Exhibit B-11(a)
Refunding Agreement
(Series 0000-X)
xxxxxxx
Xxxxxx xx Xx. Xxxxxxx, Xxxxx of Louisiana
and
Entergy Louisiana, Inc.
Dated as of October 1, 1999
$110,950,000
Parish of St. Xxxxxxx, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Entergy Louisiana, Inc. Project)
Series 1999-C
Refunding Agreement
(Series 1999-C)
This Refunding Agreement (Series 1999-C) dated as of October
1, 1999 by and between the Parish of St. Xxxxxxx, State of
Louisiana, a political subdivision of the State of Louisiana (the
"Issuer"), and Entergy Louisiana, Inc., a corporation organized
under the laws of the State of Louisiana (the "Company");
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Louisiana, authorized and empowered by law, including
particularly the provisions of Sections 991 to 1001, inclusive,
of Title 39 of the Louisiana Revised Statutes of 1950, as
amended, and certain related constitutional and statutory
authority (the "Industrial Inducement Act"), to issue its revenue
bonds for the purpose of using the funds derived from the sale
thereof to acquire, purchase, construct or improve industrial
plant sites and industrial plant buildings, pollution abatement
and control facilities, and necessary property and appurtenances
thereto; and
WHEREAS, pursuant to the provisions of the Industrial
Inducement Act and a Trust Indenture dated as of July 1, 1977
(the "1977 Indenture") by and between the Issuer and Bank One
Trust Company, N. A. (formerly First National Bank of Commerce),
as trustee, the Issuer issued its Pollution Control Revenue Bonds
(Louisiana Power & Light Company Project) Series 1977 (the "1977
Bonds") in the aggregate principal amount of $4,000,000 for the
purpose of providing funds to finance the cost of acquiring
certain pollution control facilities at the Little Gypsy Steam
Electric Generating Station (the "Little Gypsy Station") and
Units 1 and 2 of the Waterford Steam Electric Generating Station
(the "Waterford Station") of the Company, in the geographic
limits of the Issuer; and
WHEREAS, pursuant to the provisions of the Industrial
Inducement Act and a Trust Indenture dated as of October 1, 1979
(the "1979 Indenture") by and between the Issuer and Bank One
Trust Company, N. A. (formerly First National Bank of Commerce),
as trustee, the Issuer issued its Pollution Control Revenue Bonds
(Louisiana Power & Light Company Project) Series 1979 (the "1979
Bonds") in the aggregate principal amount of $3,000,000 for the
purpose of providing funds to finance the cost of acquiring
certain pollution control facilities at the Little Gypsy Station
and Units 1 and 2 of the Waterford Station; and
WHEREAS, pursuant to the provisions of the Industrial
Inducement Act and a Trust Indenture dated as of December 1, 1984
(the "1984 Indenture") by and between the Issuer and Bank One
Trust Company, N. A. (formerly First National Bank of Commerce),
as trustee, the Issuer issued its Adjustable/Fixed Rate Pollution
Control Revenue Bonds (Louisiana Power & Light Company Project)
Second Series 1984 (the "1984 Bonds") in the aggregate principal
amount of $105,000,000 for the purpose of providing funds to
finance the cost of acquiring certain pollution control
facilities and solid waste disposal facilities at Unit 3
(Nuclear) of the Waterford Station; and
WHEREAS, the facilities financed with the proceeds of the
1977 Bonds, the 1979 Bonds and the 1984 Bonds are herein
collectively called the "Facilities", the trustees for said Bonds
are hereinafter collectively referred to as the "Prior Trustee",
and the 1977 Indenture, the 1979 Indenture and the 1984 Indenture
are hereinafter collectively referred to as the "Prior
Indenture"; and
WHEREAS, the 1984 Bonds were initially issued as adjustable
rate bonds but were converted to fixed rate bonds on December 1,
1989 pursuant to the provisions of the 0000 Xxxxxxxxx; and
WHEREAS, in furtherance of the statutory purposes of the
Industrial Inducement Act, the Issuer entered into separate Sale
Agreements pertaining to the 1977 Bonds, the 1979 Bonds and the
1984 Bonds, dated as of April 1, 1977, September 1, 1979 and
November 1, 1984, respectively, with the Company, pursuant to
which the Issuer acquired the respective Facilities from the
Company and resold such Facilities to the Company, as more fully
described therein; and
WHEREAS, $3,385,000 of the 1977 Bonds, $2,565,000 of the
1979 Bonds and $105,000,000 of the 1984 Bonds (collectively, the
"Prior Bonds") are currently outstanding, and the Company has
requested that the Issuer refund all of the outstanding Prior
Bonds in order to achieve interest cost savings through the
issuance by the Issuer of $110,950,000 aggregate principal amount
of its Pollution Control Revenue Refunding Bonds (Entergy
Louisiana, Inc. Project) Series 0000-X (xxx "Xxxxx"); and
WHEREAS, the Issuer is authorized and empowered by law,
including particularly the provisions of Chapter 14-A of Title 39
of the Louisiana Revised Statutes of 1950, as amended (the
"Act"), to issue its refunding bonds for the purpose of
refunding, readjusting, restructuring, refinancing, extending, or
unifying the whole or any part of outstanding securities of the
Issuer in an amount sufficient to provide funds necessary to
effectuate the purpose for which the refunding bonds are being
issued; and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue the Bonds for the
purpose of refunding all of the Prior Bonds; and
WHEREAS, in consideration of the issuance of the Bonds by
the Issuer, the Company will agree to make payments in an amount
sufficient to pay the principal of, premium, if any, Purchase
Price and interest on the Bonds pursuant to this Refunding
Agreement, said Bonds to be paid solely from the revenues derived
by the Issuer from said payments by the Company pursuant to this
Refunding Agreement and any moneys held under the hereinafter
defined Indenture, and said Bonds shall not constitute an
indebtedness or pledge of the general credit of the Issuer or the
State of Louisiana, within the meaning of any constitutional or
statutory limitation of indebtedness or otherwise; and
WHEREAS, the execution and delivery of this Refunding
Agreement under the Act have been in all respects duly and
validly authorized by ordinance of the Parish Council of the
Parish of St. Xxxxxxx, 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, and all future acts
supplemental thereto or amendatory thereof.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to this Refunding
Agreement, the Indenture and any transaction or event
contemplated by this Refunding Agreement or the Indenture
including the compensation and reimbursement of expenses and
advances payable to the Trustee, any Paying Agent, any Co-Paying
Agent, any Authenticating Agent, the Remarketing Agent and the
Bond Registrar under the Indenture.
