are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
SECTION XVI.9. Counterparts. The Indenture may be executed
in any number of counterparts, each of which when so executed and
delivered shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION XVI.10. Applicable Law. This Indenture shall be
governed by and construed in accordance with the laws of the
State.
SECTION XVI.11. Notice of Change. The Trustee shall
give notice to Moody's (if the Bonds are then rated by Moody's)
at 99 Church Street, New York, NY 10007, Attention: Structured
Transactions Group, Corporate Department, and S&P (if the Bonds
are then rated by S&P) at 55 Water Street, New York, NY 10041, of
any of the following events:
(a) a change in the Trustee or Paying Agent;
(b) a change in the Remarketing Agent;
(c) an amendment to the Indenture or the Agreement;
and
(d) payment or provision therefor of all the Bonds.
SECTION XVI.12. Payments Due on Non-Business Days. In
any case where the date of payment of interest on or principal of
any Bonds or the date fixed for redemption of any Bonds or any
Purchase Date shall not be a Business Day, then payment of such
interest or principal and any premium or Purchase Price need not
be made by such Paying Agent on such date but may be made on the
next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption or
the Purchase Date, and no interest shall accrue for the period
after such date.
IN WITNESS WHEREOF, the Issuer has caused these presents to
be signed in its name and behalf by the Parish President and its
corporate seal to be hereunto affixed and attested by the
Secretary of the St. Charles Parish Council, and, to evidence its
acceptance of the trust hereby created, the Trustee has caused
these presents to be signed in its behalf by one of its Agents
and its corporate seal to be hereto affixed.
PARISH OF ST. CHARLES,
STATE OF LOUISIANA
By:_____________________________
ATTEST: Parish President
By: __________________________________ [SEAL]
Secretary
St. Charles Parish Council
THE BANK OF NEW YORK,
as Trustee
By:_____________________________
Agent
[SEAL]
<PAGE>
EXHIBIT A
TO TRUST INDENTURE
[FORM OF SERIES 1999-C BOND]
No. R-1 $110,950,000
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to The Bank of New York, as Trustee, for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
As provided in the Trust Indenture referred to herein, until the
termination of the system of book-entry-only transfers through
DTC, and notwithstanding any other provision of the Trust
Indenture to the contrary, this Bond may be transferred, in whole
but not in part, only to a nominee of DTC, or by a nominee of DTC
to DTC or a nominee of DTC, or by DTC or a nominee of DTC to any
successor securities depository or any nominee thereof.
THIS BOND IS SUBJECT TO MANDATORY TENDER FOR PURCHASE AT THE TIME
AND IN THE MANNER HEREINAFTER DESCRIBED AND MUST BE SO TENDERED
OR WILL BE DEEMED TO HAVE BEEN SO TENDERED UNDER CERTAIN
CIRCUMSTANCES AS DESCRIBED HEREIN.
United States of America
State of Louisiana
Parish of St. Charles, State of Louisiana
Pollution Control Revenue Refunding Bond
(Entergy Louisiana, Inc. Project)
Series 1999-C
Maturity Date: October 1, 2029 CUSIP NO. ______________
Registered Owner: Cede & Co. (Tax Identification #13-2555119)
Date of this Bond: ___________, 1999
Principal Amount: $110,950,000
Type of Rate Period: ____________
Last Day of Commercial Paper Rate Period* ______________
Interest Rate* ___________
Number of Days in Period* _________ Interest Due at End
of Period* _____________
Type of Rate Period if other than Commercial Paper _________
_______
_______________________
* Complete only for Bonds accruing interest at Commercial
Paper Rates while a system of book-entry-only transfers is
not in effect
The Parish of St. Charles, State of Louisiana, a political
subdivision of the State of Louisiana, organized and existing
under and by virtue of the laws of the State of Louisiana (the
"Issuer"), for value received, hereby promises to pay (but only
out of the sources hereinafter mentioned) to the Registered Owner
set forth above, or registered assigns, but solely from the
source and in the manner hereinafter set forth, on the Maturity
Date, unless this Bond shall have been called for earlier
redemption in whole or in part, upon surrender hereof, the
Principal Amount set forth above and in like manner to pay
interest thereon at the rate determined as herein provided from
the most recent Interest Payment Date (hereinafter defined) to
which interest has been paid in full or duly provided for, or
from the date of authentication hereof if such date is on an
Interest Payment Date to which interest has been paid or duly
provided for, or from the Issue Date specified above if no
interest has been paid or duly provided for, such payments of
interest to be made on each Interest Payment Date until the
principal or redemption price hereof has been paid or duly
provided for as aforesaid. Overdue installments of interest on
the Bonds, if any, shall not bear interest. The principal or
redemption price of and interest on this Bond may be paid in any
coin or currency of the United States of America which, at the
time of payment, is legal tender for the payment of public or
private debts. The principal or redemption price of (and related
interest on) this Bond (or of a portion of this Bond, in the case
of a partial redemption) is payable to the Registered Owner
hereof in immediately available funds upon presentation and
surrender hereof at the Principal Office of The Bank of New York,
or its successor, as paying agent (the "Paying Agent"), under the
Trust Indenture (Series 1999-C) dated as of October 1, 1999 (the
"Indenture") between the Issuer and The Bank of New York, or its
successor, as trustee (the "Trustee") securing the series of
Bonds of which this Bond is one.
So long as the Bonds are held in book-entry-only form, all
payments of interest on Bonds shall be payable for the
immediately preceding Interest Period and will be paid to the
Registered Owner hereof whose name appears on the registration
books kept by the Bond Registrar as of the applicable Regular or
Special Record Dates in immediately available funds by wire
transfer to a bank within the continental United States or
deposited to a designated account if such account is maintained
with the Paying Agent as directed by the Registered Owner in
writing or as otherwise directed in writing; otherwise all
payments of interest on the Bonds (except at the Maturity Date or
at redemption of the Bonds) shall be paid by check mailed to the
address of the Registered Owner, as such address shall appear on
the books maintained by the Bond Registrar. The Regular Record
Date for any Interest Payment Date shall be the close of business
on the day (whether or not a Business Day) immediately preceding
an Interest Payment Date, except that, while this Bond accrues
interest at a Multiannual Rate (as described herein), the Regular
Record Date shall be the close of business on the 15th day
(whether or not a Business Day) of the calendar month immediately
preceding such Interest Payment Date. Any interest on any Bond
which is payable, but is not punctually paid or provided for, on
any Interest Payment Date (except on the Maturity Date) and
within any applicable grace period (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Registered
Owner hereof on the relevant Regular Record Date by virtue of
having been such Registered Owner, and such Defaulted Interest
shall be paid to the person in whose name this Bond is registered
at the close of business on a Special Record Date to be fixed by
the Trustee, such date to be no more than 15 nor fewer than 10
days prior to the date of proposed payment. This Bond is
registered as to both principal and interest on the registration
books kept by the Bond Registrar and may be transferred or
exchanged, subject to the further conditions specified in the
Indenture, only upon surrender hereof at the office of the Bond
Registrar. Capitalized terms not otherwise defined herein shall
have the meanings specified therefor in the Indenture.
The principal, redemption price, premium or Purchase Price
of and interest on the Bonds are payable solely from the funds
pledged therefor pursuant to the Indenture. The Bonds do not now
and shall never constitute an indebtedness or a pledge of the
general credit of the Issuer or the State of Louisiana within the
meaning of any constitutional or statutory provision and shall
never be paid in whole or in part out of any funds raised or to
be raised by taxation or any other funds of the Issuer.
This Bond is one of a duly authorized issue of revenue bonds
of the Issuer issued in the aggregate principal amount of
$110,950,000 designated "Parish of St. Charles, State of
Louisiana Pollution Control Revenue Refunding Bonds (Entergy
Louisiana, Inc. Project) Series 1999-C" (the "Bonds") issued
under the Indenture. The Bonds are being issued by the Issuer
pursuant to and in full compliance with the Constitution and laws
of the State, including particularly Chapter 14-A of Title 39 of
the Louisiana Revised Statutes of 1950, as amended (the "Act"),
for the purpose of refunding a like principal amount of the
Issuer's (i) Pollution Control Revenue Bonds (Louisiana Power &
Light Company Project) Series 1977 (the "1977 Bonds") issued in
the original principal amount of $4,000,000 (of which $3,385,000
are currently outstanding), which 1977 Bonds were issued on
behalf of Entergy Louisiana, Inc., a Louisiana corporation
(formerly Louisiana Power & Light Company) (the "Company"), to
finance the cost of acquiring certain pollution control
facilities at the Little Gypsy Steam Electric Generating Station
(the "Little Gypsy Station") and Units 1 and 2 of the Waterford
Steam Electric Generating Station (the "Waterford Station") of
the Company, (ii) Pollution Control Revenue Bonds (Louisiana
Power & Light Company Project) Series 1979 (the "1979 Bonds")
issued in the original principal amount of $3,000,000 (of which
$2,565,000 are currently outstanding), which 1979 Bonds were
issued on behalf of the Company to finance the cost of acquiring
certain pollution control facilities at the Little Gypsy Station
and Units 1 and 2 of the Waterford Station, and (iii)
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Louisiana
Power & Light Company Project) Second Series 1984 (the "1984
Bonds") issued in the original principal amount of $105,000,000
(all of which are currently outstanding), which 1984 Bonds were
issued on behalf of the Company to finance the cost of acquiring
certain pollution control facilities and solid waste disposal
facilities at Unit 3 (Nuclear) of the Waterford Station. The
Little Gypsy Station and the Waterford Station are herein
collectively called the "Plant". Pursuant to a Refunding
Agreement (Series 1999-C) dated as of October 1, 1999 (the
"Refunding Agreement") between the Issuer and the Company, the
Company has agreed to make Payments in an amount sufficient to
pay the principal and Purchase Price of, premium, if any, and
interest on the Bonds as they become due and payable whether at
the maturity thereof or upon acceleration, redemption, purchase
or otherwise in accordance with the provisions of the Indenture.
Such payments will be made directly to the Trustee and deposited
in the Bond Fund and such payments have been duly assigned to the
Trustee for that purpose. All the rights and interests of the
Issuer under, in and to the Refunding Agreement (except for
certain rights specified in the Indenture) have been assigned
under the Indenture to the Trustee to secure the payment of the
principal and Purchase Price of, premium, if any, and interest on
the Bonds.
