ENTERGY LOUISIANA, LLC (successor to Entergy Louisiana, Inc.) TO THE BANK OF NEW YORK MELLON (successor to The Chase National Bank of the City of New York) As Trustee under Entergy Louisiana, LLC’s Mortgage and Deed of Trust dated as of April 1, 1944...
Exhibit 4.08
(successor to Entergy Louisiana, Inc.)
TO
THE BANK OF NEW YORK MELLON
(successor to The Chase National Bank of the City of New York)
As Trustee under Entergy Louisiana, LLC’s Mortgage and Deed of Trust
dated as of April 1, 1944
________________
Providing among other things for
First Mortgage Bonds, 3.30% Series due December 1, 2022
(Eightieth Series)
Dated as of December 1, 2012
Indenture, dated as of December 1, 2012, between ENTERGY LOUISIANA, LLC, a limited liability company of the State of Texas (hereinafter sometimes called the “Company”), successor to ENTERGY LOUISIANA, INC., a corporation of the State of Louisiana converted to a corporation of the State of Texas on December 31, 2005 (hereinafter sometimes called the “Louisiana Company”), which was the successor by merger to LOUISIANA POWER & LIGHT COMPANY, a corporation of the State of Florida (hereinafter sometimes called the “Florida Company”), whose post office address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and THE BANK OF NEW YORK MELLON, a New York banking corporation (successor to THE CHASE NATIONAL BANK OF THE CITY OF NEW YORK) whose principal office is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter sometimes called “Trustee”), as Trustee under the Mortgage and Deed of Trust, dated as of April 1, 1944 (hereinafter called the “Mortgage”), which Mortgage was executed and delivered by the Florida Company to secure the payment of bonds issued or to be issued under and in accordance with the provisions of the Mortgage, reference to which Mortgage is hereby made, this Indenture (hereinafter called the “Seventy-sixth Supplemental Indenture”) being supplemental thereto;
WHEREAS, the Mortgage was recorded in various Parishes in the State of Louisiana, which Parishes are the same Parishes in which this Seventy-sixth Supplemental Indenture is to be recorded; and
WHEREAS, by the Mortgage, the Florida Company covenanted that it would execute and deliver such supplemental indenture or indentures and such further instruments and do such further acts as might be necessary or proper to carry out more effectually the purposes of the Mortgage and to make subject to the lien of the Mortgage any property thereafter acquired and intended to be subject to the lien thereof; and
WHEREAS, the Florida Company executed and delivered the following supplemental indentures:
|
Designation
|
Dated as of
|
|
First Supplemental Indenture
|
March 1, 1948
|
|
Second Supplemental Indenture
|
November 1, 1950
|
|
Third Supplemental Indenture
|
September 1, 1953
|
|
Fourth Supplemental Indenture
|
October 1, 1954
|
|
Fifth Supplemental Indenture
|
January 1, 1957
|
|
Sixth Supplemental Indenture
|
April 1, 1960
|
|
Seventh Supplemental Indenture
|
June 1, 1964
|
|
Eighth Supplemental Indenture
|
March 1, 1966
|
|
Ninth Supplemental Indenture
|
February 1, 1967
|
|
Tenth Supplemental Indenture
|
September 1, 1967
|
|
Eleventh Supplemental Indenture
|
March 1, 1968
|
|
Twelfth Supplemental Indenture
|
June 1, 1969
|
|
Thirteenth Supplemental Indenture
|
December 1, 1969
|
|
Fourteenth Supplemental Indenture
|
November 1, 1970
|
|
Fifteenth Supplemental Indenture
|
April 1, 1971
|
|
Sixteenth Supplemental Indenture
|
January 1, 1972
|
|
Seventeenth Supplemental Indenture
|
November 1, 1972
|
|
Eighteenth Supplemental Indenture
|
June 1, 1973
|
|
Nineteenth Supplemental Indenture
|
March 1, 1974
|
|
Twentieth Supplemental Indenture
|
November 1, 1974
|
which supplemental indentures were recorded in various Parishes in the State of Louisiana; and
WHEREAS, the Florida Company was merged into the Louisiana Company on February 28, 1975, and the Louisiana Company thereupon executed and delivered a Twenty-first Supplemental Indenture, dated as of March 1, 1975, pursuant to which the Louisiana Company, among other things, assumed and agreed duly and punctually to pay the principal of and interest on the bonds at the time issued and outstanding under the Mortgage, as then supplemented, in accordance with the provisions of said bonds and of any appurtenant coupons and of the Mortgage as so supplemented, and duly and punctually to observe, perform and fulfill all of the covenants and conditions of the Mortgage, as so supplemented, to be kept or performed by the Florida Company, and said Twenty-first Supplemental Indenture was recorded in various Parishes in the State of Louisiana; and