"Bonds" means the $110,950,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Entergy Louisiana,
Inc. Project) Series 1999-C authorized to be issued under the
Indenture. "Bond" means any one of such Bonds.
"Business Day" or "business day" means any day other than
(i) a Saturday or Sunday or legal holiday or a day on which
banking institutions in the city of New York, New York or in the
city in which the Principal Offices of the Trustee or the Paying
Agent are located are authorized or required by law to close or
(ii) a day on which the New York Stock Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Entergy Louisiana, Inc., a Louisiana
corporation, and its permitted successors and assigns.
"Costs of Issuance" means all fees, charges and expenses
incurred in connection with the authorization, preparation, sale,
issuance and delivery of the Bonds, including, without
limitation, financial, legal and accounting fees, expenses and
disbursements, rating agency fees, the Issuer's expenses
attributable to the issuance of the Bonds, the cost of printing,
engraving and reproduction services and the initial or acceptance
fee of the Trustee.
"Disclosure Documents" means the Official Statement with
respect to the Bonds, together with all documents incorporated
therein by reference.
"Event of Default" means any event of default specified in
Section 8.1 hereof.
"Facilities" has the meaning set forth in the fifth Whereas
clause hereof.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or, the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" means the Trust Indenture (Series 1999-C) dated
as of October 1, 1999 between the Issuer and the Trustee securing
the Bonds, and any amendments and supplements thereto.
"Issue Date" means, for each Bond, the actual date of first
authentication and delivery of the Bonds.
"Issuer" means the Parish of St. Xxxxxxx, State of
Louisiana, a political subdivision under the Constitution and
laws of the State of Louisiana.
"Outstanding" or "outstanding", in connection with Bonds
means, as of the time in question, all Bonds authenticated and
delivered under the Indenture, except:
(a) Bonds theretofore cancelled or required to be cancelled
under Section 2.11 of the Indenture;
(b) Bonds which are deemed to have been paid in accordance
with Article XV of the Indenture;
(c) Bonds in lieu of or in exchange or in substitution for
which other Bonds have been authenticated and delivered pursuant
to Article II of the Indenture;
(d) Bonds registered in the name of the Issuer; and
(e) On or after any Purchase Date for Bonds pursuant to
Article IV of the Indenture, all Bonds (or portions of Bonds)
which are tendered or deemed to have been tendered for purchase
on such date, provided that funds sufficient for such purchase
are on deposit with the Paying Agent.
In determining whether the owners of a requisite aggregate
principal amount of Bonds outstanding have concurred in any
request, demand, authorization, direction, notice, consent or
waiver under the provisions of the Indenture, Bonds which are
held by or on behalf of the Company or any affiliates thereof
(unless all of the outstanding Bonds are then owned by said
parties) shall be disregarded for the purpose of any such
determination. Notwithstanding the foregoing, Bonds so owned
which have been pledged in good faith shall not be disregarded as
aforesaid if the pledgee has established to the satisfaction of
the Bond Registrar the pledgee's right so to act with respect to
such Bonds and that the pledgee is not the Company or an
affiliate thereof.
"Paying Agent", "paying agent", "Co-Paying Agent" or "co-
paying agent" means any national banking association, bank or
trust company appointed pursuant to Section 9.1 of the Indenture.
The Trustee is the original Paying Agent.
"Plant" means, collectively, the Little Gypsy Station and
the Waterford Station described in the preamble hereto, owned and
operated by the Company and located in the geographic limits of
the Parish of St. Xxxxxxx, State of Louisiana.
"Prior Bonds" has the meaning set forth in the fifth Whereas
clause hereof.
"Prior Indenture" has the meaning set forth in the fifth
Whereas clause hereof.
"Prior Trustee" has the meaning set forth in the fifth
Whereas clause hereof.
"Purchase Price" for any Bond shall equal 100% of the
principal amount of such Bond plus accrued interest, if any, to
the Purchase Date, plus in the case of a Bond converted from a
Multiannual Rate Period on a date when such Bond is also subject
to optional redemption at a premium, an amount equal to the
premium that would be payable on such Bond if redeemed on such
date.
"Refunding Agreement" means this Refunding Agreement (Series
1999-C) and any amendments and supplements hereto.
"Refunding Date" means December 1, 1999 with respect to the
1984 Bonds and January 1, 2000 with respect to the 1977 Bonds and
the 1979 Bonds, or such later date or dates as may be established
by the Company; provided, however, that the Refunding Date shall
not be later than ninety (90) days following the date of delivery
of the Bonds to the Underwriters.
"Refunding Fund" has the meaning set forth in the Indenture.
"Regulations" means all final and proposed United States
Income Tax Regulations.
"Trust Estate" means the property conveyed to the Trustee
pursuant to the Granting Clauses of the Indenture.
"Trustee" means The Bank of New York, as trustee under the
Indenture, and its successors as trustee.
SECTION I.2. Use of Words and Phrases. The words
"herein", "hereby", "hereunder", "hereto", "hereof",
"hereinabove", "hereinafter", and other equivalent words and
phrases refer to this Refunding Agreement and not solely to the
particular portion thereof in which any such word is used. The
definitions set forth in Section 1.1 hereof include both singular
and plural. Whenever used herein, any pronoun shall be deemed to
include both singular and plural and to cover all genders.
