Exhibit B-11
T r u s t I n d e n t u r e
between
Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
State of Louisiana
and
First National Bank of Commerce
Dated as of [ ]
[$ ]
Parish of St. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Gulf States Utilities Company Project)
Series [ ]
Trust Indenture
This Trust Indenture dated as of September 1, 1994 by and
between the Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, State of Louisiana, a
political subdivision of the State of Louisiana (the "Issuer"),
and First National Bank of Commerce, a national banking
association, incorporated and existing under the laws of the
United States of America with its principal office and domicile
located in New Orleans, Louisiana (in its capacity herein,
together with any successors in such capacity, called the
"Trustee"),
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Louisiana, created and existing pursuant to the Constitution
and laws of such State and is authorized and empowered by law,
including particularly the provisions of Chapter 14-A of Title 39
of the Louisiana Revised Statutes of 1950, as amended (La. R.S.
39:1444-1456) (the "Act"), to issue refunding bonds for the
purpose of refunding, readjusting, restructuring, refinancing,
extending, or unifying the whole or any part of outstanding
securities of the Issuer in an amount sufficient to provide funds
necessary to effectuate the purpose for which the refunding bonds
are being issued and to pay all costs associated therewith; and
WHEREAS, pursuant to the provisions of Sections 991 to 1001,
inclusive, of Title 39 of the Louisiana Revised Statutes of 1950,
as amended and an Indenture of Trust and Pledge dated [
], by and between the Issuer and [
], as trustee (collectively, the "Prior Indenture"), the Issuer
issued its Pollution Control Revenue Bonds (Gulf States Utilities
Company Project) Series [ ] (the
"Prior Bonds") in the aggregate principal amount of [$ ] for
the purpose of providing funds to finance the cost of acquiring a
leasehold interest in the undivided seventy percent interest in
certain water pollution control and sewage disposal facilities at
the River Bend Unit 1 nuclear power plant in the Parish of ▇▇▇▇
▇▇▇▇▇▇▇▇▇, Louisiana, owned by Gulf States Utilities Company, a
Texas corporation (the "Company"); and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue its refunding bonds
for the purpose of refunding the Prior Bonds; and
WHEREAS, in consideration of the issuance of said refunding
bonds by the Issuer, the Company will agree to make payments in
an amount sufficient to pay the principal of, premium, if any,
and interest on said refunding bonds pursuant to a Refunding
Agreement dated as of [ ], between the Issuer and the
Company (the "Refunding Agreement"), said refunding bonds to be
paid solely from the revenues derived by the Issuer from said
payments by the Company pursuant to the Refunding Agreement and
any moneys held thereunder, and said refunding bonds never to
constitute an indebtedness or pledge of the general credit of the
Issuer or the State of Louisiana, within the meaning of any
constitutional or statutory limitation of indebtedness or
otherwise; and
WHEREAS, the execution and delivery of this Trust Indenture
and the issuance of said refunding bonds under this Trust
Indenture pursuant to the aforesaid statutory authority have been
in all respects duly and validly authorized by resolution adopted
by the governing authority of the Issuer; and
WHEREAS, the Issuer has authorized the issuance hereunder of
said refunding bonds, namely [$ ] aggregate principal
amount of its Pollution Control Revenue Refunding Bonds (Gulf
States Utilities Company Project) Series [ ] (the "Bonds"), the
proceeds of which are to be used to refund the principal of the
Prior Bonds; and
WHEREAS, the Bonds bear interest, mature and are subject to
redemption as set forth in this Trust Indenture; and
WHEREAS, all things necessary to make the Bonds, when
authenticated by the Trustee and issued as in this Trust
Indenture provided, the valid, binding and legal obligations of
the Issuer according to the import thereof, and to constitute
this Trust Indenture a valid assignment and pledge of revenues to
the payment of the principal of and premium, if any, and interest
on the Bonds, in accordance with the provisions hereof, have or
will have been done and performed, and the creation, execution
and delivery of this Trust Indenture and the creation, execution
and issuance of the Bonds, subject to the terms hereof, have in
all respects been duly authorized;
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH:
That the Issuer, in consideration of the premises and the
acceptance by the Trustee of the trusts hereby created and of the
purchase and acceptance of the Bonds by the holders and owners
thereof, and the sum of One Dollar ($1.00), lawful money of the
United States of America, to it duly paid by the Trustee, at or
before the execution and delivery of these presents, and for
other good and valuable consideration, the receipt of which is
hereby acknowledged, and in order to secure the payment of the
principal of and premium, if any, and interest on the Bonds
according to their tenor and effect and to secure the performance
and observance by the Issuer of all the covenants expressed or
implied herein and in the Bonds, subject to all of the provisions
hereof, does hereby grant, bargain, sell, convey, mortgage,
assign and pledge unto the Trustee, and unto its successor or
successors in trust, and to them and their assigns forever, for
the securing of the performance of the obligations of the Issuer
hereinafter set forth:
I
All the rights and interest of the Issuer in and to the
Refunding Agreement (except for the rights of the Issuer under
Sections 4.5, 4.6, 4.7 and 8.5 of the Refunding Agreement and any
rights of the Issuer to receive notices, certificates, requests,
requisitions, directions and other communications under the
Refunding Agreement), including, without limitation, its right to
receive the First Mortgage Bonds (as hereinafter defined); all
Revenues (as hereinafter defined) and the proceeds of all
thereof; and the First Mortgage Bonds issued and delivered by the
Company pursuant to the Refunding Agreement.
II
All the rights and interest of the Issuer in and to the Bond
Fund (as hereinafter defined), and all moneys and investments
therein, but subject to the provisions of this Trust Indenture
pertaining thereto, including those pertaining to the making of
disbursements therefrom.
III
All moneys, securities and obligations from time to time
held by the Trustee under the terms of this Trust Indenture and
any and all real and personal property of every kind and nature
from time to time hereafter by delivery or by writing of any kind
conveyed, mortgaged, pledged, assigned or transferred, as and for
additional security hereunder by the Issuer or by anyone in its
behalf or with its written consent to the Trustee, which is
hereby authorized to receive any and all such property at any and
all times and to hold and apply the same subject to the terms
hereof; except for moneys, securities or obligations deposited
with or paid to the Trustee for redemption or payment of Bonds
which are deemed to have been paid in accordance with Article IX
hereof and funds held pursuant to Section 6.5 hereof, which shall
be held by the Trustee in accordance with the provisions of said
Article IX or Section 6.5, as the case may be.
TO HAVE AND TO HOLD all of the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or intended
so to be, to the Trustee and its successors in said trusts and to
them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit and security of all
owners of the Bonds issued under and secured by this Trust
Indenture without preference, priority or distinction as to the
lien of any Bonds over any other Bonds, except insofar as any
sinking, amortization or other fund, or any terms or conditions
of redemption or purchase, established under this Trust Indenture
may afford additional benefit or security for the Bonds.
PROVIDED, HOWEVER, that if the Issuer shall pay or cause to
be paid to the owners of the Bonds the principal of and premium,
if any, and interest to become due thereon at the times and in
the manner stipulated therein, and if the Issuer shall keep,
perform and observe all and singular the covenants and promises
in the Bonds and in this Trust Indenture expressed as to be kept,
performed and observed by it, all as provided in and subject to
the provisions of Article IX hereof, then and in that case these
presents and the estate and rights hereby granted, except as
otherwise provided in Article IX, shall cease, terminate and be
void, and thereupon the Trustee shall cancel and discharge the
lien of this Trust Indenture and execute and deliver to the
Issuer such instruments in writing as shall be requisite to
evidence the discharge hereof pursuant to the provisions of said
Article IX; otherwise this Trust Indenture to be and remain in
full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered, and the Trust Estate (as
hereinafter defined) and the other estate and rights hereby
granted, are to be dealt with and disposed of, under, upon and
subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes as hereinafter expressed,
and the Issuer has agreed and covenanted, and does hereby agree
and covenant, with the Trustee and with the respective owners,
from time to time, of the Bonds, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. In addition to the words
and terms elsewhere defined in this Indenture, the following
words and terms as used in this Indenture shall have the
following meanings:
"Act" means Chapter 14-A of Title 39 of the Louisiana
Revised Statutes of 1950, as amended.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to the Refunding
Agreement, this Indenture and any transaction or event
contemplated by the Refunding Agreement or this Indenture
including the compensation and reimbursement of expenses and
advances payable to the Trustee, any paying agent, any co-paying
agent, and the registrar under the Indenture.
"Authorized Company Representative" means the person or
persons at the time designated to act on behalf of the Company,
such designation in each case, to be evidenced by a certificate
furnished to the Issuer and the Trustee containing the specimen
signature of such person or persons and signed on behalf of the
Company by its President, any Vice President, or its Treasurer.
"Bond Counsel" means any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the Issuer and the Trustee.
"Bond Fund" means the fund by that name created and
established in Section 6.1 of this Indenture.
"Bond Registrar" means the registrar of Bonds named herein.
"Bonds" means the [$ ] aggregate principal amount
of Pollution Control Revenue Refunding Bonds (Gulf States
Utilities Company Project) Series [ ] authorized to be issued
under this Indenture.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Gulf States Utilities Company, a corporation
organized and existing under the laws of the State of Texas, and
its permitted successors and assigns.
"Company Mortgage" means the Company's Indenture of Mortgage
dated as of September 1, 1926, made to The Chase National Bank in
the City of New York, as trustee, as heretofore and hereafter
amended and supplemented.
"Company Mortgage Trustee" means the trustee under the
Company Mortgage.
"Event of Default" means any event of default specified in
Section 10.1 hereof.
"Facilities" means the Company's undivided seventy percent
interest in certain water pollution control and sewage disposal
facilities at the Company's River Bend Unit 1 nuclear power plant
in the Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Louisiana, financed with the
proceeds of the Prior Bonds.
"First Mortgage Bonds" means the bonds of one or more series
issued and delivered under the Company Mortgage and held by the
Trustee pursuant to Section 4.3 of the Refunding Agreement.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form on the books of the
Department of Treasury of the United States of America), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"holder" or "bondholder" or "owner of the Bonds" or
"Bondholder" means the registered owner of any Bond.
"Indenture" means this Trust Indenture and all amendments
and supplements hereto.
"Issuer" means the Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, State of
Louisiana, a political subdivision under the Constitution and
laws of the State of Louisiana.
"outstanding", when used with reference to the Bonds, means,
as of any particular date, all Bonds authenticated and delivered
under this Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee at or prior to such
date for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of this Indenture;
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and
delivered pursuant to this Indenture; and
(d) Bonds registered in the name of the Issuer.
"Paying Agent" means any bank or trust company designated
pursuant to this Indenture as the place at which the principal of
and premium, if any, and interest on the Bonds of a series are
payable, and any successor designated pursuant to this Indenture.
With respect to the Bonds, the Trustee is the original Paying
Agent.
"person" means natural persons, firms, associations,
corporations and public bodies.
"Plant" means the Company's River Bend Unit 1 nuclear power
plant located in the Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Louisiana.
"Prior Bonds" means the Issuer's Pollution Control Revenue
Bonds (Gulf States Utilities Company Project) Series [
] issued and outstanding in the aggregate principal amount of [$
].
"Prior Indenture" means the Indenture of Trust and Pledge
dated as of May 1, 1984 between the Issuer and the Prior Trustee.
"Prior Trustee" means City National Bank of Baton Rouge, in
the City of Baton Rouge, Louisiana, and its successors and
assigns.
"Record Date" means the fifteenth day of the calendar month
next preceding any interest payment date.
"Refunding Agreement" means the Refunding Agreement dated as
of September 1, 1994 between the Issuer and the Company, and any
amendments and supplements thereto.
"Refunding Fund" means the fund established pursuant to
Section 3.1 hereof.
"Revenues" means all moneys paid or payable by the Company
to the Trustee for the account of the Issuer in respect of the
principal of and premium, if any, and interest on the First
Mortgage Bonds, including, without limitation, amounts paid or
payable by the Company pursuant to Section 4.2 of the Refunding
Agreement as the payments, and all receipts of the Trustee
credited under the provisions of this Indenture against such
payments.