WHEREAS, the Louisiana Company has succeeded to and has been substituted for the Florida Company under the Mortgage with the same effect as if it had been named as mortgagor corporation therein; and
WHEREAS, the Louisiana Company executed and delivered the following supplemental indentures:
|
Designation
|
Dated as of
|
|
Twenty-second Supplemental Indenture
|
September 1, 1975
|
|
Twenty-third Supplemental Indenture
|
December 1, 1976
|
|
Twenty-fourth Supplemental Indenture
|
January 1, 1978
|
|
Twenty-fifth Supplemental Indenture
|
July 1, 1978
|
|
Twenty-sixth Supplemental Indenture
|
May 1, 1979
|
|
Twenty-seventh Supplemental Indenture
|
November 1, 1979
|
|
Twenty-eighth Supplemental Indenture
|
December 1, 1980
|
|
Twenty-ninth Supplemental Indenture
|
April 1, 1981
|
|
Thirtieth Supplemental Indenture
|
December 1, 1981
|
|
Thirty-first Supplemental Indenture
|
March 1, 1983
|
|
Thirty-second Supplemental Indenture
|
September 1, 1983
|
|
Thirty-third Supplemental Indenture
|
August 1, 1984
|
|
Thirty-fourth Supplemental Indenture
|
November 1, 1984
|
|
Thirty-fifth Supplemental Indenture
|
December 1, 1984
|
|
Thirty-sixth Supplemental Indenture
|
December 1, 1985
|
|
Thirty-seventh Supplemental Indenture
|
April 1, 1986
|
|
Thirty-eighth Supplemental Indenture
|
November 1, 1986
|
|
Thirty-ninth Supplemental Indenture
|
May 1, 1988
|
|
Fortieth Supplemental Indenture
|
December 1, 1988
|
|
Forty-first Supplemental Indenture
|
April 1, 1990
|
|
Forty-second Supplemental Indenture
|
June 1, 1991
|
|
Forty-third Supplemental Indenture
|
April 1, 1992
|
|
Forty-fourth Supplemental Indenture
|
July 1, 1992
|
|
Forty-fifth Supplemental Indenture
|
December 1, 1992
|
|
Forty-sixth Supplemental Indenture
|
March 1, 1993
|
|
Forty-seventh Supplemental Indenture
|
May 1, 1993
|
|
Forty-eighth Supplemental Indenture
|
December 1, 1993
|
|
Forty-ninth Supplemental Indenture
|
July 1, 1994
|
|
Fiftieth Supplemental Indenture
|
September 1, 1994
|
|
Fifty-first Supplemental Indenture
|
March 1, 1996
|
|
Fifty-second Supplemental Indenture
|
March 1, 1998
|
|
Fifty-third Supplemental Indenture
|
March 1, 1999
|
|
Fifty-fourth Supplemental Indenture
|
June 1, 1999
|
|
Fifty-fifth Supplemental Indenture
|
May 15, 2000
|
|
Fifty-sixth Supplemental Indenture
|
March 1, 2002
|
|
Fifty-seventh Supplemental Indenture
|
March 1, 2004
|
|
Fifty-eighth Supplemental Indenture
|
October 1, 2004
|
|
Fifty-ninth Supplemental Indenture
|
October 15, 2004
|
|
Sixtieth Supplemental Indenture
|
May 1, 2005
|
|
Sixty-first Supplemental Indenture
|
August 1, 2005
|
|
Sixty-second Supplemental Indenture
|
October 1, 2005
|
|
Sixty-third Supplemental Indenture
|
December 15, 2005
|
which supplemental indentures were recorded in various Parishes in the State of Louisiana; and
WHEREAS, the Louisiana Company converted into a Texas limited liability company and, pursuant to a Plan of Merger by which the Company and Entergy Louisiana Properties, LLC were created (the “Merger Documents”), underwent a merger by division pursuant to which, among other things, all the Mortgaged and Pledged Property, subject to the Lien of the Mortgage, and all of the rights, obligations and duties of the Louisiana Company under the Mortgage, were allocated to the Company on December 31, 2005, and the Company thereupon executed and delivered a Sixty-fourth Supplemental Indenture, effective as of January 1, 2006, pursuant to which the Company, among other things, assumed and agreed duly and punctually to pay the principal of and interest on the bonds at the time issued and outstanding under the Mortgage, as then supplemented, in accordance with the provisions of said bonds and of any appurtenant coupons and of the Mortgage as so supplemented, and duly and punctually to observe, perform and fulfill all of the covenants and conditions of the Mortgage, as so supplemented, to be kept or performed by the Louisiana Company, and said Sixty-fourth Supplemental Indenture was recorded in various Parishes in the State of Louisiana; and
