Exhibit B-3(a)
Refunding Agreement
between
Parish of Iberville, State of Louisiana
and
Entergy Gulf States, Inc.
Dated as of May 1, 1998
$21,600,000
Parish of Iberville, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Entergy Gulf States, Inc. Project)
Series 1998
Refunding Agreement
This Refunding Agreement dated as of May 1, 1998 by and
between the Parish of Iberville, State of Louisiana, a political
subdivision of the State of Louisiana (the "Issuer"), and Entergy
Gulf States, Inc., a corporation duly organized and existing
under the laws of the State of Texas and qualified to do business
in the State of Louisiana (the "Company");
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Louisiana, authorized and empowered by law, including
particularly the provisions of Sections 991 to 1001, inclusive,
of Title 39 of the Louisiana Revised Statutes of 1950, as
amended, and certain related constitutional and statutory
authority (the "Industrial Inducement Act"), to issue its revenue
bonds for the purpose of using the funds derived from the sale
thereof to acquire, purchase, construct or improve industrial
plant sites and industrial plant buildings, pollution abatement
and control facilities, and necessary property and appurtenances
thereto; and
WHEREAS, pursuant to the provisions of the Industrial
Inducement Act and a Trust Indenture dated as of July 1, 1976 by
and between the Issuer and ▇▇▇▇▇▇▇ Bank of Louisiana (formerly
American Bank and Trust Company), as trustee (the "1976
Trustee"), the Issuer issued its Pollution Control Revenue Bonds,
1976 Series A (Gulf States Utilities Company Project) (the "Prior
Bonds") in the aggregate principal amount of $24,000,000 for the
purpose of providing funds to finance the cost of acquiring
certain air and water pollution control facilities at the
electric generating plant known as the Willow ▇▇▇▇ Station owned
and operated by the Company (formerly Gulf States Utilities
Company) in the geographical limits of the Issuer (the
"Facilities"); and
WHEREAS, in furtherance of the statutory purposes of the
Industrial Inducement Act, the Issuer entered into a Sale
Agreement dated as of June 15, 1976 with the Company, pursuant to
which the Issuer acquired the Facilities from the Company and
resold the Facilities to the Company, as more fully described
therein; and
WHEREAS, on December 31, 1993, the Company became a wholly-
owned subsidiary of Entergy Corporation and continues to operate
as a public utility company under the regulation of the Public
Utility Commission of Texas and the Louisiana Public Service
Commission; and
WHEREAS, $21,600,000 aggregate principal amount of the Prior
Bonds are outstanding, and the Company has requested that the
Issuer refund the Prior Bonds in order to achieve interest cost
savings through the issuance by the Issuer of not exceeding
$21,600,000 aggregate principal amount of its Pollution Control
Revenue Refunding Bonds (Entergy Gulf States, Inc. Project)
Series 1998 (the "Bonds"); and
WHEREAS, the Issuer is authorized and empowered by law,
including particularly the provisions of Chapter 14-A of Title 39
of the Louisiana Revised Statutes of 1950, as amended (the
"Act"), to issue its refunding bonds for the purpose of
refunding, readjusting, restructuring, refinancing, extending, or
unifying the whole or any part of outstanding securities of the
Issuer in an amount sufficient to provide funds necessary to
effectuate the purpose for which the refunding bonds are being
issued and to pay all costs associated therewith; and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue the Bonds for the
purpose of refunding the Prior Bonds; and
WHEREAS, in consideration of the issuance of the Bonds by
the Issuer, the Company will agree to make payments in an amount
sufficient to pay the principal of, premium, if any, and interest
on the Bonds pursuant to this Refunding Agreement, said Bonds to
be paid solely from the revenues derived by the Issuer from said
payments by the Company pursuant to this Refunding Agreement and
any moneys held under the hereinafter defined Indenture, and said
Bonds shall not constitute an indebtedness or pledge of the
general credit of the Issuer or the State of Louisiana, within
the meaning of any constitutional or statutory limitation of
indebtedness or otherwise; and
WHEREAS, the execution and delivery of this Refunding
Agreement under the Act have been in all respects duly and
validly authorized by ordinance of the Parish Council of the
Parish of Iberville, State of Louisiana, duly adopted;
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1. Definitions. In addition to the words and
terms elsewhere defined in this Refunding Agreement or in the
Indenture, the following words and terms as used in this
Refunding Agreement shall have the following meanings unless the
context or use indicates another or different meaning:
"Act" means Chapter 14-A of Title 39 of the Louisiana
Revised Statutes of 1950, as amended.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to this Refunding
Agreement, the Indenture and any transaction or event
contemplated by this Refunding Agreement or the Indenture
including the compensation and reimbursement of expenses and
advances payable to the Trustee, any paying agent, any co-paying
agent, and the registrar under the Indenture.
"Bond Fund" shall have the meaning given and assigned
thereto in the Indenture.
"Bonds" means the $21,600,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Entergy Gulf States,
Inc. Project) Series 1998 authorized to be issued under the
Indenture.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Entergy Gulf States, Inc., a corporation
organized and existing under the laws of the State of Texas, and
its permitted successors and assigns.
"Company Mortgage" means the Company's Indenture of Mortgage
dated as of September 1, 1926 made to The Chase National Bank in
the City of New York (now The Chase Manhattan Bank), as trustee,
and Chemical Bank, as successor trustee, as heretofore and
hereafter amended and supplemented.
"Company Mortgage Trustee" means the successor trustee under
the Company Mortgage.
"Costs of Issuance" means all fees, charges and expenses
incurred in connection with the authorization, preparation, sale,
issuance and delivery of the Bonds, including, without
limitation, financial, legal and accounting fees, expenses and
disbursements, rating agency fees, the Issuer's expenses
attributable to the issuance of the Bonds, the cost of printing,
engraving and reproduction services and the initial or acceptance
fee of the Trustee.
"Disclosure Documents" means the Limited Offering Memorandum
with respect to the Bonds, together with all documents
incorporated therein by reference.
