Exhibit B-3
R e f u n d i n g A g r e e m e n t
between
Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
State of Louisiana
and
Gulf States Utilities Company
Dated as of September 1, 1994
[$ ]
Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Gulf States Utilities Company Project)
Series [ ]
Refunding Agreement
This Refunding Agreement dated as of [ ] by and
between the Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, State of Louisiana, a
political subdivision of the State of Louisiana (the "Issuer"),
and Gulf States Utilities Company, 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, 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 (the "Prior Act") and an Indenture of Trust and Pledge
dated as of [
] (collectively, the "Prior Indenture"), the Issuer issued its
Pollution Control Revenue Bonds (Gulf States Utilities Company
Project) [ ] (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 (the "Facilities") at the River Bend Unit 1 nuclear
power plant in the Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Louisiana, owned by
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 this Agreement,
said refunding bonds to be paid solely from the revenues derived
by the Issuer from said payments by the Company pursuant to this
Agreement and any moneys held under the hereinafter defined
Indenture, 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 Agreement under
the Act have been in all respects duly and validly authorized by
a resolution of the Police Jury of the Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
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 1.1. Definitions. In addition to the words and
terms elsewhere defined in this Agreement or in the Indenture,
the following words and terms as used in this 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 Agreement,
the Indenture and any transaction or event contemplated by this
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.
"Agreement" means this Refunding Agreement and any
amendments and supplements hereto.
"Bond Fund" shall have the meaning given and assigned
thereto in the Indenture.
"Bonds" means the [$ ] aggregate principal amount
of Pollution Control Revenue Refunding Bonds (Gulf States
Utilities Company Project) Series [ ] authorized to be
issued under the Indenture.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Gulf States Utilities Company, a Texas
corporation, 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.
"Co-Owner" means Cajun Electric Power Cooperative, Inc., a
Louisiana corporation.
"Costs of Issuance" means all fees, charges and expenses
incurred in connection with the authorization, preparation, sale,
issuance and delivery of the Bonds, including, without
limitation, financial, legal and accounting fees, expenses and
disbursements, rating agency fees, the Issuer's expenses
attributable to the issuance of the Bonds, the cost of printing,
engraving and reproduction services and the initial or acceptance
fee of the Trustee.
"Disclosure Documents" means the Official Statement with
respect to the Bonds, together with all documents incorporated
therein by reference.
"Event of Default" means any event of default specified in
Section 8.1 hereof.
"Facilities" means the Company's undivided seventy percent
interest in certain water pollution control and sewage disposal
facilities financed with the proceeds of the Prior Bonds at the
Company's River Bend Unit 1 nuclear power plant in the Parish of
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Louisiana.
"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 hereof.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form 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.
"Indenture" means the Trust Indenture dated as of [
] between the Issuer and the Trustee securing the Bonds, and any
amendments and supplements thereto.
"Issuer" means the Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, State of
Louisiana, a political subdivision of the State of Louisiana.
"Joint Ownership Agreement" means the Joint Ownership
Participation and Operating Agreement, River Bend Unit 1 Nuclear
Plant, dated August 28, 1979, among the Company, Cajun Electric
Power Cooperative, Inc., a Louisiana corporation, and ▇▇▇ ▇▇▇▇▇▇▇
G & T, Inc., a Texas corporation, as amended from time to time.
"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 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.
"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 [
].
"Refunding Date" means ___________, 199 , [or such later
date as may be agreed to by the Issuer and 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.
"Trustee" means First National Bank of Commerce, in the City
of New Orleans, Louisiana, as trustee under the Indenture, and
its successors as trustee.
SECTION 1.2. Use of Words and Phrases. "Herein",
"hereby", "hereunder", "hereof", "hereinabove", "hereinafter",
and other equivalent words and phrases refer to this 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 1.2. Nontaxability. It is intended by the parties
hereto that this Agreement and all action taken hereunder be
consistent with and pursuant to the resolutions 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 2.1. 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 Agreement and the Indenture and to carry out its
obligations under this Agreement and the Indenture and the
transactions contemplated hereby and thereby.