"Trustee" means the banking corporation or association
designated as Trustee herein, and its successor or successors as
such Trustee. The original Trustee is First National Bank of
Commerce, in the City of New Orleans, Louisiana.
"Trust Estate" means the property conveyed to the Trustee
pursuant to the Granting Clauses hereof.
SECTION 1.2. Use of Words. Words of the masculine
gender shall be deemed and construed to include correlative words
of the feminine and neuter genders. Unless the context shall
otherwise indicate, the words "Bond", "owner", "holder" and
"person" shall include the plural, as well as the singular,
number.
ARTICLE II
THE BONDS
SECTION 2.1. Authorized Form and Amount of Bonds. No
Bonds may be issued under the provisions of this Indenture except
in accordance with this Article. All Bonds issued hereunder
shall be in the form of registered bonds without coupons. The
total principal amount of Bonds that may be issued is hereby
expressly limited to [$ ], except as provided in Section
2.8 hereof.
SECTION 2.2. Details of Bonds. The Bonds (i) shall
be designated "Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, State of Louisiana
Pollution Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series [ ]", (ii) shall be in the
aggregate principal amount of [$ ], (iii) shall be
issued in denominations of $5,000 and any integral multiple
thereof, (iv) shall be numbered consecutively from R-1 upwards in
order of issuance according to the records of the Trustee, (v)
shall be dated as hereinafter provided, (vi) shall bear interest
as hereinafter provided, payable semiannually on _________ and
_________ of each year, commencing ________, 1995, and (vii)
shall mature on ________________.
The Bonds shall bear interest from and including the date
thereof until the principal thereof shall have become due and
payable in accordance with the provisions hereof, whether at
maturity, upon redemption or otherwise, at the rate of _______%
per annum.
Bonds issued before _________, 1994 shall be dated
_________, 1994, and Bonds issued on or subsequent to _________,
1994 shall be dated as of the interest payment date next
preceding the date of authentication and delivery thereof by the
Trustee, unless such date of authentication and delivery shall be
an interest payment date, in which case they shall be dated as of
such date of authentication and delivery; provided, however, that
if, as shown by the records of the Trustee, interest on any Bonds
surrendered for transfer or exchange shall be in default, the
Bonds issued in exchange for Bonds surrendered for transfer or
exchange shall be dated as of the date to which interest has been
paid in full on the Bonds surrendered.
The Bonds shall be substantially in the form set forth in
Exhibit A attached hereto with such appropriate variations,
omissions and insertions as are permitted or required by this
Indenture.
SECTION 2.3. Payment. The principal of and premium,
if any, on the Bonds shall be paid upon the presentation and
surrender of said Bonds at the principal corporate trust office
of the Trustee. The interest on the Bonds shall be payable by
check drawn upon the Trustee and mailed to the registered owners
as of the close of business on the Record Date with respect to
the interest payment date at their respective addresses as such
appear on the bond registration books kept by the Trustee. All
payments shall be made in lawful money of the United States of
America.
SECTION 2.4. Execution. The Bonds shall be executed
on behalf of the Issuer by the President and the Secretary of the
governing authority of the Issuer (by their manual or facsimile
signatures) and shall have impressed or imprinted thereon the
seal of the Issuer. A facsimile signature shall have the same
force and effect as if personally signed. In case any officer
whose signature or facsimile of whose signature shall appear on
the Bonds shall cease to be such officer before the delivery of
such Bonds, such signature or such facsimile shall nevertheless
be valid and sufficient for all purposes, the same as if he had
remained in office until delivery.
SECTION 2.5. Limited Obligation. The Bonds, together
with interest thereon, shall be payable from the Bond Fund, as
hereinafter set forth, and shall be a valid claim of the holders
thereof only against the Bond Fund and the Revenues pledged to
the Bonds, which Revenues are hereby pledged and assigned for the
equal and ratable payment of the Bonds (principal, premium, if
any, and interest) and shall be used for no other purpose than to
pay the principal of and premium, if any, and interest on the
Bonds, except as may be otherwise expressly authorized in this
Indenture. The Bonds (including premium, if any) and interest
thereon shall not constitute an indebtedness or pledge of the
general credit of the Issuer within the meaning of any Louisiana
constitutional or statutory provision and shall not constitute an
obligation of or a charge against the taxing powers of the
Issuer.
SECTION 2.6. Authentication. Only such Bonds as
shall have endorsed thereon a Certificate of Authentication
substantially in the form set forth in Exhibit A attached hereto
duly executed by the Trustee shall be entitled to any right or
benefit under this Indenture. No Bond shall be valid and
obligatory for any purpose unless and until such Certificate of
Authentication shall have been duly executed by the Trustee, and
such Certificate of the Trustee upon any such Bond shall be
conclusive evidence that such Bond has been authenticated and
delivered under this Indenture. The Trustee's Certificate of
Authentication on any Bond shall be deemed to have been executed
if signed by an authorized officer of the Trustee, but it shall
not be necessary that the same officer sign the Certificate of
Authentication on all of the Bonds issued hereunder.
SECTION 2.7. Delivery of the Bonds. The Issuer shall
execute and deliver to the Trustee and the Trustee shall
authenticate the Bonds and deliver said Bonds to the original
purchaser or purchasers thereof as may be directed hereinafter in
this Section, in Section 2.11 hereof, or in any supplemental
indenture.
Prior to the delivery on original issuance by the Trustee of
any authenticated Bonds there shall be or have been delivered to
the Trustee:
(a) An original duly executed counterpart or a duly
certified copy of this Indenture;
(b) An original duly executed counterpart or a duly
certified copy of the Refunding Agreement;
(c) (i) An original duly executed counterpart or a
duly certified copy of the indenture supplemental to the
Company Mortgage creating the series of First Mortgage Bonds
to be issued in respect of the Bonds as provided in Section
4.3 of the Refunding Agreement and (ii) such First Mortgage
Bonds;
(d) A written order to the Trustee by the Issuer to
authenticate and deliver the Bonds of such series to the
original purchasers thereof upon payment to Trustee, but for
the account of the Issuer, of a sum specified in such order;
and
(e) A copy, duly certified by the Secretary of the
governing authority of the Issuer, of the proceedings of the
governing body of the Issuer authorizing the issuance of the
Bonds.
SECTION 2.8. Mutilated, Destroyed or Lost Bonds. In
case any Bond issued hereunder shall become mutilated or be
destroyed or lost, the Issuer shall, if not then prohibited by
law, cause to be executed and the Trustee shall authenticate and
deliver a new Bond of the same series of like date, number,
maturity and tenor in exchange and substitution for and upon
cancellation of such mutilated Bond, or in lieu of and in
substitution for such Bond destroyed or lost, upon the holder's
paying the reasonable expenses and charges of the Issuer and
Trustee in connection therewith, and, in the case of a Bond
destroyed or lost, his filing with the Trustee evidence
satisfactory to the Company and the Trustee that such Bonds were
destroyed or lost, and of his ownership thereof, and furnishing
the Issuer, the Company and the Trustee with indemnity
satisfactory to them. The Trustee is hereby authorized to
authenticate any such new Bond. In the event any such Bonds
shall have matured, instead of issuing a new Bond, the Issuer may
pay the same without the surrender thereof.
SECTION 2.9. Registration and Exchange of Bonds. The
Issuer hereby constitutes and appoints the Trustee as Bond
Registrar of the Issuer, and as Bond Registrar the Trustee shall
keep books for the registration and for the transfer of the Bonds
as provided in this Indenture at the principal corporate trust
office of the Trustee. The person in whose name any Bond shall
be registered shall be deemed and regarded as the absolute owner
thereof for all purposes, and payment of or on account of the
principal of and interest on any such Bond shall be made only to
or upon the order of the registered owner thereof or his legal
representative, and neither the Issuer, the Trustee, nor the Bond
Registrar shall be affected by any notice to the contrary but
such registration may be changed as herein provided. All
payments shall be valid and effectual to satisfy and discharge
the liability upon such Bond to the extent of the sum or sums so
paid.
Bonds may be transferred on the books of registration kept
by the Trustee by the registered owner in person or by his duly
authorized attorney, upon surrender thereof together with a
written instrument of transfer duly executed by the registered
owner or his duly authorized attorney in such form as shall be
satisfactory to the Trustee. Upon surrender for transfer of any
Bond at the principal corporate office of the Trustee, the Issuer
shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new Bond or Bonds in
the same aggregate principal amount and of any authorized
denomination or denominations.
Bonds may be exchanged at the principal corporate trust
office of the Trustee for an equal aggregate principal amount of
Bonds of any other authorized denomination or denominations of
the same series with corresponding maturities. The Issuer shall
execute and the Trustee shall authenticate and deliver Bonds
which the bondholder making the exchange is entitled to receive,
bearing numbers not then outstanding. The execution by the
Issuer of any Bond of any denomination shall constitute full and
due authorization of such denomination and the Trustee shall
thereby be authorized to authenticate and deliver such Bond.
Such transfers of registration or exchanges of Bonds shall
be without charge to the holders of such Bonds, but any taxes or
other governmental charges required to be paid with respect to
the same shall be paid by the holder of the Bond requesting such
transfer or exchange as a condition precedent to the exercise of
such privilege.
The Trustee shall not be required to transfer or exchange
any Bond after the mailing of notice calling such Bond for
redemption has been made, nor during the period of fifteen (15)
days next preceding mailing of a notice of redemption of any
Bonds.
At reasonable times and under reasonable regulations
established by the Trustee, the list of registered owners of the
Bonds may be inspected and copied by the Company or by holders or
owners (or a designated representative thereof) of 10% or more in
principal amount of Bonds then outstanding, such possession or
ownership and the authority of such designated representative to
be evidenced to the satisfaction of the Trustee.
SECTION 2.10. Cremation and Other Dispositions. All Bonds
surrendered for the purpose of payment or retirement, or for
exchange, or for replacement or payment as provided above, or for
cancellation, shall be canceled upon surrender thereof to the
Trustee and, at the option of the Trustee, either cremated,
shredded or otherwise disposed of. The Trustee shall execute and
forward to the Issuer an appropriate certificate describing the
Bonds involved and the manner of disposition.
SECTION 2.11. Temporary Bonds. Until Bonds in definitive
form are ready for delivery, the Issuer may execute, and upon the
request of the Issuer, the Trustee shall authenticate and
deliver, subject to the provisions, limitations and conditions
set forth herein, one or more Bonds in temporary form, whether
printed, typewritten, lithographed or otherwise produced,
substantially in the form of the definitive Bonds, with
appropriate omissions, variations and insertions, and in
authorized denominations. Until exchanged for Bonds in
definitive form, such Bonds in temporary form shall be entitled
to the lien and benefit of this Indenture. Upon the presentation
and surrender of any Bond or Bonds in temporary form, the Issuer
shall, without unreasonable delay, prepare, execute and deliver
to the Trustee and the Trustee shall authenticate and deliver, in
exchange therefor, a Bond or Bonds in definitive form. Such
exchange shall be made by the Trustee without making any charge
therefor to the holder of such Bond in temporary form.
ARTICLE III
REFUNDING FUND
SECTION 3.1. Creation of Refunding Fund. There is
hereby created and ordered to be established with the Trustee a
trust fund of and in the name of the Issuer to be designated
"Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Pollution Control Revenue Refunding
Bonds (Gulf States Utilities Company Project) Series [ ]
Refunding Fund".
SECTION 3.2. Deposit of Proceeds of Bonds. All of
the proceeds of the Bonds, exclusive of accrued interest, if any,
shall be deposited in the Refunding Fund. On the date of
issuance of the Bonds, the Trustee shall transfer to the Prior
Trustee all such moneys for deposit in the bond fund created
under the Prior Indenture for the purpose of, together with
moneys of the Company deposited therein, refunding the Prior
Bonds on the Refunding Date.
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 4.1. Redemption. The Bonds shall be subject
to redemption prior to maturity as follows:
(a) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, in whole but not in
part, at any time, at a redemption price equal to the principal
amount being redeemed plus accrued interest to the redemption
date, if:
(i) the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued operation of the Facilities is impracticable,
uneconomical or undesirable due to (A) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Facilities, or other liabilities or burdens with
respect to the Facilities or the operation thereof, (B)
changes in technology, in environmental standards or legal
requirements or in the economic availability of materials,
supplies, equipment or labor or (C) destruction of or damage
to all or part of the Facilities;
(iii) all or substantially all of the Facilities
shall have been condemned or taken by eminent domain; or
(iv) the operation of the Facilities shall have been
enjoined or shall have otherwise been prohibited by any
order, decree, rule or regulation of any court or of any
federal, state or local regulatory body, administrative
agency or other governmental body.