"Event of Default" means any event of default specified in
Section 8.1 hereof.
"Facilities" means the Company's air and water pollution
control facilities at the Plant, financed in part 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.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or, the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" means the Trust Indenture dated as of May 1,
1998 between the Issuer and the Trustee securing the Bonds, and
any amendments and supplements thereto.
"Issuer" means the Parish of Iberville, State of Louisiana,
a political subdivision under the Constitution and laws of the
State of Louisiana.
"outstanding", when used with reference to the Bonds, shall
mean, as of any particular date, all Bonds authenticated and
delivered under the Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee at or prior to such
date for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of the Indenture;
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and
delivered pursuant to the Indenture; and
(d) Bonds registered in the name of the Issuer.
"Plant" means the electric generating plant known as the
Willow ▇▇▇▇ Station owned and operated by the Company and located
in the Parish of Iberville, Louisiana.
"Prior Bonds" means the Issuer's Pollution Control Revenue
Bonds, 1976 Series A (Gulf States Utilities Company Project),
outstanding in the aggregate principal amount of $21,600,000.
"Prior Indenture" means the Trust Indenture dated as of July
1, 1976 by and between the Issuer and ▇▇▇▇▇▇▇ Bank of Louisiana
(formerly American Bank and Trust Company), and its successors
and assigns.
"Prior Trustee" means ▇▇▇▇▇▇▇ Bank of Louisiana (formerly
American Bank and Trust Company), and its successors and assigns.
"Refunding Agreement" means this Refunding Agreement and any
amendments and supplements hereto.
"Refunding Date" means July 1, 1998, or such later date as
may be established by the Company; provided, however, that the
Refunding Date shall not be later than ninety (90) days following
the date of issuance of the Bonds.
"Refunding Fund" has the meaning set forth in the Indenture.
"Regulations" means all final and proposed United States
Income Tax Regulations.
"Trust Estate" means the property conveyed to the Trustee
pursuant to the Granting Clauses of the Indenture.
"Trustee" means ▇▇▇▇▇▇▇ Bank of Louisiana, of Baton Rouge,
Louisiana, as trustee under the Indenture, and its successors as
trustee.
SECTION I.2. Use of Words and Phrases. "Herein",
"hereby", "hereunder", "hereof", "hereinabove", "hereinafter",
and other equivalent words and phrases refer to this Refunding
Agreement and not solely to the particular portion thereof in
which any such word is used. The definitions set forth in
Section 1.1 hereof include both singular and plural. Whenever
used herein, any pronoun shall be deemed to include both singular
and plural and to cover all genders.
SECTION I.3. Nontaxability. It is intended by the parties
hereto that this Refunding Agreement and all action taken
hereunder be consistent with and pursuant to the ordinance of the
governing authority of the Issuer relating to the Bonds, and that
the interest on the Bonds be excluded from the gross income of
the recipients thereof other than a person who is a "substantial
user" of the Facilities or a "related person" of a "substantial
user" within the meaning of the Code for federal income tax
purposes by reason of the provisions of the Code. The Company
will not use any of the funds provided by the Issuer hereunder in
such a manner as to impair the exclusion of interest on any of
the Bonds from the gross income of the recipient thereof for
federal income tax purposes nor will it take any action that
would impair such exclusion or fail to take any action if such
failure would impair such exclusion.
ARTICLE II
REPRESENTATIONS
SECTION II.1. Representations and Warranties of the Issuer.
The Issuer makes the following representations and warranties as
the basis for the undertakings on the part of the Company herein
contained:
(a) The Issuer is a political subdivision of the State
of Louisiana, created and existing pursuant to the
constitution and laws of such State and is authorized and
empowered by the provisions of the Act and other
constitutional and statutory authority supplemental thereto,
to issue the Bonds.
(b) The Issuer has full power and authority to enter
into this Refunding Agreement and the Indenture and to carry
out its obligations under this Refunding Agreement and the
Indenture and the transactions contemplated hereby and
thereby.
(c) The Issuer has duly authorized the execution and
delivery of this Refunding Agreement and the Indenture and
the issuance and sale of the Bonds.
(d) The Bonds are issued under and secured by the
Indenture, pursuant to which the interest of the Issuer in
this Refunding Agreement and the amounts payable under this
Refunding Agreement (other than indemnification and expense
reimbursement rights) are assigned to the Trustee as
security for the payment of the principal of, premium, if
any, and interest on the Bonds.
(e) Neither the execution and delivery of this
Refunding Agreement or the Indenture, nor the assignment of
this Refunding Agreement to the Trustee, nor the
consummation of the transactions contemplated by this
Refunding Agreement or the Indenture, nor the fulfillment of
or compliance with the terms and conditions of this
Refunding Agreement or the Indenture, results or will result
in the violation of any governmental order applicable to the
Issuer, or conflicts or will conflict with or results or
will result in a breach of any of the terms, conditions or
provisions of any agreement or instrument to which the
Issuer is now a party or by which it is bound, or
constitutes or will constitute a default under any of the
foregoing.
SECTION II.2. Representations and Warranties of the
Company. The Company hereby makes the following representations
and warranties as the basis for the undertakings on the part of
the Issuer herein undertaken for the benefit and reliance of the
Issuer, the Trustee and the holders of the Bonds:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Texas and is
in good standing under the laws of the State of Louisiana,
is not in violation of any provision of its Restated
Articles of Incorporation or its Bylaws, has power to enter
into this Refunding Agreement and to perform and observe the
agreements and covenants on its part contained herein and
has duly authorized the execution and delivery of this
Refunding Agreement by proper corporate action.
(b) Neither the execution and delivery of this
Refunding Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Refunding Agreement,
conflicts with or results in a breach of the terms,
conditions or provisions of any restriction or any agreement
or instrument to which the Company is now a party or by
which the Company is bound, or constitutes a default under
any of the foregoing, or results in the creation or
imposition of any lien, charge or encumbrance whatsoever
upon any of the property or assets of the Company except any
interests created therein under the Indenture.