The Bonds are payable solely from and secured by a pledge of
the Trust Estate, which includes, among other things, (i) all of
the right, title and interest of the Issuer in and to the
Revenues, (ii) the Refunding Agreement and all right, title and
interest of the Issuer under and pursuant to the Refunding
Agreement, insofar as they relate to all the Bonds issued and
outstanding under the Indenture (except for the indemnification
and expense reimbursement rights and other rights contained in
the Refunding Agreement and any rights of the Issuer to receive
notices, certificates, requests, requisitions, directions and
other communications under the Refunding Agreement), including,
without limitation, Payments to be received under and pursuant to
and subject to the provisions of the Refunding Agreement, and
(iii) all amounts on deposit in the Bond Fund or other funds
created under the Indenture other than the Bond Purchase Fund.
Except as otherwise specified in the Indenture, this Bond is
entitled to the benefits of the Indenture equally and ratably
both as to principal (Purchase Price and redemption price,
including premium) and interest with all other Bonds issued under
the Indenture, to which reference is made for a description of
the rights of the owners of the Bonds; the rights and obligations
of the Issuer; the rights, duties and obligations of the Trustee;
and the provisions relating to amendments to and modifications of
the Indenture, to all of which the Registered Owner of this Bond
assents by acceptance of this Bond. Reference is also hereby
made to the Refunding Agreement for the provisions, among others,
with respect to the nature and extent of the rights, duties and
obligations thereunder of the Issuer, the Trustee and the Company
and the modification or amendment of the Refunding Agreement.
FOR SO LONG AS THIS BOND IS HELD IN BOOK-ENTRY FORM
REGISTERED IN THE NAME OF CEDE & CO. ON THE REGISTRATION BOOKS OF
THE ISSUER KEPT BY THE TRUSTEE, AS BOND REGISTRAR, THIS BOND, IF
CALLED FOR PARTIAL REDEMPTION IN ACCORDANCE WITH THE INDENTURE,
SHALL BECOME DUE AND PAYABLE ON THE REDEMPTION DATE DESIGNATED IN
THE NOTICE OF REDEMPTION GIVEN IN ACCORDANCE WITH THE INDENTURE
AT, AND ONLY TO THE EXTENT OF, THE REDEMPTION PRICE, PLUS ACCRUED
INTEREST, IF ANY, TO THE SPECIFIED REDEMPTION DATE; AND THIS BOND
SHALL BE PAID, TO THE EXTENT SO REDEEMED, (i) UPON PRESENTATION
AND SURRENDER THEREOF AT THE OFFICE SPECIFIED IN SUCH NOTICE OR
(ii) AT THE WRITTEN REQUEST OF CEDE & CO., BY CHECK OR DRAFT
MAILED TO CEDE & CO. BY THE TRUSTEE OR BY WIRE TRANSFER TO CEDE
& CO. BY THE TRUSTEE IF CEDE & CO. AS BONDOWNER SO ELECTS. IF,
ON THE REDEMPTION DATE, MONEYS FOR THE REDEMPTION OF BONDS TO BE
REDEEMED, TOGETHER WITH INTEREST TO THE REDEMPTION DATE, SHALL BE
HELD BY THE TRUSTEE SO AS TO BE AVAILABLE THEREFOR ON SUCH DATE,
AND AFTER NOTICE OF REDEMPTION SHALL HAVE BEEN GIVEN IN
ACCORDANCE WITH THE INDENTURE, THEN, FROM AND AFTER THE
REDEMPTION DATE, THE AGGREGATE PRINCIPAL AMOUNT OF THIS BOND
SHALL BE IMMEDIATELY REDUCED BY AN AMOUNT EQUAL TO THE AGGREGATE
PRINCIPAL AMOUNT THEREOF SO REDEEMED, NOTWITHSTANDING WHETHER
THIS BOND HAS BEEN SURRENDERED TO THE TRUSTEE FOR CANCELLATION.
If an Event of Default occurs, the principal of all Bonds
issued under the Indenture may become due and payable upon the
conditions and in the manner and with the effect provided in the
Indenture.
No recourse shall be had for the payment of the principal,
Purchase Price or redemption price of, premium, if any, or
interest on, this Bond, or for any claim based hereon or on the
Indenture, against any member, officer or employee, past, present
or future, of the Issuer or of any successor body, as such,
either directly or through the Issuer or any such successor body,
under any constitutional provision, statute or rule of law, or by
the enforcement of any assessment or by any legal or equitable
proceeding or otherwise.
Interest on the Bonds
The Bonds shall initially accrue interest at the Multiannual
Rate herein described, and will be subject to conversion as
herein provided. The rate of interest applicable to any Rate
Period shall be determined in accordance with the applicable
provisions of the Indenture but shall not exceed 12% per annum.
The amount of interest so payable on any Interest Payment Date
shall be computed (a) on the basis of a 365- or 366-day year, as
appropriate, for the actual number of days elapsed during Daily
Rate Periods, Commercial Paper Rate Periods or Weekly Rate
Periods and (b) on the basis of a 360-day year of twelve 30-day
months during Multiannual Rate Periods.
"Rate Period" shall mean the period during which a
particular rate of interest determined for the Bonds is to remain
in effect pursuant to the Indenture. The rates of interest for
the Bonds, which will be determined by the Remarketing Agent, are
as follows:
Commercial Paper Rate
While the Bonds accrue interest at Commercial Paper Rates,
the interest rate for each particular Bond will be determined by
the Remarketing Agent as the minimum rate of interest necessary,
in the judgment of the Remarketing Agent, to enable the
Remarketing Agent to sell such Bond on that day at a price equal
to the principal amount thereof, and with respect to Commercial
Paper Rates, the Remarketing Agent shall determine the Commercial
Paper Rate and the Commercial Paper Rate Period for each Bond at
such rate and for such period as it deems advisable in order to
minimize the net interest cost on the Bonds, taking into account
prevailing market conditions. While the Bonds are in the
Commercial Paper Rate mode, Bonds may have successive Commercial
Paper Rate Periods of any duration up to 270 days each and any
Bond may accrue interest at a rate and for a period different
from any other Bond. No Commercial Paper Rate Period may be
established which exceeds 270 days or, if the Remarketing Agent
has given or received notice of any conversion to a Multiannual
Rate Period, the remaining number of days prior to the Conversion
Date or, if the Remarketing Agent has given or received notice of
any conversion to a Daily Rate or Weekly Rate, the length of each
Commercial Paper Rate Period for each Bond shall be determined by
the Remarketing Agent to be either (A) that length of period
that, as soon as possible, shall enable the Commercial Paper Rate
Periods for all Bonds to end on the day before the Conversion
Date, or (B) that length of period which, based on the
Remarketing Agent's judgment, will best promote an orderly
transition to the next Rate Period.
Daily Rate
While the Bonds accrue interest at a Daily Rate, the
interest rate established for the Bonds will be effective from
day to day until changed by the Remarketing Agent in accordance
with the Indenture.
Weekly Rate
While the Bonds accrue interest at a Weekly Rate, the rate
of interest on the Bonds will be determined weekly by the
Remarketing Agent in accordance with the Indenture to be
effective for a seven day period commencing on Wednesday of the
week of such determination. The length of the period, the day of
commencement and the last day of the period may vary in the event
of a conversion to or from a Weekly Rate as provided in the
Indenture.
Multiannual Rate
While the Bonds accrue interest at a Multiannual Rate, the
interest rate will be determined by the Remarketing Agent in
accordance with the Indenture to remain in effect for a term of
twelve calendar months or any whole multiple thereof selected by
the Company (except for a Multiannual Rate Period ending on the
Maturity Date), provided, however, that the initial Multiannual
Rate Period shall commence on the Issue Date and end on September
30, 2003 and shall be succeeded by Multiannual Rate Periods of
four (4) years unless and until the Rate Period for the Bonds is
converted to a different Rate Period or to a Multiannual Rate
Period of a different duration pursuant to the Indenture. Except
as set forth above or until the Maturity Date, each Multiannual
Rate Period shall be followed by another Multiannual Rate Period
of the same duration until the Rate Period of the Bonds is
converted to another Rate Period or a Multiannual Rate Period of
a different duration. The Rate Period established will remain in
effect until changed by the Company, in accordance with the
Indenture.
Authorized Denominations
Bonds which accrue interest at Commercial Paper Rates will
be issued in denominations of $100,000 and any integral multiples
of $1,000 in excess thereof. Bonds which accrue interest at a
Daily or Weekly Rate will be issued in denominations of $100,000
and whole multiples thereof. Bonds which accrue interest at a
Multiannual Rate will be issued in denominations of $5,000 and
whole multiples thereof.
Optional Tenders
While this Bond accrues interest at a Daily or Weekly Rate,
the Registered Owner of this Bond has the right to tender this
Bond for purchase at the Purchase Price as follows: (i) during a
Daily Rate Period on any Business Day upon written or Electronic
notice given to the Paying Agent prior to 11:00 a.m., New York
City time, on the Purchase Date, and (ii) during a Weekly Rate
Period on any Business Day upon written or Electronic notice
given to the Paying Agent on or prior to 5:00 p.m., New York City
time, on a Business Day not fewer than seven days prior to the
Purchase Date.
Mandatory Tenders
While this Bond accrues interest at a Commercial Paper Rate,
this Bond is subject to mandatory tender on each Interest Payment
Date applicable to this Bond at a Purchase Price equal to 100% of
the principal amount thereof.
This Bond is also subject to mandatory tender on the
effective date of a change from one Rate Period to a different
Rate Period (except for changes between a Daily Rate and Weekly
Rate) or a change from a Multiannual Rate Period to a Multiannual
Rate Period of different duration at the Purchase Price.
While this Bond accrues interest at a Multiannual Rate, this
Bond is subject to mandatory tender for purchase on the Interest
Payment Date following the end of each Multiannual Rate Period at
a Purchase Price equal to 100% of the principal amount thereof.
BY ACCEPTANCE OF THIS BOND, THE REGISTERED OWNER HEREOF
AGREES THAT THIS BOND WILL BE PURCHASED, WHETHER OR NOT SURREN
DERED, ON THE PURCHASE DATE AS DESCRIBED ABOVE. IN SUCH EVENT,
THE REGISTERED OWNER OF THIS BOND SHALL NOT BE ENTITLED TO
RECEIVE ANY FURTHER INTEREST HEREON, SHALL HAVE NO FURTHER RIGHTS
UNDER THIS BOND OR THE INDENTURE EXCEPT TO RECEIVE PAYMENT OF THE
PURCHASE PRICE HELD THEREFOR, AND SHALL THEREAFTER HOLD THIS BOND
AS AGENT FOR THE PAYING AGENT.