(c) The Issuer has duly authorized the execution and
delivery of this Agreement and the Indenture and the
issuance and sale of the Bonds.
(d) The Bonds are to be issued under and secured by
the Indenture, pursuant to which the interest of the Issuer
in this Agreement and the amounts payable under this
Agreement, (other than indemnification and expense
reimbursement rights) will be 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
Agreement or the Indenture, nor the assignment of this
Agreement to the Trustee, nor the consummation of the
transactions contemplated by this Agreement or the
Indenture, nor the fulfillment of or compliance with the
terms and conditions of this 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 2.2. 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
Articles of Incorporation or its Bylaws, has power to enter
into this Agreement and to perform and observe the
agreements and covenants on its part contained herein,
including, without limitation, the power to issue the First
Mortgage Bonds as contemplated herein and in the Company
Mortgage, and has duly authorized the execution and
delivery of this Agreement by proper corporate action.
(b) Neither the execution and delivery of this
Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement, including,
without limitation, the issuance and delivery of the First
Mortgage Bonds, 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 herein, under the
Indenture or under the Company Mortgage.
(c) This 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 Agreement, (2) would
adversely affect the validity of this 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 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 or
thereunder.
(f) The Facilities are located within the jurisdiction
of the Issuer.
(g) 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 and solid
waste disposal 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.
(h) 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.
(i) The Securities and Exchange Commission has
approved all matters relating to the Company's
participation in the transactions contemplated by this
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.
(j) The principal amount of the Bonds shall not exceed
the outstanding principal amount of the Prior Bonds.
(k) The Bonds are not and will not be "federally
guaranteed" (as defined in Section 149(b) of the Code).
(l) 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.
(m) The information furnished by the Company and used
by the Issuer in preparing the certification pursuant to
Section 148 of the Code and information statement pursuant
to Section 149(e) of the Code, is accurate and complete as
of the date of the issuance of the Bonds.
(n) None of the proceeds of the Bonds will be used to
finance Costs of Issuance of the Bonds.
(o) 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.
ARTICLE III
THE BONDS AND THE PROCEEDS THEREOF
SECTION 3.1. Agreement to Issue Bonds. The Issuer has
authorized the issuance and sale of the Bonds in the principal
amount of [$ ]. 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 3.2. Bond Redemption. The Issuer shall, at the
request of the Company, take all steps as may be necessary under
the Indenture to effect the redemption, as provided under the
Indenture, of any or all of the Bonds or portions thereof as may
be specified by the Company.
SECTION 3.3. Investment of Funds; Non-Arbitrage Covenant.
Any moneys held as part of the Bond Fund and the Refunding 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.
ARTICLE IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS;
FIRST MORTGAGE BONDS
SECTION 4.1. Deposit of Bond Proceeds. Concurrently with
the delivery of the Bonds, the Issuer will, upon the terms and
subject to the conditions of this 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 and premium, if any, 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 4.2. 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 on such date pursuant
to the Indenture, together with accrued interest and any
applicable redemption premium, (iv) all amounts due on such date
to the Trustee or the Issuer under this Agreement, the Indenture
or any other agreements entered into in connection with the
issuance of the Bonds, and (v) any Administration Expenses. The
Company directs the Trustee to apply such amounts to the purpose
for which they are paid. Such payments shall be paid by check,
draft 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 manner so as to enable the Trustee to make
payment of the principal of, 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 Company
hereunder shall be subject to the limitation that payments
constituting interest under this Section 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 VIII hereof to accelerate payment of the
unpaid balance due hereunder, the Company shall have the option
to make from time to time partial prepayments 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 4.3. First Mortgage Bonds. (a) Concurrently with
the issuance and delivery by the Issuer of the Bonds, and in
order to evidence the payment obligation of the Company under
Section 4.2 hereof, the Company shall issue and deliver to the
Issuer a series of First Mortgage Bonds (i) maturing on the
stated maturity date of the Bonds, (ii) in a principal amount
equal to the principal of the Bonds plus ______ months' (___/12)
of the annual interest on the Bonds, (iii) containing redemption
provisions correlative to any provisions of the Indenture
relating to the Bonds requiring mandatory redemption thereof,
(iv) requiring payments to be made to the Trustee for the account
of the Issuer, and (v) bearing no interest.