(b) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, on and after
________________, in whole at any time or in part from time to
time (and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable), at the
redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued interest to the redemption date:
Redemption Period Redemption Price
The Bonds shall also be subject to optional redemption by the
Issuer, at the direction of the Company, in whole but not in
part, at any time prior to ________________, at a redemption
price equal to % of the principal amount being redeemed
plus accrued interest to the redemption date, if the Company
shall have consolidated with or merged with or into another
corporation, or sold or otherwise transferred all or
substantially all of its assets.
In case a Bond is of a denomination larger than $5,000, a
portion of such Bond ($5,000 or any integral multiple thereof)
may be redeemed if otherwise permitted, but Bonds shall be
redeemed only in the principal amount of $5,000 or any integral
multiple thereof.
SECTION 4.2. Notice. Notice of any redemption,
identifying the Bonds or portions thereof being called and the
date on which they shall be presented for payment, shall be given
by the Trustee by first class mail, postage prepaid, to the
registered owner of each such Bond addressed to such registered
owner at his registered address and placed in the mails not less
than thirty (30) days nor more than sixty (60) days prior to the
date fixed for redemption; provided, however, that failure to
give such notice by mailing, or any defect therein, shall not
affect the validity of any proceeding for the redemption of any
Bond with respect to which no such failure or defect has
occurred.
Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the
holder or owner receives the notice.
With respect to notice of redemption of the Bonds at the
option of the Issuer (at the direction of the Company), unless
moneys sufficient to pay the principal of and premium, if any,
and interest on the Bonds to be redeemed shall have been received
by the Trustee prior to the giving of such notice, such notice
shall state that said redemption shall be conditional upon the
receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, such notice shall be of no force and effect, the Issuer
shall not redeem such Bonds and the Trustee shall give notice, in
the manner in which the notice of redemption was given, that such
moneys were not so received.
SECTION 4.3. Redemption Payments. Subject to the
provisions of the last paragraph of Section 4.2 hereof, on or
prior to the date fixed for redemption, funds shall be deposited
with the Trustee to pay, and the Trustee is hereby authorized and
directed to apply such funds to the payment of, the Bonds or
portions thereof to be redeemed, together with accrued interest
thereon to the redemption date and any required premium. Upon
the giving of notice and the deposit of funds for redemption,
interest on the Bonds or portions thereof thus redeemed shall no
longer accrue after the date fixed for redemption.
SECTION 4.4. Cancellation. All Bonds which have been
redeemed shall not be reissued but shall be canceled and disposed
of by the Trustee in accordance with Section 2.10 hereof.
SECTION 4.5. Partial Redemption of Bonds. Upon
surrender of any Bond for redemption in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to
the holder thereof a new Bond or Bonds of the same series and the
same maturity, of authorized denominations in an aggregate
principal amount equal to the unredeemed portion of the Bond
surrendered.
ARTICLE V
GENERAL COVENANTS; THE FIRST MORTGAGE BONDS
SECTION 5.1. Payment of Principal, Premium, If Any,
and Interest. The Issuer covenants that it will promptly pay or
cause to be paid the principal of and premium, if any, and
interest on every Bond issued under this Indenture at the place,
on the dates and in the manner provided herein and in the Bond
according to the true intent and meaning thereof; provided,
however, that the obligation of the Issuer hereunder to make or
cause to be made any payment to the Trustee in respect of the
principal of or premium, if any, or interest on the Bonds shall
be reduced by the amount of moneys, if any, on deposit in the
Bond Fund and available to be applied by the Trustee toward the
payment of the principal of or premium, if any, or interest on
the Bonds. The principal and premium, if any, and interest
(except interest paid from the proceeds from the sale of the
Bonds, if any) are payable solely from the Trust Estate,
including the Revenues, which Revenues are hereby specifically
pledged and assigned for the payment thereof in the manner and to
the extent herein specified, and nothing in the Bonds or this
Indenture should be considered as assigning or pledging any funds
or assets of the Issuer other than the Revenues and the right,
title and interest of the Issuer in the Refunding Agreement
(except for the rights of the Issuer under Sections 4.5, 4.6, 4.7
and 8.4 of the Refunding Agreement and any rights of the Issuer
to receive notices, certificates, requests, requisitions,
directions and other communications under the Refunding
Agreement) in the manner and to the extent herein specified.
Anything in this Indenture to the contrary notwithstanding, it is
understood that whenever the Issuer makes any covenant involving
financial commitments, including, without limitation, those in
the various sections of this Article IV, it pledges no funds or
assets other than the Trust Estate in the manner and to the
extent herein specified, but nothing herein shall be construed as
prohibiting the Issuer from using any other funds or assets.
SECTION 5.2. Performance of Covenants. The Issuer
covenants that it will faithfully perform at all times any and
all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated, issued and delivered hereunder and in all
ordinances pertaining thereto. The Issuer covenants that it is
duly authorized under the Constitution and laws of the State of
Louisiana, including particularly and without limitation the Act,
to issue Bonds authorized hereby and to execute this Indenture
and to make the pledge and covenants in the manner and to the
extent herein set forth; that all action on its part for the
issuance of the Bonds and the execution and delivery of this
Indenture has been duly and effectively taken; and that the Bonds
in the hands of the holders and owners thereof are and will be
valid and enforceable obligations of the Issuer according to the
import thereof.
SECTION 5.3. Instruments of Further Assurance. The
Issuer covenants that it will do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and
delivered, such indenture or indentures supplemental hereto and
such further acts, instruments and transfers as the Trustee may
reasonably require for the better assuring, transferring,
pledging, assigning and confirming unto the Trustee the Trust
Estate.
SECTION 5.4. Recordation and Other Instruments. The
Issuer and the Trustee covenant that they will cooperate with the
Company in causing this Indenture, the Refunding Agreement, such
security agreements, financing statements and all supplements
thereto and other instruments as may be required from time to
time to be kept, to be recorded and filed in such manner and in
such places as may be required by law in order to fully preserve
and protect the security of the holders and owners of the Bonds
and the rights of the Trustee hereunder, and to perfect the
security interest created by this Indenture.
SECTION 5.5. Inspection of Project Books. The Issuer
and the Trustee covenant and agree that all books and documents
in their possession relating to the Facilities and the revenues
derived from the Facilities shall be open to inspection at all
reasonable times by such accountants or other agencies as the
other party may from time to time designate and by the Company.
SECTION 5.6. Rights Under Refunding Agreement. The
Refunding Agreement, a duly executed counterpart of which has
been filed with the Trustee, sets forth covenants and obligations
of the Issuer and the Company, including provisions that
subsequent to the issuance of Bonds and prior to their payment in
full or provision for payment thereof in accordance with the
provisions of the Refunding Agreement may not be effectively
amended, changed, modified, altered or terminated, or any
provision waived without the written consent of the Trustee, and
reference is hereby made to the same for a detailed statement of
said covenants and obligations of the Company thereunder, and the
Issuer agrees that the Trustee in its name or in the name of the
Issuer may enforce all rights of the Issuer and all obligations
of the Company under and pursuant to the Refunding Agreement, for
and on behalf of the bondholders, whether or not the Issuer is in
default hereunder.
SECTION 5.7. Prohibited Activities. The Issuer and
the Trustee covenant that neither of them shall take any action
or suffer or permit any action to be taken or condition to exist
which causes or may cause the interest payable on the Bonds to be
includable in gross income for purposes of federal income
taxation. Without limiting the generality of the foregoing, the
Issuer and the Trustee covenant that (a) the proceeds of the sale
of the Bonds, the earnings thereon, and any other moneys on
deposit in any fund or account maintained in respect of the Bonds
(whether such moneys were derived from the proceeds of the sale
of the Bonds or from other sources) will not be used in a manner
which would cause the Bonds to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Code, and (b) all action
with respect to the Bonds required by Section 148(f) of the Code
shall be taken in a timely manner.
SECTION 5.8. No Transfer of First Mortgage Bonds.
The Trustee shall not sell, assign or transfer the First Mortgage
Bonds except to a successor trustee under this Indenture.
SECTION 5.9. Voting of First Mortgage Bonds. The
Trustee shall, as the holder of the First Mortgage Bonds, attend
such meeting or meetings of holders of first mortgage bonds
issued under the Company Mortgage or, at its option, deliver its
proxy in connection therewith, as relate to matters with respect
to which it is entitled to vote or consent. So long as no Event
of Default hereunder shall have occurred and be continuing,
either at any such meeting or meetings, or otherwise when the
consent of the holders of the Company's first mortgage bonds
issued under the Company Mortgage is sought without a meeting,
the Trustee shall vote as the holder of the First Mortgage Bonds,
or shall consent with respect thereto, proportionately with what
the Trustee reasonably believes will be the vote or consent of
the holders of all other first mortgage bonds of the Company then
outstanding under the Company Mortgage the holders of which are
eligible to vote or consent; provided, however, that the Trustee
shall not vote as such holder in favor of, or give its consent
to, any amendment or modification of the Company Mortgage which
is correlative to any amendment or modification of this Indenture
referred to in Section 12.2 hereof without the prior consent and
approval, obtained in the manner prescribed in said Section 12.2,
of Bondholders which would be required under said Section 12.2
for such correlative amendment or modification of this Indenture.
Any action taken by the Trustee in accordance with the
provisions of this Section shall be binding upon the Issuer and
the Bondholders.
SECTION 5.10. Surrender of First Mortgage Bonds. The
Trustee shall surrender First Mortgage Bonds to the Company
Mortgage Trustee in accordance with the provisions of Section
4.3(d) and (e) of the Refunding Agreement.
SECTION 5.11. Notice to Company Mortgage Trustee. In the
event that a payment on the First Mortgage Bonds shall have
become due and payable and shall not have been fully paid after
the expiration of the applicable grace period, the Trustee shall
immediately give notice thereof to the Company Mortgage Trustee
specifying the amount of funds required to make such payment. In
the event that any Bonds are to be redeemed pursuant to any
provisions of this Indenture requiring mandatory redemption of
Bonds (other than at the direction of the Company), except for
provisions which establish sinking fund redemption requirements,
the Trustee shall forthwith give notice thereof to the Company
Mortgage Trustee specifying the principal amount of Bonds so to
be redeemed and the redemption date therefor. Any such notice
given by the Trustee shall be signed by its President, a Vice
President or a Trust Officer thereof. The Trustee shall incur no
liability for failure to give any such notice and such failure
shall have no effect on the obligations of the Company on the
First Mortgage Bonds or on the rights of the Trustee or of the
bondholders.
ARTICLE VI
REVENUES AND FUNDS
SECTION 6.1. Creation of Bond Fund. There is hereby
created and ordered to be established with the Trustee a trust
fund of and in the name of the Issuer to be designated "Parish of
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Pollution Control Revenue Refunding Bonds (Gulf
States Utilities Company Project) Series [ ] Bond Fund".
SECTION 6.2. Payments Into Bond Fund. There shall be
deposited into the Bond Fund as and when received:
(a) All accrued interest received at the time of the
issuance and delivery of the Bonds;
(b) All Revenues; and
(c) Any other moneys received by the Trustee under and
pursuant to any of the provisions of the Refunding Agreement
or this Indenture which are directed to be paid into the
Bond Fund.
SECTION 6.3. Use of Moneys in Bond Fund. Except as
otherwise provided in Sections 6.8 and 11.2 hereof, moneys in the
Bond Fund shall be used solely for the payment of the principal
of and premium, if any, and interest on the Bonds and for the
redemption or purchase of Bonds.
SECTION 6.4. Withdrawals from Bond Fund. The Bond
Fund shall be in the name of the Issuer, designated as set forth
in Section 6.1, and the Issuer hereby irrevocably authorizes and
directs the Trustee to withdraw from the Bond Fund sufficient
funds to pay the principal of and premium, if any, and interest
on the Bonds at maturity and redemption prior to maturity and to
use such funds for the purpose of paying principal, premium, if
any, and interest in accordance with the provisions hereof
pertaining to payment, which authorization and direction the
Trustee hereby accepts.