WHEREAS, effective July 1, 2008, The Bank of New York changed its name to The Bank of New York Mellon; and
WHEREAS, the Company executed and delivered the following supplemental indentures:
|
Designation
|
Dated as of
|
|
Sixty-fifth Supplemental Indenture
|
August 1, 2008
|
|
Sixty-sixth Supplemental Indenture
|
November 1, 2009
|
|
Sixty-seventh Supplemental Indenture
|
March 1, 2010
|
|
Sixty-eighth Supplemental Indenture
|
September 1, 2010
|
|
Sixty-ninth Supplemental Indenture
|
October 1, 2010
|
|
Seventieth Supplemental Indenture
|
November 1, 2010
|
|
Seventy-first Supplemental Indenture
|
March 1, 2011
|
|
Seventy-second Supplemental Indenture
|
April 30, 2011
|
|
Seventy-third Supplemental Indenture
|
December 1, 2011
|
|
Seventy-fourth Supplemental Indenture
|
January 1, 2012
|
|
Seventy-fifth Supplemental Indenture
|
July 1, 2012
|
which supplemental indentures were or will be recorded in various Parishes in the State of Louisiana and with the Secretary of State of Texas; and
WHEREAS, in addition to the property described in the Mortgage, as supplemented, the Company has acquired certain other property, rights and interests in property; and
WHEREAS, the Florida Company or the Louisiana Company has heretofore issued, in accordance with the provisions of the Mortgage, as supplemented, the following series of bonds:
|
Series
|
Principal
Amount
Issued
|
Principal
Amount
Outstanding
|
|
3% Series due 1974
|
$ 17,000,000
|
None
|
|
3 1/8% Series due 1978
|
10,000,000
|
None
|
|
3% Series due 1980
|
10,000,000
|
None
|
|
4% Series due 1983
|
12,000,000
|
None
|
|
3 1/8% Series due 1984
|
18,000,000
|
None
|
|
4 3/4% Series due 1987
|
20,000,000
|
None
|
|
5% Series due 1990
|
20,000,000
|
None
|
|
4 5/8% Series due 1994
|
25,000,000
|
None
|
|
5 3/4% Series due 1996
|
35,000,000
|
None
|
|
5 5/8% Series due 1997
|
16,000,000
|
None
|
|
6 1/2% Series due September 1, 1997
|
18,000,000
|
None
|
|
7 1/8% Series due 1998
|
35,000,000
|
None
|
|
9 3/8% Series due 1999
|
25,000,000
|
None
|
|
9 3/8% Series due 2000
|
20,000,000
|
None
|
|
7 7/8% Series due 2001
|
25,000,000
|
None
|
|
7 1/2% Series due 2002
|
25,000,000
|
None
|
|
7 1/2% Series due November 1, 2002
|
25,000,000
|
None
|
|
8% Series due 2003
|
45,000,000
|
None
|
|
8 3/4% Series due 2004
|
45,000,000
|
None
|
|
9 1/2% Series due November 1, 1981
|
50,000,000
|
None
|
|
9 3/8% Series due September 1, 1983
|
50,000,000
|
None
|
|
8 3/4% Series due December 1, 2006
|
40,000,000
|
None
|
|
9% Series due January 1, 1986
|
75,000,000
|
None
|
|
10% Series due July 1, 2008
|
60,000,000
|
None
|
|
10 7/8% Series due May 1, 1989
|
45,000,000
|
None
|
|
13 1/2% Series due November 1, 2009
|
55,000,000
|
None
|
|
15 3/4% Series due December 1, 1988
|
50,000,000
|
None
|
|
16% Series due April 1, 1991
|
75,000,000
|
None
|
|
16 1/4% Series due December 1, 1991
|
100,000,000
|
None
|
|
12% Series due March 1, 1993
|
100,000,000
|
None
|
|
13 1/4% Series due March 1, 2013
|
100,000,000
|
None
|
|
13% Series due September 1, 2013
|
50,000,000
|
None
|
|
16% Series due August 1, 1994
|
100,000,000
|
None
|
|
14 3/4% Series due November 1, 2014
|
55,000,000
|
None
|
|
15 1/4% Series due December 1, 2014
|
35,000,000
|
None
|
|
14% Series due December 1, 1992
|
60,000,000
|
None
|
|
14 1/4% Series due December 1, 1995
|
15,000,000
|
None
|
|
10 1/2% Series due April 1, 1993
|
200,000,000
|
None
|
|
10 3/8% Series due November 1, 2016
|
280,000,000
|
None
|
|
Series 1988A due September 30, 1988
|
13,334,000
|
None
|
|
Series 1988B due September 30, 1988
|
10,000,000
|
None
|
|
Series 1988C due September 30, 1988
|
6,667,000
|
None
|
|
10.36% Series due December 1, 1995
|
75,000,000
|
None
|
|
10 1/8% Series due April 1, 2020
|
100,000,000
|
None
|
|
Environmental Series A due June 1, 2021
|
52,500,000
|
None
|
|
Environmental Series B due April 1, 2022
|
20,940,000
|
None
|
|
7.74% Series due July 1, 2002
|
179,000,000
|
None
|
|
8 1/2% Series due July 1, 2022
|
90,000,000
|
None
|
|
Environmental Series C due December 1, 2022
|
25,120,000
|
None
|
|
6% Series due March 1, 2000
|
100,000,000
|
None
|
|
Environmental Series D due May 1, 2023
|
34,364,000
|
None
|
|
Environmental Series E due December 1,2023
|
25,991,667
|
None
|
|
Environmental Series F due July 1, 2024
|
21,335,000
|
None
|
|
Collateral Series 1994-A, due July 2, 2017
|
117,805,000
|
109,290,000*
|
|
Collateral Series 1994-B, due July 2, 2017