(c) This Refunding Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company
enforceable in accordance with its terms, subject to laws
relating to bankruptcy, moratorium, insolvency or
reorganization and similar laws affecting creditors' rights
generally.
(d) Except as shall have been disclosed in the
Disclosure Documents, there are no actions, suits or
proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or the assets,
properties or operations of the Company which, if determined
adversely to the Company or its interests, (1) would
materially adversely affect the consummation of the
transactions contemplated by this Refunding Agreement, (2)
would adversely affect the validity of this Refunding
Agreement or (3) could have a material adverse effect upon
the financial condition, assets, properties or operations of
the Company.
(e) No event has occurred and no condition exists with
respect to the Company that would constitute an Event of
Default under this Refunding Agreement or which, with the
lapse of time or with the giving of notice or both, could
reasonably be expected to become an "Event of Default"
hereunder.
(f) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Refunding Agreement
which require said approval, and no other consent, approval,
authorization or other order of any regulatory body or
administrative agency or other governmental body is legally
required for the Company's participation therein, except
such as may have been obtained or may be required under the
securities laws of any state.
ARTICLE III
THE BONDS AND THE PROCEEDS THEREOF
SECTION III.1. Agreement to Issue Bonds. The Issuer has
authorized the issuance and sale of the Bonds in the principal
amount of $21,600,000. Upon issuance and delivery thereof, the
proceeds of the Bonds shall be deposited with the Trustee in the
Refunding Fund (except for proceeds which represent accrued
interest, if any) in accordance with the Indenture. The Issuer
does not make any warranty, either express or implied, that the
proceeds of the Bonds will be sufficient to effectuate the
refunding of the principal of the Prior Bonds.
SECTION III.2. Investment of Funds; Non-Arbitrage Covenant.
Any moneys held as part of the Bond Fund shall be invested,
reinvested or applied by the Trustee in accordance with and
subject to the conditions of Article VII of the Indenture. The
Company and the Issuer shall make no use of the proceeds of the
Bonds, or any funds which may be deemed to be proceeds of the
Bonds pursuant to Section 148 of the Code and the applicable
regulations thereunder, which would cause the Bonds to be
"arbitrage bonds" within the meaning of such Section and such
regulations, and the Company shall comply with and the Issuer
shall take no action to violate the requirements of such Section
and such regulations while any Bonds remain outstanding.
SECTION III.3. Agreement to Redeem Bonds. The Company
agrees to pay to the Prior Trustee, in funds available to the
Prior Trustee on or prior to the Refunding Date, for deposit into
the bond fund created under the Prior Indenture securing the
Prior Bonds and in accordance with the terms of the Prior
Indenture, any amount necessary to pay the principal of and
accrued interest due on the Prior Bonds on the Refunding Date, to
the extent that the amount delivered by the Issuer pursuant to
Section 3.1 hereof is insufficient for such purpose.
ARTICLE IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS
SECTION IV.1. Deposit of Bond Proceeds. Concurrently with
the delivery of the Bonds, the Issuer will, upon the terms and
subject to the conditions of this Refunding Agreement, deposit
all of the proceeds thereof with the Trustee for deposit into the
Refunding Fund (except for proceeds which represent accrued
interest, if any) in accordance with the Indenture for
application as provided in Article V hereof and the Indenture to
refund on the Refunding Date the outstanding principal amount of
the Prior Bonds. The Company shall provide such additional
moneys as are required to pay the interest on the Prior Bonds on
the dates and in the manner as provided in the Prior Indenture in
order to cause the redemption of the Prior Bonds on the Refunding
Date. The Company shall pay out of its own money and not out of
proceeds of the Bonds all reasonable Costs of Issuance with
respect to the Bonds.
SECTION IV.2. Payments. (a) The Company shall pay to the
Trustee for the account of the Issuer on each date on which the
principal of, premium, if any, or interest on the Bonds comes
due, whether at the maturity thereof or upon acceleration,
redemption or otherwise in accordance with the provisions of the
Indenture, an amount equal to the sum of (i) all interest due and
payable on the Bonds on such date, (ii) the principal amount of
Bonds, if any, due and payable on such date, (iii) amounts, if
any, required to effect redemption of Bonds upon unconditional
call thereof on such date pursuant to the Indenture, together
with accrued interest and any applicable redemption premium, and
(iv) all amounts due on such date to the Trustee or the Issuer
under this Refunding Agreement, the Indenture or any other
agreements entered into in connection with the issuance of the
Bonds and any other Administration Expenses. The Company directs
the Trustee to apply such amounts to the purpose for which they
are paid. The payments required under this Section 4.2(a)(i),
(ii) and (iii) shall be paid by check, draft, wire transfer or
other means acceptable to the Trustee directly to the Trustee in
funds immediately available to the Trustee on the payment date,
and shall be immediately deposited by the Trustee in the Bond
Fund. In any event, the Company agrees to make payments to the
Trustee for deposit in the Bond Fund at such times and in such
amounts and manner so as to enable the Trustee to make payment of
the principal of, redemption premium, if any, and accrued
interest on the Bonds as the same shall become due and payable
whether by acceleration, redemption or otherwise in accordance
with the terms of the Indenture.
(b) If the Company should fail to make any of the payments
required in subsection (a) above, the item or installment which
the Company has failed to make shall continue as an obligation of
the Company until the same shall have been fully paid.
(c) Anything herein, in the Indenture or in the Bonds to
the contrary notwithstanding, the obligations of the Issuer and
the Company hereunder shall be subject to the limitation that
payments constituting interest under this Section or the Bonds
shall not be required to the extent that the receipt of such
payment by any owner of any Bonds would be contrary to the
provisions of law applicable to such owner which limit the
maximum rate of interest that may be charged or collected by such
owner.