SECTION I.3. Nontaxability. It is intended by the parties
hereto that this Refunding Agreement and all action taken
hereunder be consistent with and pursuant to the ordinance of the
governing authority of the Issuer relating to the Bonds, and that
the interest on the Bonds be excluded from the gross income of
the recipients thereof other than a person who is a "substantial
user" of the Facilities or a "related person" of a "substantial
user" within the meaning of the Code for federal income tax
purposes by reason of the provisions of the Code. The Company
will not use any of the funds provided by the Issuer hereunder in
such a manner as to impair the exclusion of interest on any of
the Bonds from the gross income of the recipient thereof for
federal income tax purposes nor will it take any action that
would impair such exclusion or fail to take any action if such
failure would impair such exclusion.
ARTICLE II
REPRESENTATIONS
SECTION II.1. Representations and Warranties of the Issuer.
The Issuer makes the following representations and warranties as
the basis for the undertakings on the part of the Company herein
contained:
(a) The Issuer is a political subdivision of the State
of Louisiana, created and existing pursuant to the
constitution and laws of such State and is authorized and
empowered by the provisions of the Act and other
constitutional and statutory authority supplemental thereto,
to issue the Bonds.
(b) The Issuer has full power and authority to enter
into this Refunding Agreement and the Indenture and to carry
out its obligations under this Refunding Agreement and the
Indenture and the transactions contemplated hereby and
thereby.
(c) The Issuer has duly authorized the execution and
delivery of this Refunding Agreement and the Indenture and
the issuance and sale of the Bonds.
(d) The Bonds are issued under and secured by the
Indenture, pursuant to which the interest of the Issuer in
this Refunding Agreement and the amounts payable under this
Refunding Agreement (other than indemnification and expense
reimbursement rights) are assigned to the Trustee as
security for the payment of the principal of, premium, if
any, Purchase Price and interest on the Bonds.
(e) Neither the execution and delivery of this
Refunding Agreement or the Indenture, nor the assignment of
this Refunding Agreement to the Trustee, nor the
consummation of the transactions contemplated by this
Refunding Agreement or the Indenture, nor the fulfillment of
or compliance with the terms and conditions of this
Refunding Agreement or the Indenture, results or will result
in the violation of any governmental order applicable to the
Issuer, or conflicts or will conflict with or results or
will result in a breach of any of the terms, conditions or
provisions of any agreement or instrument to which the
Issuer is now a party or by which it is bound, or
constitutes or will constitute a default under any of the
foregoing.
SECTION II.2. Representations and Warranties of the
Company. The Company hereby makes the following representations
and warranties as the basis for the undertakings on the part of
the Issuer herein undertaken for the benefit and reliance of the
Issuer, the Trustee and the holders of the Bonds:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Louisiana,
is not in violation of any provision of its Restated
Articles of Incorporation or its Bylaws, has power to enter
into this Refunding Agreement and to perform and observe the
agreements and covenants on its part contained herein and
has duly authorized the execution and delivery of this
Refunding Agreement by proper corporate action.
(b) Neither the execution and delivery of this
Refunding Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Refunding Agreement
conflicts with or results in a breach of the terms,
conditions or provisions of any restriction or any agreement
or instrument to which the Company is now a party or by
which the Company is bound, or constitutes a default under
any of the foregoing, or results in the creation or
imposition of any lien, charge or encumbrance whatsoever
upon any of the property or assets of the Company except any
interests created therein under the Indenture.
(c) This Refunding Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company
enforceable in accordance with its terms, subject to laws
relating to bankruptcy, moratorium, insolvency or
reorganization and similar laws affecting creditors' rights
generally.
(d) Except as shall have been disclosed in the
Disclosure Documents, there are no actions, suits or
proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or the assets,
properties or operations of the Company which, if determined
adversely to the Company or its interests, (1) would
materially adversely affect the consummation of the
transactions contemplated by this Refunding Agreement, (2)
would adversely affect the validity of this Refunding
Agreement or (3) could have a material adverse effect upon
the financial condition, assets, properties or operations of
the Company.
(e) No event has occurred and no condition exists with
respect to the Company that would constitute an Event of
Default under this Refunding Agreement or which, with the
lapse of time or with the giving of notice or both, could
reasonably be expected to become an "Event of Default"
hereunder.
(f) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Refunding Agreement
which require said approval, and no other consent, approval,
authorization or other order of any regulatory body or
administrative agency or other governmental body is legally
required for the Company's participation therein, except
such as may have been obtained or may be required under the
securities laws of any state.
ARTICLE III
THE BONDS AND THE PROCEEDS THEREOF
SECTION III.1. Agreement to Issue Bonds. The Issuer has
authorized the issuance and sale of the Bonds in the principal
amount of $110,950,000. Upon issuance and delivery thereof, the
proceeds of the Bonds shall be deposited with the Trustee in the
Refunding Fund in accordance with the Indenture.
SECTION III.2. Investment of Funds; Non-Arbitrage Covenant.
Any moneys held as part of the Bond Fund shall be invested,
reinvested or applied by the Trustee in accordance with and
subject to the conditions of Article VII of the Indenture. The
Company and the Issuer shall make no use of the proceeds of the
Bonds, or any funds which may be deemed to be proceeds of the
Bonds pursuant to Section 148 of the Code and the applicable
regulations thereunder, which would cause the Bonds to be
"arbitrage bonds" within the meaning of such Section and such
regulations, and the Company shall comply with and the Issuer
shall take no action to violate the requirements of such Section
and such regulations while any Bonds remain outstanding.
SECTION III.3. Agreement to Redeem Prior Bonds. The Company
agrees to pay to the Prior Trustee, in funds available to the
Prior Trustee on or prior to the Refunding Date, for deposit into
the bond fund created under the Prior Indenture securing the
Prior Bonds and in accordance with the terms of the Prior
Indenture, any amount necessary to pay all of the Prior Bonds,
together with the premium, if any, and accrued interest due
thereon on the Refunding Date, to the extent that the amount
delivered by the Issuer pursuant to Section 3.1 hereof is
insufficient for such purpose.