(b) The obligation of the Company to make any payment of
the principal of or premium, if any, on the First Mortgage Bonds,
whether at maturity, upon redemption or otherwise, shall be
reduced by the amount of any reduction under the Indenture of the
amount of the corresponding payment required to be made by the
Issuer thereunder in respect of the principal of or premium, if
any, or interest on the Bonds.
(c) The Issuer shall not sell, assign or transfer the First
Mortgage Bonds, except to the extent provided in Section 4.4
hereof. In view of the pledge and assignment referred to in said
Section 4.4, the Issuer agrees that (i) in satisfaction of the
obligations of the Company set forth in paragraph (b) of this
Section with respect to the Bonds, the First Mortgage Bonds shall
be issued and delivered to, registered in the name of, and held
by the Trustee for the benefit of the owners and holders from
time to time of the Bonds; (ii) the Indenture shall provide that
the Trustee shall not sell, assign or transfer the First Mortgage
Bonds except to a successor trustee under the Indenture, and
shall surrender First Mortgage Bonds to the Company Mortgage
Trustee in accordance with the provisions of subsection (e) of
this Section; and (iii) the Company may take such actions as it
shall deem to be desirable to effect compliance with such
restrictions on transfer, including the placing of an appropriate
legend on each First Mortgage Bond and the issuance of
stop-transfer instructions to the Company Mortgage Trustee or any
other transfer agent under the Company Mortgage. Any action
taken by the Trustee in accordance with the provisions of Section
5.9 of the Indenture shall be binding upon the Company.
(d) At the time any Bonds cease to be outstanding (other
than by reason of the payment or redemption of First Mortgage
Bonds and other than by reason of the applicability of clause (b)
in the definition of "outstanding" herein), the Issuer shall
cause the Trustee to surrender to the Company Mortgage Trustee a
corresponding principal amount of First Mortgage Bonds, plus, in
the case of the Bonds, a principal amount of such First Mortgage
Bonds equal to ______ months' (__/12) of the annual interest
payable in respect of such series.
(e) For the purpose of determining whether or not any
payment of the principal of or premium, if any, on the First
Mortgage Bonds shall have been made in full, any moneys paid by
the Company in respect of the First Mortgage Bonds which shall
have been withdrawn by the Trustee from the Bond Fund pursuant to
Section 10.2 of the Indenture shall be deemed to have been paid
by the Company to the Trustee pursuant to Section 4.5 hereof and
not to have been paid by the Company in respect of the First
Mortgage Bonds.
SECTION 4.4. Payments Assigned; Obligation Absolute. It
is understood and agreed that all payments under Section 4.3 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 4.5, 4.6, 4.7 and 8.5 hereof and any rights of the
Issuer to receive notices, certificates, requests, requisitions,
directions and other communications hereunder), including the
right to receive the First Mortgage Bonds, and the First Mortgage
Bonds, 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 4.3
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
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
4.3 and the other payments due hereunder shall continue to be
payable at the times and in the amounts specified herein and in
the First Mortgage Bonds, 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 whether
or not any exercise of rights by the Co-Owner under the Joint
Ownership Agreement, or the Company Mortgage Trustee, the holders
of bonds and others under the Company Mortgage, prevent or
prohibit the use of the Facilities, 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. During the term hereof, the Company (i) shall not
suspend or discontinue the making of payments for which it is
obligated hereunder, (ii) shall, except to the extent provided in
Section 8.2 hereof, perform and observe all of its other
obligations contained herein and (iii) except as explicitly
permitted herein, shall not terminate this Agreement for any
cause including, without limiting the generality of the
foregoing, any acts or circumstances that may constitute failure
of consideration, commercial frustration of purpose, any change
in tax or other laws by the United States of America or the State
of Louisiana or any political subdivision of either, or any
failure of the Issuer to perform and observe any obligation or
condition arising out of or connected with this Agreement. This
provision shall not be construed to release the Issuer from the
performance of any of its obligations under this Agreement; and
in the event the Issuer shall fail to perform any such
obligation, the Company may institute such action against the
Issuer as the Company may deem necessary to compel performance;
provided, however, that no such action shall claim or attempt to
establish or work a reduction of payments payable by the Company
hereunder. The Company may at its own cost and expense and in
its own name or in the name of the Issuer, prosecute or defend
any action or proceedings or take any other action involving
third persons which the Company deems reasonably necessary in
order to secure or protect its rights under this Agreement, and
in such event the Issuer shall cooperate fully with the Company.