(d) In addition to the options and obligations of the
Company under Article IX hereof, the Company shall have the
option to make from time to time prepayments of part or all of
the amounts due hereunder. The making of any prepayments by the
Company shall not require the Company to make any further
prepayments. The Issuer shall direct the Trustee to apply such
prepayments in such manner, consistent with the provisions of the
Indenture, as may be directed by the Company.
In the event that (i) such partial prepayments shall be
applied by the Trustee pursuant to the Indenture to the purchase,
defeasance or redemption of the Bonds or (ii) the Bonds are
presented by the Company or the Issuer to the Trustee for
cancellation pursuant to the Indenture, the Company shall be
entitled to a credit for the Bonds so purchased, defeased,
redeemed or cancelled against payments required to be made under
the provisions of this Article.
SECTION IV.3. Payments Assigned; Obligation Absolute. It
is understood and agreed that all payments under Section
4.2(a)(i), (ii) and (iii) to be made by the Company are pledged
by the Issuer to the Trustee pursuant to the Indenture, and that
all rights and interest of the Issuer hereunder (except for the
Issuer's rights under Sections 4.4, 4.5, 4.6 and 8.5 hereof and
any rights of the Issuer to receive notices, certificates,
requests, requisitions, directions and other communications
hereunder) are pledged and assigned to the Trustee. The Company
assents to such pledge and assignment and agrees that the
obligation of the Company to make payments under Section
4.2(a)(i), (ii) and (iii) shall be absolute, irrevocable and
unconditional and shall not be subject to cancellation,
termination or abatement, or to any defense other than payment or
to any right of set-off, counterclaim or recoupment arising out
of any breach under this Refunding Agreement, the Indenture or
otherwise by the Issuer or the Trustee or any other party, or out
of any obligation or liability at any time owing to the Company
by the Issuer, the Trustee or any other party, and, further, that
the payments under Section 4.2(a)(i), (ii) and (iii) and the
other payments due hereunder shall continue to be payable at the
times and in the amounts specified herein, whether or not the
Facilities, or any portion thereof, shall have been destroyed by
fire or other casualty, or title thereto, or the use thereof,
shall have been taken by the exercise of the power of eminent
domain, and that there shall be no abatement of or diminution in
any such payments by reason thereof, whether or not the
Facilities shall be used or useful, and whether or not any
applicable laws, regulations or standards shall prevent or
prohibit the use of the Facilities, or for any other reason.
SECTION IV.4. Payment of Expenses. The Company shall pay
or cause to be paid all Administration Expenses, including those
of the Issuer, the Trustee, any paying agent, any co-paying
agent, and the registrar under the Indenture, such payments to be
made directly to such entities.
SECTION IV.5. Indemnification. The Company releases the
Issuer and the Trustee from, agrees that the Issuer and the
Trustee shall not be liable for, and agrees to indemnify and hold
the Issuer and the Trustee free and harmless from, any liability
for any loss or damage to property or any injury to or death of
any person that may be occasioned by any cause whatsoever
pertaining to the Facilities, including, without limitation, the
financing or refinancing of the Facilities and the Prior Bonds or
Bonds issued with respect thereto, except in any case as a result
of the negligence, willful misconduct or bad faith of the Issuer
or the Trustee.
The Company will indemnify and hold the Issuer and the
Trustee free and harmless from any loss, claim, damage, tax,
penalty, liability (including but not limited to liability for
any patent infringement), disbursement, litigation expenses,
attorneys' fees and expenses or court costs arising out of, or in
any way relating to, the execution or performance of this
Refunding Agreement, the issuance or sale of the Prior Bonds or
the Bonds, actions taken under the Indenture, or any other cause
whatsoever pertaining to the Facilities, including without
limitation, recovery costs arising from the presence of hazardous
substances, except in any case as a result of the negligence,
willful misconduct or bad faith of the Trustee, or as a result of
the gross negligence, willful misconduct or bad faith of the
Issuer.
Under this Section, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer and the Trustee to the same
extent as the Issuer and the Trustee.
SECTION IV.6. Payment of Taxes. The Company agrees that it
will pay, as the same become due, all taxes and governmental
charges of any kind whatsoever that may at any time be lawfully
assessed or levied against the Company or the Issuer with respect
to the Facilities or any portion thereof or with respect to the
Prior Bonds, including, without limiting the generality of the
foregoing, any taxes lawfully levied against the Company or the
Issuer upon or with respect to the income or profits of the
Issuer from the Facilities or any charge on the payments made
pursuant to Section 4.2(a)(i), (ii) or (iii) hereof prior to or
on a parity with the charge under the Indenture thereon and the
pledge or assignment thereof to be created and made in the
Indenture, and including all ad valorem taxes lawfully assessed
upon the Facilities, all utility and other charges incurred in
the operation, maintenance, use, occupancy and upkeep of the
Facilities, all assessments and charges lawfully made by any
governmental body against the Company or the Issuer for or on
account of the Facilities and in addition any excise tax levied
against the Company or the Issuer on the payments made pursuant
to Section 4.2(a)(i), (ii) and (iii) hereof; provided, however,
that nothing herein shall require the payment of any such tax or
charge or the making of provision for the payment thereof, so
long as the validity thereof shall be contested in good faith by
the Company by appropriate legal proceedings; further provided,
that with respect to special assessments or other governmental
charges that may lawfully be paid in installments over a period
of years, the Company shall be obligated to pay only such
installments as are required to be paid during the term of this
Refunding Agreement.
ARTICLE V
REFUNDING OF PRIOR BONDS
SECTION V.1. Refunding Fund - Disbursement of Bond
Proceeds. The Trustee, as authorized by the Issuer in the
Indenture, shall transfer out of the Refunding Fund the proceeds
of the Bonds (exclusive of accrued interest, if any, received
with respect to the Bonds) on the date of issuance thereof to the
Prior Trustee for disbursement and investment in accordance with
the Prior Indenture in order to redeem the Prior Bonds on the
Refunding Date.