The initial Remarketing Agent under the Indenture is
Goldman, Sachs & Co. The Remarketing Agent may be changed at any
time in accordance with the Indenture.
Written Notice of Rate Period Change
The Trustee shall give notice, by first class mail, to the
Registered Owners of all Bonds of the proposed conversion from
one Rate Period to another Rate Period at least 15 days before
the proposed Conversion Date while the Bonds accrue interest at
Commercial Paper, Daily or Weekly Rates, and at least 30 days
before the proposed Conversion Date while the Bonds accrue
interest at a Multiannual Rate.
Written Notice of Mandatory Tender
The Trustee shall give notice, by first class mail, to the
Registered Owners of the mandatory tender of Bonds accruing
interest at a Multiannual Rate not less than 30 days before the
tender date.
Interest Payment Dates
While this Bond accrues interest at a Commercial Paper Rate,
interest is payable on the day after the last day of each
Commercial Paper Rate Period. While this Bond accrues interest
at Daily or Weekly Rates, interest is payable on the first
Business Day of each calendar month following a month in which
interest at such rate has accrued. While this Bond accrues
interest at a Multiannual Rate, interest is payable on each April
1 and October 1, and after any Multiannual Rate Conversion Date
or the commencement date of a Multiannual Rate Period preceded by
a Multiannual Rate Period of the same duration, the first day of
the sixth calendar month following the month in which such
Multiannual Rate Conversion Date or such commencement date occurs
and the first day of each sixth month thereafter to which
interest at such rate has accrued and the day after the last day
of each Multiannual Rate Period, except that the last Interest
Payment Date for any Multiannual Rate Period which is followed by
a Commercial Paper, Daily or Weekly Rate Period shall be the
first Business Day of the sixth month following the preceding
Interest Payment Date. Interest is also payable on the Maturity
Date.
Optional Redemption
During any Commercial Paper, Daily or Weekly Rate Period,
this Bond is subject to optional redemption on any Interest
Payment Date (with respect to a Bond accruing interest at a
Commercial Paper Rate, on the Interest Payment Date applicable to
that Bond) at an optional redemption price equal to 100% of the
principal amount being redeemed, together with accrued interest
to the redemption date.
During any Multiannual Rate Period, this Bond is subject to
optional redemption (i) at any time on and after the dates and at
the optional redemption prices (expressed as percentages of the
principal amount being redeemed) set forth below plus accrued
interest, if any, to the redemption date and (ii) on the day
after the end of each Multiannual Rate Period at the redemption
price of 100% of the principal amount being redeemed, plus
accrued interest, if any, to the redemption date:
Length of Commencement
Multiannual of Multiannual
Rate Period Redemption Period Redemption Price
Greater than or Fifth anniversary of 102%, declining 1%
equal to 6 years the commencement of on each succeeding
Multiannual Rate Period anniversary of the
first day of the
redemption period
until reaching
100% and thereafter
at 100%
Less than 6 years Bonds not subject to
optional redemption
until commencement
of next Multiannual
Rate Period
Extraordinary Optional Redemption
While accruing interest at a Multiannual Rate, this Bond
shall be subject to extraordinary optional redemption by the
Issuer, at the direction of the Company, in whole but not in
part, at any time, at a redemption price equal to 100% of the
principal amount being redeemed plus accrued interest to the
redemption date, if:
(i)the Company shall have determined that the continued
operation of the Facilities or the Plant is impracticable,
uneconomical or undesirable for any reason;
(ii) all or substantially all of the Facilities or the
Plant shall have been condemned or taken by eminent domain;
or
(iii) the operation of the Facilities or the Plant shall
have been enjoined or shall have otherwise been prohibited
by any order, decree, rule or regulation of any court or of
any federal, state or local regulatory body, administrative
agency or other governmental body.
In addition, if the Bonds accrue interest at a Multiannual
Rate, the Bonds shall be subject to extraordinary optional
redemption by the Issuer, at the direction of the Company, in
whole or in part, at any time prior to the first date on which
the Bonds are subject to redemption pursuant to the Indenture, at
a redemption price equal to 102% of the principal amount being
redeemed plus accrued interest to the redemption date, if the
Company delivers to the Trustee a written certificate (i) to the
effect that by reason of a change in use of the Facilities or any
portion thereof, the Company has been unable, after reasonable
effort, to obtain an opinion of Bond Counsel to the effect that a
court, in a properly presented case, should decide that Section
150 of the Code (or successor provision of similar import), does
not prevent that portion of the Payments payable under the
Refunding Agreement and attributable to interest on the Bonds
from being deductible by the Company for federal income tax
purposes, (ii) specifying that as a result of its inability to
obtain such opinion of Bond Counsel, the Company has elected to
prepay amounts due under the Refunding Agreement equal to the
redemption price of the Bonds to be so redeemed and (iii)
specifying the principal amount of the Bonds which the Company
has determined to be the minimum necessary to be so redeemed in
order for the Company to retain its rights to such interest
deductions (which principal amount of the Bonds will be so
redeemed).
Extraordinary Mandatory Redemption
This Bond shall be subject to mandatory redemption, at a
redemption price equal to the principal amount being redeemed
plus accrued interest to the redemption date, on the one hundred
eightieth day (or such earlier date as may be designated by the
Company) after a final determination by a court of competent
jurisdiction or an administrative agency to the effect that
solely as a result of a failure by the Company to perform or
observe any covenant, agreement or representation contained in
the Refunding Agreement, the interest payable on the Bonds is
included for federal income tax purposes in the gross income of
the owners thereof, other than any owner who is a "substantial
user" of the Facilities or a "related person" within the meaning
of Section 147(a) of the Code. No determination by any court or
administrative agency will be considered final unless the Company
has participated in the proceeding which resulted in such
determination, either directly or, at the option of the Company,
through a Bondholder, to a degree it reasonably deems sufficient
and until the conclusion of any appellate review sought by any
party to such proceeding or the expiration of the time for
seeking such review. Subject to the foregoing provisions of this
paragraph, the Bonds shall be redeemed in whole unless, in the
opinion of Bond Counsel mutually acceptable to the Issuer, the
Trustee and the Company, the redemption of a portion of such
Bonds would have the result that interest payable on the Bonds
remaining outstanding after such redemption would not be
includable in the gross income for federal income tax purposes of
any owner of any such Bonds. Any such partial redemption shall
be by lot in such amount as is necessary to accomplish such
result.
Notice of Redemption
The Trustee shall cause notice of any redemption of Bonds
under the Indenture to be mailed by first class mail, postage
prepaid (except when DTC is the Registered Owner of all of the
Bonds and except for persons or entities owning or providing
evidence of ownership satisfactory to the Trustee of a legal or
beneficial ownership in at least $1,000,000 aggregate principal
amount of Bonds who so request, in which cases, by certified
mail, return receipt requested), to the Registered Owners of all
Bonds to be redeemed at the registered addresses appearing in the
registration books kept for such purpose pursuant to the
Indenture at least 15 days prior to the redemption date for Bonds
accruing interest at Daily, Weekly or Commercial Paper Rates and
at least 25 days prior to the redemption date for Bonds accruing
interest at Multiannual Rates.
Transfer of Bonds
This Bond is transferable by the Registered Owner hereof at
the designated office of the Bond Registrar, upon surrender of
this Bond, accompanied by a duly executed instrument of transfer
in form and with guaranty of signature satisfactory to the Bond
Registrar, subject to such reasonable regulations as the Issuer
or the Bond Registrar may prescribe, and upon payment of any tax
or other governmental charge incident to such transfer. Upon any
such transfer, a new Bond or Bonds in the same aggregate
principal amount will be issued to the transferee. Except as set
forth in this Bond and as otherwise provided in the Indenture,
the person in whose name this Bond is registered shall be deemed
the owner hereof for all purposes, and the Issuer, any Paying
Agent, the Bond Registrar the Remarketing Agent, the
Authenticating Agent and the Trustee shall not be affected by any
notice to the contrary.
This Bond is not valid unless the Certificate of
Authentication endorsed hereon is duly executed by the Trustee or
the Authenticating Agent.
It is hereby certified, recited and declared that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Indenture
and the issuance of this Bond do exist, have happened and have
been performed in due time, form and manner as required by law;
and that the issuance of this Bond and the issue of which it
forms a part, together with all other obligations of the Issuer,
does not exceed or violate any constitutional or statutory
limitation.
IN WITNESS WHEREOF, the Parish of St. Charles, State of
Louisiana, has caused this Bond to be executed by the Parish
President and attested by the Secretary of the St. Charles Parish
Council (by their manual or facsimile signatures), thereunto duly
authorized, and its corporate seal to be affixed or imprinted,
all as of the date of this Bond shown above.
PARISH OF ST. CHARLES,
STATE OF LOUISIANA
By:_________________________________
Parish President
By:_________________________________
Secretary, St. Charles Parish Council [SEAL]
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds referred to in the within
mentioned Trust Indenture.
THE BANK OF NEW YORK,
as Trustee
By:__________________________
DATE OF AUTHENTICATION: Agent
____________, 1999
LEGAL OPINION CERTIFICATE
IT IS HEREBY CERTIFIED that attached hereto is a true and
correct copy of the complete and final opinion of Foley & Judell,
L. L. P., which opinion was manually executed, dated and issued
as of the date of delivery and payment for the original issue of
said bonds, and a copy of which opinion is on file in the office
of the Trustee.
___________________________________
Parish President
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
_________________________________________________________________
Please Insert Social
Security
or other Identifying
Number of Assignee
_________________________________________________________________
the within Bond and all rights thereunder, and hereby irrevocably
constitutes and appoints
_________________________________________________________________
_____________________________________________ attorney or agent
to transfer the within Bond on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: ________________ ________________________________________
NOTICE: The signature to this
assignment must correspond with the name
as it appears upon the face of the
within Bond in every particular, without
alteration or enlargement or any change
whatever.
<PAGE>
EXHIBIT B
TO TRUST INDENTURE
Disbursements from Administrative Fee Fund
Bond Counsel Fee $ 65,000
Issuer Counsel Fee $ 5,250
Exhibit B-11(a)
Refunding Agreement
(Series 1999-C)
between
Parish of St. Charles, State of Louisiana
and
Entergy Louisiana, Inc.