|
58,865,000
|
54,630,000*
|
|
Collateral Series 1994-C, due July 2, 2017
|
31,575,000
|
29,290,000*
|
|
8 3/4% Series due March 1, 2026
|
115,000,000
|
None
|
|
6 1/2% Series due March 1, 2008
|
115,000,000
|
None
|
|
5.80% Series due March 1, 2002
|
75,000,000
|
None
|
|
Environmental Series G due June 1, 2030
|
67,200,000
|
None
|
|
8 1/2% Series due June 1, 2003
|
150,000,000
|
None
|
|
7.60% Series due April 1, 2032
|
150,000,000
|
None
|
|
5.5% Series due April 1, 2019
|
100,000,000
|
None
|
|
6.4% Series due October 1, 2034
|
70,000,000
|
70,000,000
|
|
5.09% Series due November 1, 2014
|
115,000,000
|
None
|
|
4.67% Series due June 1, 2010
|
55,000,000
|
None
|
|
5.56% Series due September 1, 2015
|
100,000,000
|
None
|
|
6.3% Series due September 1, 2035
|
100,000,000
|
100,000,000
|
|
5.83% Series due November 1, 2010
|
150,000,000
|
None
|
|
6.50% Series due September 1, 2018
|
300,000,000
|
300,000,000
|
|
5.40% Series due November 1, 2024
|
400,000,000
|
400,000,000
|
|
6.0% Series due March 15, 2040
|
150,000,000
|
150,000,000
|
|
4.44% Series due January 15, 2026
|
250,000,000
|
250,000,000
|
|
Environmental Series H due June 1, 2030
|
119,073,000
|
119,073,000**
|
|
5.875% Series due June 15, 2041
|
150,000,000
|
150,000,000
|
|
4.80% Series due May 1, 2021
|
200,000,000
|
200,000,000
|
|
1.1007% Series due December 31, 2012
|
750,000,000
|
None
|
|
1.875% Series due December 15, 2014
|
250,000,000
|
250,000,000
|
|
5.25% Series due July 1, 2052
|
200,000,000
|
200,000,000
|
which bonds are also hereinafter sometimes called bonds of the First through Seventy-ninth Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each series of bonds (other than the First Series) issued thereunder and of the coupons to be attached to coupon bonds of such series shall be established by Resolution of the Board of Directors of the Company and that the form of such series, as established by said Board of Directors, shall specify the descriptive title of the bonds and various other terms thereof, and may also contain such provisions not inconsistent with the provisions of the Mortgage as the Board of Directors may, in its discretion, cause to be inserted therein expressing or referring to the terms and conditions upon which such bonds are to be issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that without the consent of any holders of bonds, the Company and the Trustee, at any time and from time to time, may enter into one or more supplemental indentures, in form satisfactory to the Trustee, in order to establish the form and terms of bonds of any series; and
WHEREAS, the Company now desires to create a new series of bonds, establish the terms of bonds of such series and to add to its covenants and agreements contained in the Mortgage, as heretofore supplemented, certain other covenants and agreements to be observed by it and to alter and amend in certain respects the covenants and provisions contained in the Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this Seventy-sixth Supplemental Indenture, and the terms of the bonds of the Eightieth Series, hereinafter referred to, have been duly authorized by the Board of Directors of the Company by appropriate Resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One Dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and in further evidence of assurance of the estate, title and rights of the Trustee and in order further to secure the payment both of the principal of and interest and premium, if any, on the bonds from time to time issued under the Mortgage, according to their tenor and effect and the performance of all the provisions of the Mortgage (including any instruments supplemental thereto and any modification made as in the Mortgage provided) and of said bonds, hereby grants, bargains, sells, releases, conveys, assigns, transfers, mortgages, hypothecates, affects, pledges, sets over and confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of the Mortgage) unto The Bank of New York Mellon, as Trustee under the Mortgage, and to its successor or successors in said trust, and to said Trustee and its successors and assigns forever, (a) all of the Mortgaged and Pledged Property acquired by the Company from the Louisiana Company pursuant to the allocations in the Merger Documents, and improvements, extensions and additions thereto and