SECTION V.2. Compliance with Prior Indenture. The Issuer
shall, at the request of the Company, take all steps as may be
necessary under the Prior Indenture to effect the redemption of
the Prior Bonds on the Refunding Date as provided in the Prior
Indenture and as contemplated herein.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION VI.1. Maintenance of Corporate Existence. The
Company shall maintain its corporate existence, will not dissolve
or otherwise dispose of all or substantially all its assets and
will not consolidate with or merge with or into another
corporation or permit one or more other corporations to
consolidate with or merge into it; provided, however, that the
Company may, without violating the agreements contained in this
Section consolidate with or merge into another domestic
corporation (i.e., a corporation incorporated and existing under
the laws of one of the states of the United States of America or
the District of Columbia or under the laws of the United States
of America) or permit one or more such domestic corporations to
consolidate with or merge into it, or sell or otherwise transfer
to another domestic corporation all or substantially all of its
assets as an entirety and thereafter dissolve; provided that (i)
both immediately prior to such consolidation, merger, sale or
transfer and after giving effect thereto, no Event of Default (or
event which, with the giving of notice or the passage of time, or
both, would become an Event of Default) shall have occurred and
be continuing, and (ii) in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, such surviving, resulting or transferee corporation assumes
in writing all of the obligations of the Company herein.
If consolidation, merger or sale or other transfer is made
as permitted by this Section, the provisions of this Section
shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section.
SECTION VI.2. Limited Obligation Bonds. The Bonds shall be
limited obligations of the Issuer and shall be payable solely out
of the revenues of the Issuer from this Refunding Agreement as
provided in the Indenture (including all sums deposited in the
Bond Fund from time to time pursuant to this Refunding Agreement
and the Indenture, and in certain events, amounts obtained
through the exercise of certain remedies provided in the
Indenture). The Bonds shall never be general obligations of the
Issuer nor constitute an indebtedness or pledge of the general
credit of the Issuer within the meaning of any constitutional or
statutory provision or limitation of indebtedness, and shall
never be paid in whole or in part out of any funds raised or to
be raised by taxation or any other funds of the Issuer.
SECTION VI.3. Arbitrage. The Issuer and the Company hereby
covenant with each other, the Trustee and each of the holders of
any Bonds that neither of them will cause or permit the proceeds
of the Bonds to be used in a manner that will cause the interest
on the Bonds to be includable in gross income of the recipients
thereof other than a person who is a "substantial user" of the
Facilities or a "related person" to such "substantial user"
within the meaning of the Code for federal income tax purposes.
In addition, the Company covenants that to the extent permitted
by law, it shall take all actions within its control necessary to
maintain the exclusion of the interest on the Bonds from gross
income for federal income tax purposes under federal tax law
existing on the date of delivery of the Bonds. In furtherance of
the foregoing, the Company also agrees on behalf of the Issuer to
comply with all rebate requirements and procedures as may become
applicable to the Bonds under the Code.
Without limiting the generality of the foregoing, the
Company further covenants and agrees, as follows:
(a) The Facilities are located within the jurisdiction
of the Issuer.
(b) Substantially all of the net proceeds of the sale
of the Prior Bonds have been used to undertake the
acquisition of "air or water pollution control facilities"
within the meaning of Section 103(b)(4)(E) and (F) of the
Internal Revenue Code of 1954, as amended. All of the
proceeds of the Prior Bonds have been expended.
(c) The weighted average maturity of the Bonds does
not exceed 120% of the remaining reasonably expected
economic life of the Facilities financed with the proceeds
of the Prior Bonds.
(d) The principal amount of the Bonds shall not exceed
the outstanding principal amount of the Prior Bonds.
(e) The Bonds are not and will not be "federally
guaranteed" (as defined in Section 149(b) of the Code).
(f) None of the proceeds of the Bonds will be used,
and none of the proceeds of the Prior Bonds were used, to
provide any airplane, skybox or other private luxury box, or
health club facility; any facility primarily used for
gambling; or any store the principal business of which is
the sale of alcoholic beverages for consumption off
premises.
(g) The information furnished by the Company and used
by the Issuer in preparing the certification pursuant to
Section 148 of the Code and the information statement
pursuant to Section 149(e) of the Code, is accurate and
complete as of the date of the issuance of the Bonds.
(h) None of the proceeds of the Bonds will be used to
finance Costs of Issuance of the Bonds.
(i) The Company will take no action that would cause
any funds constituting gross proceeds of the Bonds to be
used in a manner as to constitute a prohibited payment under
the applicable regulations pertaining to, or in any other
fashion as would constitute failure of compliance with,
Section 148 of the Code.
SECTION VI.4. Maintenance of Facilities. The Company
covenants that while any of the Bonds are outstanding it will, at
its own expense, maintain the Facilities in good repair and make
all required replacements and renewals thereof. However, the
Company shall have no obligation to replace or renew any portion
of the Facilities, if in the Company's opinion, it is unnecessary
or undesirable to do so.
The Company agrees that the Facilities will be insured
against loss or damage of such kinds and in such amounts,
including without limitation, fire and extended coverage risks
(including property insurance) in such amounts and covering such
risks as are customarily insured against by companies operating
similar properties. Any provisions of this Refunding Agreement
to the contrary notwithstanding, the Company shall be entitled to
the proceeds of any insurance or condemnation award or portion
thereof with respect to the Facilities and such shall be paid
directly to the Company.