SECTION 4.5. 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 4.6. 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 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
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 or bad faith of
the Trustee, or as a result of the gross negligence 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 4.7. Payment of Taxes; Discharge of Liens. 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 4.3 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 4.3 hereof; provided, however, that nothing herein
shall require the payment of any such tax or charge or make
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 Agreement.
ARTICLE V
REFUNDING OF PRIOR BONDS
SECTION 5.1. 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
trustee under the Prior Indenture for disbursement and investment
in accordance with the Prior Indenture in order to redeem the
Prior Bonds on the Refunding Date.
SECTION 5.2. Compliance with Prior Indenture. The Issuer
shall take all steps as may be necessary 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 6.1. 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, 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 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, in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, assumes in writing all of the obligations of the Company
herein, including all obligations of the Company under the First
Mortgage Bonds. No such consolidation, merger or sale or
transfer of assets may take place unless the corporation
resulting from or surviving such merger or consolidation or the
corporation to which such sale or transfer is made has an excess
of assets over liabilities at least as great as the Company would
have had if such merger or consolidation had not occurred or such
sale or transfer had not been made.
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 6.2. 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 Agreement as provided in
the Indenture (including all sums deposited in the Bond Fund from
time to time pursuant to this 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 of any other funds
of the Issuer.
SECTION 6.3. 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.
SECTION 6.4. 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, if any,
as required by the Company Mortgage, including without
limitation, fire and extended coverage risks and personal and
property liability coverage (including property and comprehensive
general liability insurance) in such amounts and covering such
risks as are customarily insured against by businesses of like
size and type with respect to facilities similar in nature to the
Facilities. Any provisions of this 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 6.5. 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 Agreement or the ability of
the Company to discharge such obligations.
SECTION 6.6. Compliance with Law. The Company shall,
throughout the term of this 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 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 Agreement or the ability of the Company to
discharge such obligations.
SECTION 6.7. 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
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 Agreement.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.1. By the Issuer. Except as provided in Article
IV of this Agreement, the Issuer will not sell, lease, assign,
transfer, convey or otherwise dispose of its interest in the
Facilities or any portion thereof or interest therein or in the
revenues therefrom without the written consent of the Company,
nor will it create or suffer to be created any debt, lien or
charge thereon, not consented to by the Company, except Permitted
Encumbrances.
SECTION 7.2. By the Company. The Company's interest in
this 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 Sections 4.2 and 4.3 hereof (including its
obligations on the First Mortgage Bonds) 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.
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.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1. Events of Default. Each of the following
events shall constitute and is referred to in this Agreement as
an "Event of Default":
(a) a "Default" as such term is defined in the Company
Mortgage;
(b) 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 9.1 of the Indenture; or
(c) a failure by the Company to pay when due any other
amount required to be paid under this 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.
SECTION 8.2. 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 hereof and its obligations under Sections 4.7,
6.1, 6.8 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 8.3. Remedies on Default. (a) Upon the
occurrence and continuance of any Event of Default described in
clause (a) of Section 8.1 hereof, the Trustee, as the holder of
the First Mortgage Bonds, shall, subject to the provisions of the
Indenture, have the rights provided in the Company Mortgage.