Dated as of October 1, 1999
$110,950,000
Parish of St. Charles, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Entergy Louisiana, Inc. Project)
Series 1999-C
<PAGE>
Refunding Agreement
(Series 1999-C)
This Refunding Agreement (Series 1999-C) dated as of October
1, 1999 by and between the Parish of St. Charles, State of
Louisiana, a political subdivision of the State of Louisiana (the
"Issuer"), and Entergy Louisiana, Inc., a corporation organized
under the laws of the State of Louisiana (the "Company");
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Louisiana, authorized and empowered by law, including
particularly the provisions of Sections 991 to 1001, inclusive,
of Title 39 of the Louisiana Revised Statutes of 1950, as
amended, and certain related constitutional and statutory
authority (the "Industrial Inducement Act"), to issue its revenue
bonds for the purpose of using the funds derived from the sale
thereof to acquire, purchase, construct or improve industrial
plant sites and industrial plant buildings, pollution abatement
and control facilities, and necessary property and appurtenances
thereto; and
WHEREAS, pursuant to the provisions of the Industrial
Inducement Act and a Trust Indenture dated as of July 1, 1977
(the "1977 Indenture") by and between the Issuer and Bank One
Trust Company, N. A. (formerly First National Bank of Commerce),
as trustee, the Issuer issued its Pollution Control Revenue Bonds
(Louisiana Power & Light Company Project) Series 1977 (the "1977
Bonds") in the aggregate principal amount of $4,000,000 for the
purpose of providing funds to finance the cost of acquiring
certain pollution control facilities at the Little Gypsy Steam
Electric Generating Station (the "Little Gypsy Station") and
Units 1 and 2 of the Waterford Steam Electric Generating Station
(the "Waterford Station") of the Company, in the geographic
limits of the Issuer; and
WHEREAS, pursuant to the provisions of the Industrial
Inducement Act and a Trust Indenture dated as of October 1, 1979
(the "1979 Indenture") by and between the Issuer and Bank One
Trust Company, N. A. (formerly First National Bank of Commerce),
as trustee, the Issuer issued its Pollution Control Revenue Bonds
(Louisiana Power & Light Company Project) Series 1979 (the "1979
Bonds") in the aggregate principal amount of $3,000,000 for the
purpose of providing funds to finance the cost of acquiring
certain pollution control facilities at the Little Gypsy Station
and Units 1 and 2 of the Waterford Station; and
WHEREAS, pursuant to the provisions of the Industrial
Inducement Act and a Trust Indenture dated as of December 1, 1984
(the "1984 Indenture") by and between the Issuer and Bank One
Trust Company, N. A. (formerly First National Bank of Commerce),
as trustee, the Issuer issued its Adjustable/Fixed Rate Pollution
Control Revenue Bonds (Louisiana Power & Light Company Project)
Second Series 1984 (the "1984 Bonds") in the aggregate principal
amount of $105,000,000 for the purpose of providing funds to
finance the cost of acquiring certain pollution control
facilities and solid waste disposal facilities at Unit 3
(Nuclear) of the Waterford Station; and
WHEREAS, the facilities financed with the proceeds of the
1977 Bonds, the 1979 Bonds and the 1984 Bonds are herein
collectively called the "Facilities", the trustees for said Bonds
are hereinafter collectively referred to as the "Prior Trustee",
and the 1977 Indenture, the 1979 Indenture and the 1984 Indenture
are hereinafter collectively referred to as the "Prior
Indenture"; and
WHEREAS, the 1984 Bonds were initially issued as adjustable
rate bonds but were converted to fixed rate bonds on December 1,
1989 pursuant to the provisions of the 1984 Indenture; and
WHEREAS, in furtherance of the statutory purposes of the
Industrial Inducement Act, the Issuer entered into separate Sale
Agreements pertaining to the 1977 Bonds, the 1979 Bonds and the
1984 Bonds, dated as of April 1, 1977, September 1, 1979 and
November 1, 1984, respectively, with the Company, pursuant to
which the Issuer acquired the respective Facilities from the
Company and resold such Facilities to the Company, as more fully
described therein; and
WHEREAS, $3,385,000 of the 1977 Bonds, $2,565,000 of the
1979 Bonds and $105,000,000 of the 1984 Bonds (collectively, the
"Prior Bonds") are currently outstanding, and the Company has
requested that the Issuer refund all of the outstanding Prior
Bonds in order to achieve interest cost savings through the
issuance by the Issuer of $110,950,000 aggregate principal amount
of its Pollution Control Revenue Refunding Bonds (Entergy
Louisiana, Inc. Project) Series 1999-C (the "Bonds"); and
WHEREAS, the Issuer is authorized and empowered by law,
including particularly the provisions of Chapter 14-A of Title 39
of the Louisiana Revised Statutes of 1950, as amended (the
"Act"), to issue its refunding bonds for the purpose of
refunding, readjusting, restructuring, refinancing, extending, or
unifying the whole or any part of outstanding securities of the
Issuer in an amount sufficient to provide funds necessary to
effectuate the purpose for which the refunding bonds are being
issued; and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue the Bonds for the
purpose of refunding all of the Prior Bonds; and
WHEREAS, in consideration of the issuance of the Bonds by
the Issuer, the Company will agree to make payments in an amount
sufficient to pay the principal of, premium, if any, Purchase
Price and interest on the Bonds pursuant to this Refunding
Agreement, said Bonds to be paid solely from the revenues derived
by the Issuer from said payments by the Company pursuant to this
Refunding Agreement and any moneys held under the hereinafter
defined Indenture, and said Bonds shall not constitute an
indebtedness or pledge of the general credit of the Issuer or the
State of Louisiana, within the meaning of any constitutional or
statutory limitation of indebtedness or otherwise; and
WHEREAS, the execution and delivery of this Refunding
Agreement under the Act have been in all respects duly and
validly authorized by ordinance of the Parish Council of the
Parish of St. Charles, State of Louisiana, duly adopted;
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION I.1. Definitions. In addition to the words and
terms elsewhere defined in this Refunding Agreement or in the
Indenture, the following words and terms as used in this
Refunding Agreement shall have the following meanings unless the
context or use indicates another or different meaning:
"Act" means Chapter 14-A of Title 39 of the Louisiana
Revised Statutes of 1950, as amended, and all future acts
supplemental thereto or amendatory thereof.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to this Refunding
Agreement, the Indenture and any transaction or event
contemplated by this Refunding Agreement or the Indenture
including the compensation and reimbursement of expenses and
advances payable to the Trustee, any Paying Agent, any Co-Paying
Agent, any Authenticating Agent, the Remarketing Agent and the
Bond Registrar under the Indenture.
"Bonds" means the $110,950,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Entergy Louisiana,
Inc. Project) Series 1999-C authorized to be issued under the
Indenture. "Bond" means any one of such Bonds.
"Business Day" or "business day" means any day other than
(i) a Saturday or Sunday or legal holiday or a day on which
banking institutions in the city of New York, New York or in the
city in which the Principal Offices of the Trustee or the Paying
Agent are located are authorized or required by law to close or
(ii) a day on which the New York Stock Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Entergy Louisiana, Inc., a Louisiana
corporation, and its permitted successors and assigns.
"Costs of Issuance" means all fees, charges and expenses
incurred in connection with the authorization, preparation, sale,
issuance and delivery of the Bonds, including, without
limitation, financial, legal and accounting fees, expenses and
disbursements, rating agency fees, the Issuer's expenses
attributable to the issuance of the Bonds, the cost of printing,
engraving and reproduction services and the initial or acceptance
fee of the Trustee.
"Disclosure Documents" means the Official Statement with
respect to the Bonds, together with all documents incorporated
therein by reference.
"Event of Default" means any event of default specified in
Section 8.1 hereof.
"Facilities" has the meaning set forth in the fifth Whereas
clause hereof.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or, the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" means the Trust Indenture (Series 1999-C) dated
as of October 1, 1999 between the Issuer and the Trustee securing
the Bonds, and any amendments and supplements thereto.
"Issue Date" means, for each Bond, the actual date of first
authentication and delivery of the Bonds.
"Issuer" means the Parish of St. Charles, State of
Louisiana, a political subdivision under the Constitution and
laws of the State of Louisiana.
"Outstanding" or "outstanding", in connection with Bonds
means, as of the time in question, all Bonds authenticated and
delivered under the Indenture, except:
(a) Bonds theretofore cancelled or required to be cancelled
under Section 2.11 of the Indenture;
(b) Bonds which are deemed to have been paid in accordance
with Article XV of the Indenture;
(c) Bonds in lieu of or in exchange or in substitution for
which other Bonds have been authenticated and delivered pursuant
to Article II of the Indenture;
(d) Bonds registered in the name of the Issuer; and
(e) On or after any Purchase Date for Bonds pursuant to
Article IV of the Indenture, all Bonds (or portions of Bonds)
which are tendered or deemed to have been tendered for purchase
on such date, provided that funds sufficient for such purchase
are on deposit with the Paying Agent.
In determining whether the owners of a requisite aggregate
principal amount of Bonds outstanding have concurred in any
request, demand, authorization, direction, notice, consent or
waiver under the provisions of the Indenture, Bonds which are
held by or on behalf of the Company or any affiliates thereof
(unless all of the outstanding Bonds are then owned by said
parties) shall be disregarded for the purpose of any such
determination. Notwithstanding the foregoing, Bonds so owned
which have been pledged in good faith shall not be disregarded as
aforesaid if the pledgee has established to the satisfaction of
the Bond Registrar the pledgee's right so to act with respect to
such Bonds and that the pledgee is not the Company or an
affiliate thereof.
"Paying Agent", "paying agent", "Co-Paying Agent" or "co-
paying agent" means any national banking association, bank or
trust company appointed pursuant to Section 9.1 of the Indenture.
The Trustee is the original Paying Agent.
"Plant" means, collectively, the Little Gypsy Station and
the Waterford Station described in the preamble hereto, owned and
operated by the Company and located in the geographic limits of
the Parish of St. Charles, State of Louisiana.
"Prior Bonds" has the meaning set forth in the fifth Whereas
clause hereof.
"Prior Indenture" has the meaning set forth in the fifth
Whereas clause hereof.
"Prior Trustee" has the meaning set forth in the fifth
Whereas clause hereof.
"Purchase Price" for any Bond shall equal 100% of the
principal amount of such Bond plus accrued interest, if any, to
the Purchase Date, plus in the case of a Bond converted from a
Multiannual Rate Period on a date when such Bond is also subject
to optional redemption at a premium, an amount equal to the
premium that would be payable on such Bond if redeemed on such
date.
"Refunding Agreement" means this Refunding Agreement (Series
1999-C) and any amendments and supplements hereto.
"Refunding Date" means December 1, 1999 with respect to the
1984 Bonds and January 1, 2000 with respect to the 1977 Bonds and
the 1979 Bonds, or such later date or dates as may be established
by the Company; provided, however, that the Refunding Date shall
not be later than ninety (90) days following the date of delivery
of the Bonds to the Underwriters.
"Refunding Fund" has the meaning set forth in the Indenture.
"Regulations" means all final and proposed United States
Income Tax Regulations.
"Trust Estate" means the property conveyed to the Trustee
pursuant to the Granting Clauses of the Indenture.
"Trustee" means The Bank of New York, as trustee under the
Indenture, and its successors as trustee.
SECTION I.2. Use of Words and Phrases. The words
"herein", "hereby", "hereunder", "hereto", "hereof",
"hereinabove", "hereinafter", and other equivalent words and
phrases refer to this Refunding Agreement and not solely to the
particular portion thereof in which any such word is used. The
definitions set forth in Section 1.1 hereof include both singular
and plural. Whenever used herein, any pronoun shall be deemed to
include both singular and plural and to cover all genders.
SECTION I.3. Nontaxability. It is intended by the parties
hereto that this Refunding Agreement and all action taken
hereunder be consistent with and pursuant to the ordinance of the
governing authority of the Issuer relating to the Bonds, and that
the interest on the Bonds be excluded from the gross income of
the recipients thereof other than a person who is a "substantial
user" of the Facilities or a "related person" of a "substantial
user" within the meaning of the Code for federal income tax
purposes by reason of the provisions of the Code. The Company
will not use any of the funds provided by the Issuer hereunder in
such a manner as to impair the exclusion of interest on any of
the Bonds from the gross income of the recipient thereof for
federal income tax purposes nor will it take any action that
would impair such exclusion or fail to take any action if such
failure would impair such exclusion.
<PAGE>
ARTICLE II
REPRESENTATIONS
SECTION II.1. Representations and Warranties of the Issuer.
The Issuer makes the following representations and warranties as
the basis for the undertakings on the part of the Company herein
contained:
(a) The Issuer is a political subdivision of the State
of Louisiana, created and existing pursuant to the
constitution and laws of such State and is authorized and
empowered by the provisions of the Act and other
constitutional and statutory authority supplemental thereto,
to issue the Bonds.
(b) The Issuer has full power and authority to enter
into this Refunding Agreement and the Indenture and to carry
out its obligations under this Refunding Agreement and the
Indenture and the transactions contemplated hereby and
thereby.
(c) The Issuer has duly authorized the execution and
delivery of this Refunding Agreement and the Indenture and
the issuance and sale of the Bonds.
(d) The Bonds are issued under and secured by the
Indenture, pursuant to which the interest of the Issuer in
this Refunding Agreement and the amounts payable under this
Refunding Agreement (other than indemnification and expense
reimbursement rights) are assigned to the Trustee as
security for the payment of the principal of, premium, if
any, Purchase Price and interest on the Bonds.
(e) Neither the execution and delivery of this
Refunding Agreement or the Indenture, nor the assignment of
this Refunding Agreement to the Trustee, nor the
consummation of the transactions contemplated by this
Refunding Agreement or the Indenture, nor the fulfillment of
or compliance with the terms and conditions of this
Refunding Agreement or the Indenture, results or will result
in the violation of any governmental order applicable to the
Issuer, or conflicts or will conflict with or results or
will result in a breach of any of the terms, conditions or
provisions of any agreement or instrument to which the
Issuer is now a party or by which it is bound, or
constitutes or will constitute a default under any of the
foregoing.
SECTION II.2. Representations and Warranties of the
Company. The Company hereby makes the following representations
and warranties as the basis for the undertakings on the part of
the Issuer herein undertaken for the benefit and reliance of the
Issuer, the Trustee and the holders of the Bonds:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Louisiana,
is not in violation of any provision of its Restated
Articles of Incorporation or its Bylaws, has power to enter
into this Refunding Agreement and to perform and observe the
agreements and covenants on its part contained herein and
has duly authorized the execution and delivery of this
Refunding Agreement by proper corporate action.
(b) Neither the execution and delivery of this
Refunding Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Refunding Agreement
conflicts with or results in a breach of the terms,
conditions or provisions of any restriction or any agreement
or instrument to which the Company is now a party or by
which the Company is bound, or constitutes a default under
any of the foregoing, or results in the creation or
imposition of any lien, charge or encumbrance whatsoever
upon any of the property or assets of the Company except any
interests created therein under the Indenture.
(c) This Refunding Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company
enforceable in accordance with its terms, subject to laws
relating to bankruptcy, moratorium, insolvency or
reorganization and similar laws affecting creditors' rights
generally.
(d) Except as shall have been disclosed in the
Disclosure Documents, there are no actions, suits or
proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or the assets,
properties or operations of the Company which, if determined
adversely to the Company or its interests, (1) would
materially adversely affect the consummation of the
transactions contemplated by this Refunding Agreement, (2)
would adversely affect the validity of this Refunding
Agreement or (3) could have a material adverse effect upon
the financial condition, assets, properties or operations of
the Company.
(e) No event has occurred and no condition exists with
respect to the Company that would constitute an Event of
Default under this Refunding Agreement or which, with the
lapse of time or with the giving of notice or both, could
reasonably be expected to become an "Event of Default"
hereunder.
(f) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Refunding Agreement
which require said approval, and no other consent, approval,
authorization or other order of any regulatory body or
administrative agency or other governmental body is legally
required for the Company's participation therein, except
such as may have been obtained or may be required under the
securities laws of any state.
<PAGE>
ARTICLE III
THE BONDS AND THE PROCEEDS THEREOF
SECTION III.1. Agreement to Issue Bonds. The Issuer has
authorized the issuance and sale of the Bonds in the principal
amount of $110,950,000. Upon issuance and delivery thereof, the
proceeds of the Bonds shall be deposited with the Trustee in the
Refunding Fund in accordance with the Indenture.
SECTION III.2. Investment of Funds; Non-Arbitrage Covenant.
Any moneys held as part of the Bond Fund shall be invested,
reinvested or applied by the Trustee in accordance with and
subject to the conditions of Article VII of the Indenture. The
Company and the Issuer shall make no use of the proceeds of the
Bonds, or any funds which may be deemed to be proceeds of the
Bonds pursuant to Section 148 of the Code and the applicable
regulations thereunder, which would cause the Bonds to be
"arbitrage bonds" within the meaning of such Section and such
regulations, and the Company shall comply with and the Issuer
shall take no action to violate the requirements of such Section
and such regulations while any Bonds remain outstanding.
SECTION III.3. Agreement to Redeem Prior Bonds. The Company
agrees to pay to the Prior Trustee, in funds available to the
Prior Trustee on or prior to the Refunding Date, for deposit into
the bond fund created under the Prior Indenture securing the
Prior Bonds and in accordance with the terms of the Prior
Indenture, any amount necessary to pay all of the Prior Bonds,
together with the premium, if any, and accrued interest due
thereon on the Refunding Date, to the extent that the amount
delivered by the Issuer pursuant to Section 3.1 hereof is
insufficient for such purpose.
<PAGE>
ARTICLE IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS
SECTION IV.1. Deposit of Bond Proceeds. Concurrently with
the delivery of the Bonds, the Issuer will, upon the terms and
subject to the conditions of this Refunding Agreement, deposit
all of the proceeds thereof with the Trustee for deposit into the
Refunding Fund in accordance with the Indenture for application
as provided in Article V hereof and Section 5.2 of the Indenture
to refund on the Refunding Date all of the Prior Bonds. The
Company shall pay out of its own money and not out of proceeds of
the Bonds all reasonable Costs of Issuance with respect to the
Bonds.
SECTION IV.2. Payments. (a) The Company shall pay to the
Trustee or the Paying Agent for the account of the Issuer on each
date on which the principal of, premium, if any, Purchase Price
or interest on the Bonds comes due, whether at the maturity
thereof or upon acceleration, redemption, purchase or otherwise
in accordance with the provisions of the Indenture, an amount
equal to the sum of (i) all interest due and payable on the Bonds
on such date, (ii) the principal amount of Bonds, if any, due and
payable on such date, (iii) amounts, if any, required to effect
the redemption of Bonds upon unconditional call thereof on such
date pursuant to the Indenture, together with accrued interest
and any applicable redemption premium, (iv) amounts necessary to
pay the Purchase Price of the Bonds which is due and payable on
such date, and (v) all amounts due on such date to the Trustee or
the Issuer under this Refunding Agreement, the Indenture or any
other agreements entered into in connection with the issuance of
the Bonds and any other Administration Expenses. The Company
directs the Trustee and the Paying Agent to apply such amounts to
the purpose for which they are paid. The payments required under
this Section 4.2(a)(i), (ii), (iii) and (iv) shall be paid by
check, draft, wire transfer or other means acceptable to the
Trustee directly to the Trustee or the Paying Agent in funds
immediately available to the Trustee or the Paying Agent on the
payment date, and shall be immediately deposited in accordance
with the provisions of the Indenture. In any event, the Company
agrees to make payments to the Trustee or the Paying Agent at
such times and in such amounts and manner so as to enable the
Trustee or the Paying Agent to make payment of the principal of,
redemption premium, if any, Purchase Price and accrued interest
on the Bonds as the same shall become due and payable whether by
acceleration, redemption or otherwise in accordance with the
terms of the Indenture; provided, however, that the obligation of
the Company to make any payments hereunder shall be reduced by
the amount of any reduction under the Indenture of the amount of
the corresponding payment required to be made by the Issuer
thereunder in respect of the principal of or interest on the
Bonds or by the amount derived from remarketing proceeds
available to pay the Purchase Price of the Bonds in accordance
with the provisions of Section 4.3(b) of the Indenture.
(b) If the Company should fail to make any of the payments
required in subsection (a) above, the item or installment which
the Company has failed to make shall continue as an obligation of
the Company until the same shall have been fully paid.
(c) Anything herein, in the Indenture or in the Bonds to
the contrary notwithstanding, the obligations of the Issuer and
the Company hereunder shall be subject to the limitation that
payments constituting interest under this Section or the Bonds
shall not be required to the extent that the receipt of such
payment by any owner of any Bonds would be contrary to the
provisions of law applicable to such owner which limit the
maximum rate of interest that may be charged or collected by such
owner.
(d) In addition to the options and obligations of the
Company under Article IX hereof, the Company shall have the
option to make from time to time prepayments of part or all of
the amounts due hereunder. The making of any prepayments by the
Company shall not require the Company to make any further
prepayments. The Issuer shall direct the Trustee to apply such
prepayments in such manner, consistent with the provisions of the
Indenture, as may be directed by the Company.
In the event that (i) such partial prepayments shall be
applied by the Trustee pursuant to the Indenture to the purchase,
defeasance or redemption of the Bonds or (ii) the Bonds are
presented by the Company or the Issuer to the Trustee for
cancellation pursuant to the Indenture, the Company shall be
entitled to a credit for the Bonds so purchased, defeased,
redeemed or cancelled against payments required to be made under
the provisions of this Article.
SECTION IV.3. Payments Assigned; Obligation Absolute. It
is understood and agreed that all payments under Section
4.2(a)(i), (ii), (iii) and (iv) to be made by the Company are
pledged by the Issuer to the Trustee pursuant to the Indenture,
and that all rights and interest of the Issuer hereunder (except
for the Issuer's rights under Sections 4.4, 4.5, 4.6 and 8.5
hereof and any rights of the Issuer to receive notices,
certificates, requests, requisitions, directions and other
communications hereunder) are pledged and assigned to the
Trustee. The Company assents to such pledge and assignment and
agrees that the obligation of the Company to make payments under
Section 4.2(a)(i), (ii), (iii) and (iv) shall be absolute,
irrevocable and unconditional and shall not be subject to
cancellation, termination or abatement, or to any defense other
than payment or to any right of set-off, counterclaim or
recoupment arising out of any breach under this Refunding
Agreement, the Indenture or otherwise by the Issuer or the
Trustee or any other party, or out of any obligation or liability
at any time owing to the Company by the Issuer, the Trustee or
any other party, and, further, that the payments under Section
4.2(a)(i), (ii), (iii) and (iv) and the other payments due
hereunder shall continue to be payable at the times and in the
amounts specified herein, whether or not the Facilities, or any
portion thereof, shall have been destroyed by fire or other
casualty, or title thereto, or the use thereof, shall have been
taken by the exercise of the power of eminent domain, and that
there shall be no abatement of or diminution in any such payments
by reason thereof, whether or not the Facilities shall be used or
useful, and whether or not any applicable laws, regulations or
standards shall prevent or prohibit the use of the Facilities, or
for any other reason.
SECTION IV.4. Payment of Administration Expenses. The
Company shall pay or cause to be paid all Administration
Expenses, including those of the Issuer, the Trustee, any Paying
Agent, any Co-Paying Agent, any Authenticating Agent, the
Remarketing Agent and the Bond Registrar under the Indenture,
such payments to be made directly to such entities.
SECTION IV.5. Indemnification. The Company releases the
Issuer, the Trustee and the Remarketing Agent from, agrees that
the Issuer, the Trustee and the Remarketing Agent shall not be
liable for, and agrees to indemnify and hold the Issuer, the
Trustee and the Remarketing Agent free and harmless from, any
liability for any loss or damage to property or any injury to or
death of any person that may be occasioned by any cause
whatsoever pertaining to the Facilities, including, without
limitation, the financing or refinancing of the Facilities and
the Prior Bonds or Bonds issued with respect thereto, except in
any case as a result of the negligence, willful misconduct or bad
faith of the party otherwise to be indemnified.
The Company will indemnify and hold the Issuer, the Trustee
and the Remarketing Agent free and harmless from any loss,
claim, damage, tax, penalty, liability (including but not limited
to liability for any patent infringement), disbursement,
litigation expenses, attorneys' fees and expenses or court costs
arising out of, or in any way relating to, the execution or
performance of this Refunding Agreement, the issuance or sale of
the Prior Bonds or the Bonds, actions taken under the Indenture,
or any other cause whatsoever pertaining to the Facilities,
including without limitation, recovery costs arising from the
presence of hazardous substances, except in any case as a result
of the negligence, willful misconduct or bad faith of the Trustee
or the Remarketing Agent, or as a result of the gross negligence,
willful misconduct or bad faith of the Issuer.
Under this Section, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer, the Trustee and the
Remarketing Agent to the same extent as such entities.
SECTION IV.6. Payment of Taxes. The Company agrees that it
will pay, as the same become due, all taxes and governmental
charges of any kind whatsoever that may at any time be lawfully
assessed or levied against the Company or the Issuer with respect
to the Facilities or any portion thereof or with respect to the
Prior Bonds, including, without limiting the generality of the
foregoing, any taxes lawfully levied against the Company or the
Issuer upon or with respect to the income or profits of the
Issuer from the Facilities or any charge on the payments made
pursuant to Section 4.2(a)(i), (ii), (iii) or (iv) hereof prior
to or on a parity with the charge under the Indenture thereon and
the pledge or assignment thereof to be created and made in the
Indenture, and including all ad valorem taxes lawfully assessed
upon the Facilities, all utility and other charges incurred in
the operation, maintenance, use, occupancy and upkeep of the
Facilities, all assessments and charges lawfully made by any
governmental body against the Company or the Issuer for or on
account of the Facilities and in addition any excise tax levied
against the Company or the Issuer on the payments made pursuant
to Section 4.2(a)(i), (ii), (iii) and (iv) hereof; provided,
however, that nothing herein shall require the payment of any
such tax or charge or the making of provision for the payment
thereof, so long as the validity thereof shall be contested in
good faith by the Company by appropriate legal proceedings;
further provided, that with respect to special assessments or
other governmental charges that may lawfully be paid in
installments over a period of years, the Company shall be
obligated to pay only such installments as are required to be
paid during the term of this Refunding Agreement.
<PAGE>
ARTICLE V
REFUNDING OF PRIOR BONDS
SECTION V.1. Refunding Fund - Disbursement of Bond
Proceeds. The Trustee, as authorized by the Issuer in the
Indenture, shall transfer out of the Refunding Fund the proceeds
of the Bonds on or before the Refunding Date to the Prior Trustee
for disbursement and investment in accordance with the Prior
Indenture in order to redeem, together with moneys of the Company
deposited therein, if necessary, all of the Prior Bonds on the
Refunding Date.
SECTION V.2. Compliance with Prior Indenture. The Issuer
shall, at the request of the Company, take all steps as may be
necessary under the Prior Indenture to effect the redemption of
all of the Prior Bonds on the Refunding Date as provided in the
Prior Indenture and as contemplated herein.
<PAGE>
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION VI.1. Maintenance of Corporate Existence. The
Company shall maintain its corporate existence, will not dissolve
or otherwise dispose of all or substantially all its assets and
will not consolidate with or merge with or into another
corporation or permit one or more other corporations to
consolidate with or merge into it; provided, however, that the
Company may, without violating the agreements contained in this
Section consolidate with or merge into another domestic
corporation (i.e., a corporation incorporated and existing under
the laws of one of the states of the United States of America or
the District of Columbia or under the laws of the United States
of America) or permit one or more such domestic corporations to
consolidate with or merge into it, or sell or otherwise transfer
to another domestic corporation all or substantially all of its
assets as an entirety and thereafter dissolve; provided that (i)
both immediately prior to such consolidation, merger, sale or
transfer and after giving effect thereto, no Event of Default (or
event which, with the giving of notice or the passage of time, or
both, would become an Event of Default) shall have occurred and
be continuing, and (ii) in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, such surviving, resulting or transferee corporation assumes
in writing all of the obligations of the Company herein.
If consolidation, merger or sale or other transfer is made
as permitted by this Section, the provisions of this Section
shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section.
SECTION VI.2. Limited Obligation Bonds. The Bonds shall be
limited obligations of the Issuer and shall be payable solely out
of the revenues of the Issuer from this Refunding Agreement as
provided in the Indenture (including all sums deposited in the
Bond Fund from time to time pursuant to this Refunding Agreement
and the Indenture, and in certain events, amounts obtained
through the exercise of certain remedies provided in the
Indenture). The Bonds shall never be general obligations of the
Issuer nor constitute an indebtedness or pledge of the general
credit of the Issuer within the meaning of any constitutional or
statutory provision or limitation of indebtedness, and shall
never be paid in whole or in part out of any funds raised or to
be raised by taxation or any other funds of the Issuer.
SECTION VI.3. Arbitrage and Tax Compliance. The Issuer and
the Company hereby covenant with each other, the Trustee and each
of the holders of any Bonds that neither of them will cause or
permit the proceeds of the Bonds to be used in a manner that will
cause the interest on the Bonds to be includable in gross income
of the recipients thereof other than a person who is a
"substantial user" of the Facilities or a "related person" to
such "substantial user" within the meaning of the Code for
federal income tax purposes. In addition, the Company covenants
that to the extent permitted by law, it shall take all actions
within its control necessary to maintain, and shall refrain from
taking any action that impairs, the exclusion of the interest on
the Bonds from gross income for federal income tax purposes under
federal tax law (other than a person who is a "substantial user"
of the Facilities or a "related person" to such "substantial
user" within the meaning of the Code) existing on the date of
delivery of the Bonds. In furtherance of the foregoing, the
Company also agrees on behalf of the Issuer to comply with all
rebate requirements and procedures as may become applicable to
the Bonds under the Code.
Without limiting the generality of the foregoing, the
Company further covenants and agrees, as follows:
(a) The Facilities are located within the jurisdiction
of the Issuer.
(b) Substantially all of the net proceeds of the sale
of the Prior Bonds have been used to undertake the
acquisition of air or water pollution control facilities or
sewerage or solid waste disposal facilities within the
meaning of Section 103(b)(4) of the Internal Revenue Code of
1954, as amended. All of the proceeds of the Prior Bonds
have been expended.
(c) The weighted average maturity of the Bonds does
not exceed 120% of the reasonably expected economic life of
the Facilities financed with the proceeds of the Prior
Bonds.
(d) The principal amount of the Bonds shall not exceed
the outstanding principal amount of the Prior Bonds being
refunded from the proceeds of the Bonds.
(e) The Bonds are not and will not be "federally
guaranteed" (as defined in Section 149(b) of the Code).
(f) None of the proceeds of the Bonds will be used,
and none of the proceeds of the Prior Bonds were used, to
provide any airplane, skybox or other private luxury box, or
health club facility; any facility primarily used for
gambling; or any store the principal business of which is
the sale of alcoholic beverages for consumption off
premises.
(g) The information furnished by the Company and used
by the Issuer in preparing its No-Arbitrage Certificate
dated the Issue Date is accurate and complete as of the date
of the issuance of the Bonds.
(h) None of the proceeds of the Bonds will be used to
finance Costs of Issuance of the Bonds.