SECTION 6.5. Non-Presentment of Bonds. In the event
any Bond shall not be presented for payment when the principal
thereof becomes due, either at maturity or otherwise, or at the
date fixed for redemption thereof, if there shall have been
deposited with the Trustee for that purpose, or left in trust if
previously so deposited, funds sufficient to pay the principal
thereof, and premium, if any, together with all interest unpaid
and due thereon, to the due date thereof, for the benefit of the
holder thereof, all liability of the Issuer to the holder thereof
for the payment of the principal thereof, premium, if any, and
interest thereon, shall forthwith cease, terminate and be
completely discharged, and thereupon it shall be the duty of the
Trustee to hold such fund or funds, without liability for
interest thereon, for the benefit of the holder of such Bond, who
shall thereafter be restricted exclusively to such fund or funds
for any claim of whatever nature on his part under this Indenture
or on, or with respect to, the Bond.
SECTION 6.6. Administration Expenses. It is
understood and agreed that pursuant to the provisions of Section
4.5 of the Refunding Agreement, the Company agrees to pay the
Administration Expenses of the Issuer. All such payments under
the Refunding Agreement which are received by the Trustee shall
not be paid into the Bond Fund, but shall be segregated by the
Trustee and expended solely for the purpose for which such
payments are received.
SECTION 6.7. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for deposit
into the Bond Fund under any provision of this Indenture and all
moneys withdrawn from the Bond Fund and held by any Paying Agent,
shall be held by the Trustee or such Paying Agent in trust, and
except for moneys deposited with or paid to the Trustee for the
redemption of Bonds, notice of which redemption has been duly
given, and for moneys deposited with or paid to the Trustee
pursuant to Article IX hereof, shall, while held by the Trustee
or any Paying Agent, constitute part of the Trust Estate and be
subject to the lien hereof. Any moneys received by or paid to
the Trustee pursuant to any provision of the Refunding Agreement
calling for the Trustee to hold, administer and disburse the same
in accordance with the specific provisions of the Refunding
Agreement shall be held, administered and disbursed pursuant to
such provisions and, where required by the provisions of the
Refunding Agreement the Trustee shall set the same aside in a
separate account. The Issuer agrees that if it shall receive any
moneys pursuant to applicable provisions of the Refunding
Agreement, it will pay the same over to the Trustee forthwith
upon receipt thereof to be held, administered and disbursed by
the Trustee in accordance with the provisions of the Refunding
Agreement pursuant to which the Issuer may have received the
same. Furthermore, if for any reason the Refunding Agreement
ceases to be in force and effect while any Bonds are outstanding,
the Issuer agrees that if it shall receive any moneys derived
from the Facilities, it will forthwith upon receipt thereof pay
the same over to the Trustee to be held, administered and
disbursed by the Trustee in accordance with provisions of the
Refunding Agreement that would be applicable if the Refunding
Agreement were then in force and effect, and if there be no such
provisions which would be so applicable, then the Trustee shall
hold, administer and disburse such moneys solely for the
discharge of the Issuer's obligations under this Indenture.
SECTION 6.8. Refund to Company of Excess Payments.
Anything herein to the contrary notwithstanding, the Trustee is
authorized and directed to refund to the Company all excess
amounts as specified in the Refunding Agreement.
ARTICLE VII
SECURITY FOR AND INVESTMENTS
SECTION 7.1. Investment of Moneys. (a) Moneys held
for the credit of the Bond Fund shall, upon direction by the
Authorized Company Representative, be invested and reinvested by
the Trustee in any one or more of the following obligations or
securities on which neither the Company nor any of its
subsidiaries is the obligor: (i) Government Securities; (ii)
interest bearing deposit accounts (which may be represented by
certificates of deposit) in national or state banks (which may
include the Trustee, any Paying Agent, and the Bond Registrar)
having a combined capital and surplus of not less than
$10,000,000, or savings and loan associations having total assets
of not less than $40,000,000; (iii) bankers' acceptances drawn on
and accepted by commercial banks (which may include the Trustee,
any Paying Agent, and the Bond Registrar) having a combined
capital and surplus of not less than $10,000,000; (iv) direct
obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, any State of the United
States of America, the District of Columbia or the Commonwealth
of Puerto Rico, or any political subdivision of any of the
foregoing, which are rated in any of the three highest rating
categories by a nationally recognized rating agency; (v)
obligations of any agency or instrumentality of the United States
of America; (vi) commercial or finance company paper which is
rated in any of the three highest rating categories by a
nationally recognized rating agency; (vii) corporate debt
securities rated in any of the three highest rating categories by
a nationally recognized rating agency; and (viii) repurchase
agreements with banking or financial institutions having a
combined capital and surplus of not less than $10,000,000 (which
may include the Trustee, any Paying Agent, and the Bond
Registrar) with respect to any of the foregoing obligations or
securities. As used above, the reference to rating categories
shall mean generic categories which may include numerical or
other qualifications of ratings within each such generic rating
category such as "+" or "-". Such investments shall have
maturity dates, or shall be subject to redemption by the holder
at the option of the holder, on or prior to the dates the moneys
invested therein will be needed as reflected by a statement of
the Authorized Company Representative, which statement must be on
file with the Trustee prior to any investment.
(b) Obligations so purchased as an investment of moneys in
any fund or account shall be deemed at all times a part of such
fund or account. Any profit and income realized from such
investments shall be credited to such fund or account and any
loss shall be charged to such fund or account.
SECTION 7.2. Arbitrage Bond Covenant. With respect
to the authority to invest funds granted in this Indenture, the
Issuer and the Trustee hereby covenant with the holders of the
Bonds that, subject to the Company's direction of the investment
of funds, they will make no use of the proceeds of the Bonds, or
any other funds which may be deemed to be proceeds of the Bonds
pursuant to Section 148 of the Code, which would cause the Bonds
to be "arbitrage bonds" within the meaning of such Section.
The Company has agreed in the Refunding Agreement to comply
with rebate requirements of Section 148(f) of the Code. The
Trustee shall provide such information as the Company may request
to enable the Company to calculate the amount of gross earnings
on the Bond Fund and Refunding Fund.
SECTION 7.3. Balance in Funds After Payment of the
Bonds. Any balance in any of the funds created under this
Indenture or otherwise held by the Trustee after all the Bonds
issued hereunder and secured hereby have been paid in full, or
provision for payment in full thereof have been made, and all
amounts due to the Trustee and the Issuer have been paid, shall
be paid over to the Company. Should the holders of any Bonds
fail or neglect to present their Bonds for payment within one
year from the date such Bonds become due and payable, whether by
redemption or at maturity, the Trustee shall, at the end of such
period, remit to the Company in trust for the holders of the
Bonds the money then held for such Bonds; and the holders of such
Bonds shall thereafter have recourse only to the Company for
payment thereof.
ARTICLE VIII
RIGHTS OF THE COMPANY
SECTION 8.1. Rights of Company Under Refunding
Agreement. Nothing herein contained shall be deemed to impair
the rights and privileges of the Company set forth in the
Refunding Agreement and an Event of Default hereunder shall not
constitute an "Event of Default" under the Refunding Agreement
unless by the terms of the Refunding Agreement it constitutes an
"Event of Default" thereunder.
SECTION 8.2. Enforcement of Rights and Obligations.
The Issuer and the Trustee agree that the Company in its own name
or in the name of the Issuer may enforce all of the rights of the
Issuer, all obligations of the Trustee, and all of the Company's
rights provided for in this Indenture.
ARTICLE IX
DISCHARGE OF LIEN
SECTION 9.1. Discharge of Lien. If the Issuer shall
pay or cause to be paid to the holders and owners of the Bonds
the principal of and premium, if any, and interest to become due
thereon at the times and in the manner stipulated therein, and if
the Issuer shall keep, perform and observe all and singular the
covenants and promises in the Bonds and in this Indenture
expressed as to be kept, performed and observed by it on its part
and shall pay or cause to be paid all other sums payable
hereunder by the Issuer, then these presents and the estate and
rights hereby granted shall cease, terminate and be void, and
thereupon the Trustee shall cancel and discharge the lien of this
Indenture, and execute and deliver to the Issuer such instruments
in writing as shall be requisite to satisfy the lien hereof, and
reconvey to the Issuer the estate hereby conveyed, and assign and
deliver to the Issuer any property at the time subject to the
lien of this Indenture which may then be in its possession,
except moneys or Government Securities held by it for the payment
of the principal of and premium, if any, and interest on the
Bonds.
Any Bond shall be deemed to be paid within the meaning of
this Article when payment of the principal of and premium, if
any, and interest on such Bond (whether at maturity or upon
redemption as provided in this Indenture, or otherwise), either
(a) shall have been made or caused to be made in accordance with
the terms thereof, or (b) shall have been provided for by
irrevocably depositing with the Trustee, in trust and irrevocably
set aside exclusively for such payment, (i) moneys sufficient to
make such payment or (ii) Government Securities (provided that in
either case the Trustee shall have received an opinion of Bond
Counsel to the effect that such deposit will not affect the
exclusion of the interest on any of the Bonds from gross income
for purposes of federal income taxation or cause any of the Bonds
to be treated as arbitrage bonds within the meaning of Section
148(a) of the Code) maturing as to principal and interest in such
amounts and at such times as will provide sufficient moneys to
make such payment when due, and all necessary and proper fees,
compensation and expenses of the Trustee and any Paying Agent
pertaining to the Bonds with respect to which such deposit is
made and all other liabilities of the Company under the Refunding
Agreement, pertaining to the Bonds with respect to which such
deposit is made, shall have been paid or the payment thereof
provided for to the satisfaction of the Trustee. No deposit
under (b) above shall constitute such discharge and satisfaction
until the Company shall have irrevocably notified the Trustee of
the date for payment of such Bond either at maturity or on a date
on which such Bond may be redeemed in accordance with the
provisions hereof and notice of such redemption shall have been
given or irrevocable provisions shall have been made for the
giving of such notice.
The Issuer or the Company may at any time surrender to the
Trustee for cancellation by it any Bonds previously authenticated
and delivered hereunder, which the Issuer or the Company may have
acquired in any manner whatsoever, and such Bonds, upon such
surrender and cancellation, shall be deemed to be paid and
retired.
ARTICLE X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
SECTION 10.1. Events of Default. Each of the following
events shall constitute and is referred to in this Indenture as
an "Event of Default":
(a) default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding and the
continuance thereof for a period of sixty (60) days;
(b) default in the due and punctual payment of the
principal of and premium, if any, on any Bond hereby secured
and outstanding, whether at the stated maturity thereof, or
upon unconditional proceedings for redemption thereof, or
upon the maturity thereof by acceleration;
(c) an "Event of Default" as such term is defined in
Section 8.1(a) of the Refunding Agreement; or
(d) default in the payment of any other amount
required to be paid under this Indenture or in the
performance or observance of any other of the covenants,
agreements or conditions contained in this Indenture, or in
the Bonds issued under this Indenture, and continuance
thereof for a period of ninety (90) days after written
notice specifying such failure and requesting that it be
remedied, shall have been given to the Issuer and the
Company by the Trustee, which may give such notice in its
discretion and shall give such notice at the written request
of holders of not less than 10% in aggregate principal
amount of the Bonds then outstanding, unless the Trustee, or
the Trustee and holders of an aggregate principal amount of
Bonds not less than the aggregate principal amount of Bonds
the holders of which requested such notice, as the case may
be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the
Trustee, or the Trustee and the holders of such principal
amount of Bonds, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action
is instituted by the Issuer, or the Company on behalf of the
Issuer, within such period and is being diligently pursued.
The term "default" as used in clauses (a), (b) and (d) above
shall mean default by the Issuer in the performance or observance
of any of the covenants, agreements or conditions on its part
contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "Event of Default" as hereinabove
provided.