SECTION VI.5. Permits. The Company shall, at its sole cost
and expense, procure or cause to be procured any and all
necessary building permits, other permits, licenses and other
authorizations required for the lawful and proper use,
occupation, operation and management of the Facilities and which,
if not obtained, would materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION VI.6. Compliance with Law. The Company shall,
throughout the term of this Refunding Agreement and at no expense
to the Issuer, promptly comply or cause compliance with all laws,
ordinances, orders, rules, regulations and requirements of duly
constituted public authorities that are applicable to the
Facilities or to the repair and alteration thereof, or to the use
or manner of use of the Facilities and which, if there is non-
compliance, would materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
Notwithstanding the foregoing, the Company shall have the right
to contest the legality of any such law, ordinance, order, rule,
regulation or requirement as applied to the Facilities provided
that in the opinion of counsel to the Company such contest shall
not in any way materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION VI.7. No Warranty. The Issuer makes no warranty,
either express or implied, as to the Facilities, including,
without limitation, title to the Facilities or the actual or
designed capacity of the Facilities, as to the suitability or
operation of the Facilities for the purposes specified in this
Refunding Agreement, as to the condition of the Facilities or as
to the suitability thereof for the Company's purposes or needs or
as to compliance of the Facilities with applicable laws and
regulations or the ability of the Company to discharge the Bonds.
The Company covenants with the Issuer that it will make no claim
against the Issuer for any deficiency which may at any time exist
in the Facilities, nor will it assert against the Issuer any
other claim for breach of warranty with respect to the
Facilities. The obligations of the Company under this Section
shall survive any assignment or termination of this Refunding
Agreement.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION VII.1. By the Company. The Company's interest in
this Refunding Agreement may be assigned in whole or in part, and
the Facilities may be leased or sold as a whole or in part
(whether a specific element or unit or an undivided interest), by
the Company, subject, however, to the condition that no
assignment, lease or sale (other than as described in Section 6.1
hereof) shall relieve the Company from primary liability for its
obligations under Section 4.2 hereof to pay the payments required
thereunder, or for any other of its obligations hereunder, other
than those obligations relating to the operation, maintenance and
insurance of the Facilities, which obligations (to the extent of
the interest assigned, leased or sold and to the extent assumed
by the assignee, lessee or purchaser) shall be deemed to be
satisfied and discharged. Further, upon any such lease or sale
the Company shall comply with the requirements of the Code and
the regulations promulgated thereunder (including, without
limitation, the taking of remedial action with respect to the
Bonds) as the same may then be applicable.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
SECTION VII.2. Limitation. This Refunding Agreement shall
not be assigned nor shall the Facilities be leased or sold, in
whole or in part, except as provided in this Article VII,
Sections 4.3 or 6.1 hereof.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION VIII.1. Events of Default. Each of the
following events shall constitute and is referred to in this
Refunding Agreement as an "Event of Default":
(a) a failure by the Company to make when due any
payment required to be made pursuant to Section 4.2 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a) or (b) of Section 10.1 of the Indenture;
(b) a failure by the Company to pay when due any other
amount required to be paid under this Refunding Agreement or
to observe and perform any covenant, condition or agreement
on its part to be observed or performed, which failure shall
continue for a period of ninety (90) days after written
notice, specifying such failure and requesting that it be
remedied, shall have been given to the Company by the Issuer
or the Trustee, unless the Issuer and the Trustee shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Issuer and the
Trustee shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Company
within such period and is being diligently pursued;
(c) the expiration of a period of ninety (90) days
following:
(i) the adjudication of the Company as a
bankrupt by any court of competent jurisdiction;
(ii) the entry of an order approving a
petition seeking reorganization or arrangement of the
Company under the federal bankruptcy laws or any other
applicable law or statute of the United States of
America, or of any state thereof; or
(iii) the appointment of a trustee or a
receiver of all or substantially all of the property of
the Company, unless during such period such
adjudication, order or appointment of a trustee or
receiver shall be vacated or shall be stayed on appeal
or otherwise or shall have otherwise ceased to continue
in effect; or
(d) the filing by the Company of a voluntary petition
in bankruptcy or the making of an assignment for the benefit
of creditors; the consenting by the Company to the
appointment of a receiver or trustee of all or any part of
its property; the filing by the Company of a petition or
answer seeking reorganization or arrangement under the
federal bankruptcy laws, or any other applicable law or
statute of the United States of America, or of any state
thereof; or the filing by the Company of a petition to take
advantage of any insolvency act.
SECTION VIII.2. Force Majeure. The provisions of
Section 8.1 hereof are subject to the following limitations: If
by reason of acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or other acts of any
kind of the government of the United States or of the States of
Louisiana or Texas, or any other sovereign entity or body
politic, or any department, agency, political subdivision, court
or official of any of them, or any civil or military authority;
insurrections; riots; epidemics; landslides; lightning;
earthquakes; volcanoes; fires; hurricanes; tornados; storms;
floods; washouts; droughts; arrests; restraint of government and
people; civil disturbances; explosions; breakage of, or accident
to, machinery; partial or entire failure of utilities; or any
cause or event not reasonably within the control of the Company,
the Company is unable in whole or in part to carry out any one or
more of its agreements or obligations contained herein, other
than its payment obligations under Section 4.2(i), (ii) and (iii)
hereof and its obligations under Sections 4.6, 6.1, 7.1 and 9.1
hereof, the Company shall not be deemed in default by reason of
not carrying out said agreement or agreements or performing said
obligation or obligations during the continuance of such
inability. The Company agrees, however, to use its best efforts
to remedy with all reasonable dispatch the cause or causes
preventing it from carrying out its agreements; provided, that
the settlement of strikes, lockouts and other industrial
disturbances shall be entirely within the discretion of the
Company, and the Company shall not be required to make settlement
of strikes, lockouts and other industrial disturbances by
acceding to the demands of the opposing party or parties when
such course is, in the judgment of the Company, unfavorable to
the Company.
SECTION VIII.3. Remedies on Default. (a) Upon the
occurrence and continuance of any Event of Default described in
Section 8.1 hereof, and further upon the condition that, in
accordance with the terms of the Indenture, the Bonds shall have
become immediately due and payable pursuant to any provision of
the Indenture, the payments required to be paid pursuant to
Section 4.2 hereof shall, without further action, become and be
immediately due and payable.