renewals and replacements thereof, (b) the property made and used by the Company as the basis under any of the provisions of the Mortgage, as supplemented, for the authentication and delivery of additional bonds or the withdrawal of cash or the release of property or a credit under Section 39 of the Mortgage, (c) such franchises, repairs and additional property as may be acquired, made or constructed by the Company (1) to maintain, renew and preserve the franchises covered by this Mortgage, as supplemented, or (2) to maintain the property mortgaged and intended to be mortgaged under the Mortgage, as supplemented, as an operating system or systems in good repair, working order and condition, or (3) in rebuilding or renewal of property, subject to the Lien of the Mortgage, as supplemented, damaged or destroyed, or (4) in replacement of or substitution for machinery, apparatus, equipment, frames, towers, poles, wire, pipe, tools, implements and furniture, subject to the Lien of the Mortgage, as supplemented, which shall have become old, inadequate, obsolete, worn out, unfit, unadapted, unserviceable, undesirable or unnecessary for use in the operation of the property mortgaged and intended to be mortgaged under the Mortgage, as supplemented; and (d) all other property, real, personal and mixed, acquired by the Company on or after December 31, 2005 (except any herein or in the Mortgage, as heretofore supplemented, expressly excepted), now owned or, subject to the provisions of Section 87 of the Mortgage, hereafter acquired by the Company (by purchase, consolidation, merger, donation, construction, erection or in any other way) and wheresoever situated, including (without in anywise limiting or impairing by the enumeration of the same the scope and intent of the foregoing or of any general description contained in this Seventy-sixth Supplemental Indenture and Mortgage) all lands, power sites, flowage rights, water rights, water locations, water appropriations, ditches, flumes, reservoirs, reservoir sites, canals, raceways, dams, dam sites, aqueducts and all other rights or means for appropriating, conveying, storing and supplying water; all rights-of-way and roads; all plants for the generation of electricity by steam, water and/or other power; all power houses, gas plants, street lighting systems, standards and other equipment incidental thereto, telephone, radio and television systems, air-conditioning systems and equipment incidental thereto, water works, water systems, steam heat and hot water plants, substations, lines, service and supply systems, bridges, culverts, tracks, ice or refrigeration plants and equipment, offices, buildings and other structures and the equipment thereof; all machinery, engines, boilers, dynamos, electric, gas and other machines, regulators, meters, transformers, generators, motors, electrical, gas and mechanical appliances, conduits, cables, water, steam heat, gas or other pipes, gas mains and pipes, service pipes, fittings, valves and connections, pole and transmission lines, wires, cables, tools, implements, apparatus, furniture and chattels; all municipal and other franchises, consents, or permits; all lines for the transmission and distribution of electric current, gas, steam heat or water for any purpose, including towers, poles, wires, cables, pipes, conduits, ducts and all apparatus for use in connection therewith; all real estate, lands, easements, servitudes, licenses, permits, franchises, privileges, rights-of-way and other rights in or relating to real estate or the occupancy of the same and (except as herein or in the Mortgage, as heretofore supplemented, expressly excepted) all the right, title and interest of the Company in and to all other property of any kind or nature appertaining to and/or used and/or occupied and/or enjoyed in connection with any property hereinbefore or in the Mortgage, as heretofore supplemented, described.
TO HAVE AND TO HOLD ALL such properties, real, personal and mixed, granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto The Bank of New York Mellon, as Trustee, and its successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms, trusts and conditions and subject to and with the same provisos and covenants as are set forth in the Mortgage, as supplemented, this Seventy-sixth Supplemental Indenture being supplemental thereto.