SECTION 10.2. Acceleration. Upon the occurrence and
continuance of an Event of Default described in clause (a) or (b)
of the first paragraph of Section 10.1 hereof, the Bonds shall,
without further action, become and be immediately due and
payable, anything in this Indenture or in the Bonds to the
contrary notwithstanding, and the Trustee shall give notice
thereof in writing to the Issuer and the Company, and notice to
bondholders in the same manner as a notice of redemption under
Section 4.2 hereof.
Upon the occurrence and continuance of an Event of Default
described in clause (c) of the first paragraph of Section 10.1
hereof, and further upon the condition that, in accordance with
the terms of the Company Mortgage, the First Mortgage Bonds shall
have become immediately due and payable pursuant to any provision
of the Company Mortgage, the Bonds shall, without further action,
become and be immediately due and payable, anything in this
Indenture or in the Bonds to the contrary notwithstanding, and
the Trustee shall give notice thereof in writing to the Issuer
and the Company, and notice to Bondholders in the same manner as
a notice of redemption under Section 4.2 hereof.
SECTION 10.3. Other Remedies; Rights of Bondholders. Upon
the occurrence and continuance of an Event of Default, the
Trustee may, in addition or as an alternative, pursue any
available remedy by suit at law or in equity to enforce the
payment of the principal of and premium, if any, and interest on
the Bonds then outstanding hereunder, then due and payable.
If an Event of Default shall have occurred, and if it shall
have been requested so to do by the holders of 25% in aggregate
principal amount of Bonds outstanding hereunder and shall have
been indemnified as provided in Section 11.1 hereof, the Trustee
shall be obligated to exercise such one or more of the rights and
powers conferred upon it by this Section as the Trustee, being
advised by counsel, shall deem most expedient in the interests of
the bondholders.
No remedy by the terms of this Indenture conferred upon or
reserved to the Trustee (or to the Bondholders) is intended to be
exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity
or by statute.
No delay or omission to exercise any right or power accruing
upon any default or Event of Default shall impair any such right
or power or shall be construed to be a waiver of any such default
or Event of Default or acquiescence therein; and every such right
and power may be exercised from time to time and as often as may
be deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the Bondholders, shall extend to or
shall affect any subsequent default or Event of Default or shall
impair any rights or remedies consequent thereon.
SECTION 10.4. Right of Bondholders to Direct Proceedings.
Anything in this Indenture to the contrary notwithstanding, the
holders of a majority in aggregate principal amount of Bonds
outstanding hereunder shall have the right, at any time, by an
instrument or instruments in writing executed and delivered to
the Trustee, to direct the method and place of conducting all
proceedings to be taken in connection with the enforcement of the
terms and conditions of this Indenture, or for the appointment of
a receiver or any other proceeding hereunder; provided that such
direction shall not be otherwise than in accordance with the
provisions of law and of this Indenture.
SECTION 10.5. Appointment of Receiver. Upon the occurrence
and continuance of an Event of Default, and upon the filing of a
suit or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the Bondholders under this
Indenture, the Trustee shall be entitled, as a matter of right,
to the appointment of a receiver or receivers of the Trust Estate
and of the tolls, rents, revenues, issues, earnings, income,
products and profits thereof, pending such proceedings with such
powers as the court making such appointment shall confer.
SECTION 10.6. Waiver. In case of an Event of Default on
the part of the Issuer, as aforesaid, to the extent that such
rights may then lawfully be waived, neither the Issuer nor anyone
claiming through it or under it shall or will set up, claim, or
seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws now or hereafter in force, in order
to prevent or hinder the enforcement of this Indenture, but the
Issuer, for itself and all who may claim through or under it,
hereby waives, to the extent that it lawfully may do so, the
benefit of all such laws and all right of appraisement and
redemption to which it may be entitled under the laws of the
State of Louisiana.
SECTION 10.7. Application of Moneys. Available moneys
remaining after discharge of costs, charges and liens prior to
this Indenture shall be applied by the Trustee as follows:
(a) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
First: To the payment to the persons entitled
thereto of all installments of interest then due, in
the order of the maturity of the installments of such
interest, and, if the amount available shall not be
sufficient to pay in full any particular installment,
then to the payment ratably, according to the amounts
due on such installment, to the persons entitled
thereto, without any discrimination or privilege;
Second: To the payment to the persons entitled
thereto of the unpaid principal of any of the Bonds
which shall have become due (other than Bonds called
for redemption for the payment of which moneys are
held pursuant to the provisions of this Indenture), in
the order of their due dates, with interest on such
Bonds from the respective dates upon which they become
due, and, if the amount available shall not be
sufficient to pay in full Bonds due on any particular
date, together with such interest, then to the payment
ratably, according to the amount of principal due on
such date, to the persons entitled thereto without any
discrimination or privilege of any Bond over any other
Bond and without preference or priority of principal
over interest or of interest over principal; and
Third: To the payment of the interest on and the
principal of the Bonds, and to the redemption of
Bonds, all in accordance with the provisions of
Article VI of this Indenture.
(b) If the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied to
the payment of the principal and interest then due and
unpaid upon the Bonds, without preference or priority of
principal over interest or of interest over principal, or of
any Bond over any other Bond, ratably, according to the
amounts due respectively for principal and interest, to the
persons entitled thereto without discrimination or
privilege.
(c) If the principal of all the Bonds shall have
become due and payable, and if acceleration of the maturity
of the Bonds by reason of an Event of Default shall
thereafter have been rescinded and annulled under the
provisions of this Article, then, subject to the provisions
of paragraph (b) of this Section in the event that the
principal of all the Bonds shall later become due and
payable, the moneys shall be applied in accordance with the
provisions of paragraph (a) of this Section.
Whenever moneys are to be applied by the Trustee pursuant to
the provisions of this Section, such moneys shall be applied at
such times, and from time to time, as it shall determine, having
due regard to the amount of such moneys available for application
and the likelihood of additional moneys becoming available for
such application in the future. Whenever the Trustee shall apply
such funds, it shall fix the date (which shall be an interest
payment date unless it shall deem another date more suitable)
upon which such application is to be made and upon such date
interest on the amounts of principal paid on such date shall
cease to accrue. The Trustee shall give such notice as it may
deem appropriate of the deposit with it of any such moneys and of
the fixing of any such date and shall not be required to make
payment to the holder of any Bond until such Bond shall be
presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
SECTION 10.8. Remedies Vested in Trustee. All rights of
action (including the right to file proof of claim) under this
Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceeding relating
thereto and any such suit or proceeding instituted by the Trustee
shall be brought in its name as Trustee, without the necessity of
joining as plaintiffs or defendants any holders of the Bonds
hereby secured, and any recovery of judgment shall be for the
ratable benefit of the holders of the outstanding Bonds.
SECTION 10.9. Rights and Remedies of Bondholders. No
holder of any Bond shall have any right to institute any suit,
action or proceeding in equity or at law for the enforcement of
this Indenture or for the execution of any trust hereof or for
the appointment of a receiver or any other remedy hereunder,
unless a default shall have occurred of which the Trustee shall
have been notified as provided in subsection (g) of Section 11.1,
or of which by said subsection it is deemed to have notice, nor
unless such default shall have become an Event of Default and the
holders of 25% in aggregate principal amount of Bonds outstanding
hereunder shall have made written request to the Trustee and
shall have offered it reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such
action, suit or proceeding in its own name, nor unless also they
have offered to the Trustee indemnity as provided in Section
11.1, nor unless also the Trustee shall thereafter fail or refuse
to exercise the powers hereinbefore granted, or to institute such
action, suit or proceeding in its own name; and such
notification, request and offer of indemnity are hereby declared
in every such case at the option of the Trustee to be conditions
precedent to the execution of the powers and trusts of this
Indenture, and to any action or cause of action for the
enforcement of this Indenture or for the appointment of a
receiver or for any other remedy hereunder; it being understood
and intended that no one or more holders of the Bonds shall have
any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by his or their action or to
enforce any right hereunder except in the manner herein provided,
and that all proceedings at law or in equity shall be instituted,
held and maintained in the manner herein provided for the equal
benefit of the holders of all Bonds outstanding hereunder.
Nothing in this Indenture contained shall affect or impair the
right of any Bondholder to enforce the payment of the principal
of and interest on any Bonds at and after the maturity thereof,
or the obligation of the Issuer to pay the principal of and
interest on each of the Bonds issued hereunder to the respective
holders thereof at the time and place in said Bonds expressed.
SECTION 10.10. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver or otherwise, and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee,
then and in every such case the Issuer and the Trustee shall be
restored to their former positions and rights hereunder with
respect to the property herein conveyed, and all rights, remedies
and powers of the Trustee shall continue as if no such
proceedings had been taken, except to the extent the Trustee is
legally bound by such adverse determination.
SECTION 10.11. Waivers of Events of Default. The provisions
of this Article X are subject to the condition that any waiver of
any "Default" under the Company Mortgage and a rescission and
annulment of its consequences shall constitute a waiver of the
corresponding Event or Events of Default under clause (c) of the
first paragraph of Section 10.1 hereof and a rescission and
annulment of the consequences thereof, but no such waiver,
rescission and annulment shall extend to or affect any subsequent
Event of Default or impair any right or remedy consequent
thereon.
ARTICLE XI
THE TRUSTEE AND PAYING AGENTS
SECTION 11.1. Acceptance of Trusts. The Trustee hereby
accepts the trust imposed upon it by this Indenture, and agrees
to perform said trust (i) except during the continuance of an
Event of Default as an ordinarily prudent trustee under a
corporate mortgage, and (ii) during the continuance of an Event
of Default, with the same degree of care and skill in the
exercise of its rights hereunder as a prudent man would exercise
or use under the circumstances in the conduct of his affairs, but
only upon and subject to the following expressed terms and
conditions:
(a) The Trustee may execute any of the trusts or
powers hereof and perform any duties required of it by or
through attorneys, agents, receivers or employees, and shall
be entitled to advice of counsel concerning all matters of
trusts hereof and its duties hereunder, and may in all cases
pay reasonable compensation to all such attorneys, agents,
receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon
the opinion or advice of any attorney, surveyor, engineer or
accountant selected by it in the exercise of reasonable
care, or, if selected or retained by the Issuer prior to the
occurrence of a default of which the Trustee has been
notified as provided in subsection (g) of this Section 11.1,
or of which by said subsection the Trustee is deemed to have
notice, approved by the Trustee in the exercise of such
care. The Trustee shall not be responsible for any loss or
damage resulting from an action or non-action in accordance
with any such opinion or advice.
(b) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on such Bonds), or for
insuring the property herein conveyed or collecting any
insurance moneys, or for the validity of the execution by
the Issuer of this Indenture or of any supplemental
indentures or instrument of further assurance, or for the
sufficiency of the security for the Bonds issued hereunder
or intended to be secured hereby, or for the value of the
title of the property herein conveyed or otherwise as to the
maintenance of the security hereof; except that in the event
the Trustee enters into possession of a part or all of the
property herein conveyed pursuant to any provision of this
Indenture, it shall use due diligence in preserving such
property; and the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any
covenants, conditions and agreements aforesaid as to the
condition of the property herein conveyed.
(c) The Trustee (not in its capacity as trustee) may
become the owner of Bonds secured hereby with the same
rights which it would have if not Trustee.
(d) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit,
letter, telegram or other paper or document believed by it,
in the exercise of reasonable care, to be genuine and
correct and to have been signed or sent by the proper person
or persons. Any action taken by the Trustee pursuant to
this Indenture upon the request or authority or consent of
the owner of any Bond secured hereby, shall be conclusive
and binding upon all future owners of the same Bond and upon
Bonds issued in exchange therefor or in place thereof.
(e) As to the existence or non-existence of any fact
or as to the sufficiency or validity of any instrument,
paper or proceeding, the Trustee shall be entitled to rely
upon a certificate of the Issuer signed by the President and
attested by the Secretary of the governing authority of the
Issuer, as sufficient evidence of the facts therein
contained and prior to the occurrence of a default of which
it has been notified as provided in subsection (g) of this
Section 11.1, or of which by that subsection it is deemed to
have notice, and shall also be at liberty to accept a
similar certificate to the effect that any particular
dealing, transaction or action is necessary or expedient,
but may at its discretion, at the reasonable expense of the
Issuer, in every case secure such further evidence as it may
think necessary or advisable but shall in no case be bound
to secure the same. The Trustee may accept a certificate of
the Secretary of the governing authority of the Issuer under
its seal to the effect that a resolution or ordinance in the
form therein set forth has been adopted by the Issuer as
conclusive evidence that such resolution or ordinance has
been duly adopted, and is in full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a
duty of the Trustee.