ARTICLE IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS
SECTION IV.1. Deposit of Bond Proceeds. Concurrently with
the delivery of the Bonds, the Issuer will, upon the terms and
subject to the conditions of this Refunding Agreement, deposit
all of the proceeds thereof with the Trustee for deposit into the
Refunding Fund in accordance with the Indenture for application
as provided in Article V hereof and Section 5.2 of the Indenture
to refund on the Refunding Date all of the Prior Bonds. The
Company shall pay out of its own money and not out of proceeds of
the Bonds all reasonable Costs of Issuance with respect to the
Bonds.
SECTION IV.2. Payments. (a) The Company shall pay to the
Trustee or the Paying Agent for the account of the Issuer on each
date on which the principal of, premium, if any, Purchase Price
or interest on the Bonds comes due, whether at the maturity
thereof or upon acceleration, redemption, purchase or otherwise
in accordance with the provisions of the Indenture, an amount
equal to the sum of (i) all interest due and payable on the Bonds
on such date, (ii) the principal amount of Bonds, if any, due and
payable on such date, (iii) amounts, if any, required to effect
the redemption of Bonds upon unconditional call thereof on such
date pursuant to the Indenture, together with accrued interest
and any applicable redemption premium, (iv) amounts necessary to
pay the Purchase Price of the Bonds which is due and payable on
such date, and (v) all amounts due on such date to the Trustee or
the Issuer under this Refunding Agreement, the Indenture or any
other agreements entered into in connection with the issuance of
the Bonds and any other Administration Expenses. The Company
directs the Trustee and the Paying Agent to apply such amounts to
the purpose for which they are paid. The payments required under
this Section 4.2(a)(i), (ii), (iii) and (iv) shall be paid by
check, draft, wire transfer or other means acceptable to the
Trustee directly to the Trustee or the Paying Agent in funds
immediately available to the Trustee or the Paying Agent on the
payment date, and shall be immediately deposited in accordance
with the provisions of the Indenture. In any event, the Company
agrees to make payments to the Trustee or the Paying Agent at
such times and in such amounts and manner so as to enable the
Trustee or the Paying Agent to make payment of the principal of,
redemption premium, if any, Purchase Price and accrued interest
on the Bonds as the same shall become due and payable whether by
acceleration, redemption or otherwise in accordance with the
terms of the Indenture; provided, however, that the obligation of
the Company to make any payments hereunder shall be reduced by
the amount of any reduction under the Indenture of the amount of
the corresponding payment required to be made by the Issuer
thereunder in respect of the principal of or interest on the
Bonds or by the amount derived from remarketing proceeds
available to pay the Purchase Price of the Bonds in accordance
with the provisions of Section 4.3(b) of the Indenture.
(b) If the Company should fail to make any of the payments
required in subsection (a) above, the item or installment which
the Company has failed to make shall continue as an obligation of
the Company until the same shall have been fully paid.
(c) Anything herein, in the Indenture or in the Bonds to
the contrary notwithstanding, the obligations of the Issuer and
the Company hereunder shall be subject to the limitation that
payments constituting interest under this Section or the Bonds
shall not be required to the extent that the receipt of such
payment by any owner of any Bonds would be contrary to the
provisions of law applicable to such owner which limit the
maximum rate of interest that may be charged or collected by such
owner.
(d) In addition to the options and obligations of the
Company under Article IX hereof, the Company shall have the
option to make from time to time prepayments of part or all of
the amounts due hereunder. The making of any prepayments by the
Company shall not require the Company to make any further
prepayments. The Issuer shall direct the Trustee to apply such
prepayments in such manner, consistent with the provisions of the
Indenture, as may be directed by the Company.
In the event that (i) such partial prepayments shall be
applied by the Trustee pursuant to the Indenture to the purchase,
defeasance or redemption of the Bonds or (ii) the Bonds are
presented by the Company or the Issuer to the Trustee for
cancellation pursuant to the Indenture, the Company shall be
entitled to a credit for the Bonds so purchased, defeased,
redeemed or cancelled against payments required to be made under
the provisions of this Article.
SECTION IV.3. Payments Assigned; Obligation Absolute. It
is understood and agreed that all payments under Section
4.2(a)(i), (ii), (iii) and (iv) to be made by the Company are
pledged by the Issuer to the Trustee pursuant to the Indenture,
and that all rights and interest of the Issuer hereunder (except
for the Issuer's rights under Sections 4.4, 4.5, 4.6 and 8.5
hereof and any rights of the Issuer to receive notices,
certificates, requests, requisitions, directions and other
communications hereunder) are pledged and assigned to the
Trustee. The Company assents to such pledge and assignment and
agrees that the obligation of the Company to make payments under
Section 4.2(a)(i), (ii), (iii) and (iv) shall be absolute,
irrevocable and unconditional and shall not be subject to
cancellation, termination or abatement, or to any defense other
than payment or to any right of set-off, counterclaim or
recoupment arising out of any breach under this Refunding
Agreement, the Indenture or otherwise by the Issuer or the
Trustee or any other party, or out of any obligation or liability
at any time owing to the Company by the Issuer, the Trustee or
any other party, and, further, that the payments under Section
4.2(a)(i), (ii), (iii) and (iv) and the other payments due
hereunder shall continue to be payable at the times and in the
amounts specified herein, whether or not the Facilities, or any
portion thereof, shall have been destroyed by fire or other
casualty, or title thereto, or the use thereof, shall have been
taken by the exercise of the power of eminent domain, and that
there shall be no abatement of or diminution in any such payments
by reason thereof, whether or not the Facilities shall be used or
useful, and whether or not any applicable laws, regulations or
standards shall prevent or prohibit the use of the Facilities, or
for any other reason.
SECTION IV.4. Payment of Administration Expenses. The
Company shall pay or cause to be paid all Administration
Expenses, including those of the Issuer, the Trustee, any Paying
Agent, any Co-Paying Agent, any Authenticating Agent, the
Remarketing Agent and the Bond Registrar under the Indenture,
such payments to be made directly to such entities.