AND IT IS HEREBY COVENANTED by the Company that all the terms, conditions, provisos, covenants and provisions contained in the Mortgage, as supplemented, shall affect and apply to the property hereinbefore described and conveyed and to the estate, rights, obligations and duties of the Company and the Trustee and the beneficiaries of the trust with respect to said property, and to the Trustee and its successors as Trustee of said property in the same manner and with the same effect as if said property had been owned by the Florida Company at the time of the execution of the Mortgage, and had been specifically and at length described in and conveyed to said Trustee by the Mortgage as a part of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustee and its successor or successors in said trust under the Mortgage as follows:
ARTICLE I
EIGHTIETH SERIES BONDS
SECTION 1. There shall be a series of bonds designated “3.30% Series due December 1, 2022” (herein sometimes called the “Eightieth Series”), each of which shall also bear the descriptive title “First Mortgage Bond”, and the form thereof, which shall be established by Resolution of the Board of Directors of the Company, shall contain suitable provisions with respect to the matters hereinafter in this Section specified. Bonds of the Eightieth Series (which shall be initially issued in the aggregate principal amount of $200,000,000) shall be dated as in Section 10 of the Mortgage provided, shall mature on December 1, 2022, shall be issued as fully registered bonds in any integral multiple or multiples of One Thousand Dollars, and shall bear interest at the rate of 3.30% per annum, the first interest payment to be made on June 1, 2013, for the period from December 4, 2012 to June 1, 2013 with subsequent interest payments payable semi-annually on June 1 and December 1 of each year (each, an “Interest Payment Date”), the principal of and interest on each said bond to be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts.
Interest on the bonds of the Eightieth Series will be computed on the basis of a 360-day year of twelve 30-day months. In any case where any Interest Payment Date, redemption date or the maturity date of any bond of the Eightieth Series shall not be a Business Day, then payment of interest or principal and premium, if any, need not be made on such date, but may be made on the next succeeding Business Day, with the same force and effect, and in the same amount, as if made on the corresponding Interest Payment Date, redemption date, or at maturity, as the case may be, and, if such payment is made or duly provided for on such Business Day, no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, redemption date or the maturity date, as the case may be, to such Business Day. “Business Day” means any day, other than a Saturday or a Sunday, or a day on which banking institutions in The City of New York are authorized or required by law or executive order to remain closed or a day on which the corporate trust office of the Trustee is closed for business.
So long as all of the bonds of the Eightieth Series are held by The Depository Trust Company or its nominee, or a successor thereof, the record date for the payment of interest on the bonds of the Eightieth Series shall be the close of business on the Business Day immediately preceding the corresponding Interest Payment Date; provided, however, that the record date for the payment of interest which is paid after such Interest Payment Date, shall be the Business Day immediately preceding the date on which such interest is paid. Interest on the bonds of the Eightieth Series shall be paid to the Person in whose name such bonds of the Eightieth Series are registered at the close of business on the record date for the corresponding Interest Payment Date.
The Company reserves the right to establish, at any time, by Resolution of the Board of Directors of the Company, a form of coupon bond, and of appurtenant coupons, for the Eightieth Series and to provide for exchangeability of such coupon bonds with the bonds of said Series issued hereunder in fully registered form and to make all appropriate provisions for such purpose.
(I) The bonds of the Eightieth Series shall be redeemable at the option of the Company, in whole or in part, upon notice, as provided in Section 52 of the Mortgage, mailed not less than 30 days nor more than 60 days prior to the date fixed for redemption, at any time prior to maturity, at any time prior to September 1, 2022, at a redemption price equal to the greater of (i) 100% of the principal amount of the bonds of the Eightieth Series being redeemed and (ii) as determined by the Independent Investment Banker, the sum of the present values of the remaining scheduled payments of principal of and interest on the bonds of the Eightieth Series being redeemed (excluding the portion of any such interest accrued to the redemption date), discounted (for purposes of determining such present values) to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate plus 0.25% plus accrued and unpaid interest thereon to the redemption date.
As used herein, the following defined terms shall have the respective meanings specified unless the context clearly requires otherwise:
The term “Adjusted Treasury Rate” shall mean, with respect to any redemption date:
(1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the remaining term of the bonds of the Eightieth Series, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month); or
(2) if such release (or any successor release) is not published during the week preceding the calculation date for the Adjusted Treasury Rate or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
The Adjusted Treasury Rate shall be calculated on the third Business Day preceding the redemption date.
The “Comparable Treasury Issue” shall mean the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the bonds of the Eightieth Series that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the bonds of the Eightieth Series.
The term “Comparable Treasury Price” shall mean, with respect to any redemption date, (1) the average of five Reference Treasury Dealer Quotations for such redemption date after excluding the highest and lowest such Reference Treasury Dealer Quotations or (2) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.
The term “Independent Investment Banker” shall mean one of the Reference Treasury Dealers that the Company appoints to act as the Independent Investment Banker from time to time or, if any of such firms is unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Company.