(g) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder (except
a default under clause (a) or (b) of the first paragraph of
Section 10.1 hereof concerning which the Trustee shall be
deemed to have notice) unless the Trustee shall be
specifically notified in writing of such default by the
Issuer or by the holders of at least 10% in aggregate
principal amount of Bonds outstanding hereunder and all
notices or other instruments required by this Indenture to
be delivered to the Trustee must, in order to be effective,
be delivered to the office of the Trustee, and in the
absence of such notice so delivered, the Trustee may
conclusively assume there is no such default except as
aforesaid.
(h) The Trustee shall not be personally liable for any
debts contracted or for damages to persons or to personal
property injured or damaged, or for salaries or non-fulfill
ment of contracts during any period in which it may be in
the possession of or managing the real and tangible personal
property as in this Indenture provided.
(i) At any and all reasonable times the Trustee, and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives, shall have the right fully
to inspect any and all of the property herein conveyed,
including all books, papers and records of the Issuer
pertaining to the Facilities and the Bonds, and to take such
memoranda from and in regard thereto as may be desired,
provided, however, that nothing contained in this subsection
or in any other provision of this Indenture shall be
construed to entitle the above named persons to any
information or inspection involving the confidential
know-how or expertise or proprietary secrets of the Company.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but
shall not be required, to demand, in respect of the
authentication of any Bonds, the withdrawal of any cash, the
release of any property, or any action whatsoever within the
purview of this Indenture, any showings, certificates,
opinions, appraisals, or other information, or corporate
action or evidence thereof, in addition to that by the terms
hereof required as a condition of such action by the
Trustee, deemed desirable for the purpose of establishing
the right of the Issuer to the authentication of any Bonds,
the withdrawal of any cash, the release of any property, or
the taking of any other action by the Trustee. Before
taking such action hereunder, the Trustee may require that
it be furnished an indemnity bond satisfactory to it for the
reimbursement to it of all expenses to which it may be put
and to protect it against all liability, except liability
which is adjudicated to have resulted from the negligence or
willful default of the Trustee, by reason of any action so
taken by the Trustee.
SECTION 11.2. Fees, Charges and Expenses of Trustee and
Paying Agents. The Trustee and any Paying Agent shall be
entitled to payment and/or reimbursement for reasonable fees for
services rendered hereunder and all advances, counsel fees and
other expenses reasonably and necessarily made or incurred in and
about the execution of the trusts created by this Indenture. The
Issuer has made provisions in the Refunding Agreement for the
payment of such Administration Expenses and reference is hereby
made to the Refunding Agreement for the provisions so made. In
this regard, it is understood that the Issuer pledges no funds or
revenues other than those derived from and the avails of the
Trust Estate to the payment of any obligation of the Issuer set
forth in this Indenture, including the obligations set forth in
this Section 11.2, but nothing herein shall be construed as
prohibiting the Issuer from using any other funds and revenues
for the payment of any of its obligations under this Indenture.
Upon an Event of Default, but only upon an Event of Default, the
Trustee and the Paying Agents shall have a first lien with right
of payment prior to payment on account of principal or interest
of any Bond issued hereunder upon the Trust Estate for such
reasonable and necessary advances, fees, costs and expenses
incurred by them respectively.
SECTION 11.3. Notice to Bondholders of Default. The
Trustee shall be required to make demand upon and give notice to
the Company and each registered owner of Bonds then outstanding
as follows:
(a) If the Company shall fail to make any installment
payment under the Refunding Agreement on the day such
payment is due and payable, the Trustee shall give notice to
and make demand upon the Company on the next succeeding
business day.
(b) If a default occurs of which the Trustee is
pursuant to the provisions of Section 11.1(g) deemed to have
or is given notice, the Trustee shall promptly give notice
to the Company and to the Bondholders.
SECTION 11.4. Intervention by Trustee. In any judicial
proceeding to which the Issuer is a party and which in the
opinion of the Trustee and its counsel has a substantial bearing
on the interests of holders of Bonds issued hereunder, the
Trustee may intervene on behalf of Bondholders and shall do so if
requested in writing by the holders of at least 10% of the
aggregate principal amount of Bonds outstanding hereunder. The
rights and obligations of the Trustee under this Section 11.4 are
subject to the approval of the court having jurisdiction in the
premises.
SECTION 11.5. Merger or Consolidation of Trustee. Any bank
or trust company with which the Trustee may be merged, or with
which it may be consolidated, or to which it may sell or transfer
its trust business and assets as a whole or substantially as a
whole, or any bank or trust company resulting from any such sale,
merger, consolidation or transfer to which the Trustee is a
party, ipso facto, shall be and become successor trustee
hereunder and vested with all of the title to the whole property
or Trust Estate and all the trusts, powers, discretions,
immunities, privileges, and all other matters as was its
predecessor, without the execution or filing of any instrument or
any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding;
provided, however, that such successor trustee shall have capital
and surplus of at least $10,000,000.
SECTION 11.6. Resignation by Trustee. The Trustee and any
successor trustee may at any time resign from the trusts hereby
created by giving thirty (30) days written notice to the Issuer
and to the Company, and such resignation shall take effect at the
end of such thirty (30) days, or upon the earlier appointment of
a successor trustee by the Bondholders or by the Issuer. Such
notice may be served personally or sent by registered mail.
SECTION 11.7. Removal of Trustee. The Trustee may be
removed at any time by an instrument or concurrent instruments in
writing delivered to the Trustee and to the Issuer, and signed by
the holders of a majority in aggregate principal amount of Bonds
outstanding hereunder.
SECTION 11.8. Appointment of Successor Trustee. In case
the Trustee hereunder shall resign or be removed, or be
dissolved, or shall be in course of dissolution or liquidation,
or otherwise become incapable of acting hereunder, or in case it
shall be taken under the control of any public officer or
officers, or of a receiver appointed by the court, a successor
may be appointed by the holders of a majority in aggregate
principal amount of Bonds outstanding hereunder, by an instrument
or concurrent instruments in writing signed by such holders, or
by their attorneys in fact, duly authorized; provided,
nevertheless, that in case of such vacancy the Issuer, subject to
the approval of the Company, by an instrument executed and signed
by the President and attested by the Secretary of the governing
authority of the Issuer under its seal, shall appoint a temporary
trustee to fill such vacancy until a successor trustee shall be
appointed by the Bondholders in the manner above provided; and
any such temporary trustee so appointed by the Issuer shall
immediately and without further act be superseded by the trustee
so appointed by such Bondholders. Every such temporary trustee
and every such successor trustee shall be a trust company or bank
in good standing, having capital and surplus of not less than
$10,000,000.
SECTION 11.9. Concerning Any Successor Trustee. Every
successor or temporary trustee appointed hereunder shall execute,
acknowledge and deliver to its predecessor and also to the Issuer
an instrument in writing accepting such appointment hereunder,
and thereupon such successor or temporary trustee, without any
further act or conveyance, shall become fully vested with all the
estates, properties, rights, powers, trusts, duties and
obligations of its predecessor; but such predecessor shall,
nevertheless, on the written request of the Issuer or of its
successor trustee, execute and deliver an instrument transferring
to such successor all the estate, properties, rights, powers and
trusts of such predecessor hereunder; and every predecessor
trustee shall deliver all securities, moneys and any other
property held by it as trustee hereunder to its successor.
Should any instrument in writing from the Issuer be required by
any successor trustee for more fully and certainly vesting in
such successor the estates, rights, powers and duties hereby
vested or intended to be vested in the predecessor trustee, any
and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer. The
resignation of any trustee and the instrument or instruments
removing any trustee and appointing a successor hereunder,
together with all other instruments provided for in this Article
shall, at the expense of the Issuer, be forthwith filed and/or
recorded by the successor trustee in each recording office where
the Indenture shall have been filed and/or recorded.
SECTION 11.10. Reliance Upon Instruments. The resolutions,
opinions, certificates and other instruments provided for in this
Indenture may be accepted and relied upon by the Trustee as
conclusive evidence of the facts and conclusions stated therein
and shall be full warrant, protection and authority to the
Trustee for its actions taken hereunder.
SECTION 11.11. Appointment of Co-Trustee. The Issuer and
the Trustee shall have power to appoint and upon the request of
the Trustee the Issuer shall for such purpose join with the
Trustee in the execution of all instruments necessary or proper
to appoint another corporation or one or more persons approved by
the Trustee, and satisfactory to the Company so long as there is
no termination of the interest of the Company by virtue of an
Event of Default or otherwise, either to act as co-trustee or
co-trustees jointly with the Trustee of all or any of the
property subject to the lien hereof, or to act as separate
trustee or co-trustee of all or any such property, with such
powers as may be provided in the instrument of appointment and to
vest in such corporation or person or persons as such separate
trustee or co-trustee any property, title, right or power deemed
necessary or desirable. In the event that the Issuer shall not
have joined in such appointment within fifteen (15) days after
the receipt by it of a request so to do, the Trustee alone shall
have the power to make such appointment. Should any deed,
conveyance or instrument in writing from the Issuer be required
by any separate trustee or co-trustee so appointed for more fully
and certainly vesting in and confirming to him or to it such
properties, rights, powers, trusts, duties and obligations, any
and all such deeds, conveyances and instruments in writing shall,
on request, be executed, acknowledged and delivered by the
Issuer. Every such co-trustee and separate trustee shall, to the
extent permitted by law, be appointed subject to the following
provisions and conditions, namely:
(1) The Bonds shall be authenticated and delivered,
and all powers, duties, obligations and rights conferred
upon the Trustee in respect of the custody of all money and
securities pledged or deposited hereunder shall be
exercised, solely by the Trustee; and
(2) The Trustee, at any time by an instrument in
writing, may remove any such separate trustee or co-trustee.
Every instrument, other than this Indenture, appointing any
such co-trustee or separate trustee, shall refer to this
Indenture and the conditions of this Article expressed, and upon
the acceptance in writing by such separate trustee or co-trustee,
he, they or it shall be vested with the estate or property
specified in such instrument, jointly with the Trustee (except
insofar as local law makes it necessary for any separate trustee
to act alone), subject to all the trusts, conditions and
provisions of this Indenture. Any such separate trustee or
co-trustee may at any time, by an instrument in writing,
constitute the Trustee as his, their or its agent or
attorney-in-fact with full power and authority, to the extent
authorized by law, to do all acts and things and exercise all
discretion authorized or permitted by him, them or it, for and on
behalf of him, them or it and in his, their or its name. In case
any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all the estate, properties, rights,
powers, trusts, duties and obligations of said separate trustee
or co-trustee shall vest in and be exercised by the Trustee until
the appointment of a new trustee or a successor to such separate
trustee or co-trustee.
SECTION 11.12. Designation and Succession of Paying Agents.
Any bank or trust company with which or into which any Paying
Agent may be merged or consolidated, or to which the assets and
business of such Paying Agent may be sold, shall be deemed the
successor of such Paying Agent for the purposes of this
Indenture. If the position of Paying Agent shall become vacant
for any reason, the Issuer shall, within thirty (30) days
thereafter, appoint such bank or trust company as shall be
specified by the Company as such Paying Agent to fill such
vacancy; provided, however, that, if the Issuer shall fail to
appoint such Paying Agent within said period, the Trustee shall
make such appointment.
The Paying Agents shall enjoy the same protective provisions
in the performance of their duties hereunder as are specified in
Section 11.1 hereof with respect to the Trustee insofar as such
provisions may be applicable.
SECTION 11.13. Several Capacities. Anything in this
Indenture to the contrary notwithstanding, the same entity may
serve hereunder as the Trustee, the Paying Agent, and the Bond
Registrar and in any other combination of such capacities, to the
extent permitted by law.