(i) The Company will take no action that would cause
any funds constituting gross proceeds of the Bonds to be
used in a manner as to constitute a prohibited payment under
the applicable regulations pertaining to, or in any other
fashion as would constitute failure of compliance with,
Section 148 of the Code and applicable regulations
thereunder.
The covenants and agreements contained herein and in the Tax
Certificate and the No-Arbitrage Certificate are intended to
ensure compliance with the provisions of the Code and the
Regulations. In the event that the Code is amended or that
Regulations are hereafter proposed or promulgated and the effect
of such change is to modify or delete any element of the
covenants contained herein, the Company shall be relieved of its
obligations to comply with such covenants to the extent of such
modification or deletion provided that the Company receives an
opinion of Bond Counsel that such action will not adversely
affect the exclusion of the interest on the Bonds from the gross
income of the holders thereof for Federal income tax purposes.
The Company may rely on such opinions of Bond Counsel in
complying with such covenants and agreements. In the event such
change in the Code or the Regulations imposes additional
requirements which are applicable to the Bonds, the Company
hereby agrees to comply with the provisions of the Code or the
Regulations, as applicable.
SECTION VI.4. Maintenance of Facilities. The Company
covenants that while any of the Bonds are outstanding it will, at
its own expense, maintain the Facilities in good repair and make
all required replacements and renewals thereof. However, the
Company shall have no obligation to replace or renew any portion
of the Facilities, if in the Company's opinion, it is unnecessary
or undesirable to do so.
The Company agrees that the Facilities will be insured
against loss or damage of such kinds and in such amounts,
including without limitation, fire and extended coverage risks
(including property insurance) in such amounts and covering such
risks as are customarily insured against by companies operating
similar properties. Any provisions of this Refunding Agreement
to the contrary notwithstanding, the Company shall be entitled to
the proceeds of any insurance or condemnation award or portion
thereof with respect to the Facilities and such proceeds shall be
paid directly to the Company.
SECTION VI.5. Permits. The Company shall, at its sole cost
and expense, procure or cause to be procured any and all
necessary building permits, other permits, licenses and other
authorizations required for the lawful and proper use,
occupation, operation and management of the Facilities and which,
if not obtained, would materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION VI.6. Compliance with Law. The Company shall,
throughout the term of this Refunding Agreement and at no expense
to the Issuer, promptly comply or cause compliance with all laws,
ordinances, orders, rules, regulations and requirements of duly
constituted public authorities that are applicable to the
Facilities or to the repair and alteration thereof, or to the use
or manner of use of the Facilities and which, if there is non-
compliance, would materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
Notwithstanding the foregoing, the Company shall have the right
to contest the legality of any such law, ordinance, order, rule,
regulation or requirement as applied to the Facilities provided
that in the opinion of counsel to the Company such contest shall
not in any way materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION VI.7. No Warranty. The Issuer makes no warranty,
either express or implied, as to the Facilities, including,
without limitation, title to the Facilities or the actual or
designed capacity of the Facilities, as to the suitability or
operation of the Facilities for the purposes specified in this
Refunding Agreement, as to the condition of the Facilities or as
to the suitability thereof for the Company's purposes or needs or
as to compliance of the Facilities with applicable laws and
regulations or the ability of the Company to discharge the Bonds.
The Company covenants with the Issuer that it will make no claim
against the Issuer for any deficiency which may at any time exist
in the Facilities, nor will it assert against the Issuer any
other claim for breach of warranty with respect to the
Facilities. The obligations of the Company under this Section
shall survive any assignment or termination of this Refunding
Agreement.
<PAGE>
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION VII.1. By the Company. The Company's interest in
this Refunding Agreement may be assigned in whole or in part, and
the Facilities may be leased or sold as a whole or in part
(whether a specific element or unit or an undivided interest), by
the Company, subject, however, to the condition that no
assignment, lease or sale (other than as described in Section 6.1
hereof) shall relieve the Company from primary liability for its
obligations under Section 4.2 hereof to pay the payments required
thereunder, or for any other of its obligations hereunder, other
than those obligations relating to the operation, maintenance and
insurance of the Facilities, which obligations (to the extent of
the interest assigned, leased or sold and to the extent assumed
by the assignee, lessee or purchaser) shall be deemed to be
satisfied and discharged. Further, upon any such lease or sale
the Company shall comply with the requirements of the Code and
the regulations promulgated thereunder (including, without
limitation, the taking of remedial action with respect to the
Bonds) as the same may then be applicable.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
SECTION VII.2. Limitation. This Refunding Agreement shall
not be assigned nor shall the Facilities be leased or sold, in
whole or in part, except as provided in this Article VII,
Sections 4.3 or 6.1 hereof.
<PAGE>
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION VIII.1. Events of Default. Each of the
following events shall constitute and is referred to in this
Refunding Agreement as an "Event of Default":
(a) a failure by the Company to make when due any
payment required to be made pursuant to Section 4.2 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a), (b) or (e) of Section 10.1 of the
Indenture;
(b) a failure by the Company to pay when due any other
amount required to be paid under this Refunding Agreement or
to observe and perform any covenant, condition or agreement
on its part to be observed or performed, which failure shall
continue for a period of ninety (90) days after written
notice, specifying such failure and requesting that it be
remedied, shall have been given to the Company by the Issuer
or the Trustee, unless the Issuer and the Trustee shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Issuer and the
Trustee shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Company
within such period and is being diligently pursued;
(c) the expiration of a period of ninety (90) days
following:
(i) the adjudication of the Company as a bankrupt
by any court of competent jurisdiction;
(ii) the entry of an order approving a petition
seeking reorganization or arrangement of the Company
under the federal bankruptcy laws or any other
applicable law or statute of the United States of
America, or of any state thereof; or
(iii) the appointment of a trustee or a
receiver of all or substantially all of the property of
the Company, unless during such period such
adjudication, order or appointment of a trustee or
receiver shall be vacated or shall be stayed on appeal
or otherwise or shall have otherwise ceased to continue
in effect; or
(d) the filing by the Company of a voluntary petition
in bankruptcy or the making of an assignment for the benefit
of creditors; the consenting by the Company to the
appointment of a receiver or trustee of all or any part of
its property; the filing by the Company of a petition or
answer seeking reorganization or arrangement under the
federal bankruptcy laws, or any other applicable law or
statute of the United States of America, or of any state
thereof; or the filing by the Company of a petition to take
advantage of any insolvency act.
SECTION VIII.2. Force Majeure. The provisions of
Section 8.1 hereof are subject to the following limitations: If
by reason of acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or other acts of any
kind of the government of the United States or of the State of
Louisiana, or any other sovereign entity or body politic, or any
department, agency, political subdivision, court or official of
any of them, or any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; volcanoes;
fires; hurricanes; tornados; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage of, or accident to, machinery; partial or
entire failure of utilities; or any cause or event not reasonably
within the control of the Company, the Company is unable in whole
or in part to carry out any one or more of its agreements or
obligations contained herein, other than its payment obligations
under Section 4.2(a)(i), (ii), (iii) or (iv) hereof and its
obligations under Sections 4.6, 6.1, 7.1 and 9.1 hereof, the
Company shall not be deemed in default by reason of not carrying
out said agreement or agreements or performing said obligation or
obligations during the continuance of such inability. The
Company agrees, however, to use its best efforts to remedy with
all reasonable dispatch the cause or causes preventing it from
carrying out its agreements; provided, that the settlement of
strikes, lockouts and other industrial disturbances shall be
entirely within the discretion of the Company, and the Company
shall not be required to make settlement of strikes, lockouts and
other industrial disturbances by acceding to the demands of the
opposing party or parties when such course is, in the judgment of
the Company, unfavorable to the Company.
SECTION VIII.3. Remedies on Default. (a) Upon the
occurrence and continuance of any Event of Default described in
Section 8.1 hereof, and further upon the condition that, in
accordance with the terms of the Indenture, the Bonds shall have
become immediately due and payable pursuant to any provision of
the Indenture, the payments required to be paid pursuant to
Section 4.2 hereof shall, without further action, become and be
immediately due and payable.
(b) Upon the occurrence and continuance of any Event of
Default, the Issuer, with the prior consent of the Trustee, or
the Trustee, may take any action at law or in equity to collect
the payments then due and thereafter to become due hereunder, or
to enforce performance and observance of any obligation,
agreement or covenant of the Company under this Refunding
Agreement.
(c) Any amounts collected pursuant to action taken under
this Section shall be applied in accordance with the Indenture.
(d) In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every such case, the Issuer and the Trustee shall be restored to
their former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Issuer and the Trustee
shall continue as though no such proceeding had been taken.
SECTION VIII.4. No Remedy Exclusive. No remedy
conferred upon or reserved to the Issuer by this Refunding
Agreement is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Refunding Agreement or now or hereafter existing at
law or in equity or by statute. No delay or omission to exercise
any right or power accruing upon any event of default shall
impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In
order to entitle the Issuer or the Trustee to exercise any remedy
reserved to it in this Article, it shall not be necessary to give
any notice, other than such notice as may be herein expressly
required, or as may be required by applicable law.
SECTION VIII.5. Payment of Attorneys' Fees and Other
Expenses. If the Company shall be in default under any of the
provisions of this Refunding Agreement, and the Issuer or the
Trustee shall employ attorneys or incur other expenses for the
collection of sums due and payable under this Refunding
Agreement, or for the enforcement of performance or observance of
any obligation or agreement on the part of the Company contained
in this Refunding Agreement, the Company agrees that it will on
demand therefor reimburse the reasonable fees of such attorneys
and such other reasonable expenses so incurred.
SECTION VIII.6. Waiver of Breach. In the event that any
agreement contained herein shall be breached by either the
Company or the Issuer and such breach shall thereafter be waived
by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any
other breach hereunder. In view of the assignment of the
Issuer's rights in and under this Refunding Agreement to the
Trustee under the Indenture, the Issuer shall have no power to
waive any default hereunder by the Company without the consent of
the Trustee. Any waiver of any "Event of Default" under the
Indenture and a rescission and annulment of its consequences
shall constitute a waiver of the corresponding Event of Default
hereunder and a rescission and annulment of the consequences
thereof.