(b) Upon the occurrence and continuance of any Event of
Default, the Issuer, with the prior consent of the Trustee, or
the Trustee, may take any action at law or in equity to collect
the payments then due and thereafter to become due hereunder, or
to enforce performance and observance of any obligation,
agreement or covenant of the Company under this Refunding
Agreement.
(c) Any amounts collected pursuant to action taken under
this Section shall be applied in accordance with the Indenture.
(d) In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every such case, the Issuer and the Trustee shall be restored to
their former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Issuer and the Trustee
shall continue as though no such proceeding had been taken.
SECTION VIII.4. No Remedy Exclusive. No remedy
conferred upon or reserved to the Issuer by this Refunding
Agreement is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Refunding Agreement or now or hereafter existing at
law or in equity or by statute. No delay or omission to exercise
any right or power accruing upon any event of default shall
impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In
order to entitle the Issuer or the Trustee to exercise any remedy
reserved to it in this Article, it shall not be necessary to give
any notice, other than such notice as may be herein expressly
required, or as may be required by applicable law.
SECTION VIII.5. Payment of Attorneys' Fees and Other
Expenses. If the Company shall be in default under any of the
provisions of this Refunding Agreement, and the Issuer or the
Trustee shall employ attorneys or incur other expenses for the
collection of sums due and payable under this Refunding
Agreement, or for the enforcement of performance or observance of
any obligation or agreement on the part of the Company contained
in this Refunding Agreement, the Company agrees that it will on
demand therefor reimburse the reasonable fees of such attorneys
and such other reasonable expenses so incurred.
SECTION VIII.6. Waiver of Breach. In the event that any
agreement contained herein shall be breached by either the
Company or the Issuer and such breach shall thereafter be waived
by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any
other breach hereunder. In view of the assignment of the
Issuer's rights in and under this Refunding Agreement to the
Trustee under the Indenture, the Issuer shall have no power to
waive any default hereunder by the Company without the consent of
the Trustee. Any waiver of any "Event of Default" under the
Indenture and a rescission and annulment of its consequences
shall constitute a waiver of the corresponding Event of Default
hereunder and a rescission and annulment of the consequences
thereof.
ARTICLE IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
SECTION IX.1. Redemption of Bonds. The Issuer shall take
the actions required by the Indenture to discharge the lien
thereof through the redemption, or provision for payment or
redemption, of all Bonds then outstanding, or to effect the
redemption, or provision for payment or redemption, of less than
all the Bonds then outstanding, upon receipt by the Issuer and
the Trustee from the Company of a notice designating the
principal amounts of the Bonds to be redeemed, or for the payment
or redemption of which provision is to be made, and, in the case
of redemption of Bonds, or provision therefor, specifying the
date of redemption, which shall not be less than forty-five (45)
days (or such other period as may reasonably be agreed upon by
the Trustee and the Issuer with the consent of the Company) from
the date such notice is given, whether such notice shall be
unconditional, and the applicable redemption provision of the
Indenture. Unless otherwise stated therein or otherwise required
by the Indenture, such notice shall be revocable by the Company
at any time prior to the time at which the Trustee shall have
given notice to the holders of the Bonds to be redeemed.. The
Company shall furnish, as a prepayment of the sums due hereunder,
any moneys or Government Securities required by the Indenture to
be deposited with the Trustee or otherwise paid by the Issuer in
connection with a defeasance of Bonds pursuant to Article IX of
the Indenture or in connection with an unconditional call for
redemption of Bonds.
SECTION 9.2. Purchase of Bonds. The Company may at any
time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts specified in such notice, and any Bonds so
purchased shall thereupon be canceled by the Trustee.
ARTICLE X
MISCELLANEOUS
SECTION X.1. Term of the Agreement. This Refunding
Agreement shall be in full force and effect from the date hereof
until the right, title and interest of the Trustee in and to the
Trust Estate (as defined in the Indenture) shall have ceased,
terminated and become void in accordance with Article IX of the
Indenture and until all payments required under this Refunding
Agreement shall have been made.
SECTION X.2. Notices. Except as otherwise provided in
this Refunding Agreement, all notices, certificates or other
communications shall be sufficiently given and shall be deemed
given when mailed by registered or certified mail, postage
prepaid, to the Issuer, the Company or the Trustee. Copies of
each notice, certificate or other communication given hereunder
by or to the Company shall be mailed by registered or certified
mail, postage prepaid, to the Trustee; provided, however, that
the effectiveness of any such notice shall not be affected by the
failure to send any such copies. Notices, certificates or other
communications shall be sent to the following addresses:
Company: Entergy Gulf States, Inc.
c/o Entergy Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Issuer: Parish of Iberville
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Clerk, Parish Council
Trustee: ▇▇▇▇▇▇▇ Bank of Louisiana
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
SECTION X.3. Successors. This Refunding Agreement shall
inure to the benefit of the Issuer, the governing authority of
the Issuer, its members, officers or employees, the Company, the
Trustee and the holders from time to time of the Bonds, and shall
be binding upon the Issuer, the Company and their respective
successors and assigns.
SECTION X.4. Amendments to Refunding Agreement. This
Refunding Agreement may not be effectively amended, changed,
modified, altered or terminated except in accordance with the
provisions of the Indenture, and no amendment to this Refunding
Agreement shall be binding upon either party hereto until such
amendment is reduced to writing and executed by both parties
hereto.
SECTION X.5. Counterparts. This Refunding Agreement may
be executed in any number of counterparts, each of which, when so
executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same
Agreement.
SECTION X.6. Recording and Filing. The Company shall
record and file, or cause to be recorded and filed, all documents
and statements referred to in Section 5.4 of the Indenture.
SECTION X.7. Photocopies and Reproductions. A photocopy
or other reproduction of this Refunding Agreement may be filed as
a financing statement pursuant to the Louisiana Commercial Laws -
Secured Transactions, although the signatures of the Company and
the Issuer on such reproduction are not original manual
signatures.