SECTION IV.5. Indemnification. The Company releases the
Issuer, the Trustee and the Remarketing Agent from, agrees that
the Issuer, the Trustee and the Remarketing Agent shall not be
liable for, and agrees to indemnify and hold the Issuer, the
Trustee and the Remarketing Agent free and harmless from, any
liability for any loss or damage to property or any injury to or
death of any person that may be occasioned by any cause
whatsoever pertaining to the Facilities, including, without
limitation, the financing or refinancing of the Facilities and
the Prior Bonds or Bonds issued with respect thereto, except in
any case as a result of the negligence, willful misconduct or bad
faith of the party otherwise to be indemnified.
The Company will indemnify and hold the Issuer, the Trustee
and the Remarketing Agent free and harmless from any loss,
claim, damage, tax, penalty, liability (including but not limited
to liability for any patent infringement), disbursement,
litigation expenses, attorneys' fees and expenses or court costs
arising out of, or in any way relating to, the execution or
performance of this Refunding Agreement, the issuance or sale of
the Prior Bonds or the Bonds, actions taken under the Indenture,
or any other cause whatsoever pertaining to the Facilities,
including without limitation, recovery costs arising from the
presence of hazardous substances, except in any case as a result
of the negligence, willful misconduct or bad faith of the Trustee
or the Remarketing Agent, or as a result of the gross negligence,
willful misconduct or bad faith of the Issuer.
Under this Section, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer, the Trustee and the
Remarketing Agent to the same extent as such entities.
SECTION IV.6. Payment of Taxes. The Company agrees that it
will pay, as the same become due, all taxes and governmental
charges of any kind whatsoever that may at any time be lawfully
assessed or levied against the Company or the Issuer with respect
to the Facilities or any portion thereof or with respect to the
Prior Bonds, including, without limiting the generality of the
foregoing, any taxes lawfully levied against the Company or the
Issuer upon or with respect to the income or profits of the
Issuer from the Facilities or any charge on the payments made
pursuant to Section 4.2(a)(i), (ii), (iii) or (iv) hereof prior
to or on a parity with the charge under the Indenture thereon and
the pledge or assignment thereof to be created and made in the
Indenture, and including all ad valorem taxes lawfully assessed
upon the Facilities, all utility and other charges incurred in
the operation, maintenance, use, occupancy and upkeep of the
Facilities, all assessments and charges lawfully made by any
governmental body against the Company or the Issuer for or on
account of the Facilities and in addition any excise tax levied
against the Company or the Issuer on the payments made pursuant
to Section 4.2(a)(i), (ii), (iii) and (iv) hereof; provided,
however, that nothing herein shall require the payment of any
such tax or charge or the making of provision for the payment
thereof, so long as the validity thereof shall be contested in
good faith by the Company by appropriate legal proceedings;
further provided, that with respect to special assessments or
other governmental charges that may lawfully be paid in
installments over a period of years, the Company shall be
obligated to pay only such installments as are required to be
paid during the term of this Refunding Agreement.
ARTICLE V
REFUNDING OF PRIOR BONDS
SECTION V.1. Refunding Fund - Disbursement of Bond
Proceeds. The Trustee, as authorized by the Issuer in the
Indenture, shall transfer out of the Refunding Fund the proceeds
of the Bonds on or before the Refunding Date to the Prior Trustee
for disbursement and investment in accordance with the Prior
Indenture in order to redeem, together with moneys of the Company
deposited therein, if necessary, all of the Prior Bonds on the
Refunding Date.
SECTION V.2. Compliance with Prior Indenture. The Issuer
shall, at the request of the Company, take all steps as may be
necessary under the Prior Indenture to effect the redemption of
all of the Prior Bonds on the Refunding Date as provided in the
Prior Indenture and as contemplated herein.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION VI.1. Maintenance of Corporate Existence. The
Company shall maintain its corporate existence, will not dissolve
or otherwise dispose of all or substantially all its assets and
will not consolidate with or merge with or into another
corporation or permit one or more other corporations to
consolidate with or merge into it; provided, however, that the
Company may, without violating the agreements contained in this
Section consolidate with or merge into another domestic
corporation (i.e., a corporation incorporated and existing under
the laws of one of the states of the United States of America or
the District of Columbia or under the laws of the United States
of America) or permit one or more such domestic corporations to
consolidate with or merge into it, or sell or otherwise transfer
to another domestic corporation all or substantially all of its
assets as an entirety and thereafter dissolve; provided that (i)
both immediately prior to such consolidation, merger, sale or
transfer and after giving effect thereto, no Event of Default (or
event which, with the giving of notice or the passage of time, or
both, would become an Event of Default) shall have occurred and
be continuing, and (ii) in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, such surviving, resulting or transferee corporation assumes
in writing all of the obligations of the Company herein.
If consolidation, merger or sale or other transfer is made
as permitted by this Section, the provisions of this Section
shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section.
SECTION VI.2. Limited Obligation Bonds. The Bonds shall be
limited obligations of the Issuer and shall be payable solely out
of the revenues of the Issuer from this Refunding Agreement as
provided in the Indenture (including all sums deposited in the
Bond Fund from time to time pursuant to this Refunding Agreement
and the Indenture, and in certain events, amounts obtained
through the exercise of certain remedies provided in the
Indenture). The Bonds shall never be general obligations of the
Issuer nor constitute an indebtedness or pledge of the general
credit of the Issuer within the meaning of any constitutional or
statutory provision or limitation of indebtedness, and shall
never be paid in whole or in part out of any funds raised or to
be raised by taxation or any other funds of the Issuer.
SECTION VI.3. Arbitrage and Tax Compliance. The Issuer and
the Company hereby covenant with each other, the Trustee and each
of the holders of any Bonds that neither of them will cause or
permit the proceeds of the Bonds to be used in a manner that will
cause the interest on the Bonds to be includable in gross income
of the recipients thereof other than a person who is a
"substantial user" of the Facilities or a "related person" to
such "substantial user" within the meaning of the Code for
federal income tax purposes. In addition, the Company covenants
that to the extent permitted by law, it shall take all actions
within its control necessary to maintain, and shall refrain from
taking any action that impairs, the exclusion of the interest on
the Bonds from gross income for federal income tax purposes under
federal tax law (other than a person who is a "substantial user"
of the Facilities or a "related person" to such "substantial
user" within the meaning of the Code) existing on the date of
delivery of the Bonds. In furtherance of the foregoing, the
Company also agrees on behalf of the Issuer to comply with all
rebate requirements and procedures as may become applicable to
the Bonds under the Code.