The “Reference Treasury Dealer” shall mean (1) BNP Paribas Securities Corp., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., Mizuho Securities USA Inc., or an affiliate thereof, and their respective successors, (2) a Primary Treasury Dealer (as defined below) selected by U.S. Bancorp Investments, Inc.; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Company will substitute therefor another Primary Treasury Dealer, and (3) any other Primary Treasury Dealer selected by the Independent Investment Banker after consultation with the Company.
“Reference Treasury Dealer Quotations” shall mean, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker at 5:00 p.m. on the third Business Day preceding such redemption date.
The bonds of the Eightieth Series shall also be redeemable at the option of the Company, in whole or in part, upon notice, as provided in Section 52 of the Mortgage, mailed not less than 30 days nor more than 60 days prior to the date fixed for redemption, at any time on or after September 1, 2022, at a redemption price equal to 100% of the principal amount of the bonds of the Eightieth Series to be redeemed plus accrued interest thereon to the redemption date.
(II) At the option of the registered owner, any bonds of the Eightieth Series, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, shall be exchangeable for a like aggregate principal amount of bonds of the Eightieth Series of other authorized denominations.
Bonds of the Eightieth Series shall be transferable, upon the surrender thereof for cancellation, together with a written instrument of transfer in form approved by the registrar duly executed by the registered owner or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York.Upon any exchange or transfer of bonds of the Eightieth Series, the Company may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge, as provided in Section 12 of the Mortgage, but the Company hereby waives any right to make a charge in addition thereto for any exchange or transfer of bonds of said Series.
Upon the delivery of this Seventy-sixth Supplemental Indenture and upon compliance with the applicable provisions of the Mortgage, as heretofore supplemented, there shall be an initial issue of bonds of the Eightieth Series for the aggregate principal amount of $200,000,000. Additional bonds of the Eightieth Series, without limitation as to amount, having substantially the same terms as the Outstanding bonds of the Eightieth Series (except for the issue date, the price to public and, if applicable, the initial Interest Payment Date) may be issued by the Company, subject to satisfaction of the requirements of the Mortgage, as heretofore supplemented, without the notice to or the consent of the existing holders of the bonds of the Eightieth Series.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 1. The holders of the bonds of the Eightieth Series shall be deemed to have consented and agreed that the Company may, but shall not be obligated to, fix a record date for the purpose of determining the holders of the bonds of the Eightieth Series entitled to consent to any amendment or supplement to the Mortgage or the waiver of any provision thereof or any act to be performed thereunder. If a record date is fixed, those persons who were holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
SECTION 2. Subject to any amendments provided for in this Seventy-sixth Supplemental Indenture, the terms defined in the Mortgage, as heretofore supplemented, shall, for all purposes of this Seventy-sixth Supplemental Indenture, have the meanings specified in the Mortgage, as heretofore supplemented.
SECTION 3. So long as any bonds of the Eightieth Series shall remain Outstanding, in each Net Earning Certificate made pursuant to Section 7 of the Mortgage there shall be included in operating expenses for the twelve (12) months period with respect to which such certificate is made an amount, if any (not otherwise included), equal to the provisions for amortization of any amounts included in utility plant acquisition adjustment accounts for such period.
SECTION 4. So long as any bonds of the Eightieth Series shall remain Outstanding, subdivision (2) of Section 7(A) of the Mortgage is hereby amended by adding thereto the following words “provided, further, that the amount so included in such operating expenses in lieu of the amounts actually appropriated out of income for retirement of the Mortgaged and Pledged Property used primarily and principally in the electric, gas, steam and/or hot water utility business and the Company’s automotive equipment used in the operation of such property shall not be less than the amounts so actually appropriated out of income”.
SECTION 5. The Trustee hereby accepts the trusts herein declared, provided, created or supplemented and agrees to perform the same upon the terms and conditions herein and in the Mortgage, as heretofore amended, set forth and upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Seventy-sixth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. In general, each and every term and condition contained in Article XVII of the Mortgage, as heretofore amended, shall apply to and form part of this Seventy-sixth Supplemental Indenture with the same force and effect as if the same were herein set forth in full with such omissions, variations and insertions, if any, as may be appropriate to make the same conform to the provisions of this Seventy-sixth Supplemental Indenture.
SECTION 6. Whenever in this Seventy-sixth Supplemental Indenture any of the parties hereto is named or referred to, this shall, subject to the provisions of Articles XVI and XVII of the Mortgage, as heretofore amended, be deemed to include the successors and assigns of such party, and all covenants and agreements in this Seventy-sixth Supplemental Indenture contained by or on behalf of the Company, or by or on behalf of the Trustee, shall, subject as aforesaid, bind and inure to the respective benefits of the respective successors and assigns of such parties, whether so expressed or not.