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.1. Supplemental Indentures Without Bondholder
Consent. The Issuer and the Trustee may, from time to time and
at any time, without the consent of or notice to the Bondholders,
enter into supplemental indentures as follows:
(a) to cure any formal defect, omission, inconsistency
or ambiguity in this Indenture;
(b) to grant to or confer or impose upon the Trustee
for the benefit of the bondholders any additional rights,
remedies, powers, authority, security, liabilities or duties
which may lawfully be granted, conferred or imposed and
which are not contrary to or inconsistent with this
Indenture as theretofore in effect, provided that no such
additional liabilities or duties shall be imposed upon the
Trustee without its consent;
(c) to add to the covenants and agreements of, and
limitations and restrictions upon, the Issuer in this
Indenture other covenants, agreements, limitations and
restrictions to be observed by the Issuer which are not
contrary to or inconsistent with this Indenture as
theretofore in effect, provided that no such additional
liabilities or duties shall be imposed upon the Trustee
without its consent;
(d) to confirm, as further assurance, any pledge
under, and the subjection to any claim, lien or pledge
created or to be created by, this Indenture, of the Revenues
of the Issuer from the Refunding Agreement or of any other
moneys, securities or funds;
(e) to comply with the requirements of the Trust
Indenture Act of 1939, as from time to time amended;
(f) to provide for the registration and registration
of transfer of the Bonds through a book-entry or similar
method, whether or not the Bonds are evidenced by
certificates; or
(g) to modify, alter, amend or supplement this
Indenture in any other respect which is not materially
adverse to the Bondholders and which does not involve a
change described in clause (a), (b), (c), (d), (e) or (f) of
Section 12.2 hereof and which, in the judgment of the
Trustee, is not to the prejudice of the Trustee.
SECTION 12.2. Supplemental Indentures Requiring Bondholder
Consent. Subject to the terms and provisions contained in this
Section, and not otherwise, the holders of not less than a
majority in aggregate principal amount of the Bonds then
outstanding shall have the right, from time to time, anything
contained in this Indenture to the contrary notwithstanding, to
consent to and approve the execution by the Issuer and the
Trustee of such indenture or indentures supplemental hereto as
shall be deemed necessary and desirable by the Issuer for the
purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions
contained in this Indenture or in any supplemental indenture;
provided, however, that nothing herein contained shall permit, or
be construed as permitting, unless approved by the holders of all
Bonds then outstanding (a) an extension of the maturity (or
mandatory sinking fund or other mandatory redemption date) of the
principal of or the interest on any Bond issued hereunder, or (b)
a reduction in the principal amount of or redemption premium or
rate of interest on any Bond issued hereunder, or (c) the
creation of any lien ranking prior to or on a parity with the
lien of this Indenture on the Trust Estate or any part thereof,
except as hereinbefore expressly permitted, or (d) a privilege or
priority of any Bond or Bonds over any other Bond or Bonds, or
(e) a reduction in the aggregate principal amount of the Bonds
required for consent to such supplemental indenture, or (f)
depriving the holder of any Bond then outstanding of the lien
hereby created on the Trust Estate. Nothing herein contained,
however, shall be construed as making necessary the approval of
Bondholders of the execution of any supplemental indenture as
provided in Section 12.1 of this Article.
If at any time the Issuer shall request the Trustee to enter
into any supplemental indenture for any of the purposes of this
Section, the Trustee shall, at the expense of the Issuer, cause
notice of the proposed execution of such supplemental indenture
to be mailed by first class mail to each registered owner of the
Bonds. Such notice shall briefly set forth the nature of the
proposed supplemental indenture and shall state that copies
thereof are on file at the principal corporate trust office of
the Trustee for inspection by Bondholders. The Trustee shall
not, however, be subject to any liability to any Bondholder by
reason of its failure to mail such notice, and any such failure
shall not affect the validity of such supplemental indenture when
consented to and approved as provided in this Section. If the
holders of not less than a majority in aggregate principal amount
of the Bonds outstanding at the time of the execution of any such
supplemental indenture shall have consented to and approved the
execution thereof as herein provided, no holder of any Bond shall
have any right to object to any of the terms and provisions
contained therein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the Issuer from executing the same or
from taking any action pursuant to the provisions thereof. Upon
the execution of any such supplemental indenture, this Indenture
shall be deemed to be modified and amended in accordance
therewith.
SECTION 12.3. Consent of Company. Anything herein to the
contrary notwithstanding, a supplemental indenture under this
Article shall not become effective unless and until the Company
shall have consented to the execution and delivery of such
supplemental indenture. In this regard, the Trustee shall cause
notice of the proposed execution and delivery of any such
supplemental indenture together with a copy of the proposed
supplemental indenture to be mailed by certified or registered
mail to the Company at least fifteen (15) days prior to the
proposed date of execution and delivery of any such supplemental
indenture. The Company shall be deemed to have consented to the
execution and delivery of any such supplemental indenture if the
Trustee receives a letter or other instrument signed by an
authorized officer of the Company expressing consent.
SECTION 12.4. Opinion of Bond Counsel. Anything herein to
the contrary notwithstanding, a supplemental indenture under this
Article shall not become effective unless and until the Trustee
shall have received an opinion of Bond Counsel to the effect that
such supplemental indenture will not affect the exclusion of
interest on the Bonds from gross income for purposes of federal
income taxation.
ARTICLE XIII
AMENDMENT TO REFUNDING AGREEMENT
SECTION 13.1. Amendments With and Without the Consent of
Bondholders. The Trustee may from time to time, and at any time,
consent to any amendment, change or modification of the Refunding
Agreement for the purpose of curing any ambiguity or formal
defect or omission or making any other change therein which, in
the reasonable judgment of the Trustee, is not to the prejudice
of the Trustee or the holders of the Bonds. The Trustee shall
not consent to any other amendment, change or modification of the
Refunding Agreement without the approval or consent of the
holders of not less than a majority in aggregate principal amount
of the Bonds at the time outstanding, evidenced in the manner
provided in Section 14.1 hereof; provided the Trustee shall not,
without the unanimous consent of the holders of all Bonds then
outstanding, evidenced in the manner provided in Section 14.1
hereof, consent to any amendment which would change the
obligations of the Company under Section 4.2 or 4.3 of the
Refunding Agreement or the nature of the obligations of the
Company on the First Mortgage Bonds as provided in Section 4.3 of
the Refunding Agreement.
SECTION 13.2. Notice to Bondholders. If at any time the
Issuer or the Company shall request the Trustee's consent to a
proposed amendment, change or modification requiring Bondholder
approval under Section 13.1, the Trustee, shall, at the expense
of the requesting party, cause notice of such proposed amendment,
change or modification to the Refunding Agreement to be mailed in
the same manner as provided by Section 12.2 hereof with respect
to supplemental indentures. Such notice shall briefly set forth
the nature of such proposed amendment, change or modification and
shall state that copies of the instrument embodying the same are
on file in the principal office of the Trustee for inspection by
any interested bondholder. The Trustee shall not, however, be
subject to any liability to any Bondholder by reason of its
failure to publish or mail such notice, and any such failure
shall not affect the validity of such amendment, change or
modification when consented to by the Trustee in the manner
herein provided.
SECTION 13.3. Opinion of Bond Counsel. Anything herein to
the contrary notwithstanding, any amendment to the Refunding
Agreement shall not become effective unless and until the Trustee
shall have received an opinion of Bond Counsel to the effect that
such amendment will not affect the exclusion of interest on the
Bonds from gross income for purposes of federal income taxation.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Consents, etc. of Bondholders. Any request,
direction, objection or other instrument required by this
Indenture to be signed and executed by the Bondholders may be in
any number of concurrent writings of similar tenor and may be
signed or executed by such Bondholders in person or by agent
appointed in writing. Proof of the execution of any such
request, direction, objection or other instrument or of the
writing appointing any such agent and of the ownership of Bonds,
if made in the following manner, shall be sufficient for any of
the purposes of this Indenture, and shall be conclusive in favor
of the Trustee with regard to any action taken by it under such
request or other instrument, namely:
(a) The fact and date of the execution by any person
of any such writing may be proved by the certificate of any
officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person
signing such writing acknowledged before him the execution
thereof, or by an affidavit of any witness to such
execution.
(b) The fact of ownership of Bonds and the amount or
amounts, numbers and other identification of such Bonds, and
the date of holding the same shall be proved by the
registration books of the Issuer maintained by the Trustee
as Bond Registrar.
SECTION 14.2. Limitation of Rights. With the exception of
rights herein expressly conferred, nothing expressed or mentioned
in or to be implied from this Indenture, or the Bonds issued
hereunder, is intended or shall be construed to give to any
person or company other than the parties hereto, the Company, and
the holders of the Bonds secured by this Indenture any legal or
equitable rights, remedy or claim under or in respect to this
Indenture or any covenants, conditions and provisions herein
contained; this Indenture and all of the covenants, conditions
and provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto, the Company, and the
holders of the Bonds hereby secured as herein provided.
SECTION 14.3. Severability. If any provisions of this
Indenture shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case in
any jurisdiction or jurisdictions or in all jurisdictions or in
all cases because it conflicts with any provisions of any
constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable
in any other case, circumstance or jurisdiction, or of rendering
any other provision or provisions herein contained invalid,
inoperative or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences,
clauses or paragraphs in this Indenture contained shall not
affect the remaining portions of this Indenture or any part
thereof.
SECTION 14.4. Notices. Except as otherwise provided in
this Indenture, all notices, certificates or other communications
shall be sufficiently given and shall be deemed given when mailed
by registered or certified mail, postage prepaid, to the Issuer,
the Company, the Trustee and any Paying Agent. Notices,
certificates or other communications shall be sent to the
following addresses:
Company: Gulf States Utilities Company
c/o Entergy Services, Inc.
Entergy Corporation Building
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Issuer: Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Police Jury House
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary, Police Jury
Trustee: First National Bank of Commerce
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Any
Paying
Agent
other At the address designated to the Issuer and the
than the Trustee
Trustee:
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
SECTION 14.5. Applicable Provisions of Law. This Indenture
shall be considered to have been executed in the State of
Louisiana and it is the intention of the parties that the
substantive law of the State of Louisiana governs as to all
questions of interpretation, validity and effect.
SECTION 14.6. Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 14.7. Successors and Assigns. All the covenants,
stipulations, provisions, agreements, rights, remedies and claims
of the parties hereto in this Indenture contained shall bind and
inure to the benefit of their successors and assigns.
SECTION 14.8. Captions. The captions or headings in this
Indenture are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of
this Indenture.
SECTION 14.9. Photocopies and Reproductions. A photocopy
or other reproduction of this Indenture may be filed as a
financing statement pursuant to the Louisiana Commercial Laws -
Secured Transactions, although the signatures of the Issuer and
the Trustee on such reproduction are not original manual
signatures.
SECTION 14.10. Bonds Owned by the Issuer or the Company. In
determining whether Bondholders of the requisite aggregate
principal amount of the Bonds have concurred in any direction,
consent or waiver under this Indenture, Bonds which are owned by
the Company or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with
the Company shall be disregarded and deemed not to be outstanding
for the purpose of any such determination, except that, for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Bonds
which the Trustee knows are so owned shall be so disregarded.
Bonds so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Bonds and that the pledgee is not the Company or
any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company. In
case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION 14.11. Holidays. If the date for making any payment
or the last date for performance of any act or the exercising of
any right, as provided in this Indenture, shall be a legal
holiday or a day on which banking institutions in the city in
which is located the principal corporate trust office of the
Trustee are authorized by law to remain closed, such payment may
be made or act performed or right exercised on the next
succeeding day not a legal holiday or a day on which such banking
institutions are authorized by law to remain closed, with the
same force and effect as if done on the nominal date provided in
this Indenture, and no interest on the amount so payable shall
accrue for the period after such nominal date.
SECTION 14.12. Subordination of Rights of the Company. This
Indenture and the rights and privileges hereunder of the Trustee
and the holders of the Bonds are specifically made subject and
subordinate to the rights and privileges of the Company set forth
in the Refunding Agreement. Nothing in this Indenture or the
Refunding Agreement shall in any way prejudice the Company
Mortgage with respect to the lien thereof, or any of the rights
of the Company Mortgage Trustee thereof, or any holder of bonds
heretofore or hereafter issued thereunder, or any takers or
purchasers upon default thereunder.