Without limiting the generality of the foregoing, the
Company further covenants and agrees, as follows:
(a) The Facilities are located within the jurisdiction
of the Issuer.
(b) Substantially all of the net proceeds of the sale
of the Prior Bonds have been used to undertake the
acquisition of air or water pollution control facilities or
sewerage or solid waste disposal facilities within the
meaning of Section 103(b)(4) of the Internal Revenue Code of
1954, as amended. All of the proceeds of the Prior Bonds
have been expended.
(c) The weighted average maturity of the Bonds does
not exceed 120% of the reasonably expected economic life of
the Facilities financed with the proceeds of the Prior
Bonds.
(d) The principal amount of the Bonds shall not exceed
the outstanding principal amount of the Prior Bonds being
refunded from the proceeds of the Bonds.
(e) The Bonds are not and will not be "federally
guaranteed" (as defined in Section 149(b) of the Code).
(f) None of the proceeds of the Bonds will be used,
and none of the proceeds of the Prior Bonds were used, to
provide any airplane, skybox or other private luxury box, or
health club facility; any facility primarily used for
gambling; or any store the principal business of which is
the sale of alcoholic beverages for consumption off
premises.
(g) The information furnished by the Company and used
by the Issuer in preparing its No-Arbitrage Certificate
dated the Issue Date is accurate and complete as of the date
of the issuance of the Bonds.
(h) None of the proceeds of the Bonds will be used to
finance Costs of Issuance of the Bonds.
(i) The Company will take no action that would cause
any funds constituting gross proceeds of the Bonds to be
used in a manner as to constitute a prohibited payment under
the applicable regulations pertaining to, or in any other
fashion as would constitute failure of compliance with,
Section 148 of the Code and applicable regulations
thereunder.
The covenants and agreements contained herein and in the Tax
Certificate and the No-Arbitrage Certificate are intended to
ensure compliance with the provisions of the Code and the
Regulations. In the event that the Code is amended or that
Regulations are hereafter proposed or promulgated and the effect
of such change is to modify or delete any element of the
covenants contained herein, the Company shall be relieved of its
obligations to comply with such covenants to the extent of such
modification or deletion provided that the Company receives an
opinion of Bond Counsel that such action will not adversely
affect the exclusion of the interest on the Bonds from the gross
income of the holders thereof for Federal income tax purposes.
The Company may rely on such opinions of Bond Counsel in
complying with such covenants and agreements. In the event such
change in the Code or the Regulations imposes additional
requirements which are applicable to the Bonds, the Company
hereby agrees to comply with the provisions of the Code or the
Regulations, as applicable.
SECTION VI.4. Maintenance of Facilities. The Company
covenants that while any of the Bonds are outstanding it will, at
its own expense, maintain the Facilities in good repair and make
all required replacements and renewals thereof. However, the
Company shall have no obligation to replace or renew any portion
of the Facilities, if in the Company's opinion, it is unnecessary
or undesirable to do so.
The Company agrees that the Facilities will be insured
against loss or damage of such kinds and in such amounts,
including without limitation, fire and extended coverage risks
(including property insurance) in such amounts and covering such
risks as are customarily insured against by companies operating
similar properties. Any provisions of this Refunding Agreement
to the contrary notwithstanding, the Company shall be entitled to
the proceeds of any insurance or condemnation award or portion
thereof with respect to the Facilities and such proceeds shall be
paid directly to the Company.
SECTION VI.5. Permits. The Company shall, at its sole cost
and expense, procure or cause to be procured any and all
necessary building permits, other permits, licenses and other
authorizations required for the lawful and proper use,
occupation, operation and management of the Facilities and which,
if not obtained, would materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION VI.6. Compliance with Law. The Company shall,
throughout the term of this Refunding Agreement and at no expense
to the Issuer, promptly comply or cause compliance with all laws,
ordinances, orders, rules, regulations and requirements of duly
constituted public authorities that are applicable to the
Facilities or to the repair and alteration thereof, or to the use
or manner of use of the Facilities and which, if there is non-
compliance, would materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
Notwithstanding the foregoing, the Company shall have the right
to contest the legality of any such law, ordinance, order, rule,
regulation or requirement as applied to the Facilities provided
that in the opinion of counsel to the Company such contest shall
not in any way materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION VI.7. No Warranty. The Issuer makes no warranty,
either express or implied, as to the Facilities, including,
without limitation, title to the Facilities or the actual or
designed capacity of the Facilities, as to the suitability or
operation of the Facilities for the purposes specified in this
Refunding Agreement, as to the condition of the Facilities or as
to the suitability thereof for the Company's purposes or needs or
as to compliance of the Facilities with applicable laws and
regulations or the ability of the Company to discharge the Bonds.
The Company covenants with the Issuer that it will make no claim
against the Issuer for any deficiency which may at any time exist
in the Facilities, nor will it assert against the Issuer any
other claim for breach of warranty with respect to the
Facilities. The obligations of the Company under this Section
shall survive any assignment or termination of this Refunding
Agreement.