(b) Upon the occurrence and continuance of any Event of
Default described in clause (b) of 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.
(c) 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 Agreement.
(d) Any amounts collected pursuant to action taken under
this Section shall be applied in accordance with the Indenture.
(e) 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 8.4. No Remedy Exclusive. No remedy conferred
upon or reserved to the Issuer by this 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 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 8.5. Payment of Attorneys' Fees and Other
Expenses. If the Company shall be in default under any of the
provisions of this Agreement, and the Issuer shall employ
attorneys or incur other expenses for the collection of sums due
and payable under this Agreement or on the First Mortgage Bonds,
or for the enforcement of performance or observance of any
obligation or agreement on the part of the Company contained in
this 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 8.6. 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 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, and
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 of Default hereunder and a
rescission and annulment of the consequences thereof.
ARTICLE IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
SECTION 9.1. 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, series and maturities 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, 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 Bonds to be redeemed, or for the payment
or redemption of which provision is to be made, are first deemed
to be paid in accordance with Article IX of the Indenture. 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 any of the foregoing purposes.
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 10.1. Term of the Agreement. This 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 Agreement shall have been
made.
SECTION 10.2. Notices. Except as otherwise provided in
this 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: Gulf States Utilities Company
c/o Entergy Services, Inc.
Poydras Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Issuer: Parish of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Police Jury House
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary, Police Jury
Trustee: First National Bank of Commerce
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 10.3. Successors. This 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 10.4. Amendments to Refunding Agreement. Subject
to the rights of the Company Mortgage Trustee, any holders of
bonds and others under the Company Mortgage, subsequent to the
initial issuance of the Bonds and prior to payment or provision
for the payment of the Bonds in full including interest and
premium, if any, thereon in accordance with the provisions of the
Indenture, and prior to payment or provision for the payment of
expenses pursuant to Section 4.5 hereof, this Agreement may not
be effectively amended, changed, modified, altered or terminated
without the prior written consent of the Trustee given in
accordance with the provisions of the Indenture and no amendment
to this Agreement shall be binding upon either party hereto until
such amendment is reduced to writing and executed by both parties
hereto.
SECTION 10.5. Counterparts. This 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 10.6. 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 10.7. Photocopies and Reproductions. A photocopy
or other reproduction of this 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 10.8. Severability. If any clause, provision or
section of this 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 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 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 10.9. Applicable Law. The laws of the State of
Louisiana shall govern the construction of this Agreement.
SECTION 10.10. 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 Indenture, and no interest on the amount so payable shall
accrue for the period after such nominal date.
SECTION 10.11. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund upon expiration or earlier termination
of this 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 Agreement and the
Indenture, shall belong to and be paid to the Company, as an
overpayment of the payments.
SECTION 10.12. Company Approval of Indenture. The Indenture
has been submitted to the Company for examination, and the
Company, by execution of this 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 10.13. Binding Effect. This 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 10.14. Captions and Headings. The captions or
headings in this Agreement are for convenience only and in no way
define, limit or describe the scope or intent of any provisions
of this Agreement.
SECTION 10.15. No Personal Liability. No covenant or
agreement contained in this 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 10.16. Parties in Interest. This 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 Agreement; provided, however, that any
monetary obligation of the Issuer created by or arising out of
this Agreement shall be payable solely out of the revenues
derived from this 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 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 10.17. Subordination to Company Mortgage; Waiver of
Lien and to Joint Ownership Agreement. Nothing in this Agreement
or the Indenture shall in any way prejudice (i) 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 (ii) the Joint Ownership
Agreement or any of the rights of the parties thereunder.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
STATE OF LOUISIANA
By:_________________________________
President, Police Jury
ATTEST:
By: _______________________________ [SEAL]
Secretary, Police Jury
GULF STATES UTILITIES COMPANY
By: _________________________________
Title:
ATTEST:
By: _______________________________ [SEAL]
Title: