UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997 COMMISSION FILE NUMBER 1-5663 |
Or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
(Exact name of Registrant as specified in its charter)
LOUISIANA 72-0244480
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2030 DONAHUE FERRY ROAD, PINEVILLE, LOUISIANA 71360-5226
(Address of principal executive offices) (Zip Code)
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Registrant's telephone number, including area code: 318/484-7400
Securities registered pursuant to Section 12(b) of the Act:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
------------------- ---------------------
Common Stock, $2.00 Par Value New York Stock Exchange
Pacific Stock Exchange
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Securities registered pursuant to Section 12(g) of the Act:
TITLE OF EACH CLASS
Cumulative Preferred Stock, $100 Par Value
4.50%
4.50%, Series of 1955
4.65%, Series of 1964
4.75%, Series of 1965
Convertible, Series of 1991
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. Yes X , No ___ .
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X]
As of February 24, 1998, the aggregate value of the Registrant's voting stock held by non-affiliates was $727,027,245. The Registrant's Cumulative Preferred Stock is not listed on any exchange, nor are prices for the Cumulative Preferred Stock quoted on NASDAQ; therefore, its market value is not readily determinable and is not included in the foregoing amount.
As of March 16, 1998, there were 22,478,748 shares outstanding of the Registrant's Common Stock, par value $2.00 per share.
DOCUMENTS INCORPORATED BY REFERENCE
TABLE OF CONTENTS
PAGE
----
Disclosure Regarding Forward-Looking Statements....................... 1
PART I
Item 1. Business
General..................................................... 3
Electric Operations......................................... 3
Regulatory and Environmental Matters........................ 9
Item 2. Properties.................................................. 17
Item 3. Legal Proceedings........................................... 18
Item 4. Submission of Matters to a Vote of Security Holders......... 19
Executive Officers of the Registrant........................ 20
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters....................................... 22
Item 6. Selected Financial Data..................................... 22
Item 7. Management's Discussion and Analysis of Financial Condition
and
Results of Operations..................................... 23
Item 7A. Quantitative and Qualitative Disclosures About Market
Risk...................................................... 23
Item 8. Financial Statements and Supplementary Data................. 23
Item 9. Changes in and Disagreements with Accountants on Accounting
and
Financial Disclosure...................................... 23
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 24
Item 11. Executive Compensation...................................... 24
Item 12. Security Ownership of Certain Beneficial Owners and
Management................................................ 24
Item 13. Certain Relationships and Related Transactions.............. 24
PART IV
Item 14. Exhibits, Financial Statement Schedule, and Reports on Form
8-K....................................................... 25
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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Report includes "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. All statements other than
statements of historical fact included in this Report, including, without
limitation, the statements under "Business -- Electric Operations -- Sales,"
"Regulatory and Environmental Matters -- Industry Developments," "-- Regulatory
and Environmental Matters -- Environmental Quality," "Management's Discussion
and Analysis of Results of Operations and Financial Condition -- Industry
Developments," "-- Results of Operations," "-- Financial Condition -- Liquidity
and Capital Resources," "-- Financial Condition -- Regulatory Matters" and Note
K to the Consolidated Financial Statements, contain forward-looking statements.
Located elsewhere in this Report are forward-looking statements regarding sales
growth, capital expenditures, the settlement of the Company's earnings review
approved by the Louisiana Public Service Commission (LPSC) in October 1996, the
Company's shelf registration statement, the effect of certain recent Federal
Energy Regulatory Commission (FERC) regulations, future legislative and
regulatory changes affecting electric utilities, and other matters. Although the
Company believes that the expectations reflected in such forward-looking
statements are reasonable, such forward-looking statements are based on numerous
assumptions (some of which may prove to be incorrect) and are subject to risks
and uncertainties which could cause the actual results to differ materially from
the Company's expectations. Forward-looking statements have been and will be
made in written documents and oral presentations of the Company. Such statements
are based on management's beliefs as well as assumptions made by and information
currently available to management. When used in the Company's documents or oral
presentations, the words "anticipate," "estimate," "expect," "objective,"
"projection," "forecast," "goal" and similar expressions are intended to
identify forward-looking statements. In addition to any assumptions and other
factors referred to specifically in connection with such forward-looking
statements, factors that could cause the Company's actual results to differ
materially from those contemplated in any forward-looking statements include,
among others, the following:
Factors affecting utility operations such as unusual weather conditions; catastrophic weather-related damage; unscheduled generation outages; unusual maintenance or repairs; unanticipated changes to fuel costs, gas supply costs, or availability constraints due to higher demand, shortages, transportation problems or other developments; environmental incidents; or electric transmission or gas pipeline system constraints;
Increased competition in the electric environment, including effects of industry restructuring, transmission system operation or administration, retail wheeling or cogeneration;
Regulatory factors such as unanticipated changes in rate-setting policies or procedures; recovery of investments made under traditional regulation; and the frequency and timing of rate increases;
Financial or regulatory accounting principles or policies imposed by the Financial Accounting Standards Board, the Securities and Exchange Commission, the FERC, the LPSC or similar entities with regulatory or accounting oversight;
Economic conditions, including inflation rates and monetary fluctuations;
Changing market conditions and a variety of other factors associated with physical energy and financial trading activities, including, but not limited to, price, basis, credit, liquidity, volatility, capacity, transmission, interest rate and warranty risks;
Availability or cost of capital resulting from changes in the Company, interest rates, and securities ratings or market perceptions of the electric utility industry and energy-related industries;
Employee workforce factors, including changes in key executives;
Legal and regulatory delays and other obstacles associated with mergers, acquisitions or investments in joint ventures;
Cost and other effects of legal and administrative proceedings, settlements, investigations, claims and other matters; and
Changes in federal, state or local legislature requirements, such as changes in tax laws or rates or environmental laws and regulations.
The Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of changes in actual results, changes in assumptions or other factors affecting such statements.
PART I
ITEM 1. BUSINESS
GENERAL
Central Louisiana Electric Company, Inc. (the Company) was incorporated in 1934 under the laws of the State of Louisiana and is engaged principally in the generation, transmission, distribution and sale of electric energy to approximately 238,000 customers in 63 communities and contiguous rural areas in a 14,000 square-mile region in the State of Louisiana. At December 31, 1997, the Company employed 1,214 persons. The Company's mailing address is P.O. Box 5000, Pineville, Louisiana 71361-5000, and its telephone number is (318) 484-7400.
ELECTRIC OPERATIONS
CERTAIN FACTORS AFFECTING THE COMPANY'S ELECTRIC OPERATIONS
As an electric utility, the Company is affected, to varying degrees, by a number of factors affecting the electric utility industry in general. These factors include increasingly competitive business conditions, the cost of compliance with environmental regulations and changes in the federal and state regulation of the generation and transmission of electricity. For a discussion of various regulatory changes and competitive forces affecting the Company and other electric utilities, see "Regulatory and Environmental Matters -- Industry Developments" below.
POWER GENERATION
The Company operates and either owns or has an ownership interest in four
steam electric generating stations and a gas turbine. The Company is the sole
owner of Coughlin Power Station, Teche Power Station and Rodemacher Power
Station Unit 1. The Company owns a 50% interest in Dolet Hills Power Station
Unit 1 (Dolet Hills Unit 1), and a 30% interest in Rodemacher Power Station Unit
2 (Rodemacher Unit 2). At December 31, 1997, the Company's aggregate electric
generating capacity was 1,693,000 kilowatts (excluding the Company's 20,000
kilowatts of firm purchases from the Sabine River Authority). The following
table sets forth certain information with respect to the Company's generating
facilities.
YEAR OF CAPACITY AT TYPE OF
GENERATING INITIAL 12/31/97 FUEL USED FOR
GENERATING STATION UNIT # OPERATION (KILOWATTS) GENERATION(1)
------------------ ---------- --------- ----------- -----------------
Franklin Gas Turbine............. 1973 7,000 gas
Coughlin Power Station........... 6 1961 110,000 gas/oil (standby)
7 1966 224,000 gas/oil (standby)
Teche Power Station.............. 1 1953 23,000 gas
2 1956 48,000 gas
3 1971 359,000 gas/oil(standby)
Rodemacher Power Station......... 1 1975 440,000 gas/oil
2 1982 157,000(2) coal/gas
Dolet Hills Power Station........ 1 1986 325,000(3) lignite
---------
Total Generating
Capability........... 1,693,000
=========
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(1) Where oil is used on a standby basis, capacity may be reduced.
(2) Represents the Company's 30% interest in the capacity of Rodemacher Unit 2, a 523,000-kilowatt generating unit.
(3) Represents the Company's 50% interest in the capacity of Dolet Hills Unit 1, a 650,000-kilowatt generating unit.
FUEL AND PURCHASED POWER
Changes in fuel and purchased power expenses reflect fluctuations in generation fuel mix costs, availability of economic purchased power and deferral of expenses for recovery from customers through fuel adjustment clauses in subsequent months.
The following table sets forth, for the periods indicated, the percentages of power generated from various fuels at the Company's electric generating plants, the cost of fuel used per kilowatt hour (kWh) attributable to each such fuel and the weighted average fuel cost per kWh.
LIGNITE COAL GAS FUEL OIL
-------------------- -------------------- -------------------- -------------------- WEIGHTED
COST COST COST COST AVERAGE
PER PERCENT PER PERCENT PER PERCENT PER PERCENT COST PER
KWH OF KWH OF KWH OF KWH OF KWH
YEAR (MILLS) GENERATION (MILLS) GENERATION (MILLS) GENERATION (MILLS) GENERATION (MILLS)
---- ------- ---------- ------- ---------- ------- ---------- ------- ---------- --------
1997................. 14.85 36.7 17.06 19.1 29.85 44.2 -- -- 21.90
1996................. 15.45 38.1 16.67 21.3 30.06 39.8 26.09 0.8 21.61
1995................. 14.86 35.9 18.88 14.3 19.48 49.8 24.77 0.0 17.74
1994................. 15.09 36.5 19.53 16.0 22.28 47.4 21.00 0.1 19.22
1993................. 15.50 32.7 20.28 19.5 25.11 47.8 -- -- 21.02
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Power Purchases
The Company purchases electric energy from neighboring utilities when the price of the energy purchased is less than the cost to the Company of generating such energy from its own facilities. Additionally, the Company has a long-term contract under which it purchases a small percentage of its total annual energy requirements from a hydroelectric generating plant.
In 1997, the amount of power purchased decreased, compared to 1996, as a result of the lack of available low-cost power on the wholesale market or the lack of available transmission capacity to transport energy to the Company's electric system. The lack of available purchased power increased the need for additional generation by the Company's natural gas units at a higher cost. The following table sets forth the amounts of power purchased by the Company on the wholesale market for the years indicated.
% OF TOTAL
MILLION ENERGY
KWH REQUIREMENTS
------- ------------
1997........................................... 1,924 24%
1996........................................... 2,529 33%
1995........................................... 1,430 19%
1994........................................... 818 11%
1993........................................... 1,321 18%
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For information with respect to the Company's ability to currently pass through changes in costs of fuel to its customers, see "Regulatory and Environmental Matters -- Rates" below.
NATURAL GAS SUPPLY
During 1997, the Company purchased a total of 29,165 billion British thermal units (MMMBtu) of natural gas for the generation of electricity. The annual and average per-day quantities of gas purchased by the Company from each supplier are shown in the table below.
AVERAGE
AMOUNT
1997 PURCHASED PERCENT
PURCHASES PER DAY OF TOTAL
NATURAL GAS SUPPLIER (MMMBTU) (MMMBTU) GAS USED
-------------------- --------- --------- --------
Louisiana Interstate Gas Corporation(LIG)................ 12,670 34.7 43.4
Columbia Energy Services................................. 4,002 11.0 13.7
Western Gas Resources.................................... 2,850 7.8 9.8
Southern Companies Energy Marketing...................... 2,417 6.6 8.3
Other.................................................... 7,226 19.8 24.8
-------- ---- -----
29,165 79.9 100.0
======== ==== =====
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In 1996, the Company entered into a one-year contract with LIG which obligated the Company to a purchase commitment of 13.8 billion cubic feet (Bcf) of gas for the period November 1, 1996 through October 31, 1997. All commitments were met and the contract was terminated as scheduled.
During 1997, the Company completed the construction of natural gas interconnections with Trunkline Gas Company (Trunkline), a subsidiary of Duke Energy Corp., Columbia Gulf Transmission Co. (Columbia), a subsidiary of the Columbia Gas Systems, Inc., and ANR Pipeline Company (ANR), a Coastal Corporation subsidiary. These interconnections were subsequently aggregated to form CLE Intrastate Pipeline Company, Inc., a subsidiary of the Company. The addition of the new CLE Intrastate Pipeline interconnections has allowed the Company to access various competitive natural gas supply markets which helps to maintain the competitiveness of the Company's generating units.
The new interconnections required only one commitment. Trunkline required that at least 7.5 Bcf of natural gas would flow through the Rodemacher Power Station interconnection between January 1, 1997 and July 1, 1998. In return, the Company received a commitment for firm transportation service for delivery of natural gas to the plant. For the twelve months ended December 31, 1997, approximately 6.1 Bcf of the 7.5 Bcf commitment have flowed through the Rodemacher Power Station interconnection. Neither ANR nor Columbia required a volume commitment.
Natural gas was plentiful and available without interruption throughout 1997. The Company currently meets, and expects to continue to meet, its natural gas requirements with purchases on the spot market through daily, monthly and seasonal contracts with various natural gas suppliers. However, future supplies to the Company remain vulnerable to disruptions due to weather events and transportation disruptions. The potential for disruptions to the Company has been decreased by the addition of the new interconnections. Nevertheless, large boiler fuel users of natural gas, including electric utilities, generally have low priority among gas users in the event pipeline suppliers are forced to curtail deliveries due to inadequate supplies. As a result, supplies of natural gas may become unavailable from time to time, or prices may increase rapidly in response to temporary supply disruptions. Such events, though rare, may require the Company to shift its gas-fired generation to alternative fuel sources, such as fuel oil, to the extent it has the capability to burn those alternative fuels. Currently, the Company anticipates that its alternative fuel capability, combined with its solid-fuel generation resources, are adequate to meet fuel needs during any temporary interruption of natural gas supplies.
Coal and Lignite Supply
Substantially all of the coal for Rodemacher Unit 2 is purchased from mines in Wyoming under a long-term contract expiring in 2007 with Kerr-McGee Coal Corporation. The contract has been modified under a price reopener provision which was initiated in early 1997. The pricing structure under the modified contract has been defined through mid 2002. Provisions for pricing and terms can be renegotiated under a contract reopener provision in early 2002. After purchasing a given annual quantity of base coal (approximately
500,000 tons in 1997), the Company has the right to purchase coal from third parties in the spot market. Additional spot coal may be obtained through competitive bidding.
The coal for Rodemacher Unit 2 is transported under a long-term rail transportation contract with the Union Pacific Railroad. Union Pacific is currently experiencing operating problems resulting in reduced volumes being delivered to Rodemacher Unit 2. Consequently, the Company's coal inventory at Rodemacher Unit 2 is currently below its desired minimum level. Based on Union Pacific's anticipated delivery schedule of future coal shipments, management does not expect that Rodemacher Unit 2 operations will need to be curtailed due to insufficient fuel supply, and management anticipates restoration of the coal inventory at the unit to a desired level of 30 days' supply by July 1998. Other regional utilities are experiencing similar delivery problems.
Substantially all of the lignite used to fuel Dolet Hills Unit 1 is obtained under two long-term agreements. The Company and Southwestern Electric Power Company (SWEPCO), each a 50% owner of Dolet Hills Unit 1, have entered into agreements pursuant to which each acquired an undivided 50% interest in the other's leased and owned lignite reserves in northwestern Louisiana. The Company and SWEPCO have also entered into a long-term agreement expiring in 2011 with the Dolet Hills Mining Venture (DHMV) for the mining and delivery of such lignite reserves, which reserves are expected to provide a substantial portion of the fuel requirements for the projected operating life of Dolet Hills Unit 1. The Company's minimum annual purchase requirement is 1,187,500 tons. The price of lignite delivered pursuant to the agreement is a base price per ton, subject to escalation based on certain inflation indices, plus specified "pass-through" costs. Additional spot lignite may be obtained through competitive bidding. For information regarding the Company's legal proceedings against the DHMV, see "Legal Proceedings" in Part I of this Report.
Additionally, the Company and SWEPCO have entered into a long-term agreement expiring in 2011 with Red River Mining Co., a joint venture of the North American Coal Corporation and Phillips Coal Company, which provides for base contract purchases and spot purchases of lignite. The Company's minimum annual purchase requirement is 275,000 tons. The base lignite price under the contract is a base price per MMMBtu, subject to escalation, plus certain pass-through costs, while the spot lignite price is determined through competitive bidding.
The continuous supply of coal and lignite from the mining sources described above may be subject to interruption due to adverse weather conditions or other factors which may disrupt mining operations or transportation. At December 31, 1997, the Company's coal inventory at Rodemacher Unit 2 was approximately 28,000 tons (about a 14-day supply), and the Company's lignite inventory at Dolet Hills Unit 1 was approximately 237,000 tons (about a 40-day supply).
Oil Supply
The Company stores fuel oil as an alternative fuel source. Rodemacher Power Station has storage capacity for an approximate 75-day supply and other generating stations have storage capacity totaling about a 20-day supply. However, in accordance with the Company's current fuel oil inventory practices, at December 31, 1997, the Company had between 5 to 10 days' supply of fuel oil stored at its generating stations. During 1997, no barrels of fuel oil were burned.
SALES
The Company is a "public utility" engaged principally in the generation, transmission, distribution and sale of electricity within Louisiana. For further information regarding the Company's generating stations and its transmission and distribution facilities, see "Power Generation" above and "Properties" in Item 2 of this
Report. The following table sets forth information concerning sales by the Company to various classes of customers for each of the last three years.
SALES (MILLION KWH)
-----------------------
1997 1996 1995
----- ----- -----
Residential................................................. 2,838 2,723 2,763
Commercial.................................................. 1,393 1,338 1,265
Industrial.................................................. 2,467 2,369 2,227
Other retail................................................ 533 526 502
Sales for resale............................................ 311 291 360
----- ----- -----
Total sales to regular customers.......................... 7,542 7,247 7,117
Short-term sales to other utilities....................... 157 330 68
----- ----- -----
Total kilowatt-hour sales................................. 7,699 7,577 7,185
===== ===== =====
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The Company's 1997 system peak demand occurred in August and was 1,560,000 kilowatts. Sales and peak demand are affected by seasonal demand influenced by weather and are generally highest during the summer air-conditioning and winter heating seasons. For information concerning the financial effects of seasonal demand on the Company's quarterly operating results, see Note L to the Consolidated Financial Statements on page 31 of the 1997 Annual Report to Shareholders, which is filed as Exhibit 13 to this Report and incorporated herein by reference.
The Company expects the peak demand on the system to grow at a compound annual rate of approximately 3.1% over the next five years. The Company's capacity reserve margin for 1997 was 8.9%. To meet the Company's capacity reserve margin for 1998, the Company has purchased 180 MW of firm capacity and transmission service for the summer months of June through September. Of this capacity, 80 MW will be delivered each day and the remaining 100 MW of capacity is to be made available on a next day scheduled basis. The Company believes it can meet its anticipated growth in customer demand by purchasing the needed capacity on the wholesale market. Future capacity needs may be met by continuing to purchase power on the wholesale market, adding capacity to existing power plants or building new power plants. Currently, management is evaluating the best approach for the Company.
No customer accounted for 10% or more of the Company's revenues in 1997. Additional information regarding the Company's sales and revenues is set forth in "Results of Operations" in "Management's Discussion and Analysis of Results of Operations and Financial Condition" on pages 3 through 5 of the 1997 Annual Report to Shareholders, which is filed as Exhibit 13 to this Report and incorporated herein by reference.
CONSTRUCTION AND FINANCING
For information on the Company's construction program, financing and related matters, see "Financial Condition" in "Management's Discussion and Analysis of Results of Operations and Financial Condition" on pages 7 through 11 of the 1997 Annual Report to Shareholders, which is filed as Exhibit 13 to this Report and incorporated herein by reference.
JOINT VENTURE
On October 30, 1997, the Company formed a joint venture with Covenant Energy Corporation (Covenant). The joint venture will market electricity and natural gas services, as well as energy management services, to commercial and industrial customers and utilities throughout the southeastern United States. The joint venture will also engage in energy asset development projects, such as cogeneration projects, natural gas pipelines connecting to customers' plants and potential strategic asset acquisitions in the southeastern United States. The newly formed venture, CLECO ENERGY, L.L.C., is headquartered in Houston, Texas. Covenant President John T. McDougal heads the venture. The Company owns 51% of the newly formed venture through a subsidiary and Covenant owns the remaining 49%. For information regarding the
Company's commitment to provide credit support to the venture, see "Financial Condition -- Cash Generation and Cash Requirements" in "Management's Discussion and Analysis of Results of Operations and Financial Condition" on page 8 of the 1997 Annual Report to Shareholders, which is filed as Exhibit 13 to this Report and incorporated herein by reference.
REGULATORY AND ENVIRONMENTAL MATTERS
RATES
Retail electric operations of the Company are subject to the jurisdiction of the Louisiana Public Service Commission (LPSC) with respect to rates, standards of service, accounting and other matters. The LPSC establishes base rates based upon nonfuel costs, including the cost of capital and sales. The Company is also subject to the jurisdiction of the Federal Energy Regulatory Commission (FERC) with respect to certain aspects of its electric business, including rates for wholesale service and interconnections with, and the transmission of power for, other utilities. Periodically, the Company has sought and received increases in base rates from both the LPSC and the FERC to cover increases in operating costs and costs associated with additions to generation, transmission and distribution facilities.
The Company's electric rates include a fuel and purchased power cost adjustment clause which enables the Company to reflect monthly fluctuations in the cost of fuel and short-term purchased power. Additionally, pretax income from certain off-system sales to other utilities is passed on to customers through the fuel cost adjustment clause. Fuel costs and fuel adjustment billing factors are approved by the LPSC and the FERC. These cost adjustments are based on costs from earlier periods which result in over- or under-recovery for the period in which the adjustment is made. Any over- or under-recovery is corrected by an adjustment in later periods. As of December 31, 1997, the net accumulated liability for over-recovery on sales subject to the LPSC's jurisdiction was approximately $3.0 million.
The LPSC elected in 1993 to review the earnings of all electric, gas, water and telecommunications utilities regulated by it to determine whether the returns on equity of these companies may be higher than returns that might be awarded in the current economic environment. In 1996, the LPSC approved a settlement of the Company's earnings review, providing the Company's customers with lower electricity rates. The first rate decrease, of $3 million annually, was effective November 1, 1996, with a second decrease, of an additional $2 million annually, effective January 1, 1998. The terms of this settlement will be effective for a five-year period.
During the five-year period, which began November 1, 1996, a rate stabilization plan is in place. This plan allows the Company to retain all earnings equating to a regulatory return on equity up to and including 12.25% on its regulated utility operations. Any earnings which result in a return on equity over 12.25%, up to and including 13%, will be shared equally between the Company, and its customers, which effectively allows the Company the opportunity to realize a regulatory rate of return of up to 12.625%. Any earnings above this level will be refunded fully to customers.
During the five-year period 1997-2001, the Company's revenues and return on equity will be reviewed each year by the LPSC. If the Company is found to be achieving a regulatory return on equity in any given year which requires a refund to customers, the refund will be made in the form of billing credits during the months of July, August and September following the evaluation period.
During the five-year rate stabilization period, the Company will have the right to apply for a rate increase if a significant event affecting its earnings would justify it, such as regulatory or economic changes, major hurricane damage or other unforeseen circumstances. During the period, the Company will also be able to propose for LPSC consideration any revenue-neutral rate design changes it feels appropriate, such as revenue redistribution among customer classes which may be warranted. During the period, the LPSC may amend or modify any of the settlement's terms should the LPSC determine changes are warranted by the public interest.
FRANCHISES
The Company operates under nonexclusive franchise rights granted by governmental units and enforced by state regulation. These franchises are for fixed terms, which vary from ten years to 50 years. In the past, the Company has been successful in the timely renewal of franchises as each reaches the end of its term and expires.
A number of parishes have attempted in recent years to impose franchise fees on retail revenues earned within the unincorporated areas the Company serves. If the parishes are ultimately successful, taxes other than income taxes could increase substantially in future years.
INDUSTRY DEVELOPMENTS
Technological improvements in recent years have somewhat lessened the historical barriers to entry in the electric utility industry and have set in motion statutory and regulatory changes aimed at increased competition in the electric utility industry. Federal and state legislation and new regulatory initiatives designed to restructure electricity markets will likely produce even greater competition at both wholesale and retail levels in the future. The LPSC is investigating whether retail choice is in the best interest of Louisiana electric utility customers. The Company and other existing and potential Louisiana electric industry participants filed testimony in the LPSC's investigation of electric industry restructuring during 1997. Also, during 1997, the Louisiana legislature considered, but did not enact, legislation regarding restructuring of the electric utility industry within the State, but instead, deferred consideration of the issues to the LPSC. The Company expects the customer choice debate and related issues to continue in legislative and regulatory bodies in 1998. At this time, management cannot predict whether any legislation or regulation will be enacted or adopted during 1998 and, if enacted or adopted, what form such legislation or regulation would take.
In general, Louisiana enjoys relatively low rates for electricity. Industry restructuring presents the possibility that rates could move closer to the national average, meaning possible higher prices for Louisiana's small consumers. With this in mind, the Company favors a plan that would protect the rates of small consumers and allow retail choice for larger commercial and industrial customers no later than the year 2000. Management believes too rapid a course to restructuring could result in higher electricity prices for small consumers. To protect small consumers against such an outcome, management supports for the most part, the deliberate approach to industry restructuring taken by the LPSC. The increasingly competitive environment presents opportunities to compete to supply electricity to new customers, as well as the risk of losing existing customers. Management believes the Company is a reliable, low-cost provider of electricity and, as such, is currently positioned to compete effectively in a restructured electric marketplace.
Wholesale Electric Competition
The Energy Policy Act, adopted in October 1992, significantly changed U.S. energy policy, including that governing the electric utility industry. The Energy Policy Act allows the FERC, on a case-by-case basis and with certain restrictions, to order wholesale transmission access and to order electric utilities to enlarge their transmission systems. The Energy Policy Act does, however, prohibit FERC-ordered retail wheeling (i.e., opening up the electric utility systems to allow customer choice of energy suppliers at the retail level), including "sham" wholesale transactions. Further, under the Energy Policy Act, a FERC transmission order requiring a transmitting utility to provide wholesale transmission services must include provisions generally permitting the utility to recover from the FERC applicant all of the costs incurred in connection with the transmission services, any enlargement of the transmission system and associated services.
In addition, the Energy Policy Act revised the Public Utility Holding Company Act of 1935 (the Holding Company Act) to permit utilities, including registered holding companies, and non-utilities to form "exempt wholesale generators" without the principal restrictions of the Holding Company Act. Under prior law, independent power producers were generally required to adopt inefficient and complex ownership structures to avoid pervasive regulation under the Holding Company Act.
On April 24, 1996, the FERC issued Order No. 888, a final rule requiring open access transmission by all public utilities that own, operate or control transmission lines. All of these utilities must now provide nondiscriminatory open access transmission services that are comparable to transmission services that the utilities provide themselves. The Company's tariff was approved by the FERC in a settlement with affected parties on November 26 1997. Utilities must take transmission service for their own wholesale transactions under the terms and conditions of their open access tariffs. Order No. 888 provides for the full recovery from a utility's departing customers of wholesale stranded costs to the extent such costs were prudently incurred to serve wholesale customers and would go unrecovered if those customers use open access transmission service to move to another supplier. The Order also allows customers under existing wholesale contracts to seek FERC approval to modify their contracts on a case-by-case basis.
The Company has three firm-sales wholesale customers, which represented 0.9% of its sales to regular customers for the twelve months ended December 31, 1997. Management cannot predict what, if any, effects Order No. 888 may have on wholesale prices in the Company's service area.
Wholesale energy markets, including the market for wholesale electric power, have been competitive and are becoming even more so as the number of competitors in these markets increases as a result of enactment of the Energy Policy Act and the regulatory activities of the FERC. The Company competes for sales of electric power at wholesale with other public utilities, cogenerators and qualified facilities in other forms, power marketing companies, which own no transmission or generation facilities, but which compete in the wholesale market by buying electricity from utilities and other generators and reselling the electricity at market-based rates. Many such power marketers now transact business in all regions of the country.
In recent years, the Company has been successful in competing for wholesale sales within its service territory, including sales to the city of Alexandria and a full requirements sale to the city of St. Martinville. Sales under the St. Martinville agreement, which is subject to the jurisdiction of the FERC, began in May 1995 and represent an approximate 13 MW load. Sales to St. Martinville provide additional base revenues, net of facility payments, of about $4 million over the term of the agreement, which extends through December 2000. This contract was challenged in 1993 by the previous supplier, Louisiana Energy and Power Authority (LEPA), as well as the city of Lafayette and the American Public Power Association, with assertions of preferential, discriminatory and predatory pricing. An initial decision of the FERC's presiding administrative law judge (ALJ) in February 1995 rejected LEPA's arguments. Under FERC procedures, LEPA has filed a brief requesting the FERC to revise the initial decision, and this matter is still pending before the FERC. The Company has opposed LEPA's brief, and management believes that the ALJ's initial decision will be upheld.
Retail Electric Competition
Currently the LPSC does not provide exclusive service territories for electric utilities under its jurisdiction. Instead, retail service is obtained through the aforementioned long-term, nonexclusive franchises. Also, the LPSC has used a "300 foot rule" for determining the supplier for new customers. The application of this law has led to competition with neighboring utilities for retail customers at the borders of the Company's service areas. The Company also competes in its service area with suppliers of alternative forms of energy, some of which may be less costly for certain applications than electricity. The Company could experience some competition for electric sales to industrial customers in the form of cogeneration or from independent power producers. However, the Company believes that its rates, and the quality and reliability of its service, place it in a favorable competitive position in current retail markets.
The LPSC has set a generic docket to investigate whether retail choice is in the best interests of Louisiana electric utility consumers. Initial hearings in this docket were held in September 1997. In December 1997, the LPSC staff reported to the LPSC commissioners that electric industry restructuring could be in the best interests of the public and recommended that the LPSC continue to investigate the major issues involved in restructuring.
In early May 1997, the Commerce Committee of the Louisiana House of
Representatives deferred any action on legislation regarding
deregulation/customer choice for the electric utility industry in Louisiana. The
legislators determined that the issues surrounding deregulation should be left
to the LPSC. However, the
legislature passed a resolution establishing a special committee to study existing federal, state and local laws, rules and policies to assess the impact of electric retail competition. The committee held its first meeting in September 1997 and must submit a report of its findings by the beginning of the 1998 regular legislative session. The Company has a representative on this committee.
Legislative and Regulatory Changes and Matters
Various federal and state legislative and regulatory bodies are considering a number of issues in addition to those discussed above that will shape the future of the electric utility industry. Such issues include deregulation of retail electricity sales; the ability of electric utilities to recover stranded costs; the repeal or modification of the Holding Company Act; the unbundling of vertically integrated electric utility companies into separate business segments or companies (i.e., generation, transmission, distribution and retail energy service); the role of electric utilities, independent power producers and competitive bidding in the construction and operation of new generating capacity; and the pricing of transmission service on an electric utility's transmission system. The Company is unable to predict the outcome of such issues or their effect on the Company's financial position, results of operations or cash flows at this time.
For information on certain regulatory matters and regulatory accounting affecting the Company, see "Financial Condition -- Regulatory Matters" in "Management's Discussion and Analysis of Results of Operations and Financial Condition" on pages 10 and 11 of the 1997 Annual Report to Shareholders, which is filed as Exhibit 13 to this Report and incorporated herein by reference.
ENVIRONMENTAL QUALITY
The Company is subject to numerous laws and regulations administered by federal, state and local authorities to protect the environment. These statutory and regulatory provisions impose various substantive requirements, the violation of which may result in substantial fines and penalties. Environmental requirements continue to increase as a result of new legislation, administrative actions and judicial interpretations. Therefore, the precise future effects of existing and potential requirements are difficult to determine. During 1997, the Company's capital expenditures related to environmental compliance were about $0.4 million, due largely to the modification of a sludge landfill site at one of the Company's generating stations. Expenditures related to environmental compliance are estimated to total approximately $0.6 million in 1998.
Air Quality
The State of Louisiana regulates emissions from each of the Company's generating units through regulations issued by the Air Quality Division (AQD) of the Louisiana Department of Environmental Quality (LDEQ). In addition, the AQD implements certain programs initially established by the federal Environmental Protection Agency (EPA). The AQD establishes standards of performance or requires permits for certain generating units in Louisiana. Four of the Company's generating units are subject to these requirements: Teche Unit 3, Rodemacher Units 1 and 2 and Dolet Hills Unit 1.
The federal Clean Air Act Amendments of 1990 (the Act) established a regulatory program to address the effects of acid rain and imposed restrictions on sulfur dioxide (SO(2)) emissions from certain utility units. The Act essentially requires that utilities, like the Company, must hold a regulatory "allowance" for each ton of SO(2) emitted beginning in the year 2000. The EPA is required to allocate a set number of allowances to each affected unit based on its historic emissions. After the initial allocation, the Company requested an adjustment to the allowance allocation for Rodemacher Unit 2 because of an extended outage of the unit during one of the years used in the EPA's calculation. Because the final allowance allocation did not reflect the requested adjustment, the Company filed a petition for judicial review of the EPA's action on May 21, 1993 in the United States Court of Appeals for the District of Columbia Circuit. In October 1995, the EPA signed a settlement agreement in which it agreed to give Rodemacher Unit 2 the additional allowances requested. In December 1996, the EPA published proposed changes to the Acid Rain Program in the Federal Register. The proposed changes included the additional allowances requested for Rodemacher Unit 2. While the EPA has
agreed to give the additional allowances to Rodemacher Unit 2, the allowances will not be allocated until June 1998.
The Act also requires the EPA to revise nitrogen oxides (NOx) emission limits for existing coal-fired boilers. In November 1996, the EPA finalized rules lowering the NOx emission rate for certain boilers, including Rodemacher Unit 2 and Dolet Hills Unit 1. Under this rule, Rodemacher Unit 2 and Dolet Hills Unit 1 would have to meet this new emission rate by January 1, 2000. The rule also allows an option to "early elect," that is, achieve compliance with a less restrictive NOx limit beginning January 1, 1997. The Company exercised this option in December 1996. Early election protects the Company from any further reductions in the NOx permitted emission rate until 2008. Rodemacher Unit 2 and Dolet Hills Unit 1 were in compliance with the NO(x) early election limits in 1997 and are expected to continue to be in compliance in 1998 without undergoing significant capital improvements. Significant future reductions in NO(x) emission limits may require modification of burners or other capital improvements at either or both of the units.
Water Quality
The Company has received from the EPA all National Pollutant Discharge Elimination System (NPDES) permits required under the Clean Water Act for discharges from its four generating stations. NPDES permits have fixed dates of expiration, and the Company has applied for renewal of these permits within the applicable time periods. The Office of Water Resources of the LDEQ requires facilities which discharge wastewater into Louisiana waters to be permitted under the Louisiana Water Discharge Permit System (LWDPS). The Company has applied for and received LWDPS permits for its four generating stations.
In 1996, the LDEQ was granted authority to administer the federal NPDES program in Louisiana. The NPDES permit is substantially similar to the LWDPS permit, and eventually LDEQ intends to merge the two into a single LWDPS permit. Until then, all data required by the NPDES permit and the LWDPS permit are reported to the LDEQ.
Solid Waste Disposal
The Solid Waste Division (SWD) of the LDEQ has adopted regulations and a permitting system for the management and disposal of solid waste generated by electric utilities. The Company has received all required permits from the SWD for the on-site disposal of solid waste generated at its generating stations and is in the process of repermitting its solid waste disposal facilities under recently revised rules.
The Company has requested approval of an alternate liner system for the Dolet Hills landfill facility and has received conditional approval from the LDEQ. The Company is in the process of obtaining additional information to submit to the LDEQ, which should make the approval permanent. The alternate system, if approved, is expected to save $360,000 to $900,000 per year in operating costs at the landfill.
Hazardous Waste Generation
The Company produces certain wastes at its four generating stations and at other locations which are classified as hazardous. The Hazardous Waste Division of the LDEQ regulates these wastes and has issued identification numbers to the sites where such wastes are produced. The Company does not treat, store or dispose of these wastes on-site; therefore, no permits are required. All hazardous wastes produced by the Company are disposed of at federally permitted hazardous waste disposal sites.
ELECTRIC AND MAGNETIC FIELDS
The possibility that exposure to electric and magnetic fields (EMFs) emanating from power lines, household appliances and other electric devices may result in adverse health effects or damage to the environment has been a subject of current public attention. The Company funds research on electric and magnetic fields through various organizations. The scientific research conducted to date concerning the effects of EMFs has not led to any definitive results; however, such research is continuing. Lawsuits have arisen in
several states against electric utilities and others alleging that the presence or use of electric power transmission and distribution lines has an adverse effect on health and/or property values.
OTHER EVENTS
Acquisition of Teche Electric Cooperative, Inc. (Teche)
In February 1995, the Company agreed to purchase Teche for a price, including the assumption or other discharge of Teche's liabilities, of about $22.4 million. The members of Teche overwhelmingly approved the sale at their annual meeting in March 1995. One of the conditions necessary to the closing of the Teche acquisition was an interim power purchase agreement with Cajun Electric Power Cooperative, Inc. (Cajun), Teche's former wholesale power supplier. Cajun has been involved in bankruptcy proceedings since 1995. An interim agreement, acceptable to Cajun's bankruptcy trustee and the Rural Utilities Services, was reached in September 1997. The Company consummated the purchase of Teche on September 30, 1997. The acquisition resulted in the addition of 7,700 mostly residential customers to the Company.
ITEM 2. PROPERTIES
All of the Company's electric generating stations and all other electric operating properties are located in the State of Louisiana. The Company considers all of its properties to be well maintained, in good operating condition and suitable for their intended purposes.
ELECTRIC GENERATING STATIONS
As of December 31, 1997, the Company either owned or had an ownership interest in four steam electric generating stations and a gas turbine with a combined electric generating capacity of 1,693,000 kilowatts. For additional information regarding the Company's generating facilities, see "Electric Operations -- Power Generation" in Item 1 of this Report.
SUBSTATIONS
As of December 31, 1997, the Company owned 82 transmission substations and 302 distribution substations. Electric Lines
ELECTRIC LINES
As of December 31, 1997, the Company's transmission system consisted of approximately 67 circuit miles of 500 kilovolt (kV) lines; 454 circuit miles of 230 kV lines; 648 circuit miles of 138 kV lines; and 21 circuit miles of 69 kV lines. The Company's distribution system consisted of approximately 2,127 circuit miles of 34.5 kV lines and 11,798 circuit miles of other lines.
GENERAL PROPERTIES
The Company owns various properties, which include a seven-story headquarters office building, regional offices, a central warehouse, service centers, telecommunications equipment and other facilities owned for general purposes.
TITLE
The Company's electric generating plants and certain other principal properties are owned in fee. Electric transmission and distribution lines are located either on private rights-of-way or along streets or highways by public consent.
Substantially all of the Company's property, plant and equipment is subject to a lien securing obligations of the Company under an Indenture of Mortgage, which does not impair the use of such properties in the operation of its business.
ITEM 3. LEGAL PROCEEDINGS
The Company and SWEPCO, each a 50% owner of Dolet Hills Unit 1, jointly own lignite reserves in the Dolet Hills area of northwestern Louisiana. In 1982, the Company and SWEPCO entered into a Lignite Mining Agreement (LMA) with the DHMV, a partnership for the mining and delivery of lignite from a portion of these reserves (Dolet Hills Mine). The LMA expires in 2011. The price of lignite delivered pursuant to the LMA is a base price per ton, subject to escalation based on certain inflation indices, plus specified "pass-through" costs.
Currently, the Company is receiving annually a minimum delivery of 1,187,500 tons under the LMA. Since the late 1980s, additional spot lignite deliveries have been obtained through competitive bidding from DHMV and another lignite supplier. In 1997, the Company and SWEPCO received deliveries of approximately 28% of the annual lignite consumption at Dolet Hills Unit 1 from the other lignite supplier.
On April 15, 1997, the Company and SWEPCO filed suit against DHMV and its partners in the United States District Court for the Western District of Louisiana (Federal Court Suit) seeking to enforce various obligations of DHMV to the Company and SWEPCO under the LMA, including provisions relating to the quality of the delivered lignite, pricing and mine reclamation practices. On June 15, 1997, DHMV filed an answer denying the allegations in the Company's suit and filed a counterclaim asserting various contract-related claims against the Company and SWEPCO. The Company and SWEPCO have denied the allegations in the counterclaim on the grounds the counterclaim has no merit.
The counterclaims filed by DHMV in the Federal Court Suit resulted in the Company and SWEPCO filing a separate lawsuit against the parent companies of DHMV, namely Jones Capital Corporation and Philipp Hozmann USA, Inc., on August 13, 1997, in the First Judicial District Court for Caddo Parish, Louisiana (State Court Suit). The State Court Suit seeks to enforce a separate 1995 agreement by Jones Capital Corporation and Philipp Holzmann USA, Inc. related to the LMA. Jones Capital Corporation and Philipp Holzmann USA, Inc. have asked the State Court to stay that proceeding until the Federal Court Suit is resolved.
The suits are currently in the discovery phase. A status conference is currently scheduled for May 22, 1998. At this conference, a trial date will be set. The Company and SWEPCO will aggressively prosecute the claims against DHMV and defend against the counterclaims which DHMV has asserted. The Company and SWEPCO continue to pay DHMV for lignite delivered pursuant to the LMA. Normal day-to-day operations continue at the Dolet Hills Mine and Dolet Hills Unit 1. Although the ultimate outcome of this litigation cannot be predicted at this time, based on information currently available to the Company, management believes that the counterclaim asserted by the DHMV in the Federal Court Suit, if successful, would not have a significant adverse effect on the Company's financial position or results of operations.
The Company is not aware of any legal proceeding to which it is a party which would have a material adverse effect on its financial condition, results of operations, cash flows or competitive position. For a discussion of certain legal proceedings and regulatory matters involving the Company, see "Business -- Regulatory and Environmental Matters -- Industry Developments, -- Wholesale Electric Competition" and "-- Environmental Quality -- Air Quality" in Item 1 of this Report.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders of the Company during the fourth quarter of 1997.
EXECUTIVE OFFICERS OF THE REGISTRANT
The names of the executive officers of the Company, their positions held, five-year employment history, ages and years of service as of December 31, 1997 are presented below. Executive officers are appointed annually to serve for the ensuing year or until their successors have been appointed.
POSITION AND FIVE-YEAR
NAME OF EXECUTIVE OFFICER EMPLOYMENT HISTORY
------------------------- ----------------------
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Gregory L. Nesbitt......... President and Chief Executive Officer since April
1993; President and Chief Operating Officer from
April 1992 to April 1993; Executive Vice President
and Chief Operating Officer from July 1991 to April
1992; Executive Vice President from January 1988 to
July 1991. (Age 59; 17 years of service)
David M. Eppler............ Executive Vice President and Chief Operating
Officer since July 1997; Executive Vice President
from January 1997 to July 1997; Vice
President-Power Supply and Energy Transmission from
July 1995 to January 1997; Vice President-Finance
from October 1993 to July 1995; Vice President and
Treasurer from July 1987 to October 1993. (Age 47;
16 years of service)
Thomas J. Howlin........... Senior Vice President-Financial Services and Chief
Financial Officer since July 25, 1997; Vice
President-Finance and Chief Financial Officer from
July 14, 1997 to July 25, 1997. Vice President and
Chief Financial Officer of TransAmerican Natural
Gas Corporation from April 1995 to March 1997;
Director of Financial Activity, Business
Development for Detroit Edison Company from January
1994 to March 1995. (Age 49; 6 months of service)
Catherine C. Powell........ Senior Vice President-Employee and Corporate
Services since July 1997; Vice President-Employee
and Corporate Services from July 1995 to July 1997;
Vice President-Human Resources from October 1993 to
July 1995; General Manager-Human Resources from
August 1993 to October 1993;
Administrator-Compensation from May 1991 to August
1993. (Age 42; 6 years of service)
Darrell J. Dubroc.......... Vice President-Generation Services since July 1997;
General Manager-Wholesale Merchant Operations from
July 1996 to July 1997; Manager-Regulatory Affairs
and Business Development from March 1995 to July
1996; Manager-Contracts and Business Development
from July 1994 to March 1995; Director-Contracts
and Business Development from October 1993 to July
1994. (Age 36; 12 years of service)
Jeffrey W. Hall............ Vice President-Retail Energy Services since July
1997; General Manager-Customer Revenue from July
1996 to July 1997; Manager-Public Affairs from
October 1995 to July 1996; Regional Manager-
Customer Services from October 1993 to October
1995; Manager-Customer Services, Opelousas from May
1991 to October 1993; Manager-Customer Services,
Mansfield from May 1983 to May 1991. (Age 46; 16
years of service)
15
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POSITION AND FIVE-YEAR
NAME OF EXECUTIVE OFFICER EMPLOYMENT HISTORY
------------------------- ----------------------
Mark H. Segura............. Vice President-Distribution Services since July
1997; General Manager-Distribution Services form
July 1996 to July 1997; Manager-Stores and
Transformer Management from October 1993 to July
1996; Supervisor-Distribution Engineering from June
1991 to October 1993. (Age 39; 13 years of service)
John L. Baltes, Jr......... Controller since April 1989. (Age 51; 16 years of
service)
Michael P. Prudhomme....... Secretary-Treasurer since January 1994; Secretary
from October 1993 to January 1994; Vice
PresidentCustomer Services from May 1985 to October
1993. (Age 54; 28 years of service)
Judy P. Miller............. Assistant Corporate Secretary since April 1995;
Acting Assistant Corporate Secretary from February
1995 to April 1995; Supervisor-Plant Accounting
from October 1993 to February 1995;
Supervisor-Income and Other Taxes from June 1990 to
October 1993. (Age 40; 13 years of service)
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's common stock is listed for trading on the New York Stock Exchange (NYSE) and the Pacific Stock Exchange. The following table sets forth high and low sales prices for the Company's common stock as reported on the NYSE Composite Tape and dividends paid per share during each calendar quarter of 1997 and 1996.
1997 1996
---------------------------------------- ----------------------------------------
HIGH LOW DIVIDEND HIGH LOW DIVIDEND
---- --- -------- ---- --- --------
First Quarter........ $28 $26 $0.385 $27 3/4 $25 3/8 $0.375
Second Quarter....... $28 1/8 $24 3/4 $0.395 $27 3/8 $25 1/8 $0.385
Third Quarter........ $28 7/16 $25 13/16 $0.395 $27 1/4 $25 3/8 $0.385
Fourth Quarter....... $33 1/8 $25 9/16 $0.395 $29 1/4 $26 1/8 $0.385
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Subject to the prior rights of the holders of the respective series of the Company's preferred stock, such dividends as determined by the Board of Directors of the Company may be declared and paid on the common stock from time to time out of funds legally available therefor. The provisions of the Company's charter applicable to preferred stock and certain provisions contained in the debt instruments of the Company under certain circumstances restrict the amount of retained earnings available for the payment of dividends by the Company. The most restrictive covenant requires that common shareholders' equity be not less than 35% of total capitalization, including short-term debt. At December 31, 1997, approximately $114,300,000 of retained earnings was not restricted. On January 23, 1998, the Board of Directors of the Company declared a quarterly dividend of $0.395 per share, which dividend was paid on February 15, 1998, to common shareholders of record on February 2, 1998.
As of March 16, 1998, there were 10,925 holders of record of the Company's common stock, and the closing price of the Company's common stock as reported on the NYSE Composite Tape was $32 11/16 per share.
ITEM 6. SELECTED FINANCIAL DATA
The information set forth in "Selected Financial Data" on page 1 of the 1997 Annual Report to Shareholders is incorporated herein by reference; such information is filed as Exhibit 13 to this Report. This information should be read in conjunction with the Consolidated Financial Statements and the related Notes thereto set forth on pages 14 through 31 of the 1997 Annual Report to Shareholders, which is filed as Exhibit 13 to this Report and incorporated herein by reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The information set forth in "Management's Discussion and Analysis of Results of Operations and Financial Condition" on pages 2 through 11 of the 1997 Annual Report to Shareholders is incorporated herein by reference; such information is filed as Exhibit 13 to this Report.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information set forth on pages 14 through 31 of the 1997 Annual Report to Shareholders is incorporated herein by reference; such information is filed as Exhibit 13 to this Report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information set forth (i) under the subcaption "Directors" under the caption "Election of Directors" on pages 2 and 3 of, and (ii) under the caption "Section 16(a) Beneficial Ownership Reporting Compliance" on page 7 of the Company's definitive Proxy Statement dated March 11, 1998, filed with the Securities and Exchange Commission pursuant to Regulation 14A under the Securities Exchange Act of 1934 (1998 Proxy Statement), is incorporated herein by reference. See also "Executive Officers of the Registrant" on pages 20 and 21 of this Report.
ITEM 11. EXECUTIVE COMPENSATION
The information set forth (i) under the subcaption "Organization and Compensation of the Board of Directors" under the caption "Election of Directors" on pages 4 and 5 of, and (ii) under the caption "Executive Compensation" on pages 8 through 16 of the 1998 Proxy Statement (excluding the information required by paragraphs (k) and (l) of Item 402 of Regulation S-K) is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information set forth (i) under the caption "Security Ownership of Directors and Management" on pages 6 and 7 of, and (ii) under the caption "Security Ownership of Certain Beneficial Owners" on page 21 of the 1998 Proxy Statement is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information set forth under the subcaption "Directors" under the caption "Election of Directors" on pages 2 and 3 of the 1998 Proxy Statement is incorporated herein by reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULE, AND REPORTS ON FORM 8-K
REFERENCE (PAGE)
-----------------------------
1997 ANNUAL
FORM 10-K REPORT TO
ANNUAL REPORT SHAREHOLDERS
------------- ------------
14(a)(1) Consolidated Statements of Income for the years ended
December 31, 1997, 1996 and 1995 14
Consolidated Balance Sheets at December 31, 1997 and
1996 15
Consolidated Statements of Cash Flows for the years
ended December 31, 1997, 1996 and 1995 16
Consolidated Statements of Changes in Common
Shareholders' Equity for the years ended December
31, 1997, 1996 and 1995 17
Notes to Consolidated Financial Statements 18
Report of Independent Accountants 32
14(a)(2) Financial Statement Schedules Report of Independent
Accountants 32
Schedule II -- Valuation and Qualifying Accounts 33
Financial Statement Schedules other than those shown
in the above index are omitted because they are
either not required or are not applicable or the
required information is shown in the Consolidated
Financial Statements and Notes thereto.
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14(a)(3) List of Exhibits
The Exhibits designated by an asterisk are filed herewith. The Exhibits not so designated have been previously filed with the Securities and Exchange Commission and are incorporated herein by reference. The Exhibits designated by two asterisks are management contracts and compensatory plans and arrangements required to be filed as Exhibits to this Report.
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
3(a) Restated Articles of Incorporation 1-5663 10-Q(3/92) 3
of the Company dated as of July
24, 1989, as amended through
April 24, 1992
3(b) Amended and Restated Bylaws of the 1-5663 10-Q(3/97) 3
Company, as amended to April 25,
1997
*4(a)(1) Indenture of Mortgage dated as of
July 1, 1950, between the
Company and First National Bank
of New Orleans, as Trustee
*4(a)(2) First Supplemental Indenture dated
as of October 1, 1951, to
Exhibit 4(a)(1)
*4(a)(3) Second Supplemental Indenture
dated as of June 1, 1952, to
Exhibit 4(a)(1)
*4(a)(4) Third Supplemental Indenture dated
as of January 1, 1954, to
Exhibit 4(a)(1)
*4(a)(5) Fourth Supplemental Indenture
dated as of November 1, 1954, to
Exhibit 4(a)(1)
4(a)(6) Tenth Supplemental Indenture dated 1-5663 10-K(1986) 4(a)(11)
as of September 1, 1965, to
Exhibit 4(a)(1)
4(a)(7) Eleventh Supplemental Indenture 2-32069 S-9(4/7/69) 2(m)
dated as of April 1, 1969, to
Exhibit 4(a)(1)
4(a)(8) Eighteenth Supplemental Indenture 1-5663 10-K(1993) 4(a)(8)
dated as of December 1, 1982, to
Exhibit 4(a)(1)
4(a)(9) Nineteenth Supplemental Indenture 1-5663 10-K(1993) 4(a)(9)
dated as of January 1, 1983, to
Exhibit 4(a)(1)
4(a)(10) Twenty-Sixth Supplemental 1-5663 8-K(3/90) 4(a)(27)
Indenture dated as of March 15,
1990, to Exhibit 4(a)(1)
4(b) Indenture between the Company and 33-24896 S-3(10/11/88) 4(b)
Bankers Trust Company, as
Trustee, dated as of October 1,
1988
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SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
4(b)(1) Agreement Appointing Successor 333-02895 S-3(4/26/96) 4(a)(2)
Trustee dated as of April 1,
1996 by and among Central
Louisiana Electric Company,
Inc., Bankers Trust Company and
The Bank of New York
4(c) Trust Indenture (The Industrial 1-5663 10-K(1991) 4(i)
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991) dated as of May 1,
1991, between The Industrial
Development Board of the Parish
of Rapides, Inc. and First
National Bank of Commerce
4(c)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(e)(1)
(The Industrial Development
Board of the Parish of Rapides,
Inc. (Louisiana) Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of May 1, 1993, between
The Industrial Development Board
of the Parish of Rapides, Inc.
and First National Bank of
Commerce, relating to Exhibit
4(c)
4(d) Refunding Agreement (The 1-5663 10-Q(6/91) 10(a)
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of May 1, 1991, between
the Company and The Industrial
Development Board of the Parish
of Rapides, Inc.
4(e) Trust Indenture (Parish of DeSoto, 1-5663 10-K(1991) 4(k)
State of Louisiana Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991A)
dated as of May 1, 1991, between
Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce
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SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
4(e)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(g)(l)
(Parish of DeSoto, State of
Louisiana Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991A)
dated as of May 1, 1993, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce, relating to
Exhibit 4(e)
4(f) Refunding Agreement (Parish of 1-5663 10-Q(6/91) 10(b)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of May 1,
1991, between the Parish of
DeSoto, State of Louisiana and
the Company
4(g) Trust Indenture (Parish of DeSoto, 1-5663 10-K(1991) 4(m)
State of Louisiana Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991B)
dated as of May 1, 1991, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce
4(g)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(i)(1)
(Parish of DeSoto, State of
Louisiana Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991B)
dated as of May 1, 1993, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce, relating to
Exhibit 4(g)
4(h) Refunding Agreement (Parish of 1-5663 10-Q(6/91) 10(c)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of May 1,
1991, between the Parish of
DeSoto, State of Louisiana and
the Company
4(i) $100,000,000 Credit Agreement 1-5663 10-Q(6/95) 4
dated as of June 15, 1995, among
the Company, certain Banks
parties thereto, and The Bank of
New York, as Agent
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SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
4(j) $25,000,000 Loan Agreement dated 1-5663 10-Q(3/97) 4
as of March 20, 1997, between
Whitney National Bank and the
Company
**10(a) 1990 Long-Term Incentive 1-5663 1990 Proxy A
Compensation Plan Statement
(4/90)
**10(b) 1981 Incentive Stock Option Plan 1-5663 10-K(1992) 10(i)
**10(c) Participation Agreement, Annual
Incentive Compensation Plan
**10(d) Deferred Compensation Plan for 1-5663 10-K(1992) 10(n)
Directors
**10(e)(1) Supplemental Executive Retirement 1-5663 10-K(1992) 10(o)(1)
Plan
**10(e)(2) Form of Supplemental Executive 1-5663 10-K(1992) 10(o)(2)
Retirement Plan Participation
Agreement between the Company
and the following officers:
Gregory L. Nesbitt, David M.
Eppler, Catherine C. Powell,
Darrell J. Dubroc and John L.
Baltes, Jr.
**10(f) Form of Executive Severance 1-5663 10-K(1995) 10(f)
Agreement between the Company
and the following officers:
Gregory L. Nesbitt, David M.
Eppler, Catherine C. Powell,
Darrell J. Dubroc and John L.
Baltes, Jr.
10(h)(1) Term Loan Agreement dated as of 1-5663 10-Q(3/91) 4(b)
April 2, 1991, among the 401(k)
Savings and Investment Plan ESOP
Trust, the Company, as
Guarantor, the Banks listed
therein and The Bank of New
York, as Agent
10(h)(2) Assignment and Assumption 1-5663 10-Q (3/91)
Agreement, effective as of May
6, 1991, between The Bank of New
York and the Canadian Imperial
Bank of Commerce, relating to
Exhibit 10(h)(1)
10(h)(3) Assignment and Assumption 1-5663 10-K(1991) 10(y)(3)
Agreement dated as of July 3,
1991, between The Bank of New
York and Rapides Bank and Trust
Company in Alexandria, relating
to Exhibit 10(h)(1)1
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
10(h)(4) Assignment and Assumption 1-5663 10-K(1992) 10(bb)(4)
Agreement dated as of July 6,
1992, among The Bank of New
York, CIBC, Inc. and Rapides
Bank and Trust Company in
Alexandria, as Assignors, the
401(k) Savings and Investment
Plan ESOP Trust, as Borrower,
and the Company, as Guarantor,
relating to Exhibit 10(h)(1)
*10(i) Reimbursement Agreement (The
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of October 15, 1997,
among the Company, various
financial institutions, and
Westdeutsche Landesbank
Gironzentiale, New York Branch,
as Agent
10(i)(1) Remarketing Agreement (The 1-5663 10-Q(9/94) 10(a)
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of July 19, 1994,
between the Company and
PaineWebber Incorporated
10(i)(2) Tender Agreement (The Industrial 1-5663 10-K(1991) 10(z)(2)
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
10(i)(3) Amendment No. 1 to Reimbursement 1-5663 10-K(1994) 10(p)(3)
Agreements (The Industrial
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991, 1991A and 1991B)
dated as of December 9, 1994,
among the Company, various
financial institutions, Swiss
Bank Corporation, New York
Branch, as Issuer of the Letters
of Credit, and Swiss Bank
Corporation, New York Branch, as
Agent, relating to Exhibits
10(i), 10(j) and 10(k)
*10(j) Reimbursement Agreement (Parish of
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of
October 15, 1997, among the
Company, various financial
institutions, and Westdeutsche
Landesbank Gironzentiale, New
York Branch, as Agent
10(j)(1) Remarketing Agreement (Parish of 1-5663 10-Q(9/94) 10(b)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of July
19, 1994, between the Company
and PaineWebber Incorporated
10(j)(2) Tender Agreement (Parish of 1-5663 10-K(1991) 10(aa)(2)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
*10(k) Reimbursement Agreement (Parish of
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of
October 15, 1997, among the
Company, various financial
institutions, and Westdeutsche
Landesbank Gironzentiale, New
York Branch, as Agent
10(k)(1) Remarketing Agreement (Parish of 1-5663 10-Q(9/94) 10(c)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of July
19, 1994, between the Company
and PaineWebber Incorporated
10(k)(2) Tender Agreement (Parish of 1-5663 10-K(1991) 10(bb)(2)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
10(l) Selling Agency Agreement between 333-02895 S-3(12/10/96) 1
the Company and Salomon Brothers
Inc, Merrill Lynch & Co., Smith
Barney Inc. and First Chicago
Capital Markets, Inc. dated as
of December 12, 1996
*10(m) 401(k) Savings and Investment Plan
ESOP Trust Agreement dated as of
August 1, 1997, between UMB
Bank, N.A. and the Company
*10(m)(1) First Amendment to 401(k) Savings
and Investment Plan ESOP Trust
Agreement dated as of October 1,
1997, between UMB Bank, N.A. and
the Company
*11 Computation of Net Income Per
Common Share
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
*12 Computation of Earnings to Fixed
Charges and Earnings to Combined
Fixed Charges and Preferred
Stock Dividends
*13 Management's Discussion and
Analysis of Financial Condition
and Results of Operations,
Consolidated Financial
Statements and Notes and Report
of Independent Accountants
*23 Consent of Independent Accountants
*24 Power of Attorney from each
Director of the Company whose
signature is affixed to this
Form 10-K for the year ended
December 31, 1997
*27 Financial Data Schedule UT
|
14(b) Reports on Form 8-K
During the three-month period ended December 31, 1997, the Company filed no Current Reports on Form 8-K.
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of Central Louisiana Electric Company, Inc.:
Our report on the consolidated financial statements of Central Louisiana Electric Company, Inc. has been incorporated by reference in this Form 10-K from page 32 of the 1997 Annual Report to Shareholders of Central Louisiana Electric Company, Inc. In connection with our audits of such financial statements, we have also audited the related financial statement schedule listed in Item 14(a)(2) on page 25 of this Form 10-K. This financial statement schedule is the responsibility of the Company's management. Our responsibility is to express an opinion on this financial statement schedule based upon our audit.
In our opinion, the financial statement schedule referred to above, when considered in relation to the basic financial statements taken as a whole, presents fairly, in all material respects, the information required to be included therein.
COOPERS & LYBRAND L.L.P.
New Orleans, Louisiana
January 27, 1998
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
(IN THOUSANDS)
COL. A COL. B COL. C COL. D COL. E
------------------------------------------- ---------- ---------- --------------- ------------
ADDITIONS UNCOLLECTIBLE
BALANCE AT CHARGED TO ACCOUNTS BALANCE AT
BEGINNING COSTS AND WRITE-OFFS, END OF
ALLOWANCE FOR UNCOLLECTIBLE ACCOUNTS OF PERIOD EXPENSES LESS RECOVERIES PERIOD(1)
------------------------------------ ---------- ---------- --------------- ------------
Year Ended December 31, 1997............... $681 $770 $767 $684
Year Ended December 31, 1996............... $538 $887 $744 $681
Year Ended December 31, 1995............... $444 $817 $723 $538
|
(1) Deducted in the balance sheet.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
CENTRAL LOUISIANA ELECTRIC
COMPANY, INC.
(Registrant)
/s/ GREGORY L. NESBITT
------------------------------------
Gregory L. Nesbitt, President
and Chief Executive Officer)
Date: March 31, 1998
|
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ GREGORY L. NESBITT President, Chief Executive Officer March 31, 1998
----------------------------------------------------- and Director
(Gregory L. Nesbitt) (Principal Executive Officer)
/s/ THOMAS J. HOWLIN Senior Vice President, Finance March 31, 1998
----------------------------------------------------- (Chief Financial Officer)
(Thomas J. Howlin)
SHERIAN G. CADORIA
RICHARD B. CROWELL
J. PATRICK GARRETT
F. BEN JAMES, JR.
HUGH J. KELLY Directors*
A. DELOACH MARTIN, JR.
ROBERT T. RATCLIFF
EDWARD M. SIMMONS
WILLIAM H. WALKER, JR.
* By: /s/ THOMAS J. HOWLIN March 31, 1998
-------------------------------------------------
(Thomas J. Howlin, as Attorney-in-Fact)
|
INDEX TO EXHIBITS
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
3(a) Restated Articles of Incorporation 1-5663 10-Q(3/92) 3
of the Company dated as of July
24, 1989, as amended through
April 24, 1992
3(b) Amended and Restated Bylaws of the 1-5663 10-Q(3/97) 3
Company, as amended to April 25,
1997
*4(a)(1) Indenture of Mortgage dated as of
July 1, 1950, between the
Company and First National Bank
of New Orleans, as Trustee
*4(a)(2) First Supplemental Indenture dated
as of October 1, 1951, to
Exhibit 4(a)(1)
*4(a)(3) Second Supplemental Indenture
dated as of June 1, 1952, to
Exhibit 4(a)(1)
*4(a)(4) Third Supplemental Indenture dated
as of January 1, 1954, to
Exhibit 4(a)(1)
*4(a)(5) Fourth Supplemental Indenture
dated as of November 1, 1954, to
Exhibit 4(a)(1)
4(a)(6) Tenth Supplemental Indenture dated 1-5663 10-K(1986) 4(a)(11)
as of September 1, 1965, to
Exhibit 4(a)(1)
4(a)(7) Eleventh Supplemental Indenture 2-32069 S-9(4/7/69) 2(m)
dated as of April 1, 1969, to
Exhibit 4(a)(1)
4(a)(8) Eighteenth Supplemental Indenture 1-5663 10-K(1993) 4(a)(8)
dated as of December 1, 1982, to
Exhibit 4(a)(1)
4(a)(9) Nineteenth Supplemental Indenture 1-5663 10-K(1993) 4(a)(9)
dated as of January 1, 1983, to
Exhibit 4(a)(1)
4(a)(10) Twenty-Sixth Supplemental 1-5663 8-K(3/90) 4(a)(27)
Indenture dated as of March 15,
1990, to Exhibit 4(a)(1)
4(b) Indenture between the Company and 33-24896 S-3(10/11/88) 4(b)
Bankers Trust Company, as
Trustee, dated as of October 1,
1988
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
4(b)(1) Agreement Appointing Successor 333-02895 S-3(4/26/96) 4(a)(2)
Trustee dated as of April 1,
1996 by and among Central
Louisiana Electric Company,
Inc., Bankers Trust Company and
The Bank of New York
4(c) Trust Indenture (The Industrial 1-5663 10-K(1991) 4(i)
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991) dated as of May 1,
1991, between The Industrial
Development Board of the Parish
of Rapides, Inc. and First
National Bank of Commerce
4(c)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(e)(1)
(The Industrial Development
Board of the Parish of Rapides,
Inc. (Louisiana) Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of May 1, 1993, between
The Industrial Development Board
of the Parish of Rapides, Inc.
and First National Bank of
Commerce, relating to Exhibit
4(c)
4(d) Refunding Agreement (The 1-5663 10-Q(6/91) 10(a)
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of May 1, 1991, between
the Company and The Industrial
Development Board of the Parish
of Rapides, Inc.
4(e) Trust Indenture (Parish of DeSoto, 1-5663 10-K(1991) 4(k)
State of Louisiana Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991A)
dated as of May 1, 1991, between
Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
4(e)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(g)(l)
(Parish of DeSoto, State of
Louisiana Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991A)
dated as of May 1, 1993, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce, relating to
Exhibit 4(e)
4(f) Refunding Agreement (Parish of 1-5663 10-Q(6/91) 10(b)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of May 1,
1991, between the Parish of
DeSoto, State of Louisiana and
the Company
4(g) Trust Indenture (Parish of DeSoto, 1-5663 10-K(1991) 4(m)
State of Louisiana Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991B)
dated as of May 1, 1991, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce
4(g)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(i)(1)
(Parish of DeSoto, State of
Louisiana Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991B)
dated as of May 1, 1993, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce, relating to
Exhibit 4(g)
4(h) Refunding Agreement (Parish of 1-5663 10-Q(6/91) 10(c)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of May 1,
1991, between the Parish of
DeSoto, State of Louisiana and
the Company
4(i) $100,000,000 Credit Agreement 1-5663 10-Q(6/95) 4
dated as of June 15, 1995, among
the Company, certain Banks
parties thereto, and The Bank of
New York, as Agent
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
4(j) $25,000,000 Loan Agreement dated 1-5663 10-Q(3/97) 4
as of March 20, 1997, between
Whitney National Bank and the
Company
**10(a) 1990 Long-Term Incentive 1-5663 1990 Proxy A
Compensation Plan Statement
(4/90)
**10(b) 1981 Incentive Stock Option Plan 1-5663 10-K(1992) 10(i)
**10(c) Participation Agreement, Annual
Incentive Compensation Plan
**10(d) Deferred Compensation Plan for 1-5663 10-K(1992) 10(n)
Directors
**10(e)(1) Supplemental Executive Retirement 1-5663 10-K(1992) 10(o)(1)
Plan
**10(e)(2) Form of Supplemental Executive 1-5663 10-K(1992) 10(o)(2)
Retirement Plan Participation
Agreement between the Company
and the following officers:
Gregory L. Nesbitt, David M.
Eppler, Catherine C. Powell,
Darrell J. Dubroc and John L.
Baltes, Jr.
**10(f) Form of Executive Severance 1-5663 10-K(1995) 10(f)
Agreement between the Company
and the following officers:
Gregory L. Nesbitt, David M.
Eppler, Catherine C. Powell,
Darrell J. Dubroc and John L.
Baltes, Jr.
10(h)(1) Term Loan Agreement dated as of 1-5663 10-Q(3/91) 4(b)
April 2, 1991, among the 401(k)
Savings and Investment Plan ESOP
Trust, the Company, as
Guarantor, the Banks listed
therein and The Bank of New
York, as Agent, relating to
Exhibit 10(m)
10(h)(2) Assignment and Assumption 1-5663 10-Q (3/91)
Agreement, effective as of May
6, 1991, between The Bank of New
York and the Canadian Imperial
Bank of Commerce, relating to
Exhibit 10(h)(1)
10(h)(3) Assignment and Assumption 1-5663 10-K(1991) 10(y)(3)
Agreement dated as of July 3,
1991, between The Bank of New
York and Rapides Bank and Trust
Company in Alexandria, relating
to Exhibit 10(h)(1)1
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
10(h)(4) Assignment and Assumption 1-5663 10-K(1992) 10(bb)(4)
Agreement dated as of July 6,
1992, among The Bank of New
York, CIBC, Inc. and Rapides
Bank and Trust Company in
Alexandria, as Assignors, the
401(k) Savings and Investment
Plan ESOP Trust, as Borrower,
and the Company, as Guarantor,
relating to Exhibit 10(h)(1)
*10(i) Reimbursement Agreement (The
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of October 15, 1997,
among the Company, various
financial institutions, and
Westdeutsche Landesbank
Gironzentiale, New York Branch,
as Agent
10(i)(1) Remarketing Agreement (The 1-5663 10-Q(9/94) 10(a)
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of July 19, 1994,
between the Company and
PaineWebber Incorporated
10(i)(2) Tender Agreement (The Industrial 1-5663 10-K(1991) 10(z)(2)
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
10(i)(3) Amendment No. 1 to Reimbursement 1-5663 10-K(1994) 10(p)(3)
Agreements (The Industrial
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991, 1991A and 1991B)
dated as of December 9, 1994,
among the Company, various
financial institutions, Swiss
Bank Corporation, New York
Branch, as Issuer of the Letters
of Credit, and Swiss Bank
Corporation, New York Branch, as
Agent, relating to Exhibits
10(i), 10(j) and 10(k)
*10(j) Reimbursement Agreement (Parish of
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of
October 15, 1997, among the
Company, various financial
institutions, and Westdeutsche
Landesbank Gironzentiale, New
York Branch, as Agent
10(j)(1) Remarketing Agreement (Parish of 1-5663 10-Q(9/94) 10(b)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of July
19, 1994, between the Company
and PaineWebber Incorporated
10(j)(2) Tender Agreement (Parish of 1-5663 10-K(1991) 10(aa)(2)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
*10(k) Reimbursement Agreement (Parish of
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of
October 15, 1997, among the
Company, various financial
institutions, and Westdeutsche
Landesbank Gironzentiale, New
York Branch, as Agent
10(k)(1) Remarketing Agreement (Parish of 1-5663 10-Q(9/94) 10(c)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of July
19, 1994, between the Company
and PaineWebber Incorporated
10(k)(2) Tender Agreement (Parish of 1-5663 10-K(1991) 10(bb)(2)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
10(l) Selling Agency Agreement between 333-02895 S-3(12/10/96) 1
the Company and Salomon Brothers
Inc, Merrill Lynch & Co., Smith
Barney Inc. and First Chicago
Capital Markets, Inc. dated as
of December 12, 1996
*10(m) 401(k) Savings and Investment Plan
ESOP Trust Agreement dated as of
August 1, 1997, between UMB
Bank, N.A. and the Company
*10(m)(1) First Amendment to 401(k) Savings
and Investment Plan ESOP Trust
Agreement dated as of October 1,
1997, between UMB Bank, N.A. and
the Company
*11 Computation of Net Income Per
Common Share
|
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
----------------------------------------------------------- ------------ ------------- ---------
*12 Computation of Earnings to Fixed
Charges and Earnings to Combined
Fixed Charges and Preferred
Stock Dividends
*13 Management's Discussion and
Analysis of Financial Condition
and Results of Operations,
Consolidated Financial
Statements and Notes and Report
of Independent Accountants
*23 Consent of Independent Accountants
*24 Power of Attorney from each
Director of the Company whose
signature is affixed to this
Form 10-K for the year ended
December 31, 1997
*27 Financial Data Schedule UT
|
EXHIBIT 4(a)(1)
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
TO
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
AS TRUSTEE
INDENTURE OF MORTGAGE
DATED AS OF JULY 1, 1950
FIRST MORTGAGE BONDS
TABLE OF CONTENTS*
PAGE
PARTIES .................................................................. 1
RECITALS ................................................................. 1
FORM OF COUPON BONDS OF SERIES A ......................................... 2
FORM OF COUPON FOR BONDS OF SERIES A ..................................... 8
FORM OF REGISTERED BOND WITHOUT COUPONS OF SERIES A ...................... 9
FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE ............................. 15
RECITAL AS TO FORMS OF BONDS OF OTHER SERIES ............................. 15
RECITAL OF COMPLIANCE WITH LEGAL REQUIREMENTS ............................ 16
GRANTING CLAUSES ......................................................... 16
DESCRIPTION OF PROPERTY .................................................. 17
GENERAL AND AFTER-ACQUIRED PROPERTY CLAUSES .............................. 43
APPURTENANCES, ETC. ...................................................... 47
PROPERTIES EXCEPTED FROM LIEN OF INDENTURE ............................... 48
HABENDUM ................................................................. 50
SUBJECT CLAUSE ........................................................... 50
GRANT IN TRUST ........................................................... 50
DEFEASANCE CLAUSE ........................................................ 50
COVENANT CLAUSE .......................................................... 51
ARTICLE I.
DEFINITIONS
SEC. 1.01 -- Explanatory Statement ...................................... 51
SEC. 1.02 -- "the Company" .............................................. 51
"the Trustee" .............................................. 52
"this Indenture" ........................................... 52
"bond" or "bonds" .......................................... 52
"holder" ................................................... 52
"person" ................................................... 52
"outstanding" -- as to bonds ............................... 52
"resolution" and "resolution of the Board of Directors" .... 54
"officers' certificate" .................................... 54
"opinion of counsel" ....................................... 54
"independent" .............................................. 55
"control" .................................................. 55
"affiliate" ................................................ 55
"responsible officers" -- of the Trustee ................... 55
"daily newspaper" .......................................... 55
|
PAGE
SEC. 1.03 -- "property" ................................................. 56
"the lien hereof" and "the lien of this Indenture".......... 56
"the mortgaged and pledged property"........................ 56
"property additions"........................................ 56
"amount" ................................................... 58
"bondable property" ........................................ 58
"nonbondable property" ..................................... 58
"cost" ..................................................... 59
"fair value to the company" ................................ 61
SEC. 1.04 -- "permitted liens" .......................................... 62
"funded liens" ............................................. 63
"unfunded liens" ........................................... 63
SEC. 1.05 -- "retirements of bondable property and amount thereof" ...... 64
"minimum provision for property retirements or
depreciation" ........................................... 65
"amount of net property retirements" ....................... 65
SEC. 1.06 -- (A) "bondable value of property additions" ................. 65
(B) Officers' certificate of bondable value of property
additions, requirements of .......................... 66
(C) Documents to accompany officers' certificate of
bondable value of property additions ................. 69
SEC. 1.07 -- "net earnings certificate" ................................. 71
"interest earnings requirement" ............................ 74
ARTICLE II.
DESCRIPTION, FORM, EXECUTION, REGISTRATION AND EXCHANGE OF BONDS
SEC. 2.01 -- Bonds issuable in series ................................... 75
Forms of bonds ............................................. 75
Matters in respect of which bonds of the several series
may differ ............................................... 76
SEC. 2.02 -- Execution of bonds ......................................... 76
SEC. 2.03 -- Registered bonds without coupons ........................... 78
SEC. 2.04 -- Registration of coupon bonds, effect of .................... 79
SEC. 2.05 -- Exchanges of bonds ......................................... 80
Restrictions upon exchanges or transfers ................... 80
Charges upon exchange or transfer .......................... 81
SEC. 2.06 -- Exchange of bonds upon merger or consolidation of
the Company .............................................. 81
SEC. 2.07 -- Temporary bonds ............................................ 82
SEC. 2.08 -- Mutilated, destroyed, lost or stolen bonds and coupons ..... 83
SEC. 2.09 -- Cancellation of surrendered bonds .......................... 84
SEC. 2.10 -- Designation, provisions and denominations of bonds of
Series A ................................................. 85
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ARTICLE III.
GENERAL PROVISIONS AS TO CERTIFICATES AND OPINIONS
PAGE
SEC. 3.01 -- Who may sign certificates and opinions ..................... 86
Required statements ........................................ 86
Accompanying opinion of counsel and certificate of
officers ................................................. 87
Basis of certificate or opinion ............................ 87
ARTICLE IV.
ISSUANCE OF BONDS
SEC. 4.01 -- Amount of bonds which may be secured hereby ................ 88
Board of directors of Executive Committee may fix
terms and consideration for issue, etc. of bonds ......... 88
SEC. 4.02 -- $5,500,000 of bonds of Series A issuable forthwith ......... 89
SEC. 4.03 -- Bonds issuable on basis of property additions .............. 89
SEC. 4.04 -- Bonds issuable upon retirement of bonds previously
outstanding hereunder .................................... 90
SEC. 4.05 -- Bonds issuable upon deposit of cash with Trustee ........... 92
Withdrawal, use or application of cash so deposited ........ 92
SEC. 4.06 -- Documentary requirements for issuance of bonds ............. 93
SEC. 4.07 -- Requirement as to net earnings for issuance of bonds in
certain cases ............................................ 94
ARTICLE V.
PARTICULAR COVENANTS OF THE COMPANY
SEC. 5.01 -- Lawful possession; maintenance of lien; right of
mortgage ................................................. 94
Discharge and satisfaction of existing prior Indenture ..... 95
SEC. 5.02 -- Payment of principal and interest; cancellation
of coupons ............................................... 96
Non-extension of time for payment of interest .............. 96
SEC. 5.03 -- Maintenance of office or agency for payments,
notices, etc. ............................................ 96
Failure to maintain such office or agency .................. 96
SEC. 5.04 -- Duties of paying agent other than Trustee .................. 97
SEC. 5.05 -- Payment of taxes, etc., discharge of liens ................. 98
SEC. 5.06 -- Insurance on property of Company ........................... 99
SEC. 5.07 -- Covenants as to maintenance ................................ 101
Depreciation certificate ................................... 102
"depreciation credit" ...................................... 103
"unsatisfied balance" ...................................... 103
Withdrawal, use or application of cash deposited
hereunder ................................................ 104
SEC. 5.08 -- Maintenance of corporate existence and franchises .......... 105
SEC. 5.09 -- Advances by Trustee ........................................ 105
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PAGE
SEC. 5.10 -- Instruments of further assurance ........................... 106
SEC. 5.11 -- Recording, filing of this Indenture, etc. .................. 106
SEC. 5.12 -- Books of record and account; inspection
thereof .................................................. 107
SEC. 5.13 -- Not to issue or permit to be issued any bonds hereunder
other than in accordance with provisions of this
Indenture and faithful performance of covenants,
conditions, etc. ......................................... 107
SEC. 5.14 -- Procedure upon cancellation and discharge of any unfunded
lien ..................................................... 107
SEC. 5.15 -- Not to purchase property subject to unfunded lien, if
thereby the aggregate of unfunded lien bonds which
exceed 15% of all bonds issued hereunder ................. 108
SEC. 5.16 -- Not to permit a default on any unfunded lien ............... 108
SEC. 5.17 -- Will appoint a Trustee to avoid vacancy .................... 108
SEC. 5.18 -- Will not merge or consolidate or sell property
substantially as a whole except on prescribed
conditions ............................................... 108
SEC. 5.19 -- Recitals are true .......................................... 109
SEC. 5.20 -- Dividend restriction ....................................... 109
SEC. 5.21 -- Examination of mortgaged property .......................... 109
SEC. 5.22 -- Qualify the Indenture under Trust Indenture Act upon
request .................................................. 112
SEC. 5.23 -- Deposit with Trustee of part of proceeds of original
issue of bonds of Series A ............................... 112
ARTICLE VI.
SINKING FUND FOR BONDS OF SERIES A
SEC. 6.01 -- Covenant to pay certain amounts in cash to Trustee for a
sinking fund for bonds of Series A ....................... 113
Trustee to apply cash to purchase or redemption of bonds
of Series A .............................................. 114
SEC. 6.02 -- Covenant to pay expenses of Trustee to administer sinking
fund ..................................................... 114
SEC. 6.03 -- Bonds delivered to Trustee for credit against sinking fund
requirements and bonds purchased or redeemed to be
cancelled ................................................ 114
ARTICLE VII.
BONDHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SEC. 7.01 -- Company to furnish bondholders' lists to Trustee ........... 114
SEC. 7.02 -- (A) Preservation of information by Trustee ................. 115
Destruction of information by Trustee; conditions
thereof .............................................. 115
(B) Access of bondholders to list: conditions thereof ...... 115
Alternatives of Trustee to granting access to
bondholders' list ...................................... 116
(C) Trustee not accountable for mailing material ........... 117
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PAGE
SEC. 7.03 -- (A) Company to file with Trustee copies of reports filed
with Securities and Exchange Commission .............. 117
(B) Filing of additional reports, etc., may be required .... 117
(C) Summaries of reports, etc., to be sent to
bondholders .......................................... 118
(D) Company to file with Trustee financial statements in
certain cases ........................................ 118
(E) Officers' certificate .................................. 118
SEC. 7.04 -- (A) Annual information to be furnished to bondholders by
Trustee .............................................. 119
(1) Eligibility of Trustee ........................... 119
(2) Advances made by Trustee ......................... 119
(3) Particulars of indebtedness of Company to
Trustee, individually .......................... 119
(4) Property in possession of Trustee, as such ....... 119
(5) Releases of property ............................. 119
(6) Additional issues of bonds ....................... 120
(7) Performance of Trustee's duties .................. 120
(B) Additional reports ..................................... 120
(1) Releases of property ............................. 120
(2) Advances made by the Trustee ..................... 120
(C) Bondholders entitled to reports ........................ 121
(D) Reports to be filed with Securities and Exchange
Commission and Stock Exchanges ....................... 121
(E) Reports by individual trustee, separate trustee or
co-trustee ........................................... 121
(F) Bonds to be deemed outstanding ......................... 122
ARTICLE VIII.
REDEMPTION OR PURCHASE OF BONDS
SEC. 8.01 -- What bonds redeemable ...................................... 122
SEC. 8.02 -- Notice of redemption ....................................... 123
Redemption of part of any series ........................... 124
SEC. 8.03 -- Redemption moneys to be deposited with Trustee ............. 125
Bonds cease to bear interest ............................... 125
Redemption of portion of registered bonds .................. 126
SEC. 8.04 -- Deposit of redemption price with Trustee; application
thereof; effect thereof .................................. 126
SEC. 8.05 -- If redemption date be a legal holiday ...................... 126
SEC. 8.06 -- Purchase of bonds by Trustee .............................. 127
Price ..................................................... 127
Procedure ................................................. 127
SEC. 8.07 -- Expenses of Trustee on purchase or redemption to be paid
by Company ............................................... 128
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ARTICLE IX.
POSSESSION, USE AND RELEASE OF MORTGAGED AND PLEDGED PROPERTY
PAGE
SEC. 9.01 -- Company's possession and enjoyment ......................... 128
SEC. 9.02 -- What Company may do without release or consent by
Trustee .................................................. 129
SEC. 9.03 -- (A) Release of property by Trustee ......................... 130
(B) Officers' certificate and accompanying certificates
and opinions ......................................... 132
(C) Release of property subject to an unfunded lien ....... 138
SEC. 9.04 -- (A) Release of property upon sale or exchange; conditions
thereof .............................................. 139
Company covenants to subject consideration to lien
hereof ............................................... 140
(B) Release of certain nonbondable property; conditions
thereof .............................................. 140
SEC. 9.05 -- Release of property taken by eminent domain or purchased
by governmental body ..................................... 142
SEC. 9.06 -- (A) Withdrawal, use or application of money received by
Trustee for releases ................................. 142
(B) Withdrawal of money representing release of
nonbondable property ................................. 144
SEC. 9.07 -- (A) Disposition of unfunded lien bonds and sums paid
thereon .............................................. 145
(B) Disposition of evidences of indebtedness and sums
paid thereon ......................................... 147
Disposition of amounts paid on stock ................... 148
Trustee's rights with respect to pledged evidences of
indebtedness and stock ............................... 149
SEC. 9.08 -- When property in hands of receiver or trustee .............. 149
SEC. 9.09 -- Trustee in its discretion may exercise powers under this
Article notwithstanding default .......................... 150
SEC. 9.10 -- Purchaser need not ascertain authority of Trustee, etc. .... 150
SEC. 9.11 -- Property acquired to take the place of property released
to be subjected to the lien hereof ....................... 150
ARTICLE X.
REMEDIES OF TRUSTEES AND BONDHOLDERS UPON DEFAULT
SEC. 10.01 -- What constitutes "completed default" ....................... 151
Declaration of principal and accrued interest due upon
default .................................................. 152
Holders of majority in amount of bonds may annul
declaration .............................................. 153
SEC. 10.02 -- Trustee to notify bondholders of known defaults;
exceptions ............................................... 153
SEC. 10.03 -- Trustee may take possession and operate .................... 153
Application of income ...................................... 154
When Trustee shall surrender possession to Company ......... 155
Trustee entitled to receive sums payable on bonds .......... 155
Procedure if receiver appointed ............................ 155
SEC. 10.04 -- Power to sell all the mortgaged property ................... 156
Notice by publication ...................................... 156
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SEC. 10.05 -- Judicial proceedings by Trustee ............................ 156
When action by Trustee obligatory .......................... 157
SEC. 10.06 -- Holders of majority in amount of bonds may direct sale
of property, etc. ........................................ 157
SEC. 10.07 -- Appointment of receiver .................................... 158
SEC. 10.08 -- All bonds to become due and payable upon sale of
property ................................................. 158
SEC. 10.09 -- Purchase by bondholders .................................... 158
SEC. 10.10 -- Receipt of Trustee or sale officer as discharge to
purchaser ................................................ 158
SEC. 10.11 -- Effect of sale on rights of Company ........................ 159
SEC. 10.12 -- Disposition of proceeds of sale ............................ 159
Order of application
(1) taxes, etc., compensation of Trustee ................. 160
(2) principal and interest ............................... 160
(3) redemption premiums .................................. 161
(4) surplus to Company ................................... 161
SEC. 10.13 -- Waiver of advantage of any appraisement, valuation,
stay, extension or redemption laws and of right to
marshal assets ........................................... 161
SEC. 10.14 -- Right of Trustee to sue as trustee of express trust ........ 161
Judgment may be taken by Trustee ........................... 162
Lien of Indenture not to be affected by judgment or
levy of execution thereon ................................ 163
Powers of Trustee in reorganization, bankruptcy, etc.,
proceedings .............................................. 163
Application of moneys collected ............................ 163
Trustee's right of entry, etc.; to appointment of
receiver; to retain possession of stocks, etc. ........... 164
SEC. 10.15 -- Possession of bonds unnecessary in action by Trustee ....... 164
SEC. 10.16 -- Limitations on rights of bondholders to institute legal
proceedings under Indenture .............................. 164
SEC. 10.17 -- Court may require undertaking for costs .................... 165
SEC. 10.18 -- Waivers of period of grace ................................. 166
SEC. 10.19 -- If proceedings abandoned or determined adversely to
Trustee, Trustee and Company restored to former
position and rights ...................................... 166
SEC. 10.20 -- Irrevocable appointment of Trustee as attorney-in-fact
of bondholders ........................................... 166
SEC. 10.21 -- Remedies cumulative ........................................ 167
Delay, etc. no waiver of rights ............................ 167
Waiver of default not to extend to subsequent default ...... 167
ARTICLE XI.
EVIDENCE OF BONDHOLDERS' ACTION AND OWNERSHIP OF BONDS
SEC. 11.01 -- Evidence of action by bondholders .......................... 167
Proof of execution of instrument or writing ................ 168
Proof of amount of bonds held .............................. 168
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PAGE
SEC. 11.02 -- Ownership of temporary or coupon bonds and coupons ......... 168
Ownership of registered bonds .............................. 169
Inspection of bonds ........................................ 169
SEC. 11.03 -- In determining whether holders of requisite amount of
bonds have concurred in any demand, etc., bonds
owned by Company or affiliate to be disregarded .......... 169
SEC. 11.04 -- Bondholder may revoke consent prior to evidencing to
Trustee of taking of action by bondholders ............... 169
ARTICLE XII.
IMMUNITY OF INCORPORATORS, SUBSCRIBERS TO THE CAPITAL STOCK;
STOCKHOLDERS, OFFICERS AND DIRECTORS
SEC. 12.01 -- No recourse clause ......................................... 170
ARTICLE XIII.
EFFECT OF MERGER, CONSOLIDATION, ETC.
SEC. 13.01 -- Company may merge, consolidate, etc., upon certain
terms ..................................................... 171
No impairment of lien ....................................... 171
Assumption of obligations ................................... 171
SEC. 13.02 -- Right of successor corporation .............................. 172
Execution of indenture assuming obligations ................. 172
Right to issue bonds, etc. .................................. 172
SEC. 13.03 -- Extent of lien in case of consolidation, etc. ............... 174
ARTICLE XIV.
CONCERNING THE TRUSTEE
SEC. 14.01 -- Eligibility Requirements .................................... 174
Office of Trustee not to be vacant .......................... 175
SEC. 14.02 -- Acceptance of trust ......................................... 175
Degree of care to be exercised by Trustee ................... 175
SEC. 14.03 -- Limitations on liability of Trustee ......................... 175
SEC. 14.04 -- Recitals are by Company ..................................... 176
SEC. 14.05 -- Limitation on personal liability of Trustee after
entry ..................................................... 176
SEC. 14.06 -- Notice by Trustee to Company ................................ 176
SEC. 14.07 -- When Trustee protected in relying on documents and
opinions of counsel ....................................... 177
SEC. 14.08 -- Trustee not responsible for approval of experts;
exceptions ................................................ 177
SEC. 14.09 -- Trustee may own bonds ....................................... 178
SEC. 14.10 -- Money received by Trustee hereunder to be held in
trust ..................................................... 178
SEC. 14.11 -- Compensation of Trustee ..................................... 178
Indemnity of Trustee ........................................ 178
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PAGE
SEC. 14.12 -- Proof of matters by certificate ............................ 179
SEC. 14.13 -- Incidental powers of Trustee ............................... 179
SEC. 14.14 -- Trustee may not have a conflicting interest ................ 179
When Trustee deemed to have a conflicting interest ......... 180
Definition of terms used in Section 14.14 (D) .............. 183
"security" and "securities" ................................ 183
"voting security" .......................................... 183
"director" ................................................. 183
"executive officer" ........................................ 184
"underwriter" .............................................. 184
"Company" .................................................. 184
Computation of percentages under Section 14.14 (D) ......... 184
Definition of terms used in Section 14.14 (E) .............. 185
"amount" ................................................... 185
"outstanding" .............................................. 185
Application of this section to separate or co-trustee ...... 185
SEC. 14.15 -- Obligation of Trustee as creditor of Company to
account .................................................. 186
Exceptions to obligation to account ........................ 186
Disposition of special account ............................. 187
This section binding on Trustee who has resigned ........... 188
"default" defined for this section ......................... 189
Creditor relationships excluded from this section in
certain cases ........................................... 189
Definition of terms used in this section ................... 190
"cash transaction" ......................................... 190
"self-liquidating paper" ................................... 190
"Trustee" .................................................. 190
"Company" .................................................. 190
SEC. 14.16 -- Trustee may resign; procedure .............................. 190
SEC. 14.17 -- Trustee may be removed; procedure .......................... 191
SEC. 14.18 -- Appointment of successor trustee; procedure ................ 191
Lien of Trustee after resignation or removal ............... 192
SEC. 14.19 -- Appointment of separate or co-trustee ...................... 193
Conditions subject to which separate or co-trustee is
to be appointed .......................................... 193
(1) Rights, etc., to be exercised jointly ................ 193
(2) Authentication of bonds .............................. 193
(3) Removal or resignation of separate or co-trustee;
appointment of successor ........................... 194
No personal liability for acts of other trustees ........... 194
Notices to trustees ........................................ 194
Contents, filing, etc., of instruments appointing
co-trustee ............................................... 194
Separate or co-trustee may appoint Trustee as agent ........ 195
Effect of resignation, incapacity of separate or
co-trustee ............................................... 195
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SEC. 14.20 -- Instruments to be executed by successor trustee ............ 195
Requirements of predecessor on retiring .................... 195
SEC. 14.21 -- Effect of merger or consolidation of Trustee ............... 196
SEC. 14.22 -- Claims of Trustees, etc. ................................... 196
ARTICLE XV.
DEFEASANCE
SEC. 15.01 -- Satisfaction and discharge of Indenture .................... 199
SEC. 15.02 -- Application by Trustee of funds deposited for payment
of bonds and coupons ..................................... 200
SEC. 15.03 -- Repayment of moneys held by paying agent ................... 200
SEC. 15.04 -- When Trustee to pay over to Company moneys unclaimed ....... 200
ARTICLE XVI.
MEETINGS OF BONDHOLDERS
SEC. 16.01 -- Purposes for which meetings may be called .................. 201
SEC. 16.02 -- Manner of calling meetings ................................. 201
Determination of bonds which shall be deemed to be
affected ................................................. 202
SEC. 16.03 -- Call of meetings by company or bondholders ................. 202
SEC. 16.04 -- Who may attend and vote at meetings ........................ 203
SEC. 16.05 -- Regulations may be made by Trustee ......................... 203
Conduct of meeting; voting rights; adjournment ............. 204
SEC. 16.06 -- Manner of voting at meetings and record to be kept ......... 204
SEC. 16.07 -- Exercise of rights of Trustee and bondholders not
to be hindered or delayed ................................ 205
ARTICLE XVII.
SUPPLEMENTAL INDENTURES
SEC. 17.01 -- Purposes for which supplemental indentures may be
entered into without consent of bondholders .............. 205
SEC. 17.02 -- Modification of Indenture with consent of 75% in
principal amounts of bonds ............................... 207
SEC. 17.03 -- Effect of supplemental indentures .......................... 208
SEC. 17.04 -- Bonds may bear notation of changes by supplemental
indentures ............................................... 209
ARTICLE XVIII.
MISCELLANEOUS
SEC. 18.01 -- Limitation of rights hereunder ............................. 209
SEC. 18.02 -- Investment of cash by Trustee in certain securities ........ 209
Such securities held by Trustee as part of mortgaged
and pledged property ..................................... 210
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PAGE
SEC. 18.03 -- Deposit with Trustee of funds to pay bonds and
coupons .................................................. 210
SEC. 18.04 -- Successors and assigns ..................................... 211
SEC. 18.05 -- Trust Indenture Act requirements control ................... 211
SEC. 18.06 -- "Trust Indenture Act of 1939" defined ...................... 211
SEC. 18.07 -- Authority of Trustee to cancel Indenture or release
property from the lien thereof ........................... 211
SEC. 18.08 -- Titles of Articles not part of Indenture ................... 211
SEC. 18.09 -- Execution in counterparts .................................. 212
TESTIMONIUM .............................................................. 212
SIGNATURES AND SEALS ..................................................... 212
ACKNOWLEDGEMENTS ......................................................... 213
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INDENTURE dated as of the first day of July, 1950, made by and between CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under and by virtue of the laws of the State of Louisiana (hereinafter sometimes called the "Company"), party of the first part, and THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, a national banking association, duly organized and existing under the laws of the United States of America, and having its principal office and place of business in the City of New Orleans, Louisiana, as Trustee (hereinafter called the "Trustee"), party of the second part.
WHEREAS, the Company desires to borrow money from time to time for its corporate purposes and to issue its bonds therefor, and to mortgage and pledge its property, hereinafter described, or mentioned, to secure the payment of said bonds, and to that end has duly authorized the issue of its bonds, from time to time, limited to $100,000,000 principal amount, at any one time outstanding, to be designated generally as its "First Mortgage Bonds", to be issued in one or more series, the bonds of each series to be issuable either as coupon bonds registerable as to principal or as registered bonds without coupons, or both, all such bonds to be authenticated by the certificate of the Trustee, the bonds of such series to bear such date or dates, to mature on such date or dates, to bear interest at such rate or rates and to contain such other terms and provisions as are required or permitted by this Indenture; and
WHEREAS, the bonds of the initial series, to be designated as First Mortgage Bonds, Series A, 3% (hereinafter referred to as the "bonds of Series A"), the interest coupons to be attached to the coupon bonds of Series A, and the Trustee's certificate of authentication to be endorsed on the bonds of all series, are to be substantially in the forms following respectively:
[FORM OF COUPON BOND OF SERIES A]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
FIRST MORTGAGE BOND, SERIES A, 3%
Due July 1, 1980
No. $1000
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (hereinafter called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to bearer, or, if this bond be registered as to principal, to the registered holder hereof, on July 1, 1980, at the office or agency of the Company in the City of New Orleans, Louisiana, One Thousand Dollars ($1000) in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay interest thereon semi-annually on January 1 and July 1 of each year at the rate of three per centum (3%) per annum at such office or agency in like coin or currency, from July 1, 1950, until this bond shall mature, according to its terms or on prior redemption or by declaration or otherwise, but only upon presentation and surrender of the coupons for such interest installments as are evidenced thereby, hereto appertaining, as they shall severally mature.
This bond is one of an authorized issue of bonds of the Company known as its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000) at any one time outstanding, issued and to be issued, in one or more series, and equally and ratably secured (except insofar as a sinking fund or other similar fund established in accordance with the provisions of the Indenture may afford additional security for the bonds of any specific series) by an indenture (herein called the "Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as Trustee (hereinafter called the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Company in
respect of such security, the rights, duties and immunities of the Trustee, and the terms and conditions upon which the bonds are, and are to be, secured. As provided in the Indenture, the bonds may be issued in series for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This bond is one of the bonds described in the Indenture and designated therein as "First Mortgage Bonds, Series A, 3%" (hereinafter referred to as the "bonds of Series A").
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in aggregate principal amount of the bonds at the
time outstanding of the one or more series affected, determined and evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any bonds, or reduce the rate or extend the time
of payment of interest thereon, or modify the terms of payment of principal at
maturity or by redemption, or otherwise modify the terms of payment of any
bond, without the consent of the holder of each bond so affected, or (ii)
reduce the percentage of bonds, the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of all
bonds then outstanding, or (iii) permit the creation of any lien ranking prior
to or equal with the lien of the Indenture on any of the mortgaged and pledged
property without the consent of the holders of all bonds then outstanding, or
(iv) deprive the holder of any outstanding bond of the lien of the Indenture on
any of the mortgaged and pledged property without the consent of the holder of
each bond so affected. Any such consent by the holder of this bond (unless
effectively revoked as provided
in the Indenture) shall be conclusive and binding upon such holder and upon all future holders of this bond, irrespective of whether or not any notation of such consent is made upon this bond. No reference herein to the Indenture and no provision of this bond or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay at the stated or accelerated maturity herein and in the Indenture provided, the principal of and interest and premium, if any, on this bond at the time and place and at the rate and in the coin or currency herein prescribed.
The coupon bonds of Series A are issuable in the denominations of $1,000. The registered bonds without coupons of Series A are issuable in denominations of $1,000 and any multiple of $1,000. At the office or agency to be maintained by the Company in said City of New Orleans and in the manner, subject to the limitations, and upon payment of the charges provided in the Indenture, coupon bonds of such series, with all unmatured coupons and any matured coupons in default thereto appertaining, may be exchanged for a like aggregate principal amount of registered bonds without coupons of such series, and registered bonds without coupons of such series may be exchanged for a like aggregate principal amount of coupon bonds of such series bearing all unmatured coupons and any matured coupons in default or for a like aggregate principal amount of registered bonds without coupons of such series of other authorized denominations.
The bonds of Series A are entitled to the benefit of the Sinking Fund provided for in Section 6.01 of the Indenture.
The bonds of Series A may be redeemed, either at the option of the Company or pursuant to certain requirements of the Indenture, on any date prior to maturity, as a whole or from time to time in part, upon publication at least once in each of four successive calendar weeks, upon any business day of each such calendar week, of notice of such redemption in a newspaper printed in the English language and customarily published on each business day and of general circulation in said City of New Orleans, the first publication to be not less than thirty (30) days and not more than sixty (60) days before such redemption date (provided, however, that if all the bonds of Series A
at the time outstanding shall be registered bonds without coupons or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, such notice may be given by mailing the same to each registered holder of a bond so to be redeemed directed to his registered address not less than thirty (30) days and not more than sixty (60) days before the redemption date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds of Series A, provided for in Section 6.01 of the Indenture or moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series A are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, at the redemption price at the time applicable, as set forth in Column A of the following schedule, and if redeemed otherwise than by the application of such moneys, the bonds of Series A are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in Column B of the following schedule, together with, in each case, interest accrued to the date fixed for redemption:
Redemption Price
Table A Table B
If redeemed during the period: (Percentage of Principal Amount)
July 1, 1950---June 30, 1951......... 100.50 103.50
July 1, 1951---June 30, 1952......... 100.50 103.38
July 1, 1952---June 30, 1953......... 100.50 103.27
July 1, 1953---June 30, 1954......... 100.50 103.15
July 1, 1954---June 30, 1955......... 100.50 103.03
July 1, 1955---June 30, 1956......... 100.50 102.92
July 1, 1956---June 30, 1957......... 100.50 102.80
July 1, 1957---June 30, 1958......... 100.50 102.68
July 1, 1958---June 30, 1959......... 100.49 102.57
July 1, 1959---June 30, 1960......... 100.47 102.45
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Redemption Price
Table A Table B
If redeemed during the period: (Percentage of Principal Amount)
July 1, 1960---June 30, 1961........ 100.46 102.33
July 1, 1961---June 30, 1962........ 100.44 102.22
July 1, 1962---June 30, 1963........ 100.42 102.10
July 1, 1963---June 30, 1964........ 100.40 101.98
July 1, 1964---June 30, 1965........ 100.39 101.87
July 1, 1965---June 30, 1966........ 100.37 101.75
July 1, 1966---June 30, 1967........ 100.35 101.63
July 1, 1967---June 30, 1968........ 100.33 101.52
July 1, 1968---June 30, 1969........ 100.31 101.40
July 1, 1969---June 30, 1970........ 100.29 101.28
July 1, 1970---June 30, 1971........ 100.26 101.17
July 1, 1971---June 30, 1972........ 100.24 101.05
July 1, 1972---June 30, 1973........ 100.22 100.93
July 1, 1973---June 30, 1974........ 100.19 100.82
July 1, 1974---June 30, 1975........ 100.17 100.70
July 1, 1975---June 30, 1976........ 100.14 100.58
July 1, 1976---June 30, 1977........ 100.12 100.47
July 1, 1977---June 30, 1978........ 100.09 100.35
July 1, 1978---June 30, 1979........ 100.06 100.23
July 1, 1979---June 30, 1980........ 100.03 100.12
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If this bond is called for redemption and payment hereof is duly provided for as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the Trustee in trust for the purpose funds sufficient to pay the principal of all of the bonds of any series, or such of the bonds of any series as have been or are to be called for redemption, and premium, if any, thereon, and all interest payable on such bonds to the date on which they become due and payable at maturity or upon redemption or otherwise, and shall comply with the other provisions of the Indenture in respect thereof, then from the date of such deposit such bonds shall no longer be entitled to any lien or benefit under the Indenture.
The principal hereof may be declared or may become due prior to the express date of the maturity hereof on the conditions, in the manner and at the time set forth in the Indenture, upon the occurrence of a completed default as in the Indenture provided; subject, however, to the right, under certain circumstances, of the holders of a majority in the principal amount of the bonds outstanding to annul such declaration.
This bond is negotiable and shall pass by delivery unless registered as to principal at the office or agency of the Company in said City of New Orleans, and such registration noted hereon, after which no valid transfer hereof can be made, except at such office or agency, until after registered transfer to bearer, but after such registered transfer to bearer this bond shall be again transferable by delivery. Such registration, however, shall not affect the negotiability of the coupons, which shall always remain payable to bearer, be treated as negotiable and pass by delivery. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the bearer of this bond if it is not registered as to principal, or, if this bond is registered as herein authorized, the person in whose name this bond is registered, as the absolute owner hereof, and the bearer of any coupon hereunto appertaining, as the absolute owner thereof, whether or not this bond or such coupon shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.
Neither this bond nor the coupons hereto attached shall become valid or obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture, or its successor thereunder, shall have signed the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this bond to be signed in its name by its President or one of its Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed hereto and attested by its Secretary or one of its Assistant Secretaries, and interest coupons bearing the facsimile signature of its Treasurer to be attached hereto, and this bond to be dated July 1, 1950.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
(Form of Coupon for Bonds of Series A)
$15.00
On the first day of , 19 , unless the bond hereinafter mentioned shall have been called for previous redemption and payment of the redemption price thereof shall have been duly provided for, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. will pay to bearer, upon surrender of this coupon, at its office or agency in the City of New Orleans, Louisiana, Fifteen Dollars in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, being six months' interest then due on its First Mortgage Bond, Series A, 3%, No.
Treasurer.
[FORM OF REGISTERED BOND OF SERIES A]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series A, 3%
Due July 1, 1980
No. $
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (hereinafter called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to or registered assigns on July 1, 1980, at the office or agency of the Company in the City of New Orleans, Louisiana, ($ ) in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay interest thereon semi-annually on January 1 and July 1 of each year, at the rate of three per centum (3%) per annum, at such office or agency, in like coin or currency, from the interest payment date next preceding the date of this bond, or if this bond be dated prior to January 1, 1951 then from July 1, 1950, until this bond shall mature, according to its terms or on prior redemption or by declaration or otherwise.
This bond is one of an authorized issue of bonds of the Company known as its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000) at any one time outstanding, issued and to be issued, in one or more series, and equally and ratably secured (except insofar as a sinking fund or other similar fund established in accordance with the provisions of the Indenture may afford additional security for the bonds of any specific series) by an indenture (herein called the "Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as Trustee (hereinafter called the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Company in respect of such security, the rights, duties and im-
munities of the Trustee, and the terms and conditions upon which the bonds are, and are to be, secured. As provided in the Indenture, the bonds may be issued in series for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This bond is one of the bonds described in the Indenture and designated therein as "First Mortgage Bonds, Series A, 3%" (hereinafter referred to as the "bonds of Series A").
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 75% in aggregate principal amount of all the bonds at the time outstanding, determined and evidenced as in the Indenture provided, or in case the rights under the Indenture of the holders of bonds of one or more, but less than all, of the series of bonds outstanding shall be affected, then with the consent of the holders of not less than 75% in aggregate principal amount of the bonds at the time outstanding of the one or more series affected, determined and evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the holders of the bonds and coupons; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any bonds, or reduce the rate or extend the time of payment of interest thereon, or modify the terms of payment of principal at maturity or by redemption, or otherwise modify the terms of payment of any bond, without the consent of the holder of each bond so affected, or (ii) reduce the percentage of bonds, the holders of which are required to consent to any such supplemental indenture, without the consent of the holders of all bonds then outstanding, or (iii) permit the creation of any lien ranking prior to or equal with the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holders of all bonds then outstanding, or (iv) deprive the holder of any outstanding bond of the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holder of each bond so affected. Any such consent by the holder of this bond (unless effectively revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future
holders of this bond, irrespective of whether or not any notation of such consent is made upon this bond. No reference herein to the Indenture and no provision of this bond or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay at the stated or accelerated maturity herein and in the Indenture provided, the principal of and interest and premium, if any, on this bond at the time and place and at the rate and in the coin or currency herein prescribed.
The coupon bonds of Series A are issuable in the denominations of $1,000. The registered bonds without coupons of Series A are issuable in denominations of $1,000 and any multiple of $1,000. At the office or agency to be maintained by the Company in said City of New Orleans and in the manner, subject to the limitations, and upon payment of the charges provided in the Indenture, coupon bonds of such series, with all unmatured coupons and any matured coupons in default thereto appertaining, may be exchanged for a like aggregate principal amount of registered bonds without coupons of such series, and registered bonds without coupons of such series may be exchanged for a like aggregate principal amount of coupon bonds of such series bearing all unmatured coupons and any matured coupons in default or for a like aggregate principal amount of registered bonds without coupons of such series of other authorized denominations.
The bonds of Series A are entitled to the benefit of the Sinking Fund provided for in Section 6.01 of the Indenture.
The bonds of Series A may be redeemed, either at the option of the Company or pursuant to certain requirements of the Indenture, on any date prior to maturity, as a whole or from time to time in part, upon publication at least once in each of four successive calendar weeks, upon any business day of each such calendar week, of notice of such redemption in a newspaper printed in the English language and customarily published on each business day and of general circulation in said City of New Orleans, the first publication to be not less than thirty (30) days and not more than sixty (60) days before such redemption date (provided, however, that if all the bonds of Series A at the time outstanding shall be registered bonds
without coupons or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, such notice may be given by mailing the same to each registered holder of a bond so to be redeemed directed to his registered address not less than thirty (30) days and not more than sixty (60) days before the redemption date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds of Series A, provided for in Section 6.01 of the Indenture or moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series A are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, at the redemption price at the time applicable, as set forth in Column A of the following schedule, and if redeemed otherwise than by the application of such moneys, the bonds of Series A are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in Column B of the following schedule, together with, in each case, interest accrued to the date fixed for redemption:
Redemption Price
Table A Table B
If redeemed during the period: (Percentage of Principal Amount)
July 1, 1950---June 30, 1951 100.50 103.50
July 1, 1951---June 30, 1952 100.50 103.38
July 1, 1952---June 30, 1953 100.50 103.27
July 1, 1953---June 30, 1954 100.50 103.15
July 1, 1954---June 30, 1955 100.50 103.03
July 1, 1955---June 30, 1956 100.50 102.92
July 1, 1956---June 30, 1957 100.50 102.80
July 1, 1957---June 30, 1958 100.50 102.68
July 1, 1958---June 30, 1959 100.49 102.57
July 1, 1959---June 30, 1960 100.47 102.45
July 1, 1960---June 30, 1961 100.46 102.33
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Redemption Price
Table A Table B
If redeemed during the period: (Percentage of Principal Amount)
July 1, 1961---June 30, 1962 100.44 102.22
July 1, 1962---June 30, 1963 100.42 102.10
July 1, 1963---June 30, 1964 100.40 101.98
July 1, 1964---June 30, 1965 100.39 101.87
July 1, 1965---June 30, 1966 100.37 101.75
July 1, 1966---June 30, 1967 100.35 101.63
July 1, 1967---June 30, 1968 100.33 101.52
July 1, 1968---June 30, 1969 100.31 101.40
July 1, 1969---June 30, 1970 100.29 101.28
July 1, 1970---June 30, 1971 100.26 101.17
July 1, 1971---June 30, 1972 100.24 101.05
July 1, 1972---June 30, 1973 100.22 100.93
July 1, 1973---June 30, 1974 100.19 100.82
July 1, 1974---June 30, 1975 100.17 100.70
July i, 1975---June 30, 1976 100.14 100.58
July I, 1976---June 30, 1977 100.12 100.47
July 1, 1977---June 30, 1978 100.09 100.35
July 1, 1978---June 30, 1979 100.06 100.23
July 1, 1979---June 30, 1980 100.03 100.12
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If this bond is called for redemption and payment hereof is duly provided for as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the Trustee in trust for the purpose funds sufficient to pay the principal of all of the bonds of any series, or such of the bonds of any series as have been or are to be called for redemption, and premium, if any, thereon, and all interest payable on such bonds to the date on which they become due and payable at maturity or upon redemption or otherwise, and shall comply with the other provisions of the Indenture in respect thereof, then from the date of such deposit such bonds shall no longer be entitled to any lien or benefit under the Indenture.
The principal hereof may be declared or may become due prior to the express date of the maturity hereof on the conditions, in the manner and at the time set forth in the Indenture, upon the occurrence of a completed default as in the Indenture provided; subject, however, to the right, under certain circumstances, of the holders of a majority in the principal amount of the bonds outstanding to annul such declaration.
This bond is transferable as prescribed in the Indenture by the registered holder hereof in person, or by his duly authorized attorney, at the office or agency of the Company in said City of New Orleans, upon surrender and cancellation of this bond, and upon payment, if the Company shall require it, of the transfer charges prescribed in the Indenture, and thereupon, a new registered bond or bonds without coupons of authorized denominations of the same series and for the same aggregate principal amount will be issued to the transferee in exchange herefor as provided in the Indenture. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the person in whose name this bond is registered as the absolute owner hereof, whether or not this bond shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.
This bond shall not become valid or obligatory for any purpose until
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the
Trustee under the Indenture, or its successor thereunder, shall have signed the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this bond to be signed in its name by its President or one of its Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed hereto and attested by its Secretary or one of its Assistant Secretaries, and this bond to be dated , 19 .
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE--
ON BONDS OF ALL SERIES]
Trustee's Authentication Certificate
This bond is one of the bonds, of the series herein designated, provided for in the within-mentioned Indenture.
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
as Trustee,
By
Authorized Officer.
and
WHEREAS, the bonds of series other than Series A and the coupons to be attached to such thereof as may be coupon bonds are to be substantially in the forms respectively hereinabove set forth for the bonds of Series A but with such omissions, insertions and variations as may be authorized or permitted by this Indenture, such forms to be determined by the Board of Directors of the Company; and
WHEREAS, all things necessary to make said bonds, when duly executed by the Company and authenticated and delivered by the Trustee and issued, the valid, binding and legal obligations of the Company, and to make this Indenture a valid, binding and legal instrument for the security of the bonds and coupons to be issued hereunder, in accordance with their terms, have been done and performed, and the issue of said bonds, as in this Indenture provided, has been in all respects duly authorized;
Now, THEREFORE, THIS INDENTURE WITNESSETH; That CENTRAL LOUISIANA ELECTRIC COMPANY, INC., in consideration of the premises and of the acceptance by the Trustee of the trusts hereby created and of the purchase and acceptance of the bonds by the holders thereof 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 order to secure the payment of both the principal of and interest and premium, if any, on the bonds from time to time issued hereunder, according to their tenor and effect, and the performance and observance of all the provisions hereof (including any indenture supplemental hereto and any modification or alteration hereof made as herein provided) and of said bonds, hath granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set over and confirmed, and by these presents doth grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage, hypothecate, affect, pledge, set over and confirm unto THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as Trustee, and to its successors in the trust hereby created and to its and their assigns forever, all the following described properties of the Company, that is to say:
All property, real, personal and mixed, tangible and intangible. owned by the Company on the date of the execution hereof or which may be hereafter acquired by it (except such property as is hereinafter expressly excepted from the lien and operation of this Indenture).
The property, covered by the lien of this Indenture shall include particularly, among other property, without prejudice to the generality of the language hereinbefore or hereinafter contained, the following described property:
I.
IN THE PARISH OF AVOYELLES.
1. A certain tract or parcel of land situated within the corporate limits of the Town of Bunkie, Avoyelles Parish, Louisiana, containing three (3) acres, together with all buildings and improvements thereon and all rights, ways, privileges, servitudes and advantages thereto belonging or in anywise appertaining, further described as follows, to-wit: From the Southwest corner of the tract herein described, termed point of beginning, one and one-half (1 1/2") inch gas pipe on the east right of way line of the Texas and Pacific Right of Way, a point 50 feet from said center line, thence along the right of way of Texas and Pacific Railway in a southeast direction five hundred thirty-six and five-tenths (536.5) feet to a point, and 1 1/2" gas pipe; thence at right angles to said Texas and Pacific right of way three hundred eleven and eighty-five hundredths (311.85) feet to the center line of Bayou Hoffpauer a point referenced by a gas pipe 1 1/2" in diameter, thence down the center line of Bayou Hoffpauer five hundred fifty-three and forty-five hundredths (553.45) feet to the northwest corner of the lot herein described, thence on a line at right angles to the Texas and Pacific right of way one hundred seventy-five and four tenths (175.4) feet to the point of beginning, and is bounded as follows, to-wit: On the North, East, and South by lands of the Haas Land Company, and on the West by right of way of the Texas and Pacific Railway Company, and is the same property acquired by the Louisiana Ice and Utilities Company, Inc. from W. D. Haas and C. J. Pope by act dated May 12, 1926, and forms the same property as described in Article I in said sale which is of record in Alienation Book A-38, folio 229 of the records of Avoyelles, as evidenced by act passed before John McSween, Notary Public, and the same property acquired by the Bunkie Ice Co. Ltd., from Samuel and W. D. Haas by virtue of an act dated July 29, 1904, before A. B. West, Notary Public, by deed recorded in Book C-1, folio 645, of the records of the Parish of Avoyelles, Louisiana; acquired by Louisiana Ice & Electric Company, Inc., from Louisiana Ice & Utilities, Inc., Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by act dated January 2, 1935, recorded in Conveyance Book A-65, folio 16, Records of Avoyelles Parish, Louisiana.
2. A certain tract or parcel of land, situated within the corporate limits of the Town of Bunkie, Avoyelles Parish, Louisiana, containing 2.369 acres, together with all buildings and improvements thereon and all rights, ways, privileges, servitudes and advantages thereto belonging or in anywise appertaining, further described as follows:
Beginning at a point in the middle of Bayou Huffpower and going Northeast 260.61 feet on Call 114.19 to a 1 1/4 inch iron pipe with cap; thence at 90 degrees in a Southeasterly direction 536.50 feet to a point marked with a 1 1/4 inch iron pipe with cap; thence at 90 degrees in & Southwesterly direction 124.16 feet to the middle of Bayou Huffpower; thence in a Westerly direction on Call 553.45 feet to the point of beginning; all as is more particularly shown by plat made by Max M. Merrick, Registered Engineer of Marksville, Louisiana, dated January 31, 1941, for Louisiana Ice & Electric Company; of which said tract .369 acres lies in Bayou Huffpower, leaving 2.00 acres lying North of Bayou Huffpower, said tract lying Northeast of the present Louisiana Ice & Electric Company plant and adjoining the same, and being bounded as follows: North by Haas Investment Company, Inc., East by Haas Investment Company, Inc., South by Louisiana Ice & Electric Company, and West by the Bank of Kentucky, in Liquidation.
Being that property acquired by Louisiana Ice & Electric Company, Inc., from The Haas Investment Company, Inc., by deed dated February 28, 1941, recorded in Conveyance Book A-103, page 342, records of Avoyelles Parish, Louisiana.
3. A certain tract of land situated in the Town of Mansura, Avoyelles Parish, Louisiana, being in the southeast portion of Lot No. Twelve (12) of the succession of Fereol Regard, deceased, recorded in Book A-3, folio 404, of the office of the recorder of said Parish of Avoyelles, and more particularly described as beginning at the northeast corner of the tract herein described, which is corner "A" marked by an iron stake between the property of Mrs. Eliza Regard, widow of Thomas A. Roy, and the tract herein described; thence south 2 degrees 30 minutes east 126.50 feet to Corner "D" marked by an iron stake 125 feet from center line of main track of the
Louisiana Railway & Navigation Company; thence north 81 degrees 15 minutes west 118 feet to an iron stake; thence north 9 degrees west 72.10 feet to an iron stake; thence 72 degrees east to point of beginning, which tract herein described is bounded on the north and east by land of the said Mrs. Eliza Regard, widow of Thomas A. Roy, and on the south by the right of way of said Louisiana Railway & Navigation Company, and on the west by a street; and which tract herein described is shown on plat of E. B. Messick, Surveyor, annexed to the act of sale from the said Mrs. Eliza Regard, widow of Thomas A. Roy, to said Town of Mansura, executed April 27, 1925, before Jules A. Escude, Notary Public, and recorded in Conveyance Book A-33, page 417, of the office of the Recorder of said Parish of Avoyelles; acquired by Louisiana Ice & Utilities, Inc., from the Town of Mansura by deed dated October 26, 1926, recorded in Conveyance Book A-40, page 59, Records of Avoyelles Parish, Louisiana, and by Louisiana Ice & Electric Company, Inc., from Louisiana Ice & Utilities, Inc., Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by act dated January 2, 1935, recorded in Conveyance Book A-65, folio 16, Records of Avoyelles Parish, Louisiana.
4. That certain 4 1/2 inch O D 5.97 lb. per foot gas pipe line, beginning at Station No. VCS 8660 + 56, Mile Post 164.03, on the West side of the right of way of the Texas & Pacific main line railroad in Section 46, Township 1 South, Range 2 East, crossing said right of way to the East side thereof and extending in a Southeasterly direction to the generating plant of Central Louisiana Electric Company, Inc., in the Town of Bunkie, Louisiana, a distance of approximately one and one-half (1 1/2) miles, together with all valves, fittings and measuring equipment thereto belonging or appertaining, and all rights of way owned and held by Central Louisiana Electric Company, Inc., in the Parish of Avoyelles, Louisiana, appertaining to said pipe line and its operation, which grants of rights of way are recorded in the Conveyance Records of Avoyelles Parish, Louisiana.
5. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Cottonport, Louisiana, to Central Louisiana Electric Company, Inc., its successors and assigns, by ordinance
adopted by the Mayor and Board of Aldermen of said Town at its meeting held on March 4, 1946, recorded in Conveyance Book A-120, records of Avoyelles Parish, Louisiana.
6. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Moreauville, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on June 5, 1945, recorded in Conveyance Book A-120, records of Avoyelles Parish, Louisiana.
7. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Plaucheville, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on June 4, 1945, recorded in Conveyance Book A-120, records of Avoyelles Parish, Louisiana.
8. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Simmesport, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on May 11, 1945, recorded in Conveyance Book A-120, records of Avoyelles Parish, Louisiana.
9. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Evergreen, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on April 20, 1945, recorded in Conveyance Book A-117, records of Avoyelles Parish, Louisiana.
10. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Mansura, Louisiana, to Louisiana Ice & Electric Company, its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on May 9, 1945, recorded in Conveyance Book A-120, records of Avoyelles Parish, Louisiana.
11. That certain twenty-five year non-exclusive franchise or permit granted by the Police Jury of Avoyelles Parish, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, in, over, under and along all State Highways in the Parish of Avoyelles, Louisiana, by ordinance adopted at its meeting held on May 9, 1945, recorded in Conveyance Book A-117, records of Avoyelles Parish, Louisiana.
12. That certain twenty-five year non-exclusive franchise or permit granted by the Police Jury of Avoyelles Parish, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, in, over, under and along all Parish Roads in the Parish of Avoyelles, Louisiana, by ordinance adopted at its meeting held on May 9, 1945, recorded in Conveyance Book A-117, records of Avoyelles Parish, Louisiana.
13. That certain twenty year non-exclusive franchise or permit granted by the Town of Bunkie, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on July 5, 1938, filed and recorded September 2, 1938, in Conveyance Book A-88, page 168, records of Avoyelles Parish, Louisiana, amended and extended to December 3, 1966, by ordinance adopted by the Mayor and Board of Aldermen of said Town on December 3, 1946, filed and recorded on January 27, 1947, in Conveyance Book 127, page 11, records of Avoyelles Parish, Louisiana.
IN THE PARISH OF EVANGELINE.
1. Two certain lots of ground, together with all buildings and
improvements thereon, rights, ways, privileges and appurtenances thereto
belonging, situated in the Town of Ville Platte, Parish of Evangeline, State of
Louisiana, and being Lots Twelve (12) and Thirteen (13) of Block Thirty-two
(32) of the Haas Addition to said Town of Ville Platte, said lots having a
front of fifty (50) feet each on West Railroad Avenue and running back between
parallel lines the distance of fifty (50) feet each to the right of way of the
Texas & Pacific Railway Company, bounded North by Lot 11 of said Block
32, East by Right of Way of the Texas & Pacific Railway Company, West by West Railroad Avenue and South by Lot 14 of said Block 32; acquired by Louisiana Ice & Utilities, Inc., from the Town of Ville Platte, Louisiana, by deed dated March 16, 1927, recorded in Conveyance Book B-13, page 135, Records of Evangeline Parish, Louisiana, and by Louisiana Ice & Electric Company, Inc., from Louisiana Ice & Utilities, Inc., Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by act dated January 2, 1935, recorded in Conveyance Book B-30, page 170, Records of Evangeline Parish, Louisiana.
2. Two (2) certain lots of ground, together with all buildings and improvements thereon, rights, ways and privileges thereto belonging, situated in the Town of Ville Platte, Evangeline Parish, Louisiana, and being Lots Fourteen (14) and Fifteen (15) of Block No. Thirty-two (32) of the Haas Addition to said Town of Ville Platte, said lots having a front of fifty (50) feet each on West Railroad Avenue and running back between parallel lines a distance of fifty (50) feet to the right of way of the Texas & Pacific Railway Company in the rear, bounded North by Lot Thirteen (13) of said Block Thirty-two (32), East by the right of way of the Texas & Pacific Railway Company, West by West Railroad Avenue, and South by Lot Sixteen (16) of said Block Thirty-two (32) of said Haas Addition, all as shown on the official plat of said Haas Addition on file in the office of the Clerk of Court and Ex-Officio Register of Conveyances of said Parish. Acquired by Louisiana Ice & Utilities, Inc., from J. Hugo Dore by deed dated March 19, 1927, recorded in Conveyance Book B-13, page 168, Records of Evangeline Parish, Louisiana, and by Louisiana Ice & Electric Company, Inc., from Louisiana Ice & Utilities, Inc., Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by act dated January 2, 1935, recorded in Conveyance Book B-30, page 170, Records of Evangeline Parish, Louisiana.
3. A certain parcel of ground, situated in the Town of Ville Platte, Evangeline Parish, Louisiana, being described as the extreme Northwest corner of Lot Six (6) of Young's Addition to the Town of Ville Platte, measuring twenty-five (25) feet front along Second North Street by a depth of fifty (50') feet, running South and North; bounded North by Second North Street, South and East by property
now or formerly owned by Clarence A. Soileau, and West by property now or formerly owned by Z. T. Young; acquired by Louisiana Ice & Utilities, Inc., from Clarence A. Soileau by deed recorded in Conveyance Book B-23, page 56, Records of Evangeline Parish, Louisiana, and by Louisiana Ice & Electric Company, Inc., by deed dated January 2, 1935, recorded in Conveyance Book B-30, page 170, Records of Evangeline Parish, Louisiana.
4. A certain parcel of ground, situated in the Town of Ville Platte, Evangeline Parish, Louisiana, measuring twenty-five (25') feet front by fifty (50') feet deep, being a portion of Lot 7 of Block Two (2) of Z. T. Young's Addition to the Town of Ville Platte, being bounded on the North by Second North Street, on the South and West by property now or formerly belonging to Willie J. Eastin, and East by property of Louisiana Ice & Electric Co., Inc., in Lot 6 of said Addition. Acquired by Louisiana Ice & Electric Co., Inc., from Willie J. Eastin by deed dated April 14, 1936, recorded in Conveyance Book B-34, page 78, Records of Evangeline Parish, Louisiana.
5. Four certain lots or parcels of ground, together with all rights, ways, privileges and appurtenances thereto belonging or appertaining, situated in Lot No. 3 of Section 35, Township 2 South, Range 2 East, Louisiana Meridian, in the Parish of Evangeline, State of Louisiana, being those parcels of land designated and shown as Lots Nos. 2, 3, 4, 5 and "A" on plat of survey made by Edward B. Messick, Avoyelles Parish Surveyor, on January 30, 1945, which plat is of record in Plat Book 1, page 267, records of Evangeline Parish, Louisiana, and to which reference is made for greater certainty of description, said property being further and more particularly described as follows:
Begin at an iron post set on the Bank of Bayou Cocodrie, which point of beginning is marked (1) on the above mentioned plat of survey, and from which point bears a cypress tree 48 inches in diameter North 19 degrees West 13 1/2 feet, and from said point of beginning run North 82 degrees 15 minutes East along the Bank of Bayou Cocodrie 244.7 feet; thence North 87 degrees 30 minutes East along the Bank of Bayou Cocodrie 141 feet; thence South 64 degrees East along the bank of Bayou
Cocodrie 93 feet; thence South 44 degrees East along the bank of Bayou
Cocodrie 110 feet; thence South 6 degrees 30 minutes West along the
Bank of Bayou Cocodrie 163 feet; thence South 33 degrees East along the
bank of Bayou Cocodrie 77 feet; thence South 86 degrees 30 minutes East
along the Bank of Bayou Cocodrie 49.5 feet; thence South 12 degrees
East along the bank of Bayou Cocodrie 321.4 feet; thence South 36
degrees East along the Bank of Bayou Cocodrie 166.98 feet to an iron
post marked (4) on the above mentioned plat of survey; thence West
741.18 feet to an iron post marked (3) on the above mentioned plat of
survey; thence North 1 degree East 487.08 feet to an iron post marked
(2) on the above mentioned plat of survey; thence North 1 degree East
262.7 feet more or less to the iron post at the point of beginning on
the bank of Bayou Cocodrie, which said iron post is marked (1) on the
above mentioned plat of survey; said property containing a total area
of 9.75 acres including .49 of an acre lying within the right-of-way of
the gravel highway running through said property, or a net area of 9.26
acres; bounded on the North and East by Bayou Cocodrie and on the South
and West by property of Hugh H. Hazelton.
Being that property acquired by Louisiana Ice & Electric Company, Inc. from Leonce L. Dossman, Wallace J. Gomez, et al, Hugh H. Hazelton, and Robert T. Janet, et al, by deeds dated May 22nd and June 6th, 1945, recorded in Conveyance Book B-74, pages 197, 199, 201 and 283, records of Evangeline Parish, Louisiana; and by Central Louisiana Electric Company, Inc. from Peach Camp No. 567, Woodmen of the World, by deed dated September 28, 1945, recorded in Conveyance Book B-75, page 601, records of Evangeline Parish, Louisiana.
6. A certain piece, parcel or tract of land, together with all rights, ways, privileges and appurtenances thereto belonging or appertaining, situated in Lot No. Three (3) or the NW 1/4 of the NW 1/4 of Section 35, Township 2 South, Range 2 East, Louisiana Meridian, in the Parish of Evangeline, State of Louisiana, and being more particularly described as follows, to-wit:
Begin at an iron post set on the West bank of Bayou Cocodrie, which post marks the Southeast corner of the 6.53 acre tract purchased by Louisiana Ice & Electric Company, Inc. from Hugh H. Hazelton by deed dated May 22, 1945, as shown by plat of survey made by Edward B. Messick, Avoyelles Parish Surveyor, on January 30, 1945, duly of record in the plat records of Evangeline Parish, Louisiana, and from said point of beginning run West 741.18 feet to an iron post; thence run South 1 degree West 150 feet to an iron post; thence run East 817.21 feet to an iron post set on the West Bank of Bayou Cocodrie; thence run in a Northwesterly direction along the West Bank of Bayou Cocodrie to the point of beginning; all as is more particularly shown by plat of survey attached to and made part of deed from Hugh H. Hazelton to Central Louisiana Electric Company, Inc., dated Nov.12, 1947, recorded in Conveyance Record B-91, page 222, Records of Evangeline Parish, Louisiana; said parcel of land being bounded North by property purchased by Louisiana Ice & Electric Company (now Central Louisiana Electric Company, Inc.) from Hugh H. Hazelton by deed dated May 22, 1945, East by Bayou Cocodrie, and South and West by property of Hugh H. Hazelton.
Being that property acquired by Central Louisiana Electric Company, Inc. from Hugh H. Hazelton by deed dated November 12, 1947, recorded in Conveyance Record B-91, page 222, Records of Evangeline Parish, Louisiana.
7. A certain piece, parcel, or tract of land lying and being situated in the Town of Ville Platte, Evangeline Parish, Louisiana, more particularly described as follows:
Beginning at the intersection of the westerly line of Second North (now East LaSalle) Street, and the northerly line of North East Railroad Avenue, which point is also the east corner of a 5' x 150' tract of land described as Tract 5b in deed to The Texas and Pacific Railway Company from the Louisiana Central Land and Improvement Company, Limited, dated December 19, 1919, recorded in Conveyance Book A-11-226 et seq. of the Conveyance
Records of Evangeline Parish, Louisiana; thence southwesterly, along the north line of North East Railroad Avenue, 50 feet to a point; thence northwesterly, perpendicular to the north line of North East Railroad Avenue, 34 feet to a point; thence northeasterly, parallel to the north line of North East Railroad Avenue, 50 feet to a point in the westerly line of Second North (now East LaSalle) Street; thence southeasterly, along the westerly line of Second North (now East LaSalle) Street, 34 feet, more or less, to the place of beginning.
Being that property acquired by Central Louisiana Electric Company, Inc., from The Texas and Pacific Railway Company by act of Exchange dated October 31, 1946, recorded in Conveyance Record B-84, page 195, Records of Evangeline Parish, Louisiana.
8. A certain lot of ground situated in the Town of Ville Platte, Evangeline Parish, Louisiana, together with all rights, ways, privileges and appurtenances thereto belonging or appertaining, being Lot Nine (9) of Block Four (4) of the V. L. Dupuis Subdivision to said Town of Ville Platte, measuring 43.6 feet front on Reed Street by a depth running East of 158 feet, bounded North by Lot 8 of said Block 4, South of Drainage Canal, East by Lot 10 of said Block 4, and West by Reed Street; all as is more fully shown by plat of said Subdivision filed in Plat Book 1, page 65, Records of Evangeline Parish, Louisiana.
9. A certain parcel of land situated in Township Four (4) South, Range Two (2) East, Louisiana Meridian, in the Parish of Evangeline, State of Louisiana, measuring thirty (30') by thirty feet (30'), and being bounded on the Northeast, Northwest and Southwest by property of Albert Tate, and on the Southeast by the black top highway leading from Ville Platte to Tate Cove, Evangeline Parish; being that property acquired by Central Louisiana Electric Company, Inc. from Albert Tate by deed dated May 2, 1950, recorded in Conveyance Book B-105, under filing No.1121345.
10. That certain standard gauge spur railroad track, together with the twenty-four foot (24 ft.) right-of-way on which the same is
constructed, and the roadbed, rails, cross-ties, cattle guards and all other component parts thereof, beginning at Survey Station 1 + 25 on the right-of-way of The Texas and Pacific Railway Company in Section 35, Township 2 South, Range 2 East, Southwestern District of Louisiana, Parish of Evangeline, State of Louisiana, and extending in a Northwesterly direction across said Section 35, T2SR2E, Evangeline Parish, Louisiana, to the generation plant of Central Louisiana Electric Company, Inc., in said Section 35, T2SR2E.
Less and excepting, however, that certain gas pipe line laid in the right-of-way of said railroad spur track and owned by Anchor Gasoline Corporation.
11. That certain 6 inch 400 pound operating pressure, fuel gas pipe line extending north from a point in the SE 1/4 of Section 46, Township 3 South, Range 2 East, Evangeline Parish, Louisiana, through Sections 46, 45, 44, 27, 26, 22, 15, 10, 3 of T3S R2E and Section 35 of T2S R2E, Evangeline Parish, Louisiana, a distance of 36,985 feet to the Electric Generating Plant of Central Louisiana Electric Company, Inc. in the NW 1/4 of NW 1/4 of Section 35, Township 2 South, Range 2 East, Louisiana Meridian, in the Parish of Evangeline, Louisiana, together with all valves, fittings and measuring equipment thereto belonging or appertaining, and all rights-of-way owned and held by Central Louisiana Electric Company, Inc. in the Parish of Evangeline, Louisiana, in, on, over, upon or through, which said pipe line is laid or pertaining to said pipe line and its operation, which grants of rights-of-way are duly recorded in the Conveyance Records of Evangeline Parish, Louisiana.
12. That certain 3 3/4 inch, 125 pound operating pressure, fuel gas pipe line, extending north from a point in the SW 1/4 of Section 35, Township 2 South, Range 2 East, Evangeline Parish, Louisiana, through Section 35 of T2S, Evangeline Parish, Louisiana, a distance of 3600 feet to the Electric Generating Plant of Central Louisiana Electric Company, Inc. in the NW 1/4 of NW 1/4 of Section 35, Township 2 South, Range 2 East, Louisiana Meridian, in the parish of Evangeline, Louisiana, together with all valves, fittings and measuring equipment thereto belonging or appertaining, and all rights-of-way
owned and held by Central Louisiana Electric Company, Inc. in the parish of Evangeline, Louisiana, in, on, over, upon or through, which said pipe line is laid or pertaining to said pipe line and its operation, which grants of rights-of-way are duly recorded in the Conveyance Records of Evangeline Parish, Louisiana.
13. That certain twenty-five year non-exclusive franchise or permit granted by the Police Jury of Evangeline Parish, Louisiana to Louisiana Ice & Electric Company, Inc., its successors and assigns, in, over, across, along and under all State Highways in the Parish of Evangeline, Louisiana, by ordinance adopted at its meeting held on March 12, 1945, recorded in Conveyance Book B-73, page 599, records of Evangeline Parish, Louisiana.
14. That certain twenty-five year non-exclusive franchise or permit granted by the Police Jury of Evangeline Parish, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, in, over, under and along all Parish Roads in the Parish of Evangeline, Louisiana, by ordinance adopted at its meeting held on March 12, 1945, recorded in Conveyance Book B-73, page 601, records of Evangeline Parish, Louisiana.
15. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Ville Platte, Louisiana, to Central Louisiana Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on September 23, 1949, recorded in Conveyance Book B-102, page 132, records of Evangeline Parish, Louisiana.
IN THE PARISH OF GRANT.
1. That certain lease granted by the Louisiana Railway & Navigation Company to J. H. McNeely and the Colfax Cotton Oil Company, Ltd., of date January 28, 1924, together with all buildings and improvements on said leased premises and all machinery and equipment therein or thereon, which said leased premises are more particularly described as being all that part of Block Sixty-eight (68) of the Town of Colfax, Grant Parish, Louisiana, on the West side of the Louisiana Railway & Navigation Company's right of way, exclusive of the fifty
(50') foot right of way from the center of the main track; said lease being for the period of ninety-nine years from date, and recorded in Conveyance Book "II", page 164, Records of Grant Parish, Louisiana. Acquired by C. A. Tooke and J. E. Reynolds from Colfax Cotton Oil Company, Ltd., in the name of the Valley Ice & Power Company, by deeds recorded in Conveyance Book "II", pages 200 and 310, Records of Grant Parish, Louisiana.
2. That certain lease made and executed by J. H. McNeely to C. A. Tooke and J. E. Reynolds, on the 30th day of January, 1924, together with all buildings and improvements on said leased premises, and all machinery and equipment therein or thereon, which said leased premises are more particularly described as being all that portion of Block Sixty-eight (68) of the Town of Colfax, Louisiana, lying West of the right of way of the Louisiana Railway & Navigation Company and South of the line perpendicular to said right of way, extending from said right of way to Eighth Street and running in such manner as to coincide with the line of the North wall of the old oil mill building situated on said block, thus giving this parcel of land the following approximate dimensions: The distance of the length of the Northern boundary line as above described being about 102 feet, the Eastern boundary along the Railroad right of way being 238 feet, the Southern boundary fronting "F" Street being 140 feet, and the Western boundary fronting Eighth Street being about 220 feet. Also a 30 foot strip off the remainder of said Block extending from Eighth Street to the right of way above mentioned, North of and adjacent to the said North wall of the oil mill building; and a 30 foot strip off said block extending along said right of way from "D" Street to the said building. The two 30 foot strips above mentioned being available for use as means of ingress and egress to the parcel first above described. Said lease being for the period of ninety-nine years, beginning January 1, 1924, and recorded in Conveyance Book "II", page 150, Records of Grant Parish, Louisiana.
Said two leases above described, together with all buildings and improvements on said leased premises, and all machinery and equipment therein or thereon, having been acquired by Louisiana Ice & Electric Company, Inc., from Louisiana Ice & Utilities Inc., Bankrupt,
and Frank C. Landers, Trustee in Bankruptcy, by act dated January 2, 1935, recorded in Conveyance Book "ZZ", page 606, Records of Grant Parish, Louisiana.
3. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Pollock, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town of Pollock at its meeting held on May 1, 1945, recorded in Conveyance Book 82, page 245, records of Grant Parish, Louisiana.
4. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Colfax, Louisiana, to Central Louisiana Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on September 2, 1947, recorded in Conveyance Book 86, page 621, records of Grant Parish, Louisiana.
5. That certain thirty year non-exclusive franchise or permit granted by the Police Jury of Grant Parish, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, in, over, under and along all State Highways in Wards One, Two, Three, Six and Eight of Grant Parish, Louisiana, by Ordinance No. 31, adopted at its meeting held on November 7, 1938, approved by the State Highway Engineer on March 25, 1939, recorded in Conveyance Book 61, page 32, Records of Grant Parish, Louisiana.
6. That certain thirty year non-exclusive franchise granted by the Police Jury of Grant Parish, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, in, over, under and along all Parish Roads in Wards One, Two, Three, Six and Eight of Grant Parish, Louisiana, being Ordinance No. 30 adopted at its meeting held on November 7, 1938, recorded in Conveyance Book 61, page 31, Records of Grant Parish, Louisiana.
IN THE PARISH OF NATCHITOCHES.
1. That certain twenty-five year non-exclusive franchise or permit granted by the Police Jury of Natchitoches Parish, Louisiana, to
Louisiana Ice & Electric Company, Inc., its successors and assigns, in, over, along and under all Parish roads in the Parish of Natchitoches, Louisiana, by ordinance adopted at its meeting held on August 22, 1945, recorded in Conveyance Book 199, page 609, records of Natchitoches Parish, Louisiana.
IN THE PARISH OF RAPIDES.
1. Two (2) certain irregular shaped tracts of land situated in the Town of Lecompte, Rapides Parish, Louisiana, containing an area of ninety-five hundredths (.95) of an acre, fully shown by plat of survey made by O. F. Reiszner, C. E., attached to act of sale from the Town of Lecompte to Louisiana Ice & Utilities, Inc., dated January 18, 1927, recorded in Conveyance Book 144, page 258, Records of Rapides Parish, Louisiana, and further described as follows:
First: Begin at the intersection of the North line of Block Four (4) of said Town, and the North line of Block Six (6) of said Town, extended, thence run in an easterly direction along the extended North line of said Block Six (6) to the right of way of the Texas & Pacific Railway Company; thence in a Northerly direction along said right of way to the Northeastern corner of said Block Four (4); thence Westerly along the North line of Block Four (4) to the point of beginning, constituting an irregularly shaped strip of ground lying along the Northern portion of said Block Four (4) as originally laid out and shown on map of said Town of Lecompte made by W. H. Sylvester, C. E., and of record in Plat Book 1, pages 31, 32 and 33 of the Office of the Recorder of Rapides Parish.
Second: Begin at the Southeast corner of the above described tract, thence run along the Texas and Pacific Right of Way in a Southerly direction two Hundred fifty (250) feet to a point; thence Westerly and parallel to the South line of the above described tract a distance of seventy-five (75) feet to a point; thence Northerly to a point on the South line of the above described tract, which last mentioned point is one hundred (100) feet West of this point of beginning; thence Easterly along said South line of the above mentioned tract one hundred (100) feet to the point of beginning.
2. A certain piece or parcel of ground situated in the Town of
Lecompte, Rapides Parish, Louisiana, constituting a portion of Lot Two (2) of
the old survey made by R. W. Bringhurst, Surveyor, and constituting the Eastern
portion of what is now designated as Lot Four (4) of Block Eight (8) of said
Town, according to the official map thereof made by W. H. Sylvester, C. E., of
record in Plat Book 1, pages 31 and 32, of the Office of the Recorder of said
Parish of Rapides, the portion of said Lot Four (4) of said Block Eight (8)
referred to herein having a front of fifty (50) feet on Bank Street and running
back between parallel lines a distance of ninety-six (96) feet, being bounded
on the East by Bank Street, on the South by Lot Five (5) of said Block Eight
(8), on the West by the remaining portion of said Lot Four (4), and on the
North by Lot Three (3) of said Block Eight (8).
Being the land conveyed by the Town of Lecompte to Louisiana Ice and Utilities, Inc., by deed dated January 18, 1927, recorded in Conveyance Book 144, page 258, Records of Rapides Parish, Louisiana, and acquired by Louisiana Ice & Electric Company, Inc., from said Louisiana Ice & Utilities, Inc., Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by deed dated January 2, 1935, recorded in Conveyance Book 199, page 273, Records of Rapides Parish, Louisiana.
3. A certain lot or parcel of ground, together with all buildings and improvements thereon, rights, ways, privileges and appurtenances thereto belonging, situated in the Town of Cheneyville, Parish of Rapides, State of Louisiana, fully shown by plat of survey made by 0. F. Reiszner, C. E., dated April, 1927, attached to act of sale from the Town of Cheneyville to Louisiana Ice & Utilities, Inc., dated May 3, 1927, recorded in Conveyance Book 148, page 274, Records of Rapides Parish, Louisiana, and further described as follows:
Beginning at an iron stake at the intersection of the South line of Front Street and the East line of Robert DeSelle property, said intersection being 717.3 feet westerly from the West line of Klock Street, measured along the South line of Front Street; thence southerly along East line of Deselle property 97.3 feet
to an iron stake in the North right of way line of the Texas & Pacific Railway; thence at an angle of 94 degrees 51 minutes to the right, along said right of way line 205.25 feet to an iron stake; thence at an angle of 85 degrees 09 minutes to the right, 97.3 feet to an iron stake in the South line of Front Street; thence at an angle of 94 degrees 51 minutes to the right, along the South line of Front Street 206.25 feet to point of beginning; and being the identical property acquired by the Town of Cheneyville from Robert Deselle by deed of date August 21st, 1925, duly of record in Conveyance Book 134, page 204, records of Rapides Parish, and by the said Deselle from Ernest L. Klock by deed of date July 12, 1922, duly of record in Conveyance Book 113, page 164, Records of Rapides Parish and by the said Robert Deselle from Mrs. Christina Johnson, born Klock, by act of sale dated August 11th, 1922, duly of record in Conveyance Book 114, page 622, and by the said Ernest L. Klock from the widow and heirs of John C. Klock by deed of date July 12, 1922, duly of record in Conveyance Book 114, page 510, Records of Rapides Parish, and by the widow and heirs of John C. Klock from the Succession of John C. Klock by Judgment of date October 4th, 1921, duly of record in Conveyance Book 111, page 133, Records of Rapides Parish, and by the said John C. Klock, deceased, from Ralph Kilpatrick and George W. Bennett by deeds of date May 24th, 1910, and January 10th, 1889, respectively duly of record in Conveyance Book 53, page 181, and Conveyance Book M, page 652, Records of Rapides Parish, Louisiana.
Being the land conveyed by the Town of Cheneyville to Louisiana Ice & Utilities, Inc., by deed dated May 3, 1927, recorded in Conveyance Book 148, page 274, Records of Rapides Parish, Louisiana, and acquired by Louisiana Ice & Electric Company, Inc., from said Louisiana Ice & Utilities, Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by deed dated January 2, 1935, recorded in Conveyance Book 199, page 273, Records of Rapides Parish, Louisiana.
4. A certain lot of ground, together with all rights, ways, privileges and other appurtenances thereto belonging, in the Parish of
Rapides, State of Louisiana, situated on the left descending bank of Bayou Boeuf, just outside the corporate limits of the Town of Cheneyville, and in the NE 1/4 of Section 32, Township 1 North, Range 2 East, and more particularly described as follows, to-wit:
From the northeast corner of Block 28, Kilpatrick Addition to the Town of Cheneyville, Louisiana, run northerly along the West line of Klock Street, extended, a distance of 641.2 feet, thence at right angles easterly a distance of 127.7 feet to an iron stake, the point of beginning; thence at an angle of 18 degrees 53 minutes to the left, a distance of 30 feet to an iron stake; thence at right angles, southerly 20 feet; thence at right angles westerly 30 feet; thence at right angles northerly 20 feet to the point of beginning, all as is more fully shown, bounded by red lines, on plat of survey made by O. F. Reiszner, C. E., of date July 21, 1931.
Being the land conveyed by the Weil Company, Inc., to Louisiana Ice & Utilities, Inc., by deed dated August 3rd, 1931, recorded in Conveyance Book 180, page 236, Records of Rapides Parish, Louisiana, and acquired by Louisiana Ice & Electric Company, Inc., from said Louisiana Ice & Utilities, Inc., Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by deed dated January 2, 1935, recorded in Conveyance Book 199, page 273, Records of Rapides Parish, Louisiana.
5. A certain lot of ground situated in the Town of Pineville, Rapides Parish, Louisiana, described as:
From an iron pipe marking the intersection of the West line of Main Street and the South line of the Asylum Road run Westerly along the South line of the Asylum Road 227.9 feet to an iron stake, the point of beginning; thence at an angle of 91 degrees 48 minutes to the left run 57 feet to an iron stake; thence westerly and parallel to Asylum Road, 69.9 feet to an iron stake; thence at an angle of 87 degrees 50 minutes to the right 57 feet to an iron stake in the South line of Asylum Road; thence Easterly along the South line of Asylum Road, 70.3 feet to the point of beginning; being the same property shown within the red lines on plat of survey made by O. F. Reiszner, C. E., of date October 7, 1930, attached to act of sale from the Town of Pineville to C. A. Tooke
and J. Edwin Reynolds, dated January 27, 1931, together with all buildings and improvements thereon, rights, ways, privileges and appurtenances thereto belonging or appertaining.
6. A certain lot of ground situated in the Town of Pineville, Rapides Parish Louisiana, described as:
From an iron pipe marking the intersection of the West line of Main Street and the South line of the Asylum or Hospital Road, run Westerly along the South line of the Asylum Road 227.9 feet to an iron stake; thence at an angle of 91 degrees 48 minutes to the left, run 57 feet to the point of beginning; thence continuing on the last mentioned course 93 feet to an iron stake; thence Westerly and parallel to the Asylum Road 69.3 feet to an iron stake; thence at an angle of 87 degrees 50 minutes to the right 93 feet to an iron stake; thence easterly and parallel to the Asylum Road 69.9 feet to the point of beginning; all as more fully shown by plat of survey made by O. F. Reiszner, C. E., dated November 29, 1930, attached to act of sale from the Town of Pineville to Casper A. Tooke and J. Edwin Reynolds, dated January 26, 1931, and being the property shown within the yellow lines on said plat, together with all buildings and improvements thereon and all rights, ways, privileges and appurtenances thereto belonging or appertaining.
Acquired by Louisiana Ice & Electric Company, Inc., from Pineville Electric Company by deed dated November 26, 1935, recorded in Conveyance Book 206, page 319, Records of Rapides Parish, Louisiana.
7. A certain piece, parcel or lot of ground, situated in the Town of Pineville, Parish of Rapides, State of Louisiana, and being more particularly described as follows: Beginning at a pipe set at the corner of the Town of Pineville Power House lot, run easterly along the South line of Asylum Street 68.10 feet to a pipe set for the Northeast corner of the lot transferred by Flora Smith to the Town of Pineville, thence angle 90 degrees to the right and run 58 feet to the South line of said Town lot, thence angle 90 degrees to the right and run
68.10 feet to the west line of said lot, thence angle 90 degrees to the right and run 58 feet to the point of beginning, containing 3957 square feet.
Also that certain tract of land immediately in the rear of the property above described, measuring 68.10 feet and running back between parallel lines 30 feet additionally; all as will more fully appear from plat of survey made by H. J. Daigre, C. E., annexed to deed from Town of Pineville to Flora Smith, together with all buildings and improvements thereon, and all rights, ways and privileges thereto belonging or appertaining.
Acquired by Louisiana Ice & Electric Company, Inc., from Succession of Flora Smith by deed dated July 6, 1940, recorded in Conveyance Book 245, page 639, Records of Rapides Parish, Louisiana.
8. A certain piece, parcel or lot of land, together with all buildings and improvements thereon, rights, ways, privileges and appurtenances thereto belonging or in anywise appertaining, lying and being situated on the North side of Red River, in Section 21, Township 4 North, Range 1 West, in the Town of Pineville, Rapides Parish, Louisiana, and being more particularly described as follows:
Lot "B" of Marye Heights Addition to the Town of Pineville, Rapides
Parish, Louisiana, as shown by plat of said Marye Heights Addition
made by Pan-American Engineers dated July 20, 1946, a blue print of
which said plat is recorded in Conveyance Book 329, page 277, records
of Rapides Parish, Louisiana, to which plat reference is made for
greater particularity of description, said lot or parcel of ground
being further described as follows: Start at the Southwest corner of
Section 21, Township 4 North, Range 1 West, and run Northeasterly
along the West line of said Section 21, Township 4 North, Range 1 West
to the point where the North line of Melrose Street intersects the
West line of said Section 21, Township 4 North, Range 1 West, the
point of beginning of the property herein described, and from said
point of beginning so established continue in a Northeasterly
direction along the West line of said Section 21, Township 4 North,
Range 1 West the distance of 326.8 feet to the point where the South
line
of Pine Street intersects the West line of said Section 21, Township 4
North, Range 1 West; thence turn at right angles and run Easterly
along the South line of Pine Street the distance of 199.4 feet to the
West right-of-way line of the L. & A. Railroad; thence run in a
Southerly direction along the West line of the right-of-way of the
L. & A. Railroad the distance of 36.2 feet to the point where the North
line of Melrose Street intersects the West line of the right-of-way of
the L. & A. Railroad; thence run in a Southwesterly direction along
the North line of Melrose Street the distance of 373.5 feet to the
point of beginning.
Said property being that enclosed within the red lines on the hereinabove referred to plat; being that property acquired by Central Louisiana Electric Company, Inc., from Simon W. Tudor and Robert B. Tudor by deed dated July 30, 1946, recorded in Conveyance Book 329, page 277, records of Rapides Parish, Louisiana.
9. A certain piece or parcel of land, together with all rights, ways, privileges and appurtenances thereto belonging or appertaining, situated in the Parish of Rapides, State of Louisiana, being a parcel of land 100 feet square, lying in the Northeast corner of the NE 1/4 of SW 1/4 of Section 35, Township 5 North, Range 1 East, Louisiana Meridian, more particularly described as follows:
Start at the center of Section 35, Township 5 North, Range 1 East, and
run thence South on the line dividing the SE 1/4 of the SW 1/4 of said
Section the distance of 20 feet to the point of beginning; thence
continue South on the same line the distance of 100 feet; thence turn
at an angle of 90 degrees to the right and run West 100 feet; thence
turn at an angle of 90 degrees to the right and run North 100 feet;
thence turn at an angle of 90 degrees to the right and run East 100
feet to the point of beginning; all as more particularly shown by plat
of survey made by L. J. Daigre, Parish Surveyor, dated May 16, 1945,
attached to deed from Milton A. Johnson, et al, to Louisiana Ice &
Electric Company, dated May 24, 1945, recorded in Conveyance Book 300,
page 16, records of Rapides Parish, Louisiana.
Being the land acquired by Louisiana Ice & Electric Company, Inc., from Milton A. Johnson, et al., by deed dated May 24, 1945, recorded in Conveyance Book 300, page 16, records of Rapides Parish, Louisiana.
10. A certain piece or parcel of land, situated in the SW 1/4 of the SW 1/4 of Section 18, Township 1 North, Range 1 West, in the Parish of Rapides, State of Louisiana, and being more particularly described as follows:
Start at the Northeast corner of the NW 1/4 of SW 1/4 of Section 18, Township 1 North, Range 1 West, and run thence West along the line dividing the NW 1/4 of SW 1/4 and the SW 1/4 of SW 1/4 of said Section 18, 81.9 feet to the East right-of-way line of the Pelican Highway (Lecompte-Forest Hill Highway); thence run Southwesterly along the East right-of-way, line of said Pelican Highway the distance of 143.7 feet, the point of beginning of the property herein conveyed; thence South 62 degrees 30 minutes East 42.6 feet; thence South 37 degrees West 50 feet; thence South 82 degrees 30 minutes West 50 feet; thence Northeasterly along the East right-of-way line of said Pelican Highway 75.5 feet to the point of beginning.
Acquired by Louisiana Ice & Electric Company, Inc., from Archie Davis by act of exchange dated November 30, 1944, duly recorded in the Conveyance Records of Rapides Parish, Louisiana.
11. A certain parcel of land, together with all rights, ways, privileges and appurtenances thereto belonging or appertaining, situated in the Parish of Rapides, State of Louisiana, said parcel of land being located in the NW 1/4 of NE 1/4 of Section 13, Township 1 North, Range 2 West, and being more particularly described as follows:
Commencing at the NW corner of the NE 1/4 of Section 13, T.1
N., R. 2 W., thence S 89 degrees 27' E along the North line of said
Sec. 13 a distance of 1200.8 feet to a point; thence due South a
distance of 364.6 feet to a 1 1/4" round iron pipe with cap marking the
North corner of the lot herein described, and being the point
designated as the point of beginning; thence S 51 degrees 47' W a
distance of 50.0 feet to a 1 1/4" round iron pipe with cap; thence S 38 degrees 13' E a distance of 50.0 feet to a 1" round black pipe; thence N 51 degrees 47' E a distance of 50.0 feet to a 1 1/4" round pipe with cap; thence N 38 degrees 13' W a distance of 50.0 feet to the point of beginning. The lot thus described comprises an area of 0.057 acres and is bounded on all sides by lands of O. M. Johnson; all as is more particularly shown by plat of survey made by Max M. Merrick, Registered Engineer, dated March 18, 1941, attached to deed from Oliver M. Johnson to Louisiana Ice & Electric Company, Inc., dated April 4, 1941, recorded in Conveyance Book 254, page 567, records of Rapides Parish, Louisiana.
Being the land acquired by Louisiana Ice & Electric Company, Inc., from Oliver M. Johnson by deed dated April 4, 1941, recorded in Conveyance Book 254, page 567, records of Rapides Parish, Louisiana.
12. A certain piece or parcel of land, together with all rights, ways, privileges and appurtenances thereto belonging or appertaining, situated in the Town of Pineville, Rapides Parish, Louisiana, and being more particularly described as follows, to-wit:
From the point where the boundary line between the property formerly belonging to Stephen Barrett and the property formerly belonging to Mrs. F. M. Hayden intersects Main Street of said Town of Pineville, said point being marked by an iron pipe as shown by plat of survey made by Pan-American Engineers dated June 15, 1944, thence run along said boundary line in a Westerly direction 211.5 feet to the point of beginning, said point being monumented by an iron pipe set in concrete; from this said point of beginning run in a Northeasterly direction 87 feet to a point, said point being marked by an iron pipe; from this point run in a Northwesterly direction 14.8 feet to the Eastern line of the property owned by Central Louisiana Electric Company, Inc.; thence run at an angle of 91 degree 48 minutes turned from West towards South off the direction of the Southern street line of Shamrock Street the distance of 69 feet; thence turn and run Westerly parallel to the Southern line of Shamrock Street a distance of 69.3 feet; thence turn 87 degrees 50 minutes to the
right and run towards Shamrock Street a distance of 69 feet to the Northern line of the parcel of ground bought by the Town of Pineville from Stephen Barrett, et als, by deed dated November 19, 1930, recorded in Conveyance Book 174, page 180, records of Rapides Parish, Louisiana, and described as Item 2 in said deed; thence run in a Northwesterly direction 62.9 feet to the Eastern property line of Webster Street at a point monumented by an iron pipe set in concrete; thence run Southwesterly along the Easterly boundary of Webster Street a distance of 80 feet to a point monumented by an iron pipe set in concrete; thence run in an Easterly direction 88.9 feet to a point on the boundary line between the property formerly belonging to Stephen Barrett and the property formerly belonging to Mrs. F. M. Hayden, said point being marked by an iron pipe encased in concrete; thence run in an Easterly direction towards Main Street the distance of 57.5 feet to the point of beginning.
Said above described property being that enclosed within the shaded lines on plat of survey made by Pan-American Engineers, dated June 15, 1944, blue print of which is annexed to a deed dated November 21, 1946, from the Town of Pinevine to Central Louisiana Electric Company, Inc., and made part thereof for greater particularity of description and paraphed by Notary for identification therewith; and being that part of that certain parcel of ground acquired by said Town of Pineville from Stephen Barrett, et al, by act of sale dated November 19, 1930, filed and recorded December 3, 1930, in Conveyance Book 174, page 180, records of Rapides Parish, Louisiana, designated as item 2 in the description of the property conveyed by said deed.
Being that property acquired by Central Louisiana Electric Company, Inc., from the Town of Pineville, Louisiana, by deed dated November 21, 1946, recorded in Conveyance Book 336, page 242, records of Rapides Parish, Louisiana.
13. A certain lot of ground situated in the City of Alexandria, Rapides Parish, Louisiana, being more particularly described as follows:
Lot Eight (8) of Square Forty-four (44) of the Clapp Addition to the City of Alexandria, Louisiana, as shown by the official plat of said Clapp Addition duly of record; said lot fronting 53 feet 4 inches on Monroe Street and running back therefrom between parallel lines, one of which is Sixth Street, the distance of 106 feet 8 inches; being that property acquired by Central Louisiana Electric Company, Inc. from Ed M. Raxsdale et al by deeds dated May 28th and June 4th, 1947, recorded in Conveyance Book 344, pages 85, 86 and 88, records of Rapides Parish, Louisiana.
14. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Pineville, Louisiana, to Tooke & Reynolds, its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said town at its meeting held on March 18, 1930, as amended by ordinances adopted on April 3, April 23 and June 13, 1930, recorded in Conveyance Book 205, page 582, Records of Rapides Parish, Louisiana; which said franchise was acquired by Pineville Electric Company from Tooke & Reynolds by Act dated October 5, 1930, recorded in Conveyance Book 206, page 300, Records of Rapides Parish, Louisiana, and by Louisiana Ice & Electric Company, Inc., from Pineville Electric Company by Act dated November 26, 1935, recorded in Conveyance Book 206, page 319, Records of Rapides Parish, Louisiana.
15. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Cheneyville, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on April 3, 1945, recorded in Conveyance Book 298, page 451, records of Rapides Parish, Louisiana.
16. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Lecompte, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on June 5, 1945, recorded in Conveyance Book 302, page 137, records of Rapides Parish, Louisiana.
17. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Forest Hill to Louisiana Ice & Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on May 14, 1945, recorded in Conveyance Book 327, page 144, records of Rapides Parish, Louisiana.
18. That certain twenty-five year non-exclusive franchise or permit granted by the Town of Woodworth, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen of said Town at its meeting held on May 14, 1945, duly recorded in the Conveyance Records of Rapides Parish, Louisiana.
19. That certain twenty-five year non-exclusive franchise or permit granted by the Police Jury of Rapides Parish, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, in, over, along and under all State Highways in the Parish of Rapides, Louisiana, by ordinance adopted at its meeting held on April 17, 1945, recorded in Conveyance Book 298, page 638, records of Rapides Parish, Louisiana.
20. That certain twenty-five year non-exclusive franchise or permit granted by the Police Jury of Rapides Parish, Louisiana, to Louisiana Ice & Electric Company, Inc., its successors and assigns, in, over, along and under all Parish Roads in the Parish of Rapides, Louisiana, by ordinance adopted at its meeting held on April 17, 1945, recorded in Conveyance Book 300, page 247, records of Rapides Parish, Louisiana.
IN THE PARISH OF ST. LANDRY.
1. A certain lot or parcel of ground, together with all buildings and improvements thereon, rights, ways, privileges and appurtenances thereto belonging or appertaining, situated just Northwest and outside of the corporate limits of the City of Opelousas, in the Parish of St. Landry, State of Louisiana, on a 20 foot extension of Railroad Avenue, being more particularly described as Lot No. Twenty-one (21) on a plat of subdivision made of the property of Edward
Pitre located on the extension of Railroad Avenue made by Paul L. Mayne, C. E., dated November 14, 1945, filed in the office of the Clerk of Court of St. Landry Parish, Louisiana, said lot being bounded on the North by Lot Twenty-two (22) of said Subdivision, on the South by Lot Twenty (20) of said Subdivision, on the East by property of the Estate of Robert Sandoz, and on the West by the extension of Railroad Avenue.
Being a portion of that property acquired by Edward Pitre from Mrs. Alice Lafond, et al, by deed dated April 8, 1918, recorded in Conveyance Book "I", No. 4 1/2, at page 594, and by Central Louisiana Electric Company, Inc. from Edward Pitre by deed dated December 19, 1947, duly of record in the Conveyance Records of St. Landry Parish, Louisiana.
2. That certain twenty-five year non-exclusive franchise or permit granted by the Police Jury of St. Landry Parish, Louisiana, to Central Louisiana Electric Company, Inc., its successors and assigns, in, over, under and along all State Highways in the Parish of St. Landry, Louisiana, by ordinance adopted at its meeting held on April 2, 1946, recorded in Conveyance Book F-8, records of St. Landry Parish, Louisiana.
3. That certain twenty-five year non-exclusive franchise or permit granted by the Police Jury of St. Landry Parish, Louisiana, to Central Louisiana Electric Company, Inc., its successors and assigns, in, over, under and along all Parish roads in the Parish of St. Landry, Louisiana, by ordinance adopted at its meeting held on April 2, 1946, recorded in Conveyance Book F-8, records of St. Landry Parish, Louisiana.
II.
All real estate or interests therein, now owned or which may be hereafter acquired by the Company for use or which may be used by it in connection with its business as an electric, gas and water company, together with all of the right, title, and interest of the Company, now owned or hereafter acquired, in and to any and all works, plants, buildings, structures, erections, and constructions now
or hereafter placed upon any of the real estate mentioned, described or referred to as being subject to the lien of the Indenture with the fixtures, tenements, hereditaments, and appurtenances thereunto appertaining or belonging.
III.
All right, title and interest of the Company in and to any and all permits, grants, privileges, rights of way, tenements and easements now or hereafter owned, held, leased, enjoyed or exercised by the Company for the purposes of, and in connection with, the erection, construction, operation, or maintenance by or on behalf of the Company of any and all transmission and distribution lines or systems for the transmission or distribution of electric energy, gas and water, wherever located.
IV.
All right, title, and interest of the Company in and to any and all licenses, franchises, ordinances, privileges, or permits heretofore granted, issued or executed to the Company or its predecessors, or which may hereafter be granted, issued, or executed, to it by the United States of America, or by any State, or by any parish, county, township, municipality, village, or other political subdivision thereof, or any agency, board, commission or department of any of the foregoing, authorizing the erection, construction, operation, or maintenance of the transmission and distribution lines or systems, or any part thereof, heretofore or hereafter erected, constructed, operated or maintained by or on behalf of the Company, for the transmission or distribution of the electric energy, gas and water, insofar as the same may by law be assigned, granted, transferred, mortgaged, or pledged.
V.
All right, title and interest of the Company in and to:
All electric generating plants and stations, sites, electric reserve generating stations, substations, substation sites, office buildings, storeroom buildings, warehouse buildings, boiler houses, plants, plant sites, service plants, now or hereafter owned by the Company, including all
electric works, power houses, generators, turbines, boilers, engines, furnaces, buildings, structures, transformers, meters, towers, poles, tower lines, cables, pole lines, tanks, regulators, conduits, motors, wires, switch racks, switch brackets, insulators, pipe lines, pipes, compressors, pumps and other equipment which are or will be used or useful in the transmission of fuel supply to any of the Company's property used in the generation of electric energy, and all equipment, improvements, machinery, appliances, devices, appurtenances, supplies and miscellaneous property for generating, producing, transforming, converting, storing and distributing electric energy now owned by the Company and situated on the premises of the Company hereinbefore described, being located in the parishes of Rapides, Avoyelles, St. Landry, Evangeline, Grant and Natchitoches in the State of Louisiana, or hereafter acquired or constructed by the Company in any such parish or in any or all other parishes in said State.
All transmission and distribution lines, including poles, towers, crossarms, wires, cables, conduits, switches, lightning arresters, fuses, cutouts, insulators, transformers, service wires, condensers, meters and other customary and usual appurtenances, now existing or which may be hereafter acquired or constructed by the Company, for the transmission and distribution of electric energy along, over or under streets, alleys, public and private property in the towns, villages or communities of Bunkie, Cheneyville, Colfax, Cottonport, Evergreen, Lecompte, Mansura, Moreauville, Plaucheville, Simmesport, Ville Platte, Pineville, Pollock, Reddell, Vidrine, St. Landry, Hessmer, Forest Hill, Pine Prairie, Longbridge, Hamburg, Chataignier, Easton, Woodworth, Bordelonville, Bentley, Dry Prong, Libuse, Echo, Meeker, Eola, Fishville, Tioga, Kingsville, Paradise, Big Bend, Moncla, Chicot, Long Leaf, Point Blue, and Turkey Creek, in the State of Louisiana; and also all such transmission and distribution lines, with equipment as aforesaid, now existing or which may be hereafter acquired or constructed, in, adjacent to or extending along, over or under public streets and highways running between the cities and towns above mentioned; also all such transmission and distribution lines, with equipment as aforesaid, now existing or which may be hereafter acquired or constructed, upon or over private roads, private rights of way, rights of way acquired or used for the purpose, or lands privately
or publicly owned, for the transmission and distribution of electric energy to consumers thereof, in the parishes of Rapides, Avoyelles, St. Landry, Evangeline, Grant and Natchitoches, in the State of Louisiana; together with all transmission and distribution lines, including poles, towers, crossarms, wires, cables, insulators, conduits, switches, lightning arresters, fuses, cutouts, transformers, service wires, condensers, meters and other customary and usual appurtenances, hereafter acquired or constructed for the transmission and distribution of electric energy along, over or under streets, alleys, publicly and privately owned property, in any and all towns, whether incorporated or not, and cities regardless of class, and along, over and under public highways, private rights of way, and rights of way acquired or used for the purpose over privately or publicly owned property, in the parishes of Rapides, Avoyelles, St. Landry, Evangeline, Grant and Natchitoches, in the State of Louisiana, and in any and all other parishes in said State.
VI.
All waterworks, plants and water distribution systems, now owned by the Company, and any waterworks plants and/or waterworks distribution systems, hereafter constructed or acquired by the Company, together with the buildings, structures, erections, motors, pumps, pumping machinery, reservoirs, filters, filter-galleries, chlorinating equipment, tanks, wells, water rights, water supply, water mains, hydrants, pipe lines, service pipes, meters, standpipes, engines, boilers, tools, apparatus, appliances, facilities, machinery, equipment, fixtures, and all other property used or provided for use in the construction, maintenance, repair and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also with all of the rights, privileges, rights of way, franchises, licenses, easements, permits, liberties, immunities, grants and ordinances of the Company howsoever conferred or acquired, and whether now owned or hereafter to be acquired with respect to the construction, maintenance, repair and operation of said plants and systems and each of them, and any additions thereto and extensions thereof.
VII.
All gas generating plants, gas storage plants and gas transmission and/or distribution systems now owned by the Company, and any gas generating plants, gas storage plants and/or gas transmission and/or distribution systems hereafter constructed or acquired by the Company, and any additions to or extensions of any such existing or future plants, and systems, together with the buildings, erections, structures, generating and purifying apparatus, holders, engines, boilers, benches, retorts, tanks, pipe lines, compressors, connections, service pipes, meters, conduits, tools, instruments, appliances, apparatus, facilities, machinery, fixtures and all other property used or provided for use in the construction, maintenance, repair and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also with all rights, privileges, rights of way, franchises, licenses, easements, grants, liberties, immunities, permits and ordinances of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair and/or operation of said gas generating plants, gas storage plants and gas transmission and/or distribution systems, and each of them, and any additions thereto and extensions thereof.
VIII.
Any and all property which may from time to time after the date of this Indenture be delivered or which may by writing of any kind be conveyed, pledged, assigned or transferred to the Trustee by the Company, or by any person or corporation, to be held as part of the trust estate; and the Trustee is hereby authorized to receive any such property, and any such conveyance, pledge, assignment or transfer, as and for additional security hereunder, and to hold and apply any and all such property subject to and in accordance with the terms of this Indenture.
TOGETHER WITH all and singular the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the aforesaid property or any part thereof, with the reversion and reversions,
remainder and remainders, and (subject to the provisions of Section 9.01 hereof) the tolls, rents, revenues, issues, income, product and profits thereof, and all the estate, right, title, interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid property and every part and parcel thereof.
SAVING AND EXCEPTING, however, from the property hereby mortgaged and pledged (whether now owned by the Company or hereafter acquired by it) all bills, notes and accounts receivable, cash on hand and in bank, contracts, merchandise and appliances kept for purposes of sale, and all bonds, obligations, evidences of indebtedness, shares of stock and other securities, and certificates or evidences of interest therein--other than any of the foregoing which may be hereafter specifically transferred or assigned to or pledged or deposited with the Trustee hereunder or required by the provisions of this Indenture so to be--and all office furniture and equipment, motor vehicles, tools, testing equipment, consumable materials and supplies; provided, however, that, if upon the happening of an event of default as hereinafter in this Indenture defined, the Trustee or any receiver appointed hereunder shall enter upon and take possession of the mortgaged property, the Trustee or such receiver may, to the extent permitted by law, at the same time likewise take possession of any and all of the property described in this paragraph then on hand and use and administer the same to the same extent as if such property were part of the mortgaged property, unless and until such event of default shall be remedied or waived and possession of the mortgaged property restored to the Company, its successors or assigns.
SAVING AND EXCEPTING, however, from the property hereby mortgaged and pledged:
(a) The following parcels of land now owned by the Company and not used by it in connection with its business as an electric, gas or water company or as an electric, gas or water utility:
(1) parcels described as items 1, 2, 3, 4, 5, 6, 7, 9, 10 and 18, in deed dated January 2, 1935, from Frank C. Landers,
Trustee in Bankruptcy, and Louisiana Ice & Utilities, Inc., Bankrupt, to Louisiana Ice & Electric Company, Inc., recorded in Conveyance Book 199, page 273, Records of Rapides Parish, Louisiana, to which deed reference is hereby made for greater particularity of description;
(2) parcel described as item 4 in deed dated January 2, 1935, from Frank C. Landers, Trustee in Bankruptcy, and Louisiana Ice & Utilities, Inc., Bankrupt, to Louisiana Ice & Electric Company, Inc., recorded in Conveyance Book A-65, page 16, Records of Avoyelles Parish, Louisiana, to which deed reference is hereby made for greater particularity of description;
(3) parcel described as item 4 in deed dated January 2, 1935, from Frank C. Landers, Trustee in Bankruptcy, and Louisiana Ice & Utilities, Inc., Bankrupt, to Louisiana Ice & Electric Company, Inc., recorded in Conveyance Book B-30, page 170, Records of Evangeline Parish, Louisiana, to which deed reference is hereby made for greater particularity of description.
(b) All machinery, equipment, fixtures, supplies and materials used by the Company in its ice and cold storage, ice cream, or dairy business.
(c) All motor vehicles now used or hereafter acquired for use in connection with the ice and cold storage, ice cream and/or dairy business of the Company, together with all tires, spare parts, materials and supplies appertaining thereto.
(d) All machinery, equipment, fixtures, supplies and materials, not used by or useful to the Company in its business as an electric, gas or water company or as an electric, gas or water utility, not located on any parcel of real estate now owned or hereafter acquired, referred to as being subject to the lien of the Indenture.
(e) All additions, improvements, betterments, extensions and
replacements made to or in connection with the property set forth in paragraphs
(a), (b), (c) and (d) above.
TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Trustee and its successors in the trust hereby created and its and their assigns forever;
SUBJECT, HOWEVER, to existing leases, to easements and other rights of way for pole lines and other similar encumbrances and restrictions which the Company hereby certifies, in its judgment, do not impair the use of said property by the Company in its business, to liens securing indebtedness which has neither been assumed by the Company nor upon which it customarily pays interest charges, existing solely upon real property, or rights in and relating thereto, which real property or rights have been or may be acquired for right-of-way purposes, to liens of taxes and assessments for the current year and taxes and assessments not yet due, to alleys, streets and highways that may run across or encroach upon said lands, and to liens, if any, incidental to construction; and, with respect to any property which the Company may hereafter acquire, to all terms, conditions, agreements, covenants, exceptions and reservations expressed or provided in such deeds and other instruments, respectively, under and by virtue of which the Company shall hereafter acquire the same and to any and all liens existing thereon at the time of such acquisition within the restrictions contained in the Indenture; and subject also to other liens and encumbrances of the character hereinafter defined as "permitted liens" insofar as the same may attach to any of the property embraced herein;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth, from the execution and delivery of this Indenture, and that the lien and security of this Indenture shall take effect from the date of execution and delivery hereof as though all of the said bonds of all series were actually authenticated and delivered and issued upon such date;
PROVIDED, HOWEVER, and these presents are upon the condition that if the Company, its successors or assigns, shall pay or cause to be paid the principal of and interest on said bonds, together with the premium,
if any, payable on such of said bonds as may have been called for redemption prior to maturity, or shall provide, as permitted hereby, for the payment thereof by depositing with the Trustee the entire amount due or to become due thereon for principal, interest and premium, if any, and if the Company shall also pay or cause to be paid all other sums payable hereunder by it, then this Indenture and the estate and rights hereby granted shall cease, determine and be void, otherwise to be and remain in full force and effect.
IT IS HEREBY COVENANTED, DECLARED AND AGREED by and between the parties hereto, that all such bonds and coupons are to be authenticated, delivered and issued and that all property subject or to become subject hereto is to be held subject to the further covenants, conditions, uses and trusts hereinafter set forth, and the Company, for itself and its successors and assigns, does hereby covenant and agree to and with the Trustee and its successor or successors in such trust, for the benefit of those who shall hold said bonds and coupons, or any of them, as follows:
ARTICLE I
DEFINITIONS.
SECTION 1.01. The terms specified in the next succeeding six Sections hereof, numbered from 1.02 to 1.07, both inclusive, shall (except as herein otherwise expressly provided) have the meanings specified in such Sections for all purposes of this Indenture and of any indenture supplemental hereto including any certificate, opinion or other document filed with the Trustee pursuant to this Indenture. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939 or which are by reference therein defined in the Securities Act of 1933, as amended, shall (except as herein otherwise expressly provided) have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as those Acts were in force on the date of the execution of this Indenture.
SECTION 1.02.
the Company:
The term "the Company" shall mean CENTRAL LOUISIANA ELECTRIC COMPANY, INC., the party of the first part hereto, and, subject
to the provisions of Article XIII hereof, shall also include its successors and assigns.
the Trustee:
The term "the Trustee" shall mean THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the party of the second part hereto, and, subject to the provisions of Article XIV hereof, shall also include its successors and assigns.
this Indenture:
The term "this Indenture" shall mean this instrument as amended or supplemented by all indentures supplemental hereto. The words "hereof", "herein", "hereto", "hereby" and "hereunder" each refers to the entire Indenture.
bond or bonds:
The term "bond" or "bonds" shall mean any bond or all bonds, as the case may be, authenticated and delivered under this Indenture.
holder:
The term "holder" or "bondholder", when used with reference to bonds authenticated and delivered hereunder, shall mean the bearer of any bond the ownership of which is not at the time registered as to principal, and the person in whose name a particular registered bond without coupons, or a particular coupon bond registered as to principal, is at the time registered on the books of the Company kept for that purpose in accordance with the terms of this Indenture.
person:
The term "person" shall mean and include an individual, a corporation, a partnership, an association, a joint stock company, a trust, any unincorporated organization or any government or political subdivision thereof.
outstanding, with reference to bonds:
The term "outstanding", when used with reference to the bonds, shall mean (except as otherwise defined in paragraph (4) of subsec-
tion (E) of Section 14.14 hereof) as of any particular time all bonds which theretofore shall have been authenticated and delivered under this Indenture, except (a) bonds theretofore cancelled or delivered to the Trustee for cancellation, (b) bonds for the payment or redemption of which funds in the necessary amount shall have been or shall concurrently be specifically deposited with or held by the Trustee in trust with irrevocable direction so to apply the same (subject to the provisions of Section 15.04 hereof), provided that if such bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been published or otherwise given as required by this Indenture and the terms of such bonds, or provision satisfactory to the Trustee shall have been made for such notice, (c) bonds in lieu of or in substitution for which other bonds shall have been authenticated and delivered pursuant to the provisions of Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 8.04 and 17.04 hereof, and (d) bonds deposited with or held by the Trustee under any of the provisions of this Indenture, including any so held under any sinking or other similar fund unless otherwise expressly provided in relation to such fund; provided, however, that for the purposes of this Indenture, in determining the percentage of the principal amount of bonds outstanding (or of bonds of a particular series outstanding) entitling the holders thereof to take any action, or in determining whether the holders of the required percentage of the principal amount of bonds outstanding (or of bonds of a particular series outstanding) have concurred in any direction, demand, request, notice, consent or other action, bonds owned by the Company or by any other obligor on the bonds, or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or such obligor, shall be disregarded, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction or consent, only bonds which the Trustee knows are so owned, shall be so disregarded. Bonds so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this paragraph, if the pledgee shall establish to the satisfaction of the Trustee the pledgee's right to vote such bonds and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the bonds. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
resolution and resolution of the Board of Directors:
The terms "resolution" and "resolution of the Board of Directors" shall mean a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors or Executive Committee of the Company and to be in full force and effect on the date certified.
officers' certificate:
The term "officers' certificate" shall mean a certificate signed and verified by the President or a Vice-President of the Company and by an officer of the Company (who may be the Treasurer or an Assistant Treasurer or the Comptroller or an Assistant Comptroller or any other accounting officer of the Company) actively engaged in accounting work but who need not be a certified or licensed or public accountant. Each such certificate shall include the statements required by Section 3.01 hereof.
opinion of counsel:
The term "opinion of counsel" shall mean an opinion in writing signed by counsel (who may be an officer or employee of or of counsel to the Company) appointed by the Board of Directors or Executive Committee of the Company and satisfactory to the Trustee. Each such opinion shall include the statements required by Section 3.01 hereof. Any opinion of counsel given as to title to property may be based, in whole or in part, upon any guaranty or title policy, certified abstract, certificate or opinion issued or rendered by any person, firm or corporation while engaged in the business of insuring or guaranteeing titles to property or of making or issuing certified abstracts, or upon the opinion of other counsel; provided that in each case such opinion of counsel shall state that the signer believes the person, firm or corporation or other counsel so rendering or giving such guaranty or title policy, certified abstract, certificate or opinion is reputable and one upon whom he may properly rely.
independent:
The term "independent", when applied to any accountant, engineer, appraiser or other expert, shall mean such a person, who is in fact independent, appointed by the Board of Directors or Executive Committee of the Company and approved by the Trustee in the exercise of reasonable care.
control:
The term "control" shall mean the power to direct the management and policies of a person, directly or through one or more intermediaries, whether through the ownership of voting securities, by contract, or otherwise, and the terms "controlling" and "controlled" shall have meanings correlative to the foregoing.
affiliate:
The term "affiliate" shall mean a person controlling, controlled by, or under common control with, another person and the term "affiliated" shall have a meaning correlative to the foregoing.
responsible officers:
The term "responsible officers" of the Trustee shall mean the chairman of its board of directors, the chairman of its executive committee, the president, every vice-president, every assistant vice-president, the cashier, every assistant cashier, the treasurer, every assistant treasurer, the secretary, every assistant secretary, every trust officer, every assistant trust officer and every other officer and assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of, and familiarity with, a particular subject; and the term "responsible officer" shall mean any of said officers or assistant officers.
daily newspaper:
The term "daily newspaper" shall mean a newspaper printed in the English language customarily published at least once on each business day other than Sundays and holidays.
SECTION 1.03.
property:
The term "property" shall mean all property, real, personal and mixed, and all interests therein, and all rights and franchises.
the lien hereof and the lien of this Indenture:
The terms "the lien hereof" and "the lien of this Indenture" shall mean the lien created by these presents (including the after-acquired property clauses hereof) and the lien created by any subsequent conveyance or delivery to or pledge with the Trustee hereunder (whether made by the Company or any other person) effectively constituting any property a part of the security held by the Trustee upon the terms and trusts and subject to the covenants, conditions and uses specified in this Indenture.
the mortgaged and pledged property:
The term "the mortgaged and pledged property" shall mean as of any particular time all property (except cash held by the Trustee for the payment or redemption of particular bonds or coupons) which at such time is subject or intended to be subject to the lien of this Indenture whether such lien be created by these presents (including the after-acquired property clauses hereof) or by subsequent conveyances or delivery to or pledge with the Trustee hereunder or otherwise.
property additions:
The term "property additions" shall mean all tangible property (except as hereinafter in this Section expressly provided), including permanent improvements, extensions, betterments and replacements to or about the plants and properties of the Company, purchased, constructed, erected or otherwise acquired, and owned by the Company subsequent to June 30, 1950, which the Company has lawful authority to acquire, own and operate, which has become subject to the lien of this Indenture as a first mortgage lien thereon, subject only to permitted liens, as hereinafter defined, and which is used or useful by the Company in connection with the business of generating, manufacturing, purchasing or otherwise acquiring, transmitting, distributing
or supplying (i) electricity for light, heat, power or other purposes, (ii) gas for domestic, commercial and industrial uses and (iii) water for public or private use. All property of the character herein described as property additions in the process of construction or erection shall be deemed to be property additions as of any particular date, insofar as actually constructed or erected (whether or not constituting completed property units) after June 30, 1950, and before such particular date. Property additions shall mean all property additions, whether or not at the time retired. If the Company shall, in accordance with the provisions of Article XIII hereof, be merged into or consolidated with any other corporation or if all or substantially all of the mortgaged and pledged property shall be conveyed as an entirety to any other corporation in accordance with the provisions of Article XIII hereof, all property of the character herein described as property additions and owned by such successor corporation at the time of such consolidation, merger or conveyance (other than such property acquired from the Company) shall be deemed to be property additions acquired by such successor corporation at the date upon which it became such successor corporation.
The term "property additions" shall not, however, include (i) any property not subject to the direct lien of this Indenture or which is subject to any lien, other than permitted liens, as hereinafter defined, prior to or on a parity with the lien hereof; (ii) franchises or governmental permits, going value, or good will, as such, separate and distinct from the property operated thereunder or in connection therewith or incident thereto, or any leases, contracts, choses in action, shares of stock, bonds, notes, bills of exchange, evidences of indebtedness or other securities; (iii) any materials or supplies, unless and until installed and charged to plant or plant addition account; (iv) any item of property acquired to replace a similar item of property the retirement of which has not been credited to plant account, or any item of property the cost of which has been charged or is properly chargeable to repairs, maintenance or other operating expense account or the cost of which has not been charged or is not properly chargeable to plant or plant addition account; (v) any plant, system or other property in which the Company shall acquire only a leasehold interest,
or (unless the same shall be movable physical property used or useful in connection with bondable property and shall constitute, in the opinion of counsel, personal property) any improvements, extensions, additions, and betterments to any plant, system or other property in which the Company shall hold only a leasehold interest; (vi) any property which is expressly excepted from the lien of this Indenture; (vii) any property not located in the State of Louisiana; or (viii) any property, real, personal and mixed purchased, constructed, erected or otherwise acquired by the Company which is not used or useful in connection with the business of the Company as an electric, gas or water company or as an electric, gas or water utility. Materials and supplies shall be deemed to have been acquired as property additions when installed and charged to plant or plant addition account.
Except as provided in clause (v) above, there shall not be excluded from property additions any plant, system, equipment or other property of the Company by reason of the fact that it may be located upon or under public highways or other places not owned by the Company if such property is installed or constructed pursuant to rights held under easements, rights of way, permits, licenses, franchises and other like privileges.
amount:
The term "amount", when used with respect to property additions, shall mean the cost thereof to the Company, or the fair value thereof to the Company, whichever shall be less.
bondable property:
The term "bondable property" shall mean (i) all mortgaged and pledged property owned by the Company on July 1, 1950, and which would constitute property additions if purchased, constructed, erected or otherwise acquired by the Company subsequent to June 30, 1950, and (ii) property additions.
nonbondable property:
The term "nonbondable property" shall mean (i) all of the mortgaged and pledged property owned by the Company on July 1, 1950, which is not bondable property and (ii) all of the mortgaged and
pledged property purchased, constructed, erected or otherwise acquired by the Company subsequent to June 30, 1950, which does not constitute property additions; provided, however, that any nonbondable property, which, because of a change of conditions, shall come within the definition of property additions, shall be deemed to be property additions acquired by the Company on the date when such property came within the definition of property additions and shall thereupon cease to be nonbondable property and may thereafter be included in an officers' certificate as provided in subdivision 2 of Paragraph B of Section 1.06.
cost:
The term "cost", when used with respect to any particular property shall mean
(a) in the case of property acquired on or prior to January 1, 1935, the amount at which said property was carried on the books of account of the Company subsequent to restatement by the Company of its fixed property at original cost (estimated where not known) which restatement was made as of December 31, 1945, and in the case of property acquired subsequent to December 31, 1934, and before July 1, 1950, the cost (estimated where not known) thereof to the Company less in each case a due proportion of the reserve for renewals, replacements and retirements (or depreciation) accrued to July 1, 1950 as shown by the books of account of the Company on that date, and
(b) in the case of property purchased, constructed, erected or
otherwise acquired by the Company subsequent to June 30, 1950, the
cost (or, if not known, the estimated cost) thereof to the Company.
Such cost shall include (i) all amounts paid, expended or incurred in
the construction, erection or acquisition thereof, including the
installation thereof ready for operation and also including the cost
of paving, grading and other improvements to public highways
incidental to such construction, erection or acquisition and paid by
the Company or assessed against the Company or any of its properties;
(ii) the amount of any obligations or indebtedness payable in money
which were assumed or agreed to be paid by the Company in connection
with the construction,
erection or acquisition thereof or subject to which such property was acquired and which were credited or allowed upon or deducted from or constitute a part of the consideration therefor; (iii) such allowances for interest during construction, taxes, engineering, casualties and other items of overhead as are properly chargeable, in accordance with the requirements of any system of accounting with which the Company is then required to comply in accordance with the rules, regulations and orders of the regulatory commission or commissions having jurisdiction or supervisory authority over its accounts, or, if there be no such requirements, in accordance with sound accounting practice for companies engaged in business similar to that of the Company; and (iv) in the case of property acquired in exchange for other property owned by the Company at the time of such exchange, the fair value of the property so transferred in exchange.
The cost of any property consisting of an acquired plant or system shall include the cost, if any, to the Company of any franchises or other rights acquired simultaneously therewith for which no separate or distinct consideration shall have been paid or apportioned. In the case of property additions consisting of property owned by a successor corporation immediately prior to the time it shall have become such successor corporation by consolidation, merger or conveyance, the cost of such property shall be the cost thereof to such successor corporation, less applicable reserves for renewals, replacements and retirements (or depreciation) immediately prior to such consolidation, merger or conveyance.
In the case of property additions which prior to the date of acquisition thereof by the Company have been used or operated by a person or persons other than the Company in a business similar to that in which it has been or is to be used or operated by the Company, the "cost" shall be the original cost thereof (or, if not known, the estimated amount) as such cost is defined in accordance with the requirements of any system of accounting with which the Company is then required to comply in accordance with the rules, regulations and orders of the regulatory, commission or commissions having jurisdiction or supervisory authority over its accounts, less applicable reserves for renewals, replacements and retirements (or depreciation).
If property additions are acquired in whole or in part through the delivery of shares of stock in payment therefor, the portion of the cost of such property additions represented by such shares of stock shall be deemed to be the fair value in cash of such shares of stock at the time of delivery thereof in payment for such property additions.
In determining cost in cases in which property consists partly of bondable property and partly of nonbondable property or in cases in which cost is not allocated between various items of property and the determination of the cost of any or all of such items is required under any of the provisions of this Indenture, cost may be allocated to the various parts and items of property in accordance with the requirements of any system of accounting with which the Company is then required to comply in accordance with the rules, regulations and orders of the regulatory commission or commissions having jurisdiction or supervisory authority over its accounts, or, if there be no such requirements, in any manner which the officers making the officers' certificate in which the cost of such parts or items of property is required to be stated deem reasonable and in accordance with sound accounting practice for companies engaged in businesses similar to that of the Company.
For the purpose of making such allocation, the officers making such
officers' certificate may rely on and accept if they deem it proper so to do,
the certificate or opinion of an engineer, appraiser or other expert filed with
the Trustee with respect to the fair value of the property so acquired, and, if
the fair value of such property as set forth in such certificate or opinion
is not less than the greater of (i) twenty-five thousand dollars ($25,000) or
(ii) one per centum (1%) of the aggregate principal amount of the bonds at the
time outstanding, such certificate or opinion shall be made by an independent
engineer, appraiser or other expert which shall be filed with the Trustee and
shall govern for this purpose.
fair value to the company:
The term "fair value to the Company", when used with respect to any particular property, shall mean the fair value of such property to the Company as of the time that it was purchased, constructed,
erected or otherwise acquired by the Company, which fair value may, subject to the provisions of Section 3.01 hereof, be determined without physical inventory or inspection and by use of accounting and engineering records maintained by the Company with respect to such property and by application of appropriate life tables and indices of cost and other engineering methods. Such fair value to the Company of property consisting of an acquired plant or system shall not include any amount for any franchises, contracts, operating agreements or other rights acquired simultaneously therewith, even though no separate or distinct consideration shall have been paid for, or apportioned to, such franchises, contracts, operating agreements or other rights.
SECTION 1.04.
permitted liens:
The term "permitted liens" shall mean as of any particular time any of the following:
(i) liens for taxes, assessments or governmental charges not then delinquent; (ii) the lien of taxes, assessments or governmental charges due, or to become due, the validity of which is being contested at the time by the Company in good faith and, if necessary, by appropriate legal proceedings, provided that the Company shall have made such provision as may be required by the Trustee for the payment of any amount or the giving of such security as shall be required to prevent the loss or forfeiture of any of the mortgaged and pledged property, and for the payment of the amount of any such taxes, assessments or governmental charges as shall ultimately be determined to be due and payable; (iii) any liens, the indebtedness secured by which has not been assumed by the Company and on which it does not customarily pay interest charges, existing upon real estate or rights in or relating to real estate acquired by the Company for substation, transmission lines, distribution lines, pipe lines, water mains, or right of way purposes or for storeroom or service buildings incidental to any of the foregoing; (iv) rights reserved to or vested in any municipality or public authority by the terms of any right, power, franchise, grant, license, permit, or by any provision of law to terminate such right, power, franchise, grant, license or permit or to purchase, condemn or
recapture or to designate a purchaser of any of the property of the Company;
(v) leases, easements, restrictions, exceptions or reservations in any property
of the Company created at or before the acquisition thereof by the Company for
the purpose of roads, water mains, pipe lines, transmission lines, distribution
lines or for the joint or common use of real property and equipment and other
like purposes, and other minor defects and irregularities of title in any
property, which do not materially impair the use of such property in the
operation of the business of the Company or which the Company itself has power
to cure by appropriate legal proceedings; (vi) rights reserved to or vested in
any municipality or public authority to use or control or regulate any property
of the Company; (vii) any obligations or duties affecting the property of the
Company to any municipality or public authority with respect to any franchise,
grant, license or permit; (viii) undetermined liens and charges incidental to
construction, except such as may result from any delinquent obligation of the
Company for the payment of money on account of such construction; or (ix)
funded liens.
funded liens:
The term "funded liens" shall mean and include mortgage or other liens
upon any of the mortgaged and pledged property prior to or on a parity with the
lien of this Indenture, other than permitted liens as above defined in clauses
(i) to (viii), both inclusive, securing indebtedness for the payment or
redemption of which funds in the necessary amount shall have been or shall
concurrently be deposited with or be held by the Trustee or by the trustee or
other holder of such prior or equal lien with irrevocable direction so to apply
same, provided that if such indebtedness is to be redeemed prior to the
maturity thereof notice of such redemption shall have been published or
otherwise given as required by the prior or equal lien securing the same, or
provision satisfactory to the Trustee shall have been made for such notice.
unfunded liens:
The term "unfunded liens" shall mean and include any mortgage or other liens, other than permitted liens, upon any of the mortgaged
or pledged property prior to or on a parity with the lien of this Indenture. The bonds, obligations or principal indebtedness secured by such unfunded liens are designated "unfunded lien bonds".
SECTION 1.05.
retirements of bondable property and amount thereof:
The term "retirements of bondable property" shall include all bondable property which, subsequent to June 30, 1950, shall have been sold, exchanged or otherwise disposed of by the Company or taken through the exercise of eminent domain, or lost or destroyed by fire or other casualty, or which, subsequent to June 30, 1950, shall have become obsolete or worn out or permanently unserviceable, or which, subsequent to June 30, 1950, shall have been retired from service for any reason, or shall have permanently ceased to be used or useful in the business of the Company, or which, subsequent to June 30, 1950, shall have been otherwise abandoned, and which, subsequent to June 30, 1950, for any reason shall have been removed from the plant account of the Company or should have been so removed in accordance with the rules and regulations of any State or Federal governmental body under the jurisdiction of which the Company may be operating, or, if there be no such body or no pertinent rules or regulations, in accordance with sound accounting practice for companies engaged in business similar to that of the Company; provided, however, that there shall not be included in the term "retirements of bondable property" any items of property the cost of replacement of which is properly chargeable to operating expenses or maintenance or repair accounts or income account as distinguished from capital account.
The term "amount of retirements of bondable property" shall mean, as of any particular date, the sum of (i) the aggregate cost of all bondable property, which was bondable property on July 1, 1950, retired subsequent to June 30, 1950, and prior to such particular date, and (ii) the aggregate of the cost or fair value to the Company, whichever shall be the lesser, of all property additions retired subsequent to June 30, 1950, and prior to such particular date.
minimum provision for property retirements or depreciation:
The term "minimum provision for property retirements or depreciation"
when used with reference to any period of time, shall mean an amount equal to
(i) fifteen per centum (15%) of the gross operating revenues of the Company
received from electric, gas and water operations, during such period arising
from the operation of bondable property, after deducting from such gross
operating revenues (a) an amount equal to the aggregate cost to the Company of
electric energy, gas and water purchased for resale in connection with the
operation of bondable property and (b) rentals paid for the lease of electric,
gas and water facilities, less (ii) an amount equal to the aggregate charges by
the Company to operating expenses during such period for current repairs and
maintenance of bondable property.
amount of net property retirements:
The term "amount of net property retirements" at any particular time shall mean the amount, if any, by which (a) the aggregate amount of all retirements of bondable property during the period subsequent to June 30, 1950, or (b) the aggregate of the minimum provision for property retirements or depreciation for such period, whichever shall be the greater, exceeds the sum of (i) all cash and (ii) the principal amount of any purchase money obligations and (iii) obligations of a governmental or public body, authority, agency or licensee, deposited with the Trustee as the proceeds of insurance on, or of the release of, or of the taking by eminent domain of, or of the purchase by any governmental or public body, authority, agency or licensee, of, or other disposition or change of, any bondable property retired during such period.
SECTION 1.06.
bondable value of property additions:
(A) The term "bondable value of property additions", at any particular time, shall mean the sum of the cost or the fair value to the Company, whichever shall be less, of all property additions then or theretofore certified to the Trustee pursuant to the provisions of subsection B of this Section, after deducting therefrom the sum
of (a) the amount of net property retirements and (b) the amount of bondable value of property additions theretofore made the basis for the authentication and delivery of bonds or the withdrawal of cash under any provision of this Indenture or for a credit under any sinking and improvement fund or other purchase or similar fund which may be created pursuant to the provisions of any indenture supplemental to this Indenture.
(B) Each computation of bondable value of property additions shall be contained in an officers' certificate with respect to bondable value of property additions. The Company may, at its option, deliver to the Trustee at any time, an officers' certificate with respect to bondable value of property additions, and shall deliver such an officers' certificate to the Trustee on or before April 30 of each year beginning with the year 1951, whether or not any part of the bondable value of property additions as computed therein is to be used in connection with any application or certification then made to the Trustee, and shall also be required to deliver such an officers' certificate in connection with any application or certification at any time made to the Trustee which provides for the use of bondable value of property additions; provided, however, that no such officers' certificate shall be used in connection with an application for the authentication and delivery of bonds unless the end of the period covered thereby shall be not more than three (3) months prior to the delivery thereof to the Trustee.
Each such officers' certificate required to be delivered to the Trustee on or before April 30 of each year (hereinafter referred to as the annual officers' certificate with respect to bondable value of property additions) shall be for the period ended December 31 of the preceding year, and any other such officers' certificate delivered to the Trustee shall be for the period ended not more than three (3) months prior to the delivery thereof and, if any such officers' certificate is delivered to the Trustee subsequent to January 1 and prior to April 30 in any year and before there has been delivered to the Trustee the annual officers' certificate with respect to bondable value of property additions, it shall be for a period ended not later than December 31 of the preceding year.
Each officers' certificate of bondable value of property additions shall set forth and need only set forth:
(1) except in the case of the first such officers' certificate so delivered to the Trustee, the sum of the cost or the fair value to the Company, whichever shall be the lesser, of all property additions theretofore certified to the Trustee as shown by the preceding officers' certificates delivered to the Trustee pursuant to the provisions of this subsection (B) (without detail as to the manner of computation or as to the nature of the items included therein);
(2) a brief identification of the property additions then being certified to the Trustee (and, if any property included in such property additions is located on any leasehold, stating that the property located on such leasehold constitutes movable physical property used or useful in connection with bondable property), which shall include only property additions purchased, constructed, erected or otherwise acquired by the Company during the period subsequent to the end of the period covered by the last preceding officers' certificate delivered to the Trustee pursuant to this subsection (B), or subsequent to June 30, 1950, if no such certificate shall previously have been delivered to the Trustee; provided, however, that property of the Company which originally constituted nonbondable property, may be included in a later officers' certificate delivered to the Trustee pursuant to this subsection (B) when such property shall have come within the definition of the term property additions regardless of the period covered by such later certificate; and provided, further, that any property additions acquired by the Company within fifteen days preceding, or to be so acquired concurrently with, the making or granting of any application in connection with which such officers' certificate is delivered to the Trustee may (unless such property additions are to be acquired in exchange or substitution for bondable property) be certified to the Trustee as property additions in such officers' certificate and in such event shall be treated for all purposes of this Indenture as having been acquired within the period covered by such officers' certificate;
(3) the cost to the Company of the property additions then being certified to the Trustee, which cost, to the extent that it is represented by shares of stock, shall be the fair value in cash of such shares as determined by an appraiser or other expert in accordance with the provisions of subsection (C) of this Section;
(4) the fair value to the Company of the property additions then being certified to the Trustee, as determined by an engineer, appraiser or other expert in accordance with the provisions of subsection (C) of this Section;
(5) the aggregate cost or, in the event that the fair value to the Company of any such property additions then being certified to the Trustee shall be less than the cost thereof, the sum of the aggregate fair value to the Company of such property additions and the aggregate cost of all other property additions then being certified to the Trustee;
(6) the aggregate amount of all retirements of bondable property during the period subsequent to June 30, 1950;
(7) the aggregate of the minimum provision for property retirements or depreciation for such period, showing, in reasonable detail, how the same has been calculated;
(8) the aggregate amount of all cash and principal amount of purchase money obligations and obligations of a governmental or public body, authority, agency or licensee deposited with the Trustee as the proceeds of insurance on, or the release, or the taking by eminent domain, or the purchase by any governmental or public body, authority, agency or licensee, of, or other disposition or change of any bondable property retired during such period;
(9) the amount of net property retirements for such period;
(10) the aggregate amount of bondable value of property additions theretofore made the basis for the authentication and delivery of bonds or the withdrawal of cash under any provision of this Indenture, or for a credit under any sinking and improvement fund or other purchase or similar fund which may be created pursuant to the provisions of any indenture supplemental to this Indenture during the period;
(11) the aggregate of the amount set forth pursuant to the foregoing paragraphs (1) and (5);
(12) the aggregate of the amounts set forth pursuant to the foregoing paragraphs (9) and (10);
(13) a computation showing the result (plus or minus) after deducting from the amount set forth pursuant to the foregoing paragraph (11) the amount set forth pursuant to the foregoing paragraph (12); and
(14) the resulting balance available (or the resulting deficiency) on the date of such officers' certificate and the amount, if any, of any such balance then to be made the basis for the authentication and delivery of bonds or the withdrawal of cash under any provision of this Indenture, or for a credit under any sinking and improvement fund or other purchase or similar fund which may be created pursuant to the provisions of any indenture supplemental to this Indenture, provided, however, that if any of such property additions are used or useful to the Company in its business as a gas company or gas utility, the certificate shall state that the cost or fair value, whichever is lower, of such property additions does not exceed ten per centum (10%) of the aggregate of (1) all property additions certified to the Trustee hereunder including the property additions contained in said certificate (but excluding property additions certified pursuant to Section 5.23 hereof) and (2) one hundred sixty-six and two-thirds per centum (166 2/3%) of the principal amount of the bonds of Series A authenticated by the Trustee and delivered pursuant to Section 4.02 hereof.
(C) Each officers' certificate delivered to the Trustee pursuant to subsection (B) of this Section shall be accompanied by:
(1) a certificate or opinion of an engineer, appraiser or other expert with respect to the fair value to the Company of the property additions then being certified to the Trustee, and, if
(a) within six months prior to the date of the acquisition thereof, any property included in such property additions was used or operated by a person or persons other than the Company in a business similar to that in which it has been or is to be used or operated by the Company, and
(b) the fair value to the Company of such property, as set forth in such certificate or opinion, is not less than the greater of (i) Twenty-five Thousand Dollars ($25,000) or (ii) one per centum (1%) of the aggregate principal amount of the bonds at the time outstanding,
such certificate or opinion with respect to such property so used or operated shall be made by an independent engineer, appraiser or other expert (and the fair value to the Company of such property as stated in such certificate or opinion shall be used in the accompanying officers' certificate), and such certificate or opinion shall also cover the fair value to the Company of all property so used or operated which shall have been subjected or shall have become subject to the lien of this Indenture since the commencement of the then current calendar year and which shall have been included in any property additions certified to the Trustee and with respect to which a certificate or opinion of an independent engineer, appraiser or other expert shall not previously have been furnished; and if the aggregate of the fair value to the Company, as stated in such certificate or opinion, of the property previously so certified to the Trustee and which is required to be covered by such certificate or opinion of an independent engineer, appraiser or other expert, is less than the aggregate amount at which such property was previously certified to the Trustee pursuant to paragraph (5) of subsection (B) of this Section, the difference shall be treated as a retirement of bondable property in the accompanying officers' certificate;
(2) in case any property, included in the property additions then being certified to the Trustee was acquired in whole or in part through the delivery of shares of stock, a written appraisal of an independent appraiser or other expert, stating the fair value in cash, in the opinion of the signer, of such shares of stock at the time of delivery thereof in payment for, or for the acquisition of, such property;
(3) all such deeds, indentures supplemental hereto or instruments of further assurance as in the opinion of counsel, furnished pursuant to paragraph (4) below, may be necessary to subject to the lien of this Indenture the property additions then being
certified to the Trustee pursuant to the provisions of subsection (B) of this Section; and
(4) an opinion of counsel specifying the deeds, indentures supplemental hereto or instruments of further assurance necessary to subject to the lien of this Indenture all the right, title and interest of the Company in and to the property of the Company (except property which has been retired) constituting the property additions then being certified to the Trustee pursuant to the provisions of subsection (B) of this Section, or stating that no such instruments are necessary for such purpose, and also stating that in the opinion of the signer (i) except with respect to property which has been retired, the Company has title to, or contemporaneously with the granting of any application in connection with which an officers' certificate is then being delivered to the Trustee pursuant to the provisions of subsection (B) of this Section will have title to, the property constituting such property additions and that this Indenture is, or upon the delivery of the deeds, indentures supplemental hereto or instruments of further assurance, if any, specified in said opinion, will be, a lien upon such property of the Company (except property which has been retired) subject to no defect in title and subject to no lien thereon prior to the lien of this Indenture, except permitted liens, and, if any such property of the Company is located on any leasehold, stating that the property located on such leasehold constitutes personal property; and (ii) that the Company has corporate authority and all necessary permission from governmental authorities to acquire, own and operate the property constituting such property additions. Unless such opinion shall show that no consent or approval of any governmental authority (other than those previously evidenced to the Trustee) is requisite to the acquisition, ownership or operation of such property additions, it shall specify and be accompanied by officially authenticated certificates, or other documents, by which such consent or approval is or may be evidenced.
SECTION 1.07.
net earnings certificate:
The term "net earnings certificate" shall mean an officers' certificate stating:
(A) for a period of any twelve (12) consecutive calendar months within the fifteen (15) calendar months immediately preceding the first day of the month in which the application for the authentication and delivery of the bonds then applied for is made to the Trustee, the net earnings of the Company, which shall be the amount stated in subparagraph (I) below minus the amount stated in subparagraph (II) below and plus the amount (or minus the amount if it represents a net loss) stated in subparagraph (III) below; provided, that in no event shall the amount to be added with respect to the amount stated in subparagraph (III) below exceed ten per centum (10%) of the balance arrived at by deducting the amount stated in subparagraph (II) below from the amount stated in subparagraph (I) below; and specifying for such period:
(I) the gross electric, gas and water operating revenues of the Company with the principal divisions thereof (including operating revenues from the operation of any property acquired within fifteen (15) days preceding, or to be so acquired concurrently with, the making or granting of the application in connection with the issue of the bonds applied for in the application in connection with which such certificate is made); provided, however, that there shall not be included in arriving at the amount to be stated pursuant to this subparagraph (I) any revenues arising from the operation of any business unit not owned or to be owned by the Company or not subject to or to be subject to the lien of this Indenture at the time of the making of such net earnings certificate (or upon the issue of the bonds then applied for), nor shall there be included any revenues properly classifiable as non-operating revenues;
(II) the electric, gas and water operating expenses of the Company specifying the principal divisions thereof, including taxes (other than Federal and State income, excess profits and other taxes measured by or dependent on net taxable income) assessments, rentals, insurance, actual charges for current repairs and maintenance, and amounts set aside or reserved to provide for property retirements or depreciation, and the amount, if any, by which the minimum provision for
property retirements or depreciation for the period of computation exceeds the amounts so set aside or reserved, but excluding all interest and sinking fund charges and excluding any charges to income or otherwise for the amortization of utility plant account or amounts transferred therefrom and excluding amortization of debt and stock discount and expense or premium; provided that there shall be included in arriving at the amount to be stated pursuant to this subparagraph (II) all the charges referred to in the foregoing provisions of this subparagraph (II) applying to property acquired within fifteen (15) days preceding, or to be acquired concurrently with, the making or granting of the application in connection with the issue of the bonds then applied for, but there shall be excluded in arriving at the amount to be stated pursuant to this subparagraph (II) all expenses and charges arising from the operation of any business unit not owned or to be owned by the Company or not subject to or to be subject to the lien of this Indenture at the time of the making of such net earnings certificate (or upon the issue of the bonds then applied for), and there shall also be excluded all expenses and charges properly classifiable as non-operating expenses or charges; and
(III) the aggregate (net income or net loss) of (1) net non-operating income and (2) net income which in the opinion of the signers is directly derived from the operation of any business unit not owned or to be owned by the Company or not subject to or to be subject to the lien of this Indenture at the time of the making of such net earnings certificate (or upon the issue of the bonds then applied for);
(B) the annual interest charges upon (1) all bonds outstanding hereunder at the date of such certificate except any for the refunding of which the bonds applied for are to be issued, (2) those then applied for in the application in connection with which such certificate is made and those applied for in any other pending application, and (3) all indebtedness outstanding at the date of such certificate which is secured by lien for the payment of money or its equivalent prior to or on a parity with the lien of this Indenture within the restrictions contained in this
Indenture other than permitted liens but only to the extent the same will be outstanding immediately after the authentication of the bonds then applied for in the application in connection with which such certificate is made and after the authentication of any other bonds applied for in any other pending application; and
(C) the "interest earnings requirement", which shall be a figure equal to two and one-half times the aggregate annual interest charges specified in subsection (B) of this Section.
The term "business unit" shall not apply to any leased electric, gas or water facilities operated by the Company as part of its system.
If any of the property owned by the Company at the time of the making of any net earnings certificate or acquired by the Company within fifteen days preceding, or to be acquired concurrently with, the making or the granting of any application in connection with which such net earnings certificate is delivered to the Trustee, shall consist of property formerly operated by others and acquired by the Company during or after the period covered by such net earnings certificate or to be acquired by the Company, as aforesaid, the net earnings of such property (computed in the manner specified in this Section for the computation of the net earnings of the Company) during such period or such part of such period as shall have preceded the acquisition thereof by the Company, if and to the extent that the same have not otherwise been included and can be determined, and unless such property shall have been acquired, or is to be acquired, in exchange or substitution for property the earnings of which have been included, shall for all purposes of this Indenture be treated as a part of the net earnings of the Company.
In any application for the authentication and delivery of bonds where a net earnings certificate is required, if the aggregate principal amount of bonds then applied for plus the aggregate principal amount of bonds authenticated and delivered since the commencement of the then current calendar year (other than those with respect to which a net earnings certificate is not required or with respect to which a net earnings certificate signed by an independent public accountant has previously been furnished) is ten per centum (10%) or more of
the aggregate amount of the bonds at the time outstanding hereunder, such net earnings certificate shall be made and signed by an independent public accountant.
Each net earnings certificate required to be delivered to the Trustee shall include the statements required by Section 3.01 hereof.
ARTICLE II.
DESCRIPTION, FORM, EXECUTION, REGISTRATION AND EXCHANGE OF BONDS.
SECTION 2.01. The bonds may be issued in one or more series as from time to time shall be authorized by the Board of Directors of the Company, and shall be designated generally as the "First Mortgage Bonds" of the Company. The bonds of each series other than Series A shall have such further particular designations as the Board of Directors may adopt for such series, and each bond issued hereunder shall bear upon the face thereof the designation so adopted for the series to which it belongs.
The bonds of each series and the coupons shall be substantially in the forms hereinbefore recited for the bonds of Series A, but in the case of other series with such omissions, variations and insertions as are authorized or permitted by this Indenture. The definitive bonds of each series shall be engraved, lithographed or printed, as the Board of Directors may determine.
The bonds and the coupons may contain such specifications, descriptive words and recitals, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon, as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the bonds may be listed or to conform to usage.
The bonds of any series other than Series A at the election of the Board of Directors, as expressed in one or more indentures supplemental hereto, may contain such terms and conditions, not in
conflict with the provisions of this Indenture, as may be prescribed by the
Board of Directors, including terms and conditions with respect to: (a) date,
(b) date of maturity, (c) interest rate, (d) interest payment dates, (e) the
place or places for the payment of principal and for the payment of interest,
(f) payment of principal or interest, or both, without deduction for, or with
respect to reimbursement of, taxes, (g) redemption, (h) a sinking, purchase or
similar fund with respect to the bonds of the series, (i) convertibility, (j)
exchangeability, (k) limitation, if any, upon the aggregate principal amount of
bonds of the series which may be issued, (l) whether issuable as coupon bonds
with or without provision for registration as to principal, and whether
issuable as fully registered bonds, and (m) any other provisions not in
conflict with the provisions of this Indenture.
In authorizing the issue of any series of bonds (other than bonds of Series A), the Board of Directors shall determine and specify substantially the form of the bonds and coupons, if any, of such series.
All bonds of any one series at any time simultaneously outstanding hereunder shall be identical in respect of the date of maturity (unless they are of serial maturities), the place or places of payment of the principal thereof and interest thereon, the interest rate (unless they are of serial maturities) and interest payment dates, the terms and rate or rates of redemption (unless they are of serial maturities), if redeemable, the provisions (if any) for a sinking, purchase or similar fund for the retirement of bonds of such series, and the provisions (if any) as to the payment of principal or interest, or both, without deduction for, or as to the reimbursement of, taxes and (except for necessary or proper variations between bonds of different denominations) as to conversion, but bonds of the same series may be of different denominations and bonds of any series other than Series A may be of serial maturities and, if of serial maturities, may differ with respect to maturity date, interest rate and price and terms of redemption. All coupon bonds of any one series shall be dated as of the same date.
SECTION 2.02. The bonds shall be signed on behalf of the Company by its President or a Vice-President under its corporate seal which
shall be attested by its Secretary or an Assistant Secretary and, to the extent permitted by law, may be in the form of a facsimile of the seal of the Company and may be impressed, affixed, imprinted or otherwise reproduced on the bonds. Only such bonds as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee, shall be secured by this Indenture or be entitled to any right or benefit hereunder. No bond and no coupon thereunto appertaining shall be or become valid or obligatory for any purpose until such certificate shall have been duly executed on such bond. Such certificate by the Trustee upon any bond executed by the Company shall be conclusive evidence and the only competent evidence that the bond so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the security and benefit of this Indenture. The Trustee shall not authenticate or deliver any coupon bond until all matured coupons thereunto appertaining shall have been detached and cancelled, except as otherwise provided in Section 2.03 hereof or permitted in Section 2.08 hereof.
In case any officer of the Company who shall have signed any of the bonds or attested the seal thereon shall cease to be such officer before the bonds so signed or sealed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such bonds, nevertheless, may be authenticated and delivered or disposed of as though the person who signed such bonds or attested the seal thereon had not ceased to be such officer; and any bond may be signed on behalf of the Company and the seal of the Company may be attested by such persons as, at the actual date of the execution of the bond, shall be the proper officers of the Company, although at the date of such bond any such person was not such officer. The coupons attached to coupon bonds shall bear the facsimile signature of the present Treasurer or of any future Treasurer of the Company, and for that purpose the Company may adopt and use the facsimile signature of any person who shall have been such Treasurer, notwithstanding the fact that at the time when such coupon bonds shall be authenticated and delivered or disposed of he shall have ceased to be the Treasurer of the Company.
SECTION 2.03. No registered bonds without coupons of any series other
than Series A shall be issued under this Indenture unless the Board of
Directors shall determine that, in the case of any particular series, such
bonds shall be issued and shall cause registered bonds without coupons,
substantially in the form hereinbefore set forth with such changes therein or
modifications thereof as shall be appropriate, in such denominations as shall
be determined by the Board of Directors, to be prepared and delivered to the
Trustee. Any registered bond without coupons of any series may be transferred
at the office or agency of the Company specified for such purpose in the bond
or in any indenture supplemental hereto with respect to the bonds of the
particular series, upon surrender thereof at said office or agency for
cancellation, and thereupon the Company shall issue in the name of the
transferee or transferees, and the Trustee shall authenticate and deliver, a
new registered bond or bonds of the same series and maturity in authorized
denominations, for a like aggregate principal amount. Except as provided in
Section 2.08, every registered bond without coupons shall be dated as of the
date of its issue (except that if any registered bond shall be issued on any
interest payment date it shall be dated as of the day next following such
interest payment date). Every registered bond without coupons shall bear
interest from the interest payment date next preceding the date of such bond
(or, if the date of such bond is prior to the first interest payment date for
the bonds of such series, then from the date from which interest is payable
with respect to the bonds of such series); provided, however, that upon any
transfer or exchange of registered bonds without coupons, if the Company at the
time shall be in default in the payment of interest on the registered bond or
bonds surrendered on such transfer or exchange, the Trustee shall endorse upon
any registered bond or bonds issued upon such transfer or exchange a legend to
the effect that the same bear interest from a specified date, which date shall
be the last interest payment date to which interest has been paid on the
registered bond or bonds so surrendered.
Registered bonds without coupons may, upon surrender thereof at the aforesaid office or agency of the Company, be exchanged for a like aggregate principal amount of bonds of like form, in authorized denominations, or of coupon bonds of the same series and maturity,
in the denomination of One Thousand Dollars ($1,000) and with coupons representing interest from the last interest payment date to which interest has been paid on the registered bonds so surrendered, or for a like aggregate principal amount of both such registered bonds without coupons and coupon bonds; provided, however, that the Company shall not be obligated to make any such exchange until sixty (60) days after the date of receipt by it of notice of the proposed surrender of such registered bonds.
SECTION 2.04. All coupon bonds issued hereunder shall be transferable by delivery except while registered as to principal in the manner hereinafter provided. Any coupon bond issued hereunder may be registered as to principal in the name of the holder on books of the Company to be kept for that purpose at the office or agency of the Company specified for such purpose in the bond or in any indenture supplemental hereto with respect to the bonds of the particular series, and such registration shall be noted on the bond. After such registration, no transfer shall be valid unless made on said books by the registered owner in person, or by his attorney duly authorized in writing, and similarly noted on the bond; but such bond may be discharged from registration by being in like manner transferred to bearer, and thereupon transferability by delivery shall be restored; and such bond may again, from time to time, be registered or discharged from registration in the same manner. Such registration, however, shall not affect the negotiability by delivery of the coupons, but every such coupon shall continue to be transferable by delivery merely, and shall be and remain payable to bearer, and payment thereof to bearer shall fully discharge the Company in respect of the interest therein mentioned, whether or not the bond to which such coupon shall appertain be registered as to principal. Such registrations, transfers and discharges from registration shall be under such reasonable regulations as the Company may prescribe and shall be without expense to the holder or registered owner of the bond; but any taxes or other governmental charges required to be paid with respect to the same shall be paid by the party requesting such registration, transfer or discharge from registration as a condition precedent to the exercise of the privilege conferred by this Section.
Coupon bonds of any authorized denominations less than One Thousand Dollars ($1,000), bearing all unmatured coupons, may, upon surrender thereof at the aforesaid office or agency of the Company in principal amounts aggregating One Thousand Dollars ($1,000) or any multiple thereof, be exchanged for a like aggregate principal amount of coupon bonds of the same series and maturity, in the denomination of One Thousand Dollars ($1,000), bearing all unmatured coupons. Coupon bonds of any series other than Series A, whether issued upon original issue or in exchange for registered bonds without coupons, shall not be exchangeable for registered bonds without coupons unless the Board of Directors of the Company shall so determine with respect to the bonds of such series.
SECTION 2.05. In all cases in which the privilege of exchanging bonds or transferring registered bonds exists and is exercised, the bonds to be exchanged or transferred shall be surrendered for cancellation at the office or agency of the Company specified for such purpose in the bonds or in any indenture supplemental hereto with respect to the bonds of the particular series, with all unmatured coupons (if any) attached and, in the case of coupon bonds registered as to principal or registered bonds without coupons, accompanied by such duly executed instruments of transfer as may be required by the Company and the Trustee, and the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor the bonds, with appropriate coupons attached, which the person making the exchange or transfer shall be entitled to receive.
Every exchange or transfer of bonds under the provisions of this Article II shall be effected in such manner as may be prescribed by the Board of Directors, with the approval of the Trustee, and as may be required to comply with the rules and regulations of any stock exchange upon which the bonds are listed or are to be listed or to conform to any usage with respect thereto. The Company shall not be required to make exchanges or transfers of any bond under any provision of this Article II after the first publication of notice of redemption of such bond, anything in such bond to the contrary notwithstanding.
Upon any such exchange of bonds or transfer of registered bonds without coupons the Company may require the payment of such reasonable charges, therefor, not exceeding Two Dollars ($2) for each such bond issued, as it may deem proper, the payment of which, together with any taxes or other governmental charges required to be paid with respect to such exchange or transfer, shall be made by the person requesting the same as a condition precedent to the exercise of the privilege of such exchange or transfer.
SECTION 2.06. In case the Company, pursuant to the provisions of Article XIII hereof, shall be consolidated with or merged into any other corporation or shall convey or transfer, subject to the lien of this Indenture, all or substantially all of the mortgaged and pledged property as an entirety or substantially as an entirety, and the successor corporation resulting from such consolidation, or into which the Company shall have been merged, or which shall have received a conveyance or transfer as aforesaid, shall have executed with the Trustee and caused to be recorded an indenture pursuant to the provisions of Section 13.02 hereof, any bonds issued under this Indenture prior to such consolidation, merger, conveyance or transfer may, from time to time, at the request of the successor corporation and with the consent of the holders of such bonds, be exchanged for other bonds of the same series and maturity, executed in the name and under the seal of the successor corporation, with such changes in phraseology and form as may be appropriate but in substance of like tenor as the bonds surrendered for such exchange, and of like principal amount; and the Trustee, upon the request of the successor corporation, shall authenticate bonds as specified in such request for the purpose of such exchange and shall deliver such bonds upon surrender of the bonds so to be exchanged therefor. All coupon bonds so surrendered and all coupon bonds delivered in exchange therefor shall be accompanied by all unmatured coupons appertaining thereto, and all coupon bonds registered as to principal and registered bonds without coupons so surrendered shall be accompanied by written instruments of transfer duly executed by the registered holder or his attorney duly authorized in writing, if deemed necessary by the Trustee. The Trustee shall forthwith cancel all bonds and coupons so surrendered
and shall cremate all coupon bonds and coupons so cancelled and deliver a certificate of such cremation to the Company, and, on the written request of the Company, shall deliver to the Company all registered bonds without coupons so cancelled. All bonds so executed in the name and under the seal of the successor corporation and authenticated and delivered shall in all respects have the same legal rank and security as the bonds executed in the name of the Company and surrendered upon such exchange, with like effect as if the bonds so executed in the name of the successor corporation had been issued, authenticated and delivered hereunder on the date hereof.
The Company covenants and agrees that, if additional bonds of any particular series of which bonds are at the time outstanding shall at any time be issued in any new name, the Company will provide for the exchange of any bonds of such series previously issued, at the option of and without expense to the holders, for bonds issued in such new name.
SECTION 2.07. Pending the preparation of definitive bonds of any series, the Company may execute and the Trustee shall authenticate and deliver one or more temporary typewritten, printed, lithographed or engraved bonds of such series, of any denomination or denominations, in bearer form, with or without one or more coupons and with or without the privilege of registration as to principal, or in fully registered form, exchangeable or not exchangeable for temporary bonds of other form or other authorized denominations of such series, and substantially in the form of the definitive bonds of such series, but with such omissions, insertions and variations appropriate for temporary bonds, all as provided in the written order of the Company for the authentication and delivery thereof. Every such temporary bond shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive bonds. The Company shall, without unnecessary delay and at its own expense, prepare, execute and deliver to the Trustee, and thereupon, upon the presentation and surrender of any such temporary bond or bonds, the Trustee shall authenticate and deliver therefor, definitive bonds of the same series and maturity, for the same aggregate principal amount as, and in the authorized denomination indicated by, the holders of the temporary bond or bonds so surrendered.
All temporary bonds so surrendered for exchange shall be in bearer form or, if registered, shall be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and to the Trustee, duly executed by the registered holder or by his duly authorized attorney, with all unmatured coupons, if any, appertaining thereto. Until so exchanged, the temporary bonds shall in all respects be entitled to the same benefit and security of this Indenture as definitive bonds authenticated and delivered hereunder. When and as interest is paid upon any temporary bond in bearer form but without coupons, the fact of such payment shall be noted thereon, and interest due on any temporary bond which is represented by a coupon shall be paid only upon presentation and surrender of such coupon for cancellation.
Until definitive bonds are ready for delivery, the holder of any temporary bond or bonds may, with the consent of the Company, exchange the same, upon the surrender thereof to the Trustee for cancellation, with all matured coupons, if any, appertaining thereto, for a like aggregate principal amount of temporary bonds of the same series and maturity, in any other authorized denomination or denominations indicated by him, bearing all unmatured coupons, if any.
SECTION 2.08. In case any temporary or definitive bond and any coupons appertaining thereto shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its request the Trustee shall authenticate and deliver, a new bond (with coupons corresponding to the coupons, if any, appertaining to the mutilated, destroyed, lost or stolen bond) of the same series and maturity and of like tenor, in exchange and substitution for the mutilated bond and its coupons (if any), or in lieu of and substitution for the bond and its coupons (if any) so destroyed, lost or stolen, or, if any such bond or any coupon shall have matured or shall be about to mature, instead of issuing a substituted bond or coupon the Company may pay the same without surrender thereof. In case of destruction, loss or theft of any bond or coupon, the applicant for a substituted bond or for such payment shall furnish to the Company and to the Trustee, in its discretion, evidence to their satisfaction of the
destruction, loss or theft of such bond and its coupons (if any) and of the ownership thereof, and also such security or indemnity as may be required by the Company and the Trustee to save each of them harmless. The Trustee may authenticate any such substituted bond and deliver the same with appurtenant coupons (if any), or the Trustee or any paying agent of the Company may make any such payment upon the written request or authorization of the Company, and shall incur no liability to anyone by reason of anything done or omitted to be done by it in good faith and without negligence under the provisions of this Section. Upon the issue of any substituted bond, the Company may require the payment of a sum sufficient to cover any tax or taxes or other governmental charge and any other expense connected therewith, and also a further sum not exceeding two dollars ($2) for each bond so issued in substitution.
Any bonds and coupons issued under the provisions of this Section shall constitute additional original contractual obligations on the part of the Company and shall be equally and proportionately entitled to the benefit and security of this Indenture with all other bonds and coupons issued under this Indenture.
SECTION 2.09. All bonds and coupons surrendered for the purpose of payment, redemption, exchange or transfer shall, if surrendered to the Company or any paying agent, be cancelled and delivered to the Trustee, or, if surrendered to the Trustee, shall be cancelled by it, and no bonds or coupons shall be issued under this Indenture in lieu thereof except as expressly permitted by any of the provisions hereof. If the Company shall acquire any of the bonds, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such bonds unless and until the same are surrendered to the Trustee for cancellation.
The Trustee shall make appropriate notations in its records in respect of all the bonds and coupons cancelled by it and shall cremate all coupon bonds and coupons so cancelled and deliver a certificate of such cremation to the Company and, on the written request of the Company, shall deliver to the Company all registered bonds without coupons so cancelled.
SECTION 2.10. A series of bonds to be issued hereunder and secured hereby is hereby created, which shall be designated, and distinguished from the bonds of all other series, by the title "First Mortgage Bonds, Series A, 3%", elsewhere herein referred to as the "bonds of Series A".
The aggregate principal amount of the bonds of Series A is not limited except as provided in this Indenture.
The bonds of Series A shall be dated, and shall bear interest from, July 1, 1950, except as provided in Section 2.03 with respect to registered bonds without coupons, and shall be due July 1, 1980, and shall bear interest at the rate of 3 per centum (3%) per annum, payable semi-annually on the first day of January and the first day of July in each year, until maturity or until the obligation of the Company with respect to payment of the principal thereof shall have been discharged. The principal of and the premium (if any) and the interest on the bonds of Series A shall be payable at the office or agency of the Company in the City of New Orleans, Louisiana, in such coin or currency of United States of America as, at the time of payment, shall be legal tender for public and private debts.
All bonds of Series A shall be redeemable, either at the option of the
Company or pursuant to any provision of this Indenture requiring such
redemption, either as a whole or in part from time to time, at any time prior
to maturity, upon notice published as provided in Section 8.02 hereof, at
least once in each of four (4) successive calendar weeks upon any business day
of each such calendar week, the first publication to be not less than thirty
(30) days and not more than sixty (60) days before such redemption date (or
upon mailing of notice of redemption as provided in the second paragraph of
Section 8.02 hereof in the event such paragraph shall be applicable). If
redeemed by the application of moneys in the Sinking Fund for bonds of Series A
provided for in Section 6.01 of this Indenture or moneys in the Depreciation
Fund provided for in Section 5.07 of this Indenture or by application of moneys
received by the Trustee in connection with any release of property upon
acquisition thereof by any municipal corporation or other governmental
subdivision or governmental body or public authority, the bonds of Series A are
redeemable at the
redemption prices specified for such redemption in Column A of the schedule contained in the form of such bonds set forth in the recitals hereof, together with accrued interest to the date of redemption. If redeemed otherwise than by the application of such moneys, the bonds of Series A are redeemable at the redemption prices specified for such redemption in Column B of the schedule contained in the form of such bonds set forth in the recitals hereof, together with accrued interest to the date of redemption.
Coupon bonds of Series A shall be issuable in the denomination of $1,000 and shall be registerable as to principal. Registered bonds without coupons of Series A shall be issuable in the denomination of $1,000 and any multiple of $1,000. Bonds of Series A shall be interchangeable at the option of the holders thereof, in like aggregate principal amounts, coupon bonds for registered bonds without coupons, registered bonds without coupons for coupon bonds and the several denominations of registered bonds without coupons.
ARTICLE III.
GENERAL PROVISIONS AS TO CERTIFICATES AND OPINIONS.
SECTION 3.01. Any certificate or opinion of an engineer, appraiser or other expert required to be delivered to the Trustee under any provision of this Indenture may be signed by an engineer, appraiser or other expert who is an officer or employee of the Company, unless under such provision of this Indenture such certificate or opinion is required to be signed by an independent engineer, appraiser or other expert. Where any such certificate or opinion is required to be made by an independent engineer, appraiser or other expert, such certificate or opinion shall be made by an independent engineer, appraiser or other expert appointed by the Board of Directors or Executive Committee of the Company and approved by the Trustee in the exercise of reasonable care.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with, and (d) a statement as to whether or not in the opinion of such person such condition or covenant has been complied with.
In addition to such other certificates or opinions as may be required by other provisions of this Indenture, every request or application by the Company for action by the Trustee shall be accompanied by an opinion of counsel and an officers' certificate, each such opinion of counsel and officers' certificate stating that, in the signers' opinion, the conditions precedent, if any, to such action provided for in this Indenture (including any covenants, compliance with which constitutes a condition precedent) have been complied with.
Any officers' certificate and any certificate or opinion of an engineer, appraiser or other expert may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by counsel, unless the persons signing such certificate or opinion know that the certificate or opinion or representations of counsel with respect to the matters upon which their certificate or opinion may be based as aforesaid are erroneous or, in the exercise of reasonable care, should have known that the same were erroneous. Any net earnings certificate may be based upon the books and records of the Company and upon a certificate or opinion of or representations by an accountant or accountants or the Treasurer or an Assistant Treasurer of the Company, unless the persons signing such certificate know that the books and records of the Company or the certificate or opinion or representations with respect to the matters upon which the certificate or opinion may be based as aforesaid are erroneous or, in the exercise of reasonable care, should have known that the same were erroneous. Any opinion of counsel may be based, insofar as it relates to factual matters, information with respect to which is in the possession of the Company, upon a certificate or opinion of, or representations by, an officer or officers of the Company,
unless such counsel knows that the certificate or opinion or representations with respect to the matters upon which his opinion may be based as aforesaid are erroneous or, in the exercise of reasonable care, should have known that the same were erroneous.
The same officers of the Company, or the same engineer, appraiser, or other expert, or the same counsel or other person, as the case may be, need not certify to all of the matters required to be certified under any of the provisions hereof, but different officers, engineers, appraisers, other experts, counsel or other persons may certify to different facts respectively. Where any person or persons are required to make, give or execute two or more orders, requests, certificates, opinions or other instruments under this Indenture, any such orders, requests, certificates, opinions or other instruments may be consolidated and form one instrument.
The acceptance by the Trustee of a certificate or opinion shall be sufficient evidence that the signer or the signers have been approved by or are satisfactory to the Trustee, as the case may be, within the meaning of this Indenture, unless the Trustee shall give written notice to the Company that the signer or signers have not been approved by or are not satisfactory to the Trustee, as the case may be; and where, under any provision of this Indenture, a certificate of an independent engineer, appraiser or other expert is required, such requirement, so far as the validity of action taken in reliance thereon is concerned, shall be deemed to have been complied with if the Trustee shall have received a certificate made by the engineer, appraiser or other expert, as the case may be, who shall have been so approved by the Trustee for such purpose, but nothing contained in this paragraph shall relieve the Trustee of its obligation to exercise reasonable care with respect to the approval of independent engineers, appraisers or other experts who may furnish opinions or certificates to the Trustee pursuant to any provision of this Indenture.
ARTICLE IV.
ISSUANCE OF BONDS.
SECTION 4.01. The aggregate principal amount of bonds which may be secured by this Indenture shall be such aggregate principal
amount as may now or hereafter from time to time be authenticated and delivered under the provisions hereof, but not exceeding $100,000,000 aggregate principal amount.
Nothing in this Indenture contained shall limit the power of the Board of Directors or Executive Committee of the Company to fix the price at which the bonds authenticated and delivered under any of the provisions of this Indenture may be issued, exchanged, sold or disposed of, but any or all of said bonds may be issued, exchanged, sold or disposed of upon such terms and for such considerations as the Board of Directors or Executive Committee of the Company may deem fit, subject to any provisions of law in respect thereof.
SECTION 4.02. Bonds of Series A for the aggregate principal amount of Five Million Five Hundred Thousand Dollars ($5,500,000) shall forthwith be executed by the Company and delivered to the Trustee and shall be authenticated by the Trustee and delivered, either before or after the filing or recording of this Indenture, at one time or from time to time, in accordance with the order or orders of the Company, evidenced by a writing or writings signed in the name of the Company by its President or one of its Vice-Presidents and its Treasurer or one of its Assistant Treasurers.
SECTION 4.03. Bonds of any one or more series may from time to time be executed by the Company and delivered to the Trustee, and shall be authenticated by the Trustee and delivered from time to time, to an aggregate principal amount not exceeding sixty per centum (60%) of the bondable value of property additions.
Prior to the authentication and delivery of any bonds under this Section, there shall in each case have been delivered to the Trustee,
(1) the instruments required by Section 4.06 hereof;
(2) an officers' certificate of bondable value of property
additions, meeting the requirements of subsection (B) of Section 1.06
hereof, accompanied by the instruments required by subsection (C) of
Section 1.06; and
(3) a net earnings certificate meeting the requirements of
Section 4.07 hereof.
SECTION 4.04. Except as may be otherwise provided in any supplemental
indenture, bonds of any one or more series may from time to time be executed by
the Company and shall be authenticated by the Trustee and delivered from time
to time to an aggregate principal amount not exceeding the aggregate principal
amount of any bonds theretofore authenticated and delivered under this
Indenture which have been cancelled or delivered to the Trustee for
cancellation (except bonds surrendered for the purpose of exchange, transfer or
substitution pursuant to Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 17.04
hereof or bonds surrendered for conversion into stock or other securities, or
bonds deposited with the Trustee pursuant to, or in satisfaction of, or paid,
purchased or redeemed pursuant to any sinking, purchase, improvement, or other
similar fund provided for the bonds of any series) or for the payment or
redemption of which funds in the necessary amount shall have been or shall
concurrently be deposited with or shall be held by the Trustee in trust with
irrevocable direction so to apply the same, subject to the provisions of
Section 15.04 hereof, and to the provision of any sinking, purchase,
improvement, or other similar fund provided for the bonds of any series,
(provided that, if such bonds are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been published or otherwise given as
required by this Indenture and the terms of such bonds, or provision
satisfactory to the Trustee shall have been made for such notice) and which have
not theretofore been made the basis for the authentication and delivery of bonds
or the withdrawal, use or application of cash under any provision of this
Indenture or for a credit pursuant to Section 5.07 or Section 6.01 hereof.
Prior to the authentication and delivery of any bonds under this Section, upon the basis of any such bonds so cancelled or delivered to the Trustee for cancellation or so to be paid or redeemed, there shall in each case have been delivered to the Trustee:
(a) the instruments required by Section 4.06 hereof;
(b) an officers' certificate,
(i) describing the bonds so cancelled or delivered to the Trustee for cancellation or so to be paid or redeemed,
(ii) stating that such bonds were not surrendered pursuant to Sections 2.03, 2.04, 2.05, 2.07, 8.04 or 17.04, or surrendered for conversion into stock or other securities, or deposited with the Trustee pursuant to or in satisfaction of any sinking, purchase, improvement, or other similar fund provided for the bonds of any series, and were not and are not to be purchased, paid or redeemed by the use of cash deposited with the Trustee pursuant to any sinking, purchase, improvement, or other similar fund provided for the bonds of any series,
(iii) stating that such bonds have not theretofore been made
the basis for the authentication and delivery of bonds or the
withdrawal, use or application of cash under any provision of
this Indenture or for a credit pursuant to Section 5.07 or
Section 6.01 hereof, and
(iv) stating separately the principal amount of all such bonds, if any, which have been authenticated and delivered by the Trustee but which have not been issued by the Company and the interest rate borne by each thereof not so issued;
(c) either (i) the particular bonds so cancelled or delivered to the Trustee for cancellation together with all unmatured coupons, if any, appertaining thereto, or (ii) moneys in trust in the necessary amount for the payment or redemption thereof together with proof satisfactory to the Trustee that such notice of such redemption shall have been published or otherwise given, or provision satisfactory to the Trustee shall have been made for such notice; and
(d) in case any of such bonds shall have ceased to be outstanding prior to the authentication and delivery of the bonds then applied for and during the intervening period an officers' certificate with respect to net earnings of the Company shall have been delivered to the Trustee pursuant to Section 4.03 or 4.05
hereof in which the annual interest charges on any such bond which shall have so ceased to be outstanding shall not have been included, or in case the interest rate borne by any of said bonds which have been authenticated and delivered by the Trustee but have not been issued by the Company is shown by the officers' certificate provided for in paragraph (b) of this Section to be less than the interest rate to be borne by the bonds the authentication and delivery of which are then applied for, then there shall also be furnished to the Trustee a net earnings certificate meeting the requirements of Section 4.07 hereof. Bonds issued by the Company merely by way of pledge shall not be deemed to have been issued for the purposes of this paragraph (d).
SECTION 4.05. Bonds of any one or more series may from time to time be executed by the Company and shall be authenticated by the Trustee and delivered from time to time upon deposit with the Trustee by the Company of cash equal to the aggregate principal amount of the bonds so requested to be authenticated and delivered and upon delivery to the Trustee of:
(1) the instruments required by Section 4.06 hereof; and
(2) a net earnings certificate meeting the requirements of
Section 4.07 hereof.
All cash so deposited with the Trustee shall be held by the Trustee as part of the mortgaged and pledged property.
Any cash so deposited with the Trustee may be withdrawn by the Company from time to time in an amount equal to the principal amount of each bond to the authentication and delivery of which the Company shall then be entitled. Prior to the withdrawal of any such cash there shall, in each case have been delivered to the Trustee:
(a) a written order of the Company for said cash evidenced by a writing signed in the name of the Company by its President or one of its Vice-Presidents and its Treasurer or one of its Assistant Treasurers;
(b) a resolution of the Board of Directors of the Company authorizing the withdrawal of such cash; and
(c) an officers' certificate stating that the Company is not, to the knowledge of the signers, in default in the performance of any of the covenants on its part to be performed under this Indenture;
and the Company shall comply with all applicable provisions of this Article (except the provisions of Sections 4.06 and 4.07 hereof) relating to the authentication and delivery of the bonds on which the withdrawal of such cash is based. Any withdrawal of cash under this Section shall be in lieu of the right of the Company to the authentication and delivery of the bonds on which it is based.
Any cash so deposited with the Trustee may also be used or applied in the manner, for the purposes and subject to the conditions provided in paragraphs (2) and (3) of subsection (A) of Section 9.06 hereof.
SECTION 4.06. Prior to the authentication and delivery of any bonds under Sections 4.03, 4.04 or 4.05 hereof there shall, in each case, be delivered to the Trustee:
(1) a written order of the Company for said bonds evidenced by a writing signed in the name of the Company by its President or one of its Vice-Presidents and its Treasurer or one of its Assistant Treasurers;
(2) a resolution of the Board of Directors of the Company requesting the Trustee to authenticate and deliver a specified principal amount of bonds of a specified series and, in the case of the creation of a new series of bonds, determining the provisions and form of the bonds of such series as provided in Section 2.01 hereof;
(3) in case of the creation of a new series of bonds, an indenture supplemental hereto which shall set forth substantially the provisions and form of the bonds of such series as so determined;
(4) an officers' certificate stating that the Company is not, to the knowledge of the signers, in default in the performance of any of the covenants on its part to be performed under this Indenture;
(5) an opinion of counsel stating that the issuance of the bonds, the authentication and delivery of which is then applied for, will not cause the then limit of indebtedness, if any, of the Company permitted by this Indenture but not exceeding $100,000,000. aggregate principal amount, to be exceeded and has been authorized by the Company and has been authorized or approved or consented to by any and all governmental bodies and authorities, the authorization, approval or consent of which is requisite to the legal issuance of such bonds, or that no such authorization, approval or consent is required, and stating that, when executed by the Company and authenticated and delivered by the Trustee and issued by the Company, such bonds will be valid and binding obligations and will be secured by the lien of this Indenture; and
(6) a certified copy of any order or other writing evidencing each such authorization, approval or consent to the issuance of such bonds as may be shown by said opinion of counsel to be requisite.
SECTION 4.07. No bonds shall be authenticated and delivered under
Section 4.03 or 4.05 hereof (or under Section 4.04 hereof in case the
conditions specified in paragraph (d) thereof respectively shall be applicable)
unless as shown by a net earnings certificate the net earnings of the Company
for the period therein referred to shall have been not less than the interest
earnings requirement as defined in Section 1.07 hereof.
ARTICLE V.
PARTICULAR COVENANTS OF THE COMPANY.
The Company hereby covenants as follows:
SECTION 5.01. That it is lawfully seized and possessed of all the property constituting the mortgaged and pledged property at the date
of the execution of this Indenture; that it will maintain and preserve the lien of this Indenture so long as any of the bonds issued hereunder are outstanding; that it has good right and lawful authority to mortgage and pledge said property, as provided in and by this Indenture and that said property is not subject to any lien prior in lien to the lien of this Indenture except (a) permitted liens and (b) the lien of the indenture of the Company dated as of January 1, 1941, as supplemented. The Company agrees that, prior to or simultaneously with the authentication and delivery of any bonds hereunder, the Company will have (i) duly elected, by resolution of the Board of Directors of the Company, to redeem on or before July 12, 1950, in accordance with the provisions of said indenture, all the bonds outstanding thereunder at the date of the authentication and delivery of the initial issue of the bonds of Series A and that no additional bonds will be issued thereunder, (ii) deposited with the trustee under said indenture, cash sufficient for such redemption of such bonds, in trust, and accompanied by irrevocable written instructions to apply the same to and effect such redemption, together with irrevocable written instructions to publish, or complete publication of, notice of such redemption in accordance with the provisions of said indenture, in lieu of the publication of notice of redemption as hereinabove provided, the Company may, if permitted by the indenture, as amended, securing such bonds, give such other notice as is therein permitted or may obtain written consents waiving such notice of redemption signed by the holders of all of the bonds outstanding under the indenture, as amended, and (iii) procured the delivery to the Trustee of instruments of satisfaction and discharge of (or powers of attorney to satisfy of record) said indenture and the indentures supplemental thereto or the deposit in escrow of such instruments of satisfaction and discharge (or such powers of attorney) to be delivered to the Trustee upon completion of publication of such notices of redemption. Promptly after the receipt by the Trustee of such instruments of satisfaction and discharge (or such powers of attorney to satisfy of record) the Company will cause the same to be recorded (or will cause such indenture and the indentures supplemental thereto to be satisfied of record) in all places in which said indenture and the indentures supplemental thereto have been
recorded. The Company further agrees that it will as soon as practicable deliver to the Trustee an opinion of counsel to the effect that said indenture and the indentures supplemental thereto have been satisfied and discharged of record.
SECTION 5.02. That it will duly and punctually pay or cause to be paid the principal of and interest and premium, if any, on all the bonds outstanding hereunder, according to the terms thereof. As the coupons appertaining to said bonds are paid they shall be cancelled. The Company may require the holder of each bond or coupon to furnish such evidence as will enable the Company to determine whether it is required by law to deduct or retain any tax or taxes on the principal or premium or interest payable. The Company will not directly or indirectly extend or assent to the extension of the time for payment of any coupon or claim for interest on any of the bonds secured hereby, and will not directly or indirectly be a party to or approve of any arrangement for any such extension by purchasing such coupons or claims or in any other manner.
SECTION 5.03. That it will maintain an office or agency in the City of New Orleans, Louisiana, while any bonds are outstanding hereunder, where notices, presentations and demands to or upon it in respect of this Indenture or said bonds or the coupons appertaining thereto, may be given or made; that it will maintain an office or agency for the payment of the principal of and interest on any bonds at the time outstanding in any place or places where such principal or interest shall be payable; that it will keep books for the registration and transfer of bonds at an office or agency in such place or places as shall be specified in said bonds, or in any indenture supplemental hereto with respect thereto, as the place or places where said bonds are registerable or transferable: that such books shall be open to inspection by the Trustee at all reasonable times; and that it will lodge from time to time with the Trustee notice of designation and of any change of any such office or agency. In the event that the Company shall at any time fail to designate and maintain an office or agency for any such purposes required to be maintained in the City of New Orleans, Louisiana, the principal office of the
Trustee shall be conclusively deemed to be the agency of the Company in that city for such purposes.
SECTION 5.04. (A) That, if the Company shall appoint a paying agent other than the Trustee, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such paying agent shall agree with the Trustee, subject to the provisions of this Section, (1) that such paying agent will hold in trust for the benefit of the holders of the bonds or of the coupons for interest thereon, as the case may be, or of the Trustee all sums held by such paying agent for the payment of the principal of (and premium, if any) or interest on the bonds (whether such sums have been so paid to such paying agent by the Company or any other obligor on the bonds); and (2) that such paying agent will give the Trustee notice of any default by the Company or any other obligor on the bonds in the making of any deposit with it for the payment of the principal of (and premium, if any) or interest on the bonds, and of any default by the Company in the making of any such payment. Such paying agent shall not be obligated to segregate such sums from other funds held in trust by such paying agent except to the extent required by law.
(B) That if the Company shall act as its own paying agent, it will, on or before each due date of the principal (and premium, if any) or interest on the bonds, set aside and segregate and hold in trust for the benefit of the holders of the bonds or of the coupons for interest thereon, as the case may be, or of the Trustee a sum sufficient to pay such principal (and premium, if any) or interest so becoming due, and will notify the Trustee of such action or of any failure to take such action.
(C) Anything in this Section to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a release or satisfaction of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
(D) Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust, as provided in this Section, is subject to the provisions of Article XV hereof.
SECTION 5.05. That it will pay all taxes, assessments and other governmental charges lawfully levied or assessed upon the mortgaged and pledged property or upon any part thereof or upon any income therefrom or upon the interest of the Trustee in the mortgaged and pledged property when the same shall become due and payable; that it will duly observe and conform to all valid requirements of any governmental authority relative to any mortgaged and pledged property and all covenants, terms and conditions upon or under which any of such properties are held; that it will not suffer any lien, charge or encumbrance to be hereafter created or to continue upon the mortgaged and pledged property, or upon any part thereof, or upon any income therefrom, prior to the lien of these presents, other than permitted liens, and, in the case of property hereafter acquired, permitted liens and unfunded liens thereon within the limits specified in Section 5.15 hereof; that within four months after the accruing of any lawful claims or demands for labor, materials, supplies or other objects, which if unpaid might by law be given precedence over the lien of this Indenture as a lien or charge upon any of the mortgaged and pledged property or the income thereof, it will pay or cause to be discharged or make adequate provisions to satisfy or discharge the same; provided, however, that unless the security afforded by this Indenture would thereby, in the opinion of the Trustee, be materially affected, nothing in this Section contained shall require the Company to pay any such tax, assessment or governmental charge, or to observe or conform to any requirement of governmental authority or to cause to be paid or discharged, or to make provision for, any such lien or charge, so long as the validity thereof shall be contested in good faith and by appropriate legal proceedings and if adequate security for the payment or discharge of such tax assessment, charge or lien shall be provided for by the Company.
SECTION 5.06. That it will keep all the mortgaged and pledged property insured against loss or damage, to the extent that property of similar character is usually so insured by companies similarly situated and operating like properties, by insurance companies believed by the Company to be responsible, any loss, except as to materials and supplies and except any loss less than Ten Thousand Dollars ($10,000), to be made payable to the Trustee as the interest of the Trustee may appear (or to the trustee or other holder of any unfunded lien bonds, if required by the terms thereof and to the Trustee as its interest may appear). In case of any such payment to any such trustee or other holder of any unfunded lien bonds the Company will furnish the Trustee with the certificate of such trustee or other holder that it has received payment. The Company will deliver to the Trustee promptly after the execution of this Indenture and on or before April 30 of each year beginning with the year 1951 an officers' certificate setting forth a description of all insurance policies then outstanding and in force upon the aforesaid property, or any part thereof, including the names of the insurance companies which have issued the policies, the maturities and amounts thereof, and the provisions of the respective policies with respect to payment of losses thereunder.
All moneys received by the Trustee pursuant to the provisions of this
Section shall be held by the Trustee as part of the mortgaged and pledged
property and shall be paid by it to the Company to reimburse the Company for an
equal amount spent in the rebuilding or renewal of the property destroyed or
damaged, or in the construction of other property subject to the lien of this
Indenture (which property shall be bondable property if the property destroyed
or damaged was bondable property), upon receipt by the Trustee of an officers'
certificate stating the amount so expended and the nature of such renewal or
rebuilding or construction and requesting such reimbursement, together with an
opinion of counsel that the property so rebuilt or renewed or constructed is
subject to the lien hereof to the same extent as was the property so lost or
damaged, and a certificate or opinion of an engineer, appraiser or other expert
with respect to the fair value to the Company of the property so rebuilt or
renewed or constructed; and if
(a) within six months prior to the date of the acquisition thereof by the Company, such property has been used or operated by a person or persons other than the Company in a business similar to that in which it has been or is to be used or operated by the Company, and
(b) the fair value to the Company of such property, as set
forth in such certificate or opinion, is not less than the greater of
(i) Twenty-five Thousand Dollars ($25,000) or (ii) one per centum (1%)
of the aggregate principal amount of the bonds at the time
outstanding.
such certificate or opinion shall be made by an independent engineer, appraiser or other expert. Any such money not so applied within eighteen months after its receipt by the Trustee, or in respect of which notice in writing of intention to apply the same to the work of rebuilding or renewal or construction then in progress and uncompleted shall not have been given to the Trustee by the Company within such eighteen months, or which the Company shall at any time notify the Trustee is not to be so applied, may thereafter be withdrawn, used or applied in the manner and for the purposes and subject to the conditions provided in Section 9.06 hereof.
The Company covenants that all money directly received by it pursuant to the provisions of this Section will be spent in the rebuilding or renewal of the property destroyed or damaged, or in the construction of other property, subject to the lien of this Indenture (which property shall be bondable property if the property destroyed or damaged was bondable property), or will be deposited with the Trustee to be held and disposed of by the Trustee as in the case of money directly received by the Trustee pursuant to the provisions of this Section; and the Company covenants that on or before April 30 in each year beginning with the year 1951 it will deliver to the Trustee an officers' certificate stating, with respect to the six months' period ended December 31, 1950 or with respect to the calendar year ended December 31 of any year subsequent to 1950, as the case may be, that all money directly received by the Company pursuant to the provisions of this Section has been spent in the rebuilding or renewal
of the property destroyed or damaged, or in the construction of other property subject to the lien of this Indenture, or has been deposited with the Trustee, or with the trustee or other holder of any unfunded lien bonds if required by the terms hereof.
SECTION 5.07. That (a) it will at all times maintain, preserve and keep the mortgaged and pledged property, with the appurtenances and every part and parcel thereof, in thorough repair, working order and condition and equipped with suitable equipment and appliances; (b) it will make regular charges to expense for property retirements or depreciation (which in the aggregate shall not be less than the minimum provision for property retirements or depreciation determined as provided in Section 1.05 hereof), and from time to time make all needful and proper repairs, retirements, renewals and replacements of the mortgaged and pledged property, so that at all times the value of the security for the bonds issued hereunder and the efficiency of said properties shall be fully preserved and maintained; (c) it will not charge to its property, plant and equipment accounts any expenditures which are properly chargeable to maintenance or repairs or to any other expense account in accordance with the requirements of any system of accounting with which the Company is then required to comply in accordance with the rules, regulations and orders of the regulatory commission or commissions having jurisdiction or supervisory authority over its accounts, or, if there be no such requirements in accordance with sound accounting practice, and (d) it will promptly classify as retired all property that has permanently ceased to be used or useful in the Company's business. Nothing in this Section or elsewhere in this Indenture contained shall be construed to prevent the Company from ceasing to operate any of its plants or any other property, if, in the judgment of the Board of Directors of the Company, it is advisable not to operate the same and the operation thereof shall not be essential to the maintenance and continued operation of the rest of the mortgaged and pledged property, and the security afforded by this Indenture will not be substantially impaired by the termination of such operation.
Without in anywise limiting the foregoing, the Company covenants that the aggregate amount applied by it subsequent to June 30, 1950, for property additions will as of the end of each calendar year, commencing with the year 1950, equal the aggregate of the minimum provision for property retirements or depreciation, determined as provided in Section 1.05 hereof, for the period subsequent to June 30, 1950, and ending December 31, 1950, and for each calendar year subsequent to December 31, 1950; or that, if at the end of any calendar year, commencing with the year 1950, the Company has not subsequent to June 30, 1950, and up to the end of such calendar year applied for such purposes an amount which is equal to the aggregate of the minimum provision for property retirements or depreciation for the period subsequent to June 30, 1950, and ending December 31, 1950, and for each calendar year subsequent to December 31, 1950, it will, on or before the next succeeding April 30, to the extent of the difference, deposit cash with the Trustee for the credit of a fund, sometimes herein referred to as the "depreciation fund"; provided, however, that there shall be credited against the amount of cash so required to be deposited with the Trustee the principal amount of bonds authenticated and delivered hereunder which might then be made the basis for the authentication and delivery of bonds under the provisions of Section 4.04 hereof and which the Company then elects to make the basis of a credit under this Section.
On or before April 30 of each year beginning with the year 1951, concurrently with the delivery to the Trustee in each such year of the annual officers' certificate of bondable value of property additions, the Company shall deliver to the Trustee a depreciation certificate which shall be dated within thirty (30) days of the date of delivery to the Trustee and shall state:
(1) the minimum provision (plus or minus) for property retirements or depreciation for the period subsequent to June 30, 1950, and prior to the January 1 next preceding the date of such depreciation certificate;
(2) the amount (plus or minus) specified pursuant to paragraph (1) in the depreciation certificate filed in the preceding
year;
(3) the difference between the amount specified in paragraph (1) above and the amount specified in paragraph (2) above;
(4) the amount applied for property additions, subsequent to June 30, 1950, and prior to the January 1 next preceding the date of such depreciation certificate;
(5) the amount specified pursuant to paragraph (4) in the depreciation certificate filed in the preceding year, if any;
(6) the difference between the amount specified in paragraph (4) above and the amount specified in paragraph (5) above;
(7) any available depreciation credit, as hereinafter defined, and the computation thereof;
(8) the depreciation credit or unsatisfied balance, as hereinafter defined.
The term "depreciation credit" shall mean the excess, if any, of the sum of the amounts stated pursuant to paragraphs (6) and (7) above over the amount stated pursuant to paragraph (3) above. The term "available depreciation credit" shall mean the amount of the depreciation credit, if any, stated in paragraph (8) of the last depreciation certificate theretofore filed, less the amount of cash thereafter withdrawn upon the basis of such depreciation credit as hereinafter in this Section provided.
The term "unsatisfied balance" shall mean the excess, if any, of the amount stated pursuant to paragraph (3) above over the sum of the amounts stated pursuant to paragraphs (6) and (7) above.
The term "depreciation certificate" shall mean an officers' certificate filed by the Company with the Trustee pursuant to this Section.
In case any depreciation certificate shows an unsatisfied balance, the Company covenants that it will, concurrently with the filing of such certificate, satisfy such unsatisfied balance by depositing cash with the Trustee; provided, however, that there shall be credited against the amount of cash so required to be deposited with the Trustee the principal amount of bonds authenticated and delivered hereunder
which might then be made the basis for the authentication and delivery of bonds under the provisions of Section 4.04 hereof and which the Company then elects to make the basis of a credit under this Section. In case credit under the provisions of this Section is applied for, as aforesaid, upon the basis of bonds authenticated and delivered hereunder, the Company shall deliver to the Trustee an officers' certificate stating the aggregate principal amount of bonds authenticated and delivered hereunder which might then be made the basis for the authentication and delivery of bonds under the provisions of Section 4.04 hereof and which the Company then elects to make the basis of a credit under this Section, and shall comply with the provisions of Section 4.04 hereof except the provisions therein relating to Section 4.06 hereof. Any credit under this Section shall be in lieu of the right of the Company to the authentication and delivery of bonds on the basis of bonds authenticated and delivered hereunder which are made the basis of such credit.
All cash deposited by the Company with the Trustee pursuant to the
covenants set forth in this Section shall be held by the Trustee as part of the
mortgaged and pledged property but may, at any time or from time to time
during the next succeeding three years, be withdrawn by the Company in an
amount equal to any available depreciation credit upon delivery to the Trustee
of the written order of the Company evidenced by a writing signed in the name
of the Company by its President or one of its Vice-Presidents and its Treasurer
or one of its Assistant Treasurers and of an officers' certificate stating that
the Company is not, to the knowledge of the signers, in default in the
performance of any of the covenants on its part to be performed under this
Indenture. If such cash shall not be so withdrawn within the next succeeding
three years after the same shall have been so deposited by the Company with the
Trustee, it shall thereafter be used or applied by the Trustee in the manner,
for the purposes and subject to the conditions provided in paragraphs (2) and
(3) of subsection (A) of Section 9.06 hereof.
In addition to the annual depreciation certificate, the Company at its election may during any calendar year file its depreciation certificate or certificates for a period or periods other than the entire calendar
year, within four (4) months after the close of such period or periods, and in each case all of the provisions of this Section 5.07 shall apply, but, where applicable, to the period in question instead of to the calendar year. In cases where such interim certificates are filed covering periods of less than a calendar year, the annual certificate for that year shall cover only the remaining portion of the year not included in such interim certificate.
Subject to the provisions of Sections 14.02 and 14.03 hereof, the Trustee may accept any depreciation certificate and any other documents delivered to it under this Section as conclusive evidence of any matter or fact therein set forth, and, subject as aforesaid, shall not incur any liability or responsibility for any action taken or omitted to be taken in reliance thereon.
SECTION 5.08. That it will, subject to the provisions of the last sentence of the first paragraph of Section 5.07 hereof and of Article XIII hereof, at all times maintain its corporate existence and right to carry on business, and that it will take such action as may be necessary or advisable to preserve and maintain its right to conduct its business in the State or States where it shall be conducting its business and will use its best efforts to procure and maintain in force and effect such franchises, ordinances, permits or other grants by or contracts with any municipal, county, state or other governmental authority as shall be required for such purpose.
SECTION 5.09. That if it shall fail to perform any covenants contained in Sections 5.05, 5.06 or 5.08 hereof, the Trustee may make advances to perform the same in its behalf, but, subject to the provisions of Sections 14.02 and 14.03 hereof, shall be under no obligation so to do unless requested so to do by the holders of not less than a majority in principal amount of the bonds then outstanding hereunder and furnished with funds adequate for the purpose and for the payment of any expense incurred in connection with such performance, and all sums so advanced shall be at once repayable by the Company, and shall bear interest at the rate of six per centum (6%) per annum until paid, and all sums so advanced with the interest thereon shall be secured hereby, having the benefit of the lien hereby created in
priority to the indebtedness evidenced by the bonds and coupons issued hereunder, but no such advance shall be deemed to relieve the Company from any default hereunder.
SECTION 5.10. That it will execute and deliver such further instruments and do such further acts as may be necessary or proper to carry out more effectually the purposes of this Indenture, and to make subject to the lien hereof any property whether now owned or hereafter acquired and intended to be covered hereby, and to transfer to any new trustee or trustees or co-trustee or co-trustees the estate, powers, instruments or funds held in trust hereunder.
SECTION 5.11. That it will cause this Indenture, and each supplemental indenture or instrument purporting to create a lien upon mortgaged and pledged property to secure the bonds, to be promptly recorded and filed and re-recorded and refiled in such manner and in such places as may be required by law in order to fully make effective and maintain the lien intended to be created thereby and to preserve and protect the security of the bondholders and all rights of the Trustee, and that it will furnish to the Trustee:
(1) Promptly after the execution and delivery of this Indenture and of each supplemental indenture or other instrument purporting to create such lien, an opinion of counsel either stating that in the opinion of such counsel this Indenture or such supplemental indenture or instrument has been properly recorded and filed so as to make effective the lien intended to be created thereby, and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary, to make such lien effective, and
(2) On or before April 30 of each year, beginning with the year 1951, an opinion of counsel either stating that in the opinion of such counsel such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture and of each supplemental indenture or other instrument purporting to create such lien as is necessary to maintain the lien thereof, and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to maintain such lien.
It shall be a compliance with paragraphs (1) and (2) of this Section if (a) the opinion of counsel therein required to be delivered to the Trustee shall state (i) that the indentures or other instruments which may be the subject matter of any such opinion have been received for recordation or filing or re-recording or refiling in each jurisdiction in which in the opinion of such counsel they are respectively required to be recorded or filed or re-recorded or refiled and (ii) that, in the opinion of such counsel, no further action is necessary to make effective the lien intended to be created by such indentures or other instruments, and (b) such opinion is delivered to the Trustee within such time, following the date of the execution and delivery of the respective indentures or other instruments which may be the subject matter of such opinion, as shall be practicable, having due regard to the number and distance of the jurisdictions in which the same are required to be recorded or filed or re-recorded or refiled.
SECTION 5.12. That books of record and account will be kept, in which full, true and correct entries will be made, of all dealings or transactions of, or in relation to, the plants, properties, business and affairs of the Company, and that all books, documents and vouchers relating to the plants, properties, business and affairs of the Company shall at all reasonable times be open to the inspection of such reputable accountant or other agent of recognized standing as the Trustee may from time to time designate, and that the Company will bear all expenses of any such inspection.
SECTION 5.13. That it will not issue, or permit to be issued, any bonds hereunder in any manner other than in accordance with the provisions of this Indenture and that it will faithfully observe and perform all the conditions, covenants and requirements of this Indenture and of all indentures supplemental hereto and of the bonds issued hereunder.
SECTION 5.14. That upon the cancellation and discharge of any unfunded lien upon property of the Company, it will cause any cash or securities held by the trustee or other holder of such unfunded lien to be deposited with the Trustee hereunder (unless such cash or securities are required to be deposited with the trustee or other holder
of some other unfunded lien) to be held and disposed of by it in the manner provided in Article IX hereof. That it will not apply, on the basis of property additions under any provision of any unfunded lien, for the withdrawal of cash deposited, in connection with the release of property from the lien of this Indenture, with the trustee or other holder of the unfunded lien securing such unfunded lien bonds unless such cash so withdrawn shall be deposited with the Trustee hereunder, to be held and disposed of by it in the manner provided by Article IX hereof.
SECTION 5.15. That it will not acquire any property which at the time of acquisition thereof shall be or become subject to any unfunded lien or liens, if, immediately subsequent to any such acquisition, the amount of outstanding unfunded lien bonds would exceed fifteen per centum (15%) of the principal amount of bonds at the time outstanding under this Indenture.
SECTION 5.16. That it will not permit any default in the payment, when the same becomes due, of principal of, or premium, if any, or interest on any outstanding unfunded lien bonds to continue beyond the period of grace, if any, specified in the unfunded lien securing the same and that it will not permit the amount of unfunded lien bonds outstanding to be increased unless such unfunded lien bonds representing such increase shall be issued in replacement of or in exchange for outstanding unfunded lien bonds on the exercise by a holder or holders of such outstanding unfunded lien bonds of a right contained in the unfunded lien securing the same to make such replacement or exchange.
SECTION 5.17. That it will, whenever necessary to avoid or fill a vacancy in the office of Trustee, appoint, in the manner provided in Section 14.18 hereof, a Trustee so that there shall at all times be a Trustee hereunder.
SECTION 5.18. That it will not consolidate with or merge into or sell, convey or lease its property substantially as an entirety to any other corporation except upon the conditions prescribed in Article XIII hereof.
SECTION 5.19. That the recitals of fact and statements contained in this Indenture are true.
SECTION 5.20. The Company covenants that, so long as any bonds of Series A are outstanding, it will not at any time declare or pay any dividend on its Common Stock or make any distribution to its Common Stockholders (other than dividends or distributions payable solely in its Common Stock) or purchase or otherwise acquire for value any of its Common Stock, except out of (1) earned surplus of the Company accumulated after December 31, 1949, plus (2) $530,000 of earned surplus accumulated prior to January 1, 1950 (such aggregate amount being hereinafter called "unrestricted earned surplus"), nor unless after the payment of such dividend or the making of such distribution, purchase or acquisition the sum of (a) the provision for property retirements or depreciation made by the Company, out of income or earned surplus, during the period from July 1, 1950, to the end of the calendar year next preceding the date of payment of such dividend or the making of such distribution, purchase or acquisition and (b) the unrestricted earned surplus, if any, of the Company shall be not less than the aggregate of the minimum provision for property retirements or depreciation determined as provided in Section 1.05 hereof, for the period from July 1, 1950, to the end of the calendar year next preceding the date of payment of such dividend or the making of such distribution, purchase or acquisition. For the purposes of this Section, the earned surplus of the Company accumulated after December 31, 1949, shall be determined in accordance with sound accounting practice, and, so long as and to the extent that there shall remain any earned surplus of the Company accumulated prior to January 1, 1950, other than unrestricted earned surplus, such amount shall be available for all surplus charges other than such dividends or the making of such distribution, purchase or acquisition.