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), (b) or (e) of Section 10.1 of the
Indenture;
(b) a failure by the Company to pay when due any other
amount required to be paid under this Refunding Agreement or
to observe and perform any covenant, condition or agreement
on its part to be observed or performed, which failure shall
continue for a period of ninety (90) days after written
notice, specifying such failure and requesting that it be
remedied, shall have been given to the Company by the Issuer
or the Trustee, unless the Issuer and the Trustee shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Issuer and the
Trustee shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Company
within such period and is being diligently pursued;
(c) the expiration of a period of ninety (90) days
following:
(i) the adjudication of the Company as a bankrupt
by any court of competent jurisdiction;
(ii) the entry of an order approving a petition
seeking reorganization or arrangement of the Company
under the federal bankruptcy laws or any other
applicable law or statute of the United States of
America, or of any state thereof; or
(iii) the appointment of a trustee or a
receiver of all or substantially all of the property of
the Company, unless during such period such
adjudication, order or appointment of a trustee or
receiver shall be vacated or shall be stayed on appeal
or otherwise or shall have otherwise ceased to continue
in effect; or
(d) the filing by the Company of a voluntary petition
in bankruptcy or the making of an assignment for the benefit
of creditors; the consenting by the Company to the
appointment of a receiver or trustee of all or any part of
its property; the filing by the Company of a petition or
answer seeking reorganization or arrangement under the
federal bankruptcy laws, or any other applicable law or
statute of the United States of America, or of any state
thereof; or the filing by the Company of a petition to take
advantage of any insolvency act.
SECTION VIII.2. Force Majeure. The provisions of
Section 8.1 hereof are subject to the following limitations: If
by reason of acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or other acts of any
kind of the government of the United States or of the State of
Louisiana, or any other sovereign entity or body politic, or any
department, agency, political subdivision, court or official of
any of them, or any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; volcanoes;
fires; hurricanes; tornados; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage of, or accident to, machinery; partial or
entire failure of utilities; or any cause or event not reasonably
within the control of the Company, the Company is unable in whole
or in part to carry out any one or more of its agreements or
obligations contained herein, other than its payment obligations
under Section 4.2(a)(i), (ii), (iii) or (iv) hereof and its
obligations under Sections 4.6, 6.1, 7.1 and 9.1 hereof, the
Company shall not be deemed in default by reason of not carrying
out said agreement or agreements or performing said obligation or
obligations during the continuance of such inability. The
Company agrees, however, to use its best efforts to remedy with
all reasonable dispatch the cause or causes preventing it from
carrying out its agreements; provided, that the settlement of
strikes, lockouts and other industrial disturbances shall be
entirely within the discretion of the Company, and the Company
shall not be required to make settlement of strikes, lockouts and
other industrial disturbances by acceding to the demands of the
opposing party or parties when such course is, in the judgment of
the Company, unfavorable to the Company.
SECTION VIII.3. Remedies on Default. (a) Upon the
occurrence and continuance of any Event of Default described in
Section 8.1 hereof, and further upon the condition that, in
accordance with the terms of the Indenture, the Bonds shall have
become immediately due and payable pursuant to any provision of
the Indenture, the payments required to be paid pursuant to
Section 4.2 hereof shall, without further action, become and be
immediately due and payable.
(b) Upon the occurrence and continuance of any Event of
Default, the Issuer, with the prior consent of the Trustee, or
the Trustee, may take any action at law or in equity to collect
the payments then due and thereafter to become due hereunder, or
to enforce performance and observance of any obligation,
agreement or covenant of the Company under this Refunding
Agreement.
(c) Any amounts collected pursuant to action taken under
this Section shall be applied in accordance with the Indenture.
(d) In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every such case, the Issuer and the Trustee shall be restored to
their former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Issuer and the Trustee
shall continue as though no such proceeding had been taken.
SECTION VIII.4. No Remedy Exclusive. No remedy
conferred upon or reserved to the Issuer by this Refunding
Agreement is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Refunding Agreement or now or hereafter existing at
law or in equity or by statute. No delay or omission to exercise
any right or power accruing upon any event of default shall
impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In
order to entitle the Issuer or the Trustee to exercise any remedy
reserved to it in this Article, it shall not be necessary to give
any notice, other than such notice as may be herein expressly
required, or as may be required by applicable law.
SECTION VIII.5. Payment of Attorneys' Fees and Other
Expenses. If the Company shall be in default under any of the
provisions of this Refunding Agreement, and the Issuer or the
Trustee shall employ attorneys or incur other expenses for the
collection of sums due and payable under this Refunding
Agreement, or for the enforcement of performance or observance of
any obligation or agreement on the part of the Company contained
in this Refunding Agreement, the Company agrees that it will on
demand therefor reimburse the reasonable fees of such attorneys
and such other reasonable expenses so incurred.
SECTION VIII.6. Waiver of Breach. In the event that any
agreement contained herein shall be breached by either the
Company or the Issuer and such breach shall thereafter be waived
by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any
other breach hereunder. In view of the assignment of the
Issuer's rights in and under this Refunding Agreement to the
Trustee under the Indenture, the Issuer shall have no power to
waive any default hereunder by the Company without the consent of
the Trustee. Any waiver of any "Event of Default" under the
Indenture and a rescission and annulment of its consequences
shall constitute a waiver of the corresponding Event of Default
hereunder and a rescission and annulment of the consequences
thereof.
ARTICLE IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
SECTION IX.1. Redemption of Bonds. The Issuer shall take
the actions required by the Indenture to discharge the lien
thereof through the redemption, or provision for payment or
redemption, of all Bonds then outstanding, or to effect the
redemption, or provision for payment or redemption, of less than
all the Bonds then outstanding, upon receipt by the Issuer and
the Trustee from the Company of a notice designating the
principal amounts of the Bonds to be redeemed, or for the payment
or redemption of which provision is to be made, and, in the case
of redemption of Bonds, or provision therefor, specifying the
date of redemption, whether such notice shall be unconditional,
and the applicable redemption provision of the Indenture. Unless
otherwise stated therein or otherwise required by the Indenture,
such notice shall be revocable by the Company at any time prior
to the time at which the Trustee shall have given notice to the
holders of the Bonds to be redeemed. The Company shall furnish,
as a prepayment of the sums due hereunder, any moneys or
Government Securities required by the Indenture to be deposited
with the Trustee or otherwise paid by the Issuer in connection
with a defeasance of Bonds pursuant to Article XV of the
Indenture or in connection with an unconditional call for
redemption of Bonds.