<PAGE>
ARTICLE IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
SECTION IX.1. Redemption of Bonds. The Issuer shall take
the actions required by the Indenture to discharge the lien
thereof through the redemption, or provision for payment or
redemption, of all Bonds then outstanding, or to effect the
redemption, or provision for payment or redemption, of less than
all the Bonds then outstanding, upon receipt by the Issuer and
the Trustee from the Company of a notice designating the
principal amounts of the Bonds to be redeemed, or for the payment
or redemption of which provision is to be made, and, in the case
of redemption of Bonds, or provision therefor, specifying the
date of redemption, whether such notice shall be unconditional,
and the applicable redemption provision of the Indenture. Unless
otherwise stated therein or otherwise required by the Indenture,
such notice shall be revocable by the Company at any time prior
to the time at which the Trustee shall have given notice to the
holders of the Bonds to be redeemed. The Company shall furnish,
as a prepayment of the sums due hereunder, any moneys or
Government Securities required by the Indenture to be deposited
with the Trustee or otherwise paid by the Issuer in connection
with a defeasance of Bonds pursuant to Article XV of the
Indenture or in connection with an unconditional call for
redemption of Bonds.
SECTION 9.2. Purchase of Bonds. The Company may at any
time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts specified in such notice, and any Bonds so
purchased shall thereupon be canceled by the Trustee.
<PAGE>
ARTICLE X
MISCELLANEOUS
SECTION X.1. Term of the Agreement. This Refunding
Agreement shall be in full force and effect from the Issue Date
until the right, title and interest of the Trustee in and to the
Trust Estate (as defined in the Indenture) shall have ceased,
terminated and become void in accordance with Article XV of the
Indenture and until all payments required under this Refunding
Agreement shall have been made.
SECTION X.2. Notices. Except as otherwise provided in
this Refunding Agreement, all notices, certificates or other
communications shall be sufficiently given and shall be deemed
given when given in accordance with the provisions of Section
16.6 of the Indenture.
SECTION X.3. Successors. This Refunding Agreement shall
inure to the benefit of the Issuer, the governing authority of
the Issuer, its members, officers or employees, the Company, the
Trustee and the holders from time to time of the Bonds, and shall
be binding upon the Issuer, the Company and their respective
successors and assigns.
SECTION X.4. Amendments to Refunding Agreement. This
Refunding Agreement may not be effectively amended, changed,
modified, altered or terminated except in accordance with the
provisions of the Indenture, and no amendment to this Refunding
Agreement shall be binding upon either party hereto until such
amendment is reduced to writing and executed by both parties
hereto.
SECTION X.5. Counterparts. This Refunding Agreement may
be executed in any number of counterparts, each of which, when so
executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same
Agreement.
SECTION X.6. Severability. If any clause, provision or
section of this Refunding Agreement shall be held illegal or
invalid by any court, the invalidity of such clause, provision or
section shall not affect any of the remaining clauses, provisions
or sections hereof and this Refunding Agreement shall be
construed and enforced as if such illegal or invalid clause,
provision or section had not been contained herein. In case any
agreement or obligation contained in this Refunding Agreement
shall be held to be in violation of law, then such agreement or
obligation shall be deemed to be the agreement or obligation of
the Issuer or the Company, as the case may be, to the full extent
permitted by law.
SECTION X.7. Applicable Law. The laws of the State of
Louisiana shall govern the construction of this Refunding
Agreement.
SECTION X.8. Holidays. If the date for making any payment
or the last date for performance of any act or the exercising of
any right, as provided in this Refunding Agreement, shall not be
a Business Day, such payment may be made or act performed or
right exercised on the next succeeding Business Day, with the
same force and effect as if done on the nominal date provided in
this Refunding Agreement, and no interest on the amount so
payable shall accrue for the period after such nominal date.
SECTION X.9. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund upon expiration or earlier termination
of this Refunding Agreement as herein provided, after payment in
full of the Bonds (or provision therefor) in accordance with the
Indenture, all other costs and expenses to be paid by the Company
hereunder, all Administration Expenses, and all amounts owing the
Issuer and the Trustee under this Refunding Agreement and the
Indenture, shall belong to and be paid to the Company, as an
overpayment of the payments.
SECTION X.10. Company Approval of Indenture. The Indenture
has been submitted to the Company for examination, and the
Company, by execution of this Refunding Agreement, acknowledges
and agrees that it has participated in the drafting of the
Indenture and agrees that it has approved the Indenture and
agrees that it is bound by and shall have the rights set forth by
the terms and conditions thereof and covenants and agrees to
perform all obligations required of the Company pursuant to the
terms of the Indenture.
SECTION X.11. Binding Effect. This Refunding Agreement
shall be binding upon the parties hereto and upon their
respective successors and assigns, and the words "Issuer" and
"Company" shall include the parties hereto and their respective
successors and assigns and include any gender, singular and
plural, and individuals, partnerships or corporations.
SECTION X.12. Captions and Headings. The captions or
headings in this Refunding Agreement are for convenience only and
in no way define, limit or describe the scope or intent of any
provisions of this Refunding Agreement.
SECTION X.13. No Personal Liability. No covenant or
agreement contained in this Refunding Agreement shall be deemed
to be the covenant or agreement of any official, officer, agent,
or employee of the Issuer in his individual capacity, and no such
person shall be subject to any personal liability or
accountability by reason of the issuance thereof.
SECTION X.14. Parties in Interest. This Refunding
Agreement shall inure to the benefit of and shall be binding upon
the Issuer, the Company, the Trustee and the Paying Agent and
their respective successors and assigns, and no other person,
firm or corporation shall have any right, remedy or claim under
or by reason of this Refunding Agreement; provided, however, that
any monetary obligation of the Issuer created by or arising out
of this Refunding Agreement shall be payable solely out of the
revenues derived from this Refunding Agreement or the sale of the
Bonds or income earned on invested funds as provided in the
Indenture and shall not constitute, and no breach of this
Refunding Agreement by the Issuer shall impose, a pecuniary
liability upon the Issuer or a charge upon the Issuer's general
credit or against its taxing powers.
SECTION X.15. Administrative Fee. The Company acknowledges
and agrees that the Issuer will charge an administrative fee
payable to the Trustee, in an amount set forth in Exhibit B to
the Indenture, for the purpose of paying or reimbursing the
Issuer for its reasonable administrative expenses incurred by the
Issuer in connection with the issuance of the Bonds, representing
the legal expenses of Bond Counsel and Issuer's counsel, which
administrative fee shall be deposited by the Company with the
Trustee pursuant to Section 6.4 of the Indenture and applied to
pay the expenses set forth in Exhibit B to the Indenture.
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Refunding Agreement to be executed in their respective
corporate names and their respective corporate seals to be
hereunto affixed and attested by their duly authorized officers,
all as of the date first above written.
PARISH OF ST. CHARLES,
STATE OF LOUISIANA
By:________________________________
Parish President
ATTEST:
By: _______________________________ [SEAL]
Secretary, St. Charles Parish Council
ENTERGY LOUISIANA, INC.
By:_________________________________
Vice President and Treasurer
ATTEST:
By: _______________________________ [SEAL]
Assistant Secretary
Exhibit F-1(d)
October 15, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration
("Application-Declaration") on Form U-1, as amended (File No.
70-9141), filed by Entergy Louisiana, Inc. (the "Company")
with the Securities and Exchange Commission ("Commission")
under the Public Utility Holding Company Act of 1935, as
amended, contemplating, among other things, the entering into
arrangements for the issuance and sale of one or more new
series of tax-exempt bonds (the "Tax-Exempt Bonds"); (2) the
Commission's order dated March 12, 1998 ("Order") permitting
the Application-Declaration, as amended, to become effective
with respect to the issuance and sale of said Tax-Exempt
Bonds; and (3) the subsequent consummation on October 7, 1999
of the entry by the Company into a Refunding Agreement with
the Parish of St. Charles, State of Louisiana (the "Issuer")
and the related refinancing of outstanding pollution control
revenue bonds through the issuance and sale by the Issuer of a
series of Tax-Exempt Bonds, Pollution Control Revenue
Refunding Bonds (Entergy Louisiana, Inc. Project) Series 1999-
C (the "Transaction"), I advise you that in my opinion:
(a) the Company is a corporation duly
organized and validly existing under the laws of the
State of Louisiana;
(b) the Transaction has been consummated in
accordance with the Application-Declaration, as
amended, and the Order;
(c) all state laws that relate or are applicable
to the Company's participation in the Transaction
(other than so-called "blue sky" or similar laws, upon
which I do not pass herein) have been complied with;
(d) the Refunding Agreement is a valid and
binding obligation of the Company in accordance with
its terms, except as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights
and by general equitable principles (whether considered
in a proceeding in equity or at law); and
(e) the consummation of the Transaction has not
violated the legal rights of the holders of any
securities issued by the Company.
I am a member of the Louisiana State Bar and for
purposes of this opinion do not hold myself out as an expert on
the laws of any state other than Louisiana and of the United
States.
My consent is hereby given to the use of this opinion
as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Ann G. Roy
Ann G. Roy, Esq.
Senior Counsel -
Corporate and Securities
Exhibit F-2(d)
October 15, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration
("Application-Declaration") on Form U-1, as amended (File No. 70-
9141), filed by Entergy Louisiana, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") under the
Public Utility Holding Company Act of 1935, as amended,
contemplating, among other things, the entering into arrangements
for the issuance and sale of one or more new series of tax-exempt
bonds (the "Tax-Exempt Bonds"); (2) the Commission's order dated
March 12, 1998 (the "Order") permitting the Application-
Declaration, as amended, to become effective with respect to the
foregoing matters; and (3) the subsequent consummation, on
October 7, 1999, of the entry by the Company into a Refunding
Agreement, dated as of October 1, 1999 with the Parish of
St. Charles, State of Louisiana (the "Issuer"), and the related
refinancing of outstanding pollution control revenue bonds
through the issuance by the Issuer of a new series of its Tax-
Exempt Bonds (the "Transaction"), we advise you that in our
opinion:
(a) the Company is a corporation duly organized
and validly existing under the laws of the State of
Louisiana;
(b) the Transaction has been consummated in
accordance with the Application-Declaration, as amended,
and the Order;
(c) all state laws that relate or are applicable
to the participation by the Company in the Transaction
(other than so-called "blue sky" or similar laws, with
respect to which we express no opinion) have been
complied with; and
(d) the consummation of the Transaction by the
Company has not violated the legal rights of the holders
of any securities issued by the Company.
We are members of the New York Bar and do no hold
ourselves out as experts on the laws of any other state for
purposes of this opinion. In giving this opinion, we have
relied, as to all matters governed by the laws of the State of
Louisiana, upon the opinion of Ann G. Roy, Esq., Senior Counsel -
Corporate and Securities of Entergy Services, Inc., counsel for
the Company, which is to be filed as an exhibit to the
Certificate pursuant to Rule 24.
Our consent is hereby given to the use of this opinion
as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