SECTION 7. Nothing in this Seventy-sixth Supplemental Indenture, expressed or implied, is intended, or shall be construed, to confer upon, or give to, any person, firm or corporation, other than the parties hereto and the holders of the bonds and coupons Outstanding under the Mortgage, any right, remedy or claim under or by reason of this Seventy-sixth Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants, conditions, stipulations, promises and agreements in this Seventy-sixth Supplemental Indenture contained by or on behalf of the Company shall be for the sole and exclusive benefit of the parties hereto, and of the holders of the bonds and coupons Outstanding under the Mortgage.
SECTION 8. It is the intention and it is hereby agreed that, so far as concerns that portion of the Mortgaged and Pledged Property situated within the State of Louisiana, the general language of conveyance contained in this Seventy-sixth Supplemental Indenture is intended and shall be construed as words of hypothecation and not of conveyance, and that, so far as the said Louisiana property is concerned, this Seventy-sixth Supplemental Indenture shall be considered as an act of mortgage and pledge under the laws of the State of Louisiana, and the Trustee herein named is named as mortgagee and pledgee in trust for the benefit of itself and of all present and future holders of bonds and coupons issued and to be issued under the Mortgage, and is irrevocably appointed special agent and representative of the holders of the bonds and coupons issued and to be issued under the Mortgage and vested with full power in their behalf to effect and enforce the mortgage and pledge hereby constituted for their benefit, or otherwise to act as herein provided for.
SECTION 9. This Seventy-sixth Supplemental Indenture shall be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
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* All of which provide equity support for the Owner-Participants in the Waterford 3 Sale-Leaseback transaction and bear no interest.
** All of which are currently held by the Trustee for the benefit of the holders of $115,000,000 in aggregate principal amount of Louisiana Public Facilities Authority 5% Revenue Bonds (Entergy Louisiana, LLC Project) Series 2010 and bear no interest.
IN WITNESS WHEREOF, ENTERGY LOUISIANA, LLC has caused its company name to be hereunto affixed, and this instrument to be signed and sealed by its President or one of its Vice Presidents, and its company seal to be attested by its Secretary or one of its Assistant Secretaries, for and in its behalf, and THE BANK OF NEW YORK MELLON, in token of its acceptance of the trust hereby created, has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by one of its Vice Presidents, Assistant Vice Presidents or Senior Associates and its corporate seal to be attested by one of its Vice Presidents, Assistant Vice Presidents, Assistant Treasurers or Senior Associates, all as of the day and year first above written.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
Attest:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Secretary
Executed, sealed and delivered by
in the presence of:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THE BANK OF NEW YORK MELLON
As Successor Trustee
By:/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Attest:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK MELLON
in the presence of:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
STATE OF LOUISIANA
} ss.:
PARISH OF ORLEANS
On this 26th day of November, 2012, before me appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to me personally known, who, being by me duly sworn, did say that he is Vice President and Treasurer of ENTERGY LOUISIANA, LLC, and that the seal affixed to the above instrument is the seal of said entity and that said instrument was signed and sealed in behalf of said entity by authority of its Board of Directors, and said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, acknowledged said instrument to be the free act and deed of said entity.
On the 26th day of November, 2012 before me personally came ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he resides at ▇▇▇▇ ▇▇▇▇▇▇’▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; that he is Vice President and Treasurer of ENTERGY LOUISIANA, LLC, one of the entities described in and which executed the above instrument; that he knows the seal of said entity; that the seal affixed to said instrument is such seal, that it was so affixed by order of the Board of Directors of said entity, and that he signed his name thereto by like order.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Notary Public
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary ID Number: 57639
My commission expires: at my death
STATE OF NEW YORK
} ss.:
COUNTY OF NEW YORK
In this 3rd day of December, 2012, before me appeared ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ to me personally known or proved to me on the basis of satisfactory evidence and, who, being by me duly sworn, did say that he/she is a Vice President of THE BANK OF NEW YORK MELLON, and that the seal affixed to the above instrument is the corporate seal of said entity and that said instrument was signed and sealed in behalf of said entity by authority of its Board of Directors, and said ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ acknowledged said instrument to be the free act and deed of said entity.
On the 3rd day of December, 2012, before me personally came ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, to me known or proved to me on the basis of satisfactory evidence and, who, being by me duly sworn, did depose and say that he/she resides in New York, New York; that he/she is a Vice President of THE BANK OF NEW YORK MELLON, one of the entities described in and which executed the above instrument; that he/she knows the seal of said entity; that the seal affixed to said instrument is such seal, that it was so affixed by order of the Board of Directors of said entity, and that he/she signed his/her name thereto by like order.
/s/ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇
Notary Public, State of New York
No. 01YI5080477
Qualified in Queens County
Commission Expires 6/13/15