SECTION X.8. Severability. If any clause, provision or
section of this Refunding Agreement shall be held illegal or
invalid by any court, the invalidity of such clause, provision or
section shall not affect any of the remaining clauses, provisions
or sections hereof and this Refunding Agreement shall be
construed and enforced as if such illegal or invalid clause,
provision or section had not been contained herein. In case any
agreement or obligation contained in this Refunding Agreement
shall be held to be in violation of law, then such agreement or
obligation shall be deemed to be the agreement or obligation of
the Issuer or the Company, as the case may be, to the full extent
permitted by law.
SECTION X.9. Applicable Law. The laws of the State of
Louisiana shall govern the construction of this Refunding
Agreement.
SECTION X.10. Holidays. If the date for making any payment
or the last date for performance of any act or the exercising of
any right, as provided in this Indenture, shall be a legal
holiday or a day on which banking institutions in the city in
which is located the principal corporate trust office of the
Trustee are authorized by law to remain closed, such payment may
be made or act performed or right exercised on the next
succeeding day not a legal holiday or a day on which such banking
institutions are authorized by law to remain closed, with the
same force and effect as if done on the nominal date provided in
this Refunding Agreement, and no interest on the amount so
payable shall accrue for the period after such nominal date.
SECTION X.11. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund upon expiration or earlier termination
of this Refunding Agreement as herein provided, after payment in
full of the Bonds (or provision therefor) in accordance with the
Indenture, and all other costs and expenses to be paid by the
Company hereunder, all Administration Expenses and all amounts
owing the Issuer and the Trustee under this Refunding Agreement
and the Indenture, shall belong to and be paid to the Company, as
an overpayment of the payments.
SECTION X.12. Company Approval of Indenture. The Indenture
has been submitted to the Company for examination, and the
Company, by execution of this Refunding Agreement, acknowledges
and agrees that it has participated in the drafting of the
Indenture and agrees that it has approved the Indenture and
agrees that it is bound by and shall have the rights set forth by
the terms and conditions thereof and covenants and agrees to
perform all obligations required of the Company pursuant to the
terms of the Indenture.
SECTION X.13. Binding Effect. This Refunding Agreement
shall be binding upon the parties hereto and upon their
respective successors and assigns, and the words "Issuer" and
"Company" shall include the parties hereto and their respective
successors and assigns and include any gender, singular and
plural, and individuals, partnerships or corporations.
SECTION X.14. Captions and Headings. The captions or
headings in this Refunding Agreement are for convenience only and
in no way define, limit or describe the scope or intent of any
provisions of this Refunding Agreement.
SECTION X.15. No Personal Liability. No covenant or
agreement contained in this Refunding Agreement shall be deemed
to be the covenant or agreement of any official, officer, agent,
or employee of the Issuer in his individual capacity, and no such
person shall be subject to any personal liability or
accountability by reason of the issuance thereof.
SECTION X.16. Parties in Interest. This Refunding
Agreement shall inure to the benefit of and shall be binding upon
the Issuer, the Company and their respective successors and
assigns, and no other person, firm or corporation shall have any
right, remedy or claim under or by reason of this Refunding
Agreement; provided, however, that any monetary obligation of the
Issuer created by or arising out of this Refunding Agreement
shall be payable solely out of the revenues derived from this
Refunding Agreement or the sale of the Bonds or income earned on
invested funds as provided in the Indenture and shall not
constitute, and no breach of this Refunding Agreement by the
Issuer shall impose, a pecuniary liability upon the Issuer or a
charge upon the Issuer's general credit or against its taxing
powers.
SECTION X.17. Subordination to Company Mortgage; Waiver of
Lien. Nothing in this Refunding Agreement or the Indenture shall
in any way prejudice the Company Mortgage, the lien thereof, or
any of the rights of the Company Mortgage Trustee, of any holder
of First Mortgage Bonds heretofore or hereafter issued
thereunder, or any takers or purchasers upon default thereunder,
or constitute or create a direct lien or encumbrance on or other
rights in or to the Plant or Facilities, provided that nothing in
the Company Mortgage or in this Refunding Agreement shall in any
way affect or diminish the obligation of the Company to pay all
amounts required to be paid by it under the terms of this
Refunding Agreement. The Trustee has agreed in the Indenture
that it shall execute and deliver any instrument requested by the
Company which is necessary or appropriate at any time to confirm
or evidence the subordination of rights described in the
preceding sentence to enable the Company to enjoy such rights and
privileges. The Trustee has acknowledged in the Indenture that
the Bonds are not secured by, and the Indenture does not
constitute or create any direct lien or encumbrance on or rights
in or to, the Plant or Facilities or any leasehold or other
estate therein. The Trustee, whenever requested by the Issuer or
the Company, has agreed to execute and deliver any instrument
necessary or appropriate to confirm the absence of any interest
by it in the property comprising the Plant or Facilities or to
evidence the subordination described in Section 14.12 of the
Indenture.
SECTION X.18. Administrative Fee. The Company acknowledges
and agrees that the Issuer will charge an administrative fee
payable to the Trustee, in an amount set forth in Exhibit B to
the Indenture, for the purpose of paying or reimbursing the
Issuer for its reasonable administrative expenses incurred by the
Issuer in connection with the issuance of the Bonds, representing
the legal expenses of Bond Counsel and Issuer's counsel, which
administrative fee shall be deposited by the Company with the
Trustee pursuant to Section 6.9 of the Indenture and applied to
pay the expenses set forth in Exhibit B to the Indenture.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Refunding Agreement to be executed in their respective
corporate names and their respective corporate seals to be
hereunto affixed and attested by their duly authorized officers,
all as of the date first above written.
PARISH OF IBERVILLE,
STATE OF LOUISIANA
By:__________________________________
Parish President
ATTEST:
By: _______________________________ [SEAL]
Clerk, Iberville Parish Council
ENTERGY GULF STATES, INC.
By:__________________________________
Assistant Treasurer
ATTEST:
By: _______________________________ [SEAL]
Assistant Secretary