SECTION 9.2. Purchase of Bonds. The Company may at any
time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts specified in such notice, and any Bonds so
purchased shall thereupon be canceled by the Trustee.
ARTICLE X
MISCELLANEOUS
SECTION X.1. Term of the Agreement. This Refunding
Agreement shall be in full force and effect from the Issue Date
until the right, title and interest of the Trustee in and to the
Trust Estate (as defined in the Indenture) shall have ceased,
terminated and become void in accordance with Article XV of the
Indenture and until all payments required under this Refunding
Agreement shall have been made.
SECTION X.2. Notices. Except as otherwise provided in
this Refunding Agreement, all notices, certificates or other
communications shall be sufficiently given and shall be deemed
given when given in accordance with the provisions of Section
16.6 of the Indenture.
SECTION X.3. Successors. This Refunding Agreement shall
inure to the benefit of the Issuer, the governing authority of
the Issuer, its members, officers or employees, the Company, the
Trustee and the holders from time to time of the Bonds, and shall
be binding upon the Issuer, the Company and their respective
successors and assigns.
SECTION X.4. Amendments to Refunding Agreement. This
Refunding Agreement may not be effectively amended, changed,
modified, altered or terminated except in accordance with the
provisions of the Indenture, and no amendment to this Refunding
Agreement shall be binding upon either party hereto until such
amendment is reduced to writing and executed by both parties
hereto.
SECTION X.5. Counterparts. This Refunding Agreement may
be executed in any number of counterparts, each of which, when so
executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same
Agreement.
SECTION X.6. Severability. If any clause, provision or
section of this Refunding Agreement shall be held illegal or
invalid by any court, the invalidity of such clause, provision or
section shall not affect any of the remaining clauses, provisions
or sections hereof and this Refunding Agreement shall be
construed and enforced as if such illegal or invalid clause,
provision or section had not been contained herein. In case any
agreement or obligation contained in this Refunding Agreement
shall be held to be in violation of law, then such agreement or
obligation shall be deemed to be the agreement or obligation of
the Issuer or the Company, as the case may be, to the full extent
permitted by law.
SECTION X.7. Applicable Law. The laws of the State of
Louisiana shall govern the construction of this Refunding
Agreement.
SECTION X.8. Holidays. If the date for making any payment
or the last date for performance of any act or the exercising of
any right, as provided in this Refunding Agreement, shall not be
a Business Day, such payment may be made or act performed or
right exercised on the next succeeding Business Day, with the
same force and effect as if done on the nominal date provided in
this Refunding Agreement, and no interest on the amount so
payable shall accrue for the period after such nominal date.
SECTION X.9. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund upon expiration or earlier termination
of this Refunding Agreement as herein provided, after payment in
full of the Bonds (or provision therefor) in accordance with the
Indenture, all other costs and expenses to be paid by the Company
hereunder, all Administration Expenses, and all amounts owing the
Issuer and the Trustee under this Refunding Agreement and the
Indenture, shall belong to and be paid to the Company, as an
overpayment of the payments.
SECTION X.10. Company Approval of Indenture. The Indenture
has been submitted to the Company for examination, and the
Company, by execution of this Refunding Agreement, acknowledges
and agrees that it has participated in the drafting of the
Indenture and agrees that it has approved the Indenture and
agrees that it is bound by and shall have the rights set forth by
the terms and conditions thereof and covenants and agrees to
perform all obligations required of the Company pursuant to the
terms of the Indenture.
SECTION X.11. Binding Effect. This Refunding Agreement
shall be binding upon the parties hereto and upon their
respective successors and assigns, and the words "Issuer" and
"Company" shall include the parties hereto and their respective
successors and assigns and include any gender, singular and
plural, and individuals, partnerships or corporations.
SECTION X.12. Captions and Headings. The captions or
headings in this Refunding Agreement are for convenience only and
in no way define, limit or describe the scope or intent of any
provisions of this Refunding Agreement.
SECTION X.13. No Personal Liability. No covenant or
agreement contained in this Refunding Agreement shall be deemed
to be the covenant or agreement of any official, officer, agent,
or employee of the Issuer in his individual capacity, and no such
person shall be subject to any personal liability or
accountability by reason of the issuance thereof.
SECTION X.14. Parties in Interest. This Refunding
Agreement shall inure to the benefit of and shall be binding upon
the Issuer, the Company, the Trustee and the Paying Agent and
their respective successors and assigns, and no other person,
firm or corporation shall have any right, remedy or claim under
or by reason of this Refunding Agreement; provided, however, that
any monetary obligation of the Issuer created by or arising out
of this Refunding Agreement shall be payable solely out of the
revenues derived from this Refunding Agreement or the sale of the
Bonds or income earned on invested funds as provided in the
Indenture and shall not constitute, and no breach of this
Refunding Agreement by the Issuer shall impose, a pecuniary
liability upon the Issuer or a charge upon the Issuer's general
credit or against its taxing powers.
SECTION X.15. Administrative Fee. The Company acknowledges
and agrees that the Issuer will charge an administrative fee
payable to the Trustee, in an amount set forth in Exhibit B to
the Indenture, for the purpose of paying or reimbursing the
Issuer for its reasonable administrative expenses incurred by the
Issuer in connection with the issuance of the Bonds, representing
the legal expenses of Bond Counsel and Issuer's counsel, which
administrative fee shall be deposited by the Company with the
Trustee pursuant to Section 6.4 of the Indenture and applied to
pay the expenses set forth in Exhibit B to the Indenture.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Refunding Agreement to be executed in their respective
corporate names and their respective corporate seals to be
hereunto affixed and attested by their duly authorized officers,
all as of the date first above written.
PARISH OF ST. XXXXXXX,
STATE OF LOUISIANA
By:________________________________
Parish President
ATTEST:
By: _______________________________ [SEAL]
Secretary, St. Xxxxxxx Xxxxxx Council
ENTERGY LOUISIANA, INC.
By:_________________________________
Vice President and Treasurer
ATTEST:
By: _______________________________ [SEAL]
Assistant Secretary