IN WITNESS WHEREOF, the Issuer has caused these presents to
be signed in its name and behalf by the President of the West
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Police Jury and its corporate seal to be
hereunto affixed and attested by the Secretary of the West
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Police Jury, and, to evidence its acceptance of
the trust hereby created, the Trustee has caused these presents
to be signed in its behalf by one of its _______________________
and its corporate seal to be hereto affixed.
PARISH OF ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
STATE OF LOUISIANA
By:_________________________________
ATTEST: President
West ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Policy Jury
By: [SEAL]
Secretary
West ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Police Jury
FIRST NATIONAL BANK OF COMMERCE,
as Trustee
By:_________________________________
Title:
[SEAL]
EXHIBIT A
TO THE TRUST INDENTURE
[FORM OF FACE OF SERIES [ ] BOND]
No. R- $___________
United States of America
State of Louisiana
Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, State of Louisiana
Pollution Control Revenue Refunding Bond
(Gulf States Utilities Company Project)
Series [ ]
Date of Bond:
Maturity Date:
Interest Rate:
Registered Owner:
Principal Amount: CUSIP __________
KNOW ALL MEN BY THESE PRESENTS that the Parish of ▇▇▇▇
▇▇▇▇▇▇▇▇▇, State of Louisiana, a political subdivision of the
State of Louisiana, organized and existing under and by virtue of
the laws of the State of Louisiana (the "Issuer"), for value
received, promises to pay to the registered owner shown above, or
registered assigns, but solely from the source and in the manner
hereinafter set forth, on the maturity date shown above, the
principal amount shown above and in like manner to pay interest
on said amount from the date hereof shown above until such
principal amount becomes due and payable, at the rate per annum
shown above, semiannually on __________ and __________ of each
year commencing on the __________ or __________ next succeeding
the date of this Bond, except as the provisions hereinafter set
forth with respect to redemption of this Bond prior to maturity
may become applicable hereto. The principal of and premium, if
any, on this Bond are payable in lawful money of the United
States of America upon the presentation and surrender hereof at
the principal corporate trust office of First National Bank of
Commerce, in the City of New Orleans, Louisiana, or its successor
or successors, as trustee (the "Trustee"), and interest on this
Bond is payable in like money to the registered owner hereof by
check drawn upon the Trustee and mailed to the person in whose
name this Bond is registered at the close of business on the
fifteenth day of the calendar month next preceding such interest
payment date, at the address as it appears on the bond
registration books of the Issuer kept by the Trustee.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the Certificate of Authentication hereon shall
have been signed by the Trustee.
REFERENCE IS HEREBY MADE TO THE ADDITIONAL PROVISIONS OF
THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF WHICH FOR ALL
PURPOSES SHALL HAVE THE SAME EFFECT AS IF SET FORTH HEREIN.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the issuance of the Bonds do exist, have
happened and have been performed in due time, form and manner as
required by law; that the indebtedness represented by the Bonds,
together with all obligations of the Issuer, does not exceed any
Louisiana constitutional or statutory limitation; and that the
revenues pledged to the payment of the principal of and premium,
if any, and interest on the Bonds as the same become due and
payable will be sufficient in amount for that purpose.
IN WITNESS WHEREOF, the Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, State of
Louisiana, has caused this Bond to be executed by the President
of the West ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Police Jury and attested by the
Secretary of the West ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Police Jury (by their
manual or facsimile signatures), thereunto duly authorized, and
its corporate seal to be affixed or imprinted, all as of the date
of this Bond shown above.
PARISH OF ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
STATE OF LOUISIANA
By: _________________________________
ATTEST: President
West ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Policy Jury
By: [SEAL]
Secretary
West ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Police Jury
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in and
issued under the provisions of the within mentioned Indenture.
FIRST NATIONAL BANK OF COMMERCE,
as Trustee
By: __________________________________
Authorized Signature
Date of Authentication:
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
_________________________________________________________________
_____________
Please Insert Social
Security
or other Identifying
Number of Assignee
_________________________________________________________________
the within Certificate and all rights thereunder, and hereby
irrevocably constitutes and appoints
_________________________________________________________________
_____________________________________________ attorney or agent
to transfer the within Certificate on the books kept for
registration thereof, with full power of substitution in the
premises.
Dated: Signature: Signature Guaranteed:
NOTICE: The signature to this assignment must correspond with
the name as it appears upon the face of the within Certificate in
every particular, without alteration or enlargement or any change
whatever.
Signature guarantee should be made by a guarantor institution
participating in the Securities Transfer Agents Medallion Program
or in such other manner acceptable to the Trustee.
[FORM OF REVERSE OF SERIES [ ] BOND]
This Bond is one of an authorized issue of bonds of the
Issuer designated "Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, State of Louisiana
Pollution Control Revenue Refunding Bond (Gulf States Utilities
Company Project) Series [ ]", in the aggregate principal
amount of [$ ] (the "Bonds"), authorized by a
resolution adopted by the governing authority of the Issuer and
issued under and secured by a Trust Indenture dated as of
September 1, 1994 (the "Indenture") duly executed and delivered
by the Issuer to the Trustee, in full conformity with the
Constitution and laws of the State of Louisiana, including
particularly the provisions of Chapter 14-A of Title 39 of the
Louisiana Revised Statutes of 1950, as amended (the "Act"). The
Bonds are issued for the purpose of refunding the Issuer's
outstanding Pollution Control Revenue Bonds (Gulf States
Utilities Company Project) Series 1984A, Series 1984B, Series
1984C and Series 1984D (the "Prior Bonds"), in the aggregate
principal amount of $102,000,000 issued to finance the cost of
acquiring a leasehold interest in the undivided seventy percent
interest in certain water pollution control and sewage disposal
facilities (the "Facilities") at the River Bend Unit 1 nuclear
power plant in the Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Louisiana, owned by
Gulf States Utilities Company, a Texas corporation (the
"Company"), and paying the costs of issuing the Bonds. Reference
is hereby made to the Indenture and all indentures supplemental
thereto for the provisions, among others, with respect to the
nature and extent of the security, the rights, duties and
obligations of the Issuer, the Trustee and the registered owners
of the Bonds, and the terms upon which the Bonds are issued and
secured.
The Bonds are not general obligations of the Issuer but are
special obligations payable solely from Revenues of the Issuer
(as defined in the Indenture), including (i) payments to be made
by the Company to the Trustee for the benefit of the Issuer
(except payments with respect to the indemnification or
reimbursement of certain expenses of the Issuer) under a
Refunding Agreement dated as of [ ], between the
Issuer and the Company (the "Refunding Agreement"), (ii) all
money received under the Refunding Agreement to be paid into the
Bond Fund (as defined in the Indenture), including the income
thereon and investment thereof, if any, and (iii) in certain
events, amounts attributable to Bond proceeds or amounts obtained
through the exercise of certain remedies provided for in the
Indenture. The Refunding Agreement requires that the Company
make payments and pay interest thereon in amounts sufficient to
provide for the payment of the principal of and premium, if any,
and interest on the Bonds as they become due and payable. Such
payments will be made directly to the Trustee and deposited in a
special account of the Issuer designated "Parish of ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Pollution Control Revenue Refunding Bonds (Gulf States
Utilities Company Project) Series [ ] Bond Fund" and
such payments have been duly assigned to the Trustee for that
purpose. The obligation of the Company to make such payments is
evidenced in part by the Company's first mortgage bonds issued
and delivered to the Trustee as an additional series under the
Company's Indenture of Mortgage dated as of September 1, 1926
made to The Chase National Bank in the City of New York, as
trustee (the "Company Mortgage Trustee"), as heretofore and
hereafter amended and supplemented (the "Company Mortgage"). All
the rights and interests of the Issuer under, in and to the
Refunding Agreement (except for certain rights specified in the
Indenture) have been assigned under the Indenture to the Trustee
to secure the payment of the principal of and premium, if any,
and interest on the Bonds.
The owner of this Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the
covenants therein, or to take any action with respect to any
event of default under the Indenture, or to institute, appear in
and defend any suit or other proceeding with respect thereto,
except as provided in the Indenture. In certain events, on the
conditions, in the manner and with the effect set forth in the
Indenture, the principal of all the Bonds issued under the
Indenture and then outstanding may be declared and may become due
and payable before the stated maturity thereof, together with
accrued interest thereon.
Modifications or alterations of the Indenture, or of any
indenture supplemental thereto, may be made only to the extent
and in the circumstances permitted by the Indenture.
The Bonds are subject to redemption prior to maturity as
follows:
(a) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, in whole but not in
part, at any time, at a redemption price equal to the principal
amount being redeemed plus accrued interest to the redemption
date, if:
(i) the Company shall have determined that the
continued operation of the Facilities is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued operation of the Facilities is impracticable,
uneconomical or undesirable due to (A) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Facilities, or other liabilities or burdens with
respect to the Facilities or the operation thereof, (B)
changes in technology, in environmental standards or legal
requirements or in the economic availability of materials,
supplies, equipment or labor or (C) destruction of or
damage to all or part of the Facilities;
(iii) all or substantially all of the Facilities
shall have been condemned or taken by eminent domain; or
(iv) the operation of the Facilities shall have been
enjoined or shall have otherwise been prohibited by any
order, decree, rule or regulation of any court or of any
federal, state or local regulatory body, administrative
agency or other governmental body.
(b) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, on and after
________________, in whole at any time or in part from time to
time, and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable, at the
redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued interest to the redemption date:
Redemption Period Redemption Price
The Bonds shall also be subject to optional redemption by the
Issuer, at the direction of the Company, in whole but not in
part, at any time prior to ________________, at a redemption
price equal to ______% of the principal amount being redeemed
plus accrued interest to the redemption date, if the Company
shall have consolidated with or merged with or into another
corporation, or sold or otherwise transferred all or
substantially all of its assets.
In the event any of the Bonds or portions thereof (which
shall be in $5,000 denominations or any integral multiple
thereof) are called for redemption, notice thereof shall be given
by the Trustee by first class mail, postage prepaid, to the
registered owner of each such Bond addressed to such registered
owner at the registered address and placed in the mails not less
than thirty (30) days nor more than sixty (60) days prior to the
date fixed for redemption; provided, however, that failure to
give such notice by mailing, or any defect therein, shall not
affect the validity of any proceeding for the redemption of any
Bond with respect to which no such failure or defect has
occurred. Each notice shall identify the Bonds or portions
thereof being called, and the date on which they shall be
presented for payment. After the date specified in such call,
the Bond or Bonds so called will cease to bear interest, provided
funds sufficient for their redemption have been deposited with
the Trustee, and, except for the purpose of payment, shall no
longer be protected by the Indenture and shall not be deemed to
be outstanding under the provisions of the Indenture.
With respect to notice of redemption of Bonds at the option
of the Issuer (at the direction of the Company), unless moneys
sufficient to pay the principal of and premium, if any, and
interest on the Bonds to be redeemed shall have been received by
the Trustee prior to the giving of such notice, such notice shall
state that said redemption shall be conditional upon the receipt
of such moneys by the Trustee on or prior to the date fixed for
such redemption. If such moneys shall not have been so received,
such notice shall be of no force and effect, the Issuer shall not
redeem such Bonds and the Trustee shall give notice, in the
manner in which the notice of redemption was given, that such
moneys were not so received.
This Bond may be transferred on the books of registration
kept by the Trustee by the registered owner or by his duly
authorized attorney upon surrender hereof, together with a
written instrument of transfer duly executed by the registered
owner or his duly authorized attorney.
The Bonds are issuable as registered Bonds without coupons
in denominations of $5,000 and any integral multiple thereof.
Subject to the limitations and upon payment of the charges
provided in the Indenture, Bonds may be exchanged for a like
aggregate principal amount of Bonds of other authorized
denominations.
The Indenture and the rights and privileges under the
Indenture of the Trustee and the holders of the Bonds are
specifically made subject and subordinate to the rights and
privileges of the Company set forth in the Refunding Agreement.
Nothing in the Indenture or the Refunding Agreement shall in any
way prejudice the Company Mortgage with respect to the lien
thereof, or any of the rights of the Company Mortgage Trustee
thereof, or any holder of bonds heretofore or hereafter issued
thereunder, or any takers or purchasers upon default thereunder.
This Bond is issued with the intent that the laws of the
State of Louisiana will govern its construction.