SECTION 5.21. In addition to the covenant contained in the first paragraph of Section 5.07 hereof, the Company covenants and agrees that it will, whenever requested by the Trustee or whenever requested in writing by the holders of a majority in principal amount of bonds then outstanding hereunder, but in any event not more often than once in every three years, and, whether or not so requested by the Trustee or by bondholders as aforesaid, at least once in every five years, cause an examination of the mortgaged and pledged property of the character
of property additions to be made by an independent engineer. Such independent engineer, within a reasonable time from the date of his appointment, shall deliver to the Trustee and the Company a certificate stating whether or not the mortgaged and pledged property of the character of property additions (other than property which has been retired) is in general being maintained in good physical condition and in a state of good operating efficiency for the purposes of the Company and whether or not all mortgaged and pledged property of the character of property additions that is no longer used or useful in the Company's business has been duly recorded as retired on the books of the Company. If such certificate shall state that the mortgaged and pledged property of the character of property additions (other than property which has been retired) in general is not being so maintained, it shall state clearly the character and extent and the estimated cost of making good such deficiency and the estimated time reasonably necessary to make good such deficiency, and, if it shall state that there is mortgaged and pledged property of the character of property additions which is no longer used or useful in the Company's business which has not been recorded as retired on the books of the Company, it shall briefly describe such property and shall state the aggregate retirement which should be recorded on the books in respect of such property. Said certificate shall be open to inspection by any bondholder at any reasonable time.
If the certificate of such independent engineer shall state that such
a maintenance deficiency exists, and unless the Company shall (within thirty
(30) days after delivery of such certificate to the Trustee and the Company)
deliver to the Trustee written notice to the effect that it disagrees with the
statements made in such certificate, specifying the reasons therefor, the
Company will with all reasonable speed make such repairs and do such other
maintenance work as may be necessary to make good such deficiency as shall
exist at the time of such certificate; whereupon such independent engineer (or,
in the ease of his refusal or inability to act, some other independent
engineer) shall deliver to the Trustee and the Company a certificate stating
that such deficiency has been made good.
If the Company shall deliver to the Trustee within such thirty (30) day period such written notice of its disagreement with any of
the statements made in the certificate of such independent engineer, the Trustee shall appoint a committee consisting of three competent disinterested persons, one of whom shall be an independent engineer, one of whom shall be a person experienced in the operation of electric, gas and water utility companies, and the other of whom shall be a person experienced in general business and financial affairs. Such committee shall consider the certificate of such independent engineer and any other matters or data which shall be brought to its attention by the Company or the Trustee, and shall deliver to the Trustee a written report in which it shall determine whether or not such a maintenance deficiency exists, and if any shall exist, the nature and extent thereof. Any such report signed by at least two members of such committee shall be binding and conclusive upon the Company and the Trustee with respect to all of the matters covered thereby, and if such report shall determine that a maintenance deficiency exists, the Company will with all reasonable speed make such repairs and do such other maintenance work as may be necessary to make good such deficiency.
If any such deficiency (determined by such independent engineer, or, if the Company shall have delivered to the Trustee, in accordance with the provisions of this Section, written notice of its disagreement with any of the statements contained in such certificate, determined by the report of such committee) shall not have been made good within one (1) year after final determination that such deficiency exists, or such longer period as may be approved by such independent engineer or such committee, as the case may be, the Trustee may, and, upon proper request of the holders of at least a majority in principal amount of the bonds at the time outstanding hereunder and due indemnification, shall, proceed in accordance with the provisions of Article X hereof to enforce the covenant of the Company contained in the first paragraph of Section 5.07 hereof, and in any such proceedings the certificate of such independent engineer, or, if the Company shall have delivered to the Trustee in accordance with the provisions of this Section written notice of its disagreement with any of the statements contained in such certificate, the report of such committee, shall be conclusive evidence against the Company of the existence of the facts and conditions therein set forth.
The Company further covenants and agrees that if the certificate of such independent engineer, or, if the Company shall have delivered to the Trustee in accordance with the provisions of this Section, written notice of its disagreement with any of the statements contained in such certificate, the report of such committee, shall state that there has not been recorded as retired on the books of the Company mortgaged and pledged property of the character of property additions which is no longer used or useful in the Company's business, it will forthwith make appropriate entries on its books recording the retirement of such property and will deliver to the Trustee an officers' certificate stating that such entries have been made.
All expense incurred under this Section shall be borne by the Company.
SECTION 5.22. The Company covenants and agrees that it will at any time, upon the written request of the holders of a majority in principal amount of the bonds of any series outstanding hereunder at the time of such request, use of its best efforts to cause this Indenture to be qualified under the provisions of the Trust Indenture Act of 1939, and will do all such acts and things as may reasonably be required in order to effect such qualification.
SECTION 5.23. The Company covenants and agrees that it will deposit with the Trustee Three Hundred and Fifty Thousand Dollars ($350,000) of the purchase price of the bonds of Series A issued pursuant to Section 4.02 hereof, which sum shall only be withdrawn (1) in an amount equal to sixty per centum (60%) of the property additions (of the type which would constitute "property additions" as defined in Section 1.03 hereof if purchased, constructed, erected, or otherwise acquired, and owned by the Company subsequent to June 30, 1950) acquired by the Company subsequent to January 1, 1950 and prior to July 1, 1950, less actual retirements of bondable property (of the type which would constitute "retirements of bondable property" as defined in Section 1.05 hereof if retired subsequent to June 30, 1950) subsequent to January 1, 1950 and prior to July 1, 1950; provided, however, that said property additions less retirements as aforesaid shall not exceed the sum of One Hundred and Seventy-five Thousand Dollars ($175,000), and (2) the balance of said Three Hundred and
Fifty Thousand Dollars ($350,000) shall be withdrawn in the same manner as cash deposited with the Trustee pursuant to Section 4.05 hereof.
Prior to the withdrawal of any cash pursuant to (1) above the Company shall deliver to the Trustee
(a) an officers' certificate showing
(1) the amount of property additions for the period subsequent to January 1, 1950 and prior to July 1, 1950; less
(2) the actual retirements of bondable property made by the Company during the period subsequent to January 1, 1950, and prior to July 1, 1950;
(3) the difference between (1) and (2) above or $175,000 whichever is the lesser; and
(4) sixty per centum (60%) of (3) above;
(b) a written order of the Company for said cash evidenced by a writing signed in the name of the Company by its President or one of its Vice Presidents and its Treasurer or one of its Assistant Treasurers;
(c) a resolution of the Board of Directors of the Company authorizing the withdrawal of such cash; and
(d) an officers' certificate stating that the Company is not, to the knowledge of the signers, in default in the performance of any of the covenants on its part to be performed under this Indenture.
ARTICLE VI.
SINKING FUND FOR BONDS OF SERIES A.
SECTION 6.01. The Company covenants and agrees that so long as any of the bonds of Series A shall be outstanding it will pay to the Trustee, as and for a sinking fund for the bonds of Series A, on the first day of July in the year 1951 and on the first day of July in each year thereafter, an amount of cash equal to one per centum (1%) of the greatest principal amount of bonds of Series A at any one time outstanding under this Indenture; provided, however, that the amount of cash payable to the Trustee on any such date pursuant to the provisions of this Section shall be reduced by an amount equal to the aggregate principal amount of bonds of
Series A then being delivered by the Company to the Trustee, but no bonds of Series A shall be delivered to the Trustee which have not been sold in a bona fide transaction and reacquired by the Company.
All cash paid to the Trustee pursuant to the provisions of this
Section shall, to the extent practical, be applied promptly by the Trustee to
the purchase of bonds of Series A in accordance with the provisions of Section
8.06 hereof. If the Trustee on August 20 of any year shall hold cash under the
provisions of this Section amounting to $15,000 or more (or any amount less
than $15,000 if the Company so elects) not applied to the purchase of bonds of
Series A as above provided for, the Trustee shall apply all cash then held
under the provisions of this Section to the redemption, on the next succeeding
October 1 of bonds of Series A, in the manner and subject to the conditions
provided in such bonds and in Article VIII hereof; and for such purpose the
Trustee may publish notice of redemption in the name of the Company or in its
own name as Trustee.
SECTION 6.02. The Company further covenants to pay to the Trustee, on demand, the compensation of the Trustee in administering the sinking fund as provided in this Article VI, together with the Trustee's expenses, including cost of advertisement of redemption notices and any other advertisements and other lawful charges, if any, and any accrued interest and premium paid or payable with respect to any such bonds of Series A purchased or redeemed as provided for in Section 6.01, it being intended that the aforesaid compensation, expenses, charges, accrued interest and premium shall not be charged against sinking fund moneys.
SECTION 6.03. All bonds of Series A delivered to the Trustee for the purpose of taking a credit pursuant to the provisions of Section 6.01, or purchased or redeemed pursuant to the provisions of Section 6.01, shall be forthwith cancelled by the Trustee, and such bonds shall not be reissued.
ARTICLE VII.
BONDHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 7.01. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee between March 15
and March 31 and between September 15 and September 30 in each year beginning with the period between March 15 and March 31 in the year 1951, and at such other times as the Trustee may request in writing, a list in such form as the Trustee may reasonably require containing all the information in the possession or control of the Company, or any of its paying agents other than the Trustee, as to the names and addresses of the holders of bonds obtained since the date as of which the next previous list, if any, was furnished. Any such list may be dated as of a date not more than fifteen days prior to the time such information is furnished or caused to be furnished, and need not include information received after such date.
SECTION 7.02. (A) The Trustee shall preserve in as current a form as is reasonably practicable all information as to the names and addresses of the holders of the bonds outstanding under this Indenture (1) contained in the most recent list furnished to it, as provided in Section 7.01 hereof, (2) received by it in the capacity of paying agent, if so acting, with respect to any of the bonds outstanding under this Indenture, and (3) filed with it within the two preceding years pursuant to the provisions of paragraph (2) of subsection (C) of Section 7.04 hereof.
The Trustee may (a) destroy any list furnished to it as provided in said Section 7.01 upon receipt of a new list so furnished to it; (b) destroy any information received by it as paying agent, if so acting, upon delivering to itself as Trustee, not earlier than forty-five days after an interest payment date of the bonds, a list containing the names and addresses of the holders of bonds obtained from such information since the delivery of the next previous list, if any; (c) destroy any list delivered to itself as Trustee which was compiled from information received by it as paying agent, if so acting, upon receipt of a new list so delivered; and (d) destroy any information received by it pursuant to the provisions of paragraph (2) of subsection (C) of said Section 7.04 but not until two years after such information has been filed with it.
(B) In case three or more holders of bonds (hereinafter referred to as "applicants") apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a bond outstanding under this Indenture for a period of at least six
months preceding the date of such application, and such application states that the applicants desire to communicate with other holders of bonds with respect to their rights under this Indenture or under the bonds, and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall within five business days after the receipt of such application, at its election, either
(1) afford to such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (A) of this Section and to a list of the names and addresses of holders of registered bonds; or
(2) inform such applicants as to the approximate number of holders of bonds whose names and addresses appear in the information preserved at the time by the Trustee, in accordance with the provisions of subsection (A) of this Section, and the approximate number of holders of registered bonds, and as to the approximate cost of mailing to such bondholders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each bondholder whose name and address appears in the information preserved at the time by the Trustee, in accordance with the provisions of subsection (A) of this Section and to each holder of a registered bond, a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of such mailing, unless within five days after such tender, the Trustee shall mail to such applicants and file with the Securities and Exchange Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the holders of bonds or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If said Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order refusing to sustain any of such objections, or if, after the entry of an order sustaining one or more of such objections, said Commission shall find, after notice and opportunity for a hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such bondholders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise, the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(C) The Trustee shall not be held accountable by reason of the disclosure of any information or the mailing of any material pursuant to any request made under subsection (B) of this Section regardless of the source from which such information was derived or such material was obtained.
SECTION 7.03. The Company covenants and agrees
(A) To file with the Trustee, within fifteen days after the Company is required to file the same with the Securities and Exchange Commission, copies of the annual reports, and of the information, documents and other reports (or copies of such portions of any of the foregoings as such Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with such Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports, pursuant to either of such Sections, then to file with the Trustee and the Securities and Exchange Commission, in accordance with rules and regulations prescribed from time to time by said Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
(B) To file with the Trustee and the Securities and Exchange Commission, in accordance with the rules and regulations
pre-
scribed from time to time by said Commission, such additional information, documents reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations;
(C) To transmit to the holders of bonds outstanding under this Indenture, within thirty days after the filing thereof with the Trustee (or at such other time as shall be fixed by the Securities and Exchange Commission) and in the manner and to the extent provided in subsection (C) of Section 7.04 hereof with respect to reports pursuant to subsection (A) of said Section, such summaries of any information, documents and reports required to be filed by the Company, pursuant to subsections (A) and (B) of this Section, as may be required by the rules and regulations prescribed from time to time by the Securities and Exchange Commission;
(D) If at any time hereafter the Company shall not be required under the provisions of subsection (A) of this Section to file with the Securities and Exchange Commission copies of its annual report or other information, documents and reports, to file with the Trustee within one hundred twenty (120) days after the close of each fiscal year a statement signed by the Treasurer or an Assistant Treasurer or the Comptroller or an Assistant Comptroller of the Company and an independent certified or public accountant showing its financial condition and giving reasonably detailed information as to its assets and liabilities and its earnings and operating expenses; and
(E) To furnish to the Trustee (a) with or as a part of
each annual report and each other document or report filed with the
Trustee pursuant to subsections (A) or (B) of this Section, an
officers' certificate stating that in the opinion of the officers
making such certificate such annual report or other document or report
complies with the requirements of such subsections (A) or (B); and
(b), upon request of the Trustee after the Company shall have mailed
to the holders of bonds any summary of information, documents or
reports pursuant to subsection (C) of this
Section, an officers' certificate stating that in the opinion of the officers making such certificate such summary complies with the requirements of such subsection (C).
SECTION 7.04. (A) On or before March 31, 1951, and on or before March 31 in every year thereafter, so long as any bonds are outstanding hereunder, the Trustee shall transmit to the bondholders as hereinafter provided, a brief report dated as of January 1 of such year with respect to
(1) Its eligibility and its qualifications under Sections 14.01 and 14.14. hereof, or in lieu thereof, if to the best of its knowledge the Trustee has continued to be eligible and qualified under such Sections, a written statement to such effect;
(2) The character and amount of any advances (and, if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee, as such, which remain unpaid on the date of such report and for the reimbursement of which it claims or may claim a lien or charge prior to that of the bonds upon the mortgaged and pledged property, or upon property or funds held or collected by it as Trustee, if such advances so remaining unpaid aggregate more than one-half of one per centum (1/2 of 1%) of the aggregate principal amount of bonds outstanding under this Indenture on the date of such report;
(3) The amount, interest rate and maturity date of all
other indebtedness owing by the Company, or any other obligor on the
bonds secured hereby, to the Trustee in its individual capacity on the
date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in paragraphs
(2), (3), (4) or (6) of subsection (B) of Section 14.15 hereof;
(4) The property and funds physically in the possession of the Trustee, as such, or of a depositary for it, on the date of such report;
(5) Any release, or release and substitution, of property subject to the lien of this Indenture (and the consideration therefor,
if any) which it has not previously reported; provided, however, that to the extent that the aggregate value as shown by the release papers of any or all of such released properties does not exceed an amount equal to one per centum (1%) of the principal amount of bonds then outstanding, the report need only indicate the number of such releases, the total value of property released as shown by the release papers, the aggregate amount of cash received and the aggregate value of property received in substitution therefor as shown by the release papers;
(6) Any additional issue of bonds issued under this Indenture which the Trustee has not previously reported; and
(7) Any action taken by the Trustee in the performance of its duties under this Indenture which it has not previously reported and which, in its opinion, materially affects the bonds outstanding under this Indenture, or materially affects the mortgaged and pledged property, except action in respect of a default, notice of which has been or is to be withheld by the Trustee, in accordance with the provisions of Section 10.02 hereof.
(B) The Trustee shall transmit to the bondholders as hereinafter provided a brief report with respect to:
(1) the release, or release and substitution, of property subject to the lien of this Indenture (and the consideration therefor, if any) unless the fair value of such property, as set forth in the certificate or opinion required by Sections 9.03 or 9.04 hereof is less than ten per centum (10%) of the principal amount of bonds outstanding at the time of such release, or such release and substitution, such report to be so transmitted within ninety days after such time; and
(2) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee, as such, since the date of the last report transmitted pursuant to the provisions of subsection (A) of this Section (or if no such report has yet been so transmitted, since the date of execution of this Indenture), for the reimbursement of which it claims or may claim a lien or charge
prior to that of the bonds on the mortgaged and pledged property or on property or funds held or collected by it as Trustee, and which it has not previously reported pursuant to this paragraph, if such advances remaining unpaid at any time aggregate more than ten per centum (10%) of the principal amount of bonds outstanding at such time, such report to be transmitted within ninety days after such time.
(C) Reports, pursuant to this Section, shall be transmitted by mail
(1) to all registered holders of bonds outstanding under this Indenture. as the names and addresses of such holders appear upon the registration books of the Company;
(2) to such holders of bonds outstanding under this Indenture as have, within the two years preceding such transmission, filed their names and addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection
(B) of this Section, to each bondholder whose name and address is
preserved at the time by the Trustee, as provided in subsection (A) of
Section 7.02 hereof.
(D) A copy of each such report shall, at the time of such transmission to the bondholders, be filed by the Trustee with each stock exchange upon which any of the bonds are listed, and also with the Securities and Exchange Commission.
(E) If an individual trustee, separate trustee, or co-trustee is appointed pursuant to Section 14.19, the provisions of this Section which have been made specifically applicable to the Trustee shall also apply to such individual trustee, separate trustee, or co-trustee to the extent consistent with the rights, powers, duties and obligations conferred or imposed upon such individual trustee, separate trustee, or co-trustee by the terms of his or its appointment. Any such individual trustee, separate trustee, or co-trustee may, if he or it so elects, furnish to the Trustee all information concerning such individual trustee, separate trustee, or co-trustee which such individual
trustee, separate trustee, or co-trustee is required to report, and the Trustee shall transmit and file such information in accordance with the provisions of this Section on behalf of such individual trustee, separate trustee, or co-trustee; provided, however, that, subject to the provisions of Sections 14.02 and 14.03 hereof, the Trustee shall not be responsible for the accuracy or completeness of any such information or for the failure of any such individual trustee, separate trustee, or co-trustee to report or to furnish any such information. In the event that any such individual trustee, separate trustee, or co-trustee shall elect to furnish information to the Trustee in accordance with the provisions of this subsection (E), the information required pursuant to subsection (A) of this Section shall be furnished to the Trustee in writing not less than fifteen (15) days before the report is required to be made, and, in the case of information required pursuant to subsection (B) of this Section, such information shall be furnished to the Trustee in writing within sixty (60) days after the taking by any such individual trustee, separate trustee, or co-trustee of any action required to be reported.
(F) For the purpose of this Section all bonds which have been authenticated and delivered and not returned to the Trustee and cancelled, shall be deemed to be outstanding.
ARTICLE VIII.
REDEMPTION OR PURCHASE OF BONDS.
SECTION 8.01. The Company reserves the right to redeem the bonds of Series A issued hereunder as set forth in Section 2.10 hereof. In the creation of each particular series of bonds issued hereunder other than Series A, the Company may reserve the right to redeem and pay prior to their fixed maturity all or any part of the bonds of such series at such time or times, and from time to time, and on such terms as the Board of Directors may determine and as shall be appropriately expressed in the bonds of such series and in the supplemental indenture with respect to the bonds of such series.
SECTION 8.02. In case the Company shall desire to exercise such right of redemption of all or any part of the bonds in accordance with the right so reserved by it, it shall publish, or cause to be published on its behalf, in one daily newspaper published and of general circulation in the City of New Orleans, Louisiana, and in one daily newspaper published and of general circulation in each of such other cities, if any, in which the interest on the bonds so to be redeemed is payable, at least once in each of four successive calendar weeks, the first publication to be at least thirty (30) and not more than sixty (60) days before the date fixed for redemption, a notice to the effect that the Company has elected to redeem all the bonds or a part thereof, as the case may be, on a date therein designated, specifying, in the case of the redemption of less than all series, the serial designations of the bonds to be redeemed, and, in the case of the redemption of less than all of the outstanding bonds of a series, the distinctive numbers of the bonds to be redeemed, and in every case stating that on said date there will become and be due and payable upon each bond so to be redeemed, at the principal office of the Trustee, the principal thereof, together with the accrued interest to such date, with such premium if any, as is due and payable on such bond upon such redemption, and that from and after such date interest thereon will cease to accrue. If any of the bonds to be redeemed are registered bonds without coupons or coupon bonds registered as to principal, similar notice shall be mailed by the Company, postage prepaid, at least thirty (30) and not more than sixty (60) days prior to such redemption date, to the persons respectively who shall appear by the transfer register or registers of the Company to be the registered owners of such bonds, at their addresses as the same shall appear, if at all, upon the transfer register or registers of the Company; but such mailing shall not be a condition precedent to such redemption, and failure so to mail any notice or any defect therein or in the mailing thereof shall not affect the validity of the proceedings for the redemption of such bonds. If all of the bonds of any series which are to be redeemed are registered bonds without coupons or coupon bonds registered as to principal, then, at the option of the Company, publication of such notice of redemption with respect to the bonds of such series
may be omitted; but, if publication of such notice of redemption with respect to the bonds of any series shall be so omitted, then such notice shall be mailed, by registered mail with return receipt requested, at least thirty (30) and not more than sixty (60) days prior to such redemption date, to the registered owners of the bonds of such series which are to be redeemed, at their addresses hereinabove specified, and such mailing thereof (but not the receipt thereof or the return of the receipt so requested) shall be a condition precedent to the redemption of the bonds of such series. In case provision shall be made in respect to any series for the publication of such notice of redemption in other cities or for publication more than once in such of four successive calendar weeks or in more newspapers or for a longer period than thirty (30) days or for any other additional condition to the redemption of bonds of such series, compliance shall be made with such provision in case bonds of such series shall be redeemed.
In case the Company shall have elected to redeem less than all of the outstanding bonds of any series, it shall in each such instance, at least fifteen (15) days before the first date upon which the notice of redemption hereinbefore mentioned is required to be given, notify the Trustee in writing of such election and of the aggregate principal amount of bonds of such series to be redeemed, and thereupon the Trustee shall draw by lot (assigning separate numbers for each $1,000 of principal mount of each registered bond without coupons of such series then outstanding), in any manner deemed by it proper, the bonds to be redeemed, and shall notify the Company in writing of the numbers of the bonds so drawn in ample time to permit the notice of redemption to be given as herein provided; provided, however, that if all of the outstanding bonds of such series shall be registered bonds without coupons or coupon bonds registered as to principal, the particular bonds of such series to be redeemed may be selected in accordance with any agreement between the registered holders of all of the outstanding bonds of such series. In case any registered bond without coupons shall be redeemed in part only, such notice shall specify the principal amount thereof to be redeemed and shall state that, at the option of the registered owner, such bond may be presented for the notation thereon of the principal amount
thereof so to be redeemed, or may be surrendered for partial redemption, in which case a new bond or new bonds of the same series of an aggregate principal amount equal to the unredeemed portion of such registered bond will be issued in lieu thereof, and the Company shall execute and the Trustees shall authenticate and deliver such new bond or bonds to or upon the written order of the registered owner of such registered bond, at the expense of the Company.
SECTION 8.03. In the event that the Company shall complete the giving of notice of its intention to redeem any bonds so redeemable, the Company shall, and it hereby covenants that it will, on or before the redemption date specified in such notice, deposit with the Trustee a sum of money sufficient to redeem all such bonds or portions of bonds so to be redeemed on such date or irrevocably direct the Trustee to apply from moneys held by it available to be used for the redemption of bonds, a sum of money sufficient to redeem such bonds or portions of bonds. If the Company shall fail so to deposit or direct the application of the money for such redemption such failure shall constitute a completed default under this Indenture and the said bonds or portions of bonds so called for redemption shall immediately become due and payable, and the holders of said bonds or portions of bonds shall be entitled to receive and the Company shall be obligated to pay the redemption price of said bonds or portions of bonds and thereupon and without the lapse of any period of time all the remedies provided for in Article X hereof with respect to a default in the payment of principal of bonds outstanding hereunder shall be available to and enforceable by the Trustee. If publication of notice of redemption shall have been completed and the money necessary to redeem the bonds or portions of bonds specified in such notice shall have been deposited with the Trustee (or the Trustee shall have been irrevocably directed to apply from money held by it available to be used for the redemption of bonds the money necessary for such redemption), such bonds or portions of bonds shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after such date of redemption interest on the bonds or portions of bonds so called for redemption shall cease to accrue, and the
coupons for such interest shall be void. On presentation and surrender of such bonds at said place or places of payment in said notice specified with all unmatured coupons, if any, thereto appertaining, they shall be paid and redeemed by the Company at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption. Coupons maturing prior to the redemption date shall remain payable in accordance with their terms. In any case where the redemption date is an interest payment date, the coupons maturing on such date on the coupon bonds called for redemption may be detached by the holders thereof and presented for payment in the usual manner. Upon presentation of any bond which is redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the registered holder thereof, at the expense of the Company, new bonds of the same series and maturity in principal amount equal to the unredeemed portion of the bonds so presented.
SECTION 8.04. All moneys deposited by the Company with the Trustee under the provisions of this Article VIII for the redemption of bonds or which the Company directs shall be applied by the Trustee to the redemption of bonds shall, subject to the provisions of Section 15.04 hereof, be held by the Trustee in trust for account of the holders of the bonds and portions of bonds so to be redeemed. Upon the making of such deposit or the giving of such direction and the furnishing to the Trustee of proof satisfactory to it that the giving of notice of redemption has been completed or the making of provision satisfactory to the Trustee for the giving of such notice the bonds or portions of bonds so to be redeemed shall no longer be entitled to any lien or benefit under this Indenture.
SECTION 8.05. If the redemption date be a legal holiday or a day on which banking institutions are authorized by law to close, then payment of the redemption price and interest payable upon redemption may be made on the next succeeding day, not a legal holiday or day on which banking institutions are authorized by law to close, with the same force and effect as if made on the nominal redemption date, and no interest shall accrue for the period after the nominal redemption date.
SECTION 8.06. At any time, upon the request of the Company, the Trustee shall, to the extent that such bonds are available for such purchase, apply all or any part of the cash held by it as part of the mortgaged and pledged property (other than cash held by it in trust for the payment or redemption of specific bonds or for the payment of specific interest) or any cash deposited with it by the Company for the purpose, to the purchase of bonds then outstanding hereunder of such series as the Company may designate at a price not exceeding the current redemption price of such bonds as shall be by their terms redeemable before maturity, or at not more than one hundred and five per centum (105%) of the principal amount of bonds not so redeemable plus accrued interest. Before making any such purchase the Trustee may, and upon request of the Company shall, by notice published once in each of two successive calendar weeks (on any business day in the week) in at least one daily newspaper of general circulation in the City of New Orleans, Louisiana, advertise for written proposals (to be received by it on or before a specified date) to sell to it on or before a subsequent specified date bonds of the series designated by the Company then outstanding hereunder; and the Trustee, to the extent as nearly as is possible of such funds then in its hands and requested by the Company to be so applied, shall purchase the bonds so offered at the price or prices most favorable to the Company, and reasonable notice shall be mailed by the Trustee to the holder or holders of the bonds whose proposals may be accepted. If all of the bonds of the series designated by the Company are registered bonds without coupons or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, a copy of such notice shall thereupon be mailed to each such registered holder directed to his registered address. The Trustee may also in its discretion, and upon request of the Company so to do, shall invite offers of bonds for sale to it in any other usual manner. The Company shall have the right to tender bonds for sale by it to the Trustee under any of the foregoing provisions of this Section. The Trustee may reject any or all proposals in whole or in part if it can at the time of opening said proposals purchase the requisite amount of such bonds or any part thereof from the Company or others at a more favorable price than it could by accepting said proposals. All offers by holders
shall be subject to acceptance of a portion thereof unless otherwise expressed
in the offers and all advertisements for written proposals shall so state. The
term "current redemption price" as used in this Section with respect to the
bonds of any particular series shall be deemed to be the current redemption
price at which bonds of such series are redeemable solely at the option of the
Company, except as may be otherwise provided with respect to bonds of such
series. All bonds purchased by the Trustee pursuant to the provisions of this
Section 8.06 shall be forthwith cancelled by the Trustee.
SECTION 8.07. All expenses incurred by the Trustee in connection with any purchase or redemption of bonds issued hereunder and the accrued interest and premium, if any, on any bonds purchased or redeemed shall be paid by the Company out of its general funds, and the Company agrees to reimburse the Trustee on demand for any funds disbursed by it for such purposes, or, if required by the Trustee, the funds necessary therefor shall be paid by the Company in anticipation of such disbursements by the Trustee, and any such disbursements by the Trustee until reimbursed shall be secured by a lien on the mortgaged and pledged property and the proceeds thereof prior to the lien of the bonds and coupons issued hereunder.
ARTICLE IX.
POSSESSION, USE AND RELEASE OF MORTGAGED AND PLEDGED PROPERTY.
SECTION 9.01. So long as the Company is not in default in the payment of the interest on any of the bonds then outstanding hereunder and none of the completed defaults specified in Section 10.01 hereof shall have occurred and be continuing, the Company shall be entitled to possess, use and enjoy the mortgaged and pledged property (except such cash and securities as are expressly required to be or have been deposited with the Trustee) and to receive, use and dispose of the tolls, rents, revenues, issues, earnings, income, product and profits thereof, with power in the ordinary course of business freely and without let or hinderance on the part of the Trustee or of the bondholders, to use, consume and dispose of materials and supplies, and, except as herein otherwise expressly provided to the contrary, to exercise any and all rights under choses in action, contracts, franchises and claims.
SECTION 9.02. So long as the Company is not in default in the payment of the interest on any of the bonds then outstanding hereunder and none of the completed defaults specified in Section 10.01 hereof shall have occurred and be continuing, the Company may at any time and from time to time, without any notice to or release or consent by the Trustee or accountability to it for any consideration received by the Company:
(1) sell or otherwise dispose of, free from the lien of this Indenture, any machinery, equipment, tools, implements or other similar property, which shall have become old, inadequate, obsolete, worn out, unfit or unadapted for use in the operations of the Company upon replacing the same by or substituting for the same other property of at least equal value to that of the property sold or otherwise disposed of;
(2) make changes or alterations in or substitutions of any and all leases, easements or right of way grants, provided that such change, alteration or substitution is, in the opinion of the Board of Directors of the Company, desirable in the conduct of the business of the Company and does not impair the security of the bonds outstanding hereunder;
(3) modify, surrender, abandon, or otherwise terminate any right, power, privilege or franchise, (a) if the Company shall contemporaneously, or as part of the same transaction, obtain or shall previously have obtained a new right, power, privilege or franchise under which it may continue to perform the service and conduct the business theretofore performed or conducted under or by virtue of the right, power, privilege or franchise, modified, surrendered, abandoned or terminated, and which, in the opinion of the Board of Directors, is the most advantageous right, power, privilege or franchise obtainable under circumstances then prevailing, or (b) whenever in the opinion of the Board of Directors the right, power, privilege or franchise to be modified, surrendered, abandoned or terminated can no longer be profitably exercised or availed of and shall not be essential to the maintenance and continued use of the rest of the mortgaged and pledged property; and if, in any such event in the opinion of the Board of
Directors the security of the bonds outstanding hereunder would not thereby be impaired.
SECTION 9.03. (A) So long as the Company is not in default in the payment of the interest on any bonds then outstanding hereunder and none of the completed defaults specified in Section 10.01 hereof shall have occurred and be continuing, the Company may obtain a release of any part of the mortgaged and pledged property (other than cash, purchase money obligations and obligations of a governmental body or agency, held by the Trustee, none of which shall be released except as provided in other Sections hereof) which the Company has sold or exchanged, or contracted to sell or exchange, and the Trustee shall execute and deliver a release of such part of the mortgaged and pledged property from the lien hereof, if the aggregate of the fair value (as determined in accordance with the provisions of paragraph (7) of subsection (B) of this Section) of the bondable property, and the nonbondable property, if any, to be released shall not exceed the aggregate of:
(1) cash then being deposited with the Trustee (or with the trustee or other holder of an unfunded lien pursuant to the provisions of this Section);
(2) the principal amount of any purchase money obligations then being pledged with the Trustee (or with the trustee or other holder of an unfunded lien pursuant to the provisions of this Section), which shall have been received by the Company as consideration or part consideration for bondable property to be released and which shall be secured by a purchase money mortgage thereon; provided that
(a) such purchase money obligations shall be included only to the extent that the principal amount thereof does not in the aggregate exceed sixty per centum (60%) of the fair value (as determined in accordance with the provisions of paragraph (7) of subsection (B) of this Section) of the bondable property to be released by which such purchase money obligations will be secured; and
(b) the aggregate principal amount of such purchase money obligations and all other purchase money obligations (except purchase money obligations received with respect to the release of nonbondable property) pledged with the Trustee pursuant to the provisions of this Section and then held as part of the mortgaged and pledged property (or pledged with the trustee or other holder of an unfunded lien pursuant to the provisions of this Section and then held by such trustee or other holder) shall not exceed twenty per centum (20%) of the aggregate principal amount of all bonds outstanding hereunder at the date of the officers' certificate then being delivered to the Trustee, pursuant to the provisions of paragraph (3) of subsection (B) of this Section, in connection with the proposed release, plus all bonds which might be authenticated and delivered hereunder at the date of such officers' certificate pursuant to the provisions of Sections 4.03 and 4.04 hereof;
(3) the fair value to the Company (as determined in accordance with the provisions of paragraph (9) of subsection (B) of this Section) of any property additions then being certified to the Trustee in subparagraph (f) of the officers' certificate delivered to the Trustee pursuant to the provisions of paragraph (3) of subsection (B) of this Section which shall have been acquired by the Company as consideration or part consideration for the mortgaged and pledged property to be released;
(4) if nonbondable property is to be released, then to the extent of the fair value (as determined in accordance with the provisions of paragraph (7) of subsection (B) of this Section) of such nonbondable property, the fair value to the Company (as determined in accordance with the provisions of paragraphs (8) or (9) of subsection (B) of this Section) of the aggregate of (i) any other property then being certified to the Trustee in subparagraph (g) of the officers' certificate delivered to the Trustee pursuant to the provisions of paragraph (3) of subsection (B) of this Section and (ii) securities (other than purchase money mortgages received with respect to the release of bondable property or unfunded lien bonds or bonds authenticated and
delivered hereunder or obligations of a governmental body or agency) then being pledged with the Trustee (or with the trustee or other holder of an unfunded lien pursuant to the provisions of this Section), which property or securities shall have been acquired by the Company as consideration or part consideration for the nonbondable property to be released; provided, however, that there shall be deducted from the fair value to the Company (as determined in accordance with the provisions of paragraphs (8) or (9) of subsection (B) of this Section) of such property or securities the principal amount of any unfunded lien bonds secured by an unfunded lien on all or part of such property or securities, unless the principal amount of such unfunded lien bonds has theretofore been deducted when property additions or securities subject to unfunded lien have theretofore been certified to the Trustee under this paragraph (4);
provided, however, that in case some or all of the part of the mortgaged and pledged property to be released is being sold or exchanged subject to an unfunded lien then existing thereon (and on no other part of the mortgaged and pledged property) and all the outstanding unfunded lien bonds secured by such unfunded lien are being assumed by the purchaser of the property to be released, then, for all purposes of the computation above provided for there shall be deducted from the fair value (as determined in accordance with the provisions of paragraph (7) of subsection (B) of this Section) of the nonbondable property to be released the principal amount of such unfunded lien bonds.
(B) Prior to the release of any part of the mortgaged and pledged property under this Section there shall in each case have been delivered to the Trustee:
(1) a written request of the Company for such release evidenced by a writing signed in the name of the Company by its President or one of its Vice-Presidents and its Treasurer or one of its Assistant Treasurers;
(2) a certified copy of a resolution of the Board of Directors of the Company, authorizing or approving such request and stating
that in the judgment of the Board the sale or exchange of such part of the mortgaged and pledged property is desirable in the conduct of the business of the Company and that the release thereof will not impair the security under this Indenture in contravention of the provisions thereof;
(3) an officers' certificate containing
(a) a statement that the Company is not in default in the payment of the interest on any bonds then outstanding hereunder and that none of the completed defaults specified in Section 10.01 hereof has occurred and is continuing;
(b) a brief description of the part of the
mortgaged and pledged property to be released (bondable and
nonbondable property being described separately), a statement
that the Company has sold or exchanged, or contracted to sell
or exchange, such part of the mortgaged and pledged property,
and the fair value (as determined by an engineer, appraiser or
other expert in accordance with the provisions of paragraph
(7) of this subsection (B)), stated separately, of the
bondable property, and the non-bondable property, if any, to
be released;
(c) in a case falling within the proviso following paragraph (4) of subsection (A) of this Section, a brief description of the unfunded lien existing on mortgaged and pledged property to be released, a statement that no other part of the mortgaged and pledged property is subject to such unfunded lien and that all the outstanding unfunded lien bonds secured by such unfunded lien are being assumed by the purchaser of the property to be released, and a statement of the principal amount of such unfunded lien bonds as are secured by an unfunded lien on nonbondable property to be released;
(d) a statement of the amount of cash, if any, being deposited pursuant to paragraph (1) of subsection (A) of this Section;
(e) a brief description of any purchase money obligations being pledged pursuant to paragraph (2) of subsection (A) of this Section, the principal amount thereof, a statement that
such purchase money obligations have been received as consideration or part consideration for bondable property to be released, a statement that such purchase money obligations do not exceed the limitations of the first proviso to said paragraph (2) and a computation showing that the principal amount of such purchase money obligations complies with the second proviso of said paragraph (2);
(f) a brief description of any property additions then being certified to the Trustee pursuant to paragraph (3) of subsection (A) of this Section, the fair value to the Company of such property additions (as determined by an engineer, appraiser or other expert in accordance with the provisions of paragraph (9) of this subsection (B)), and a statement that such property additions have been received as consideration or part consideration for mortgaged and pledged property to be released; and
(g) a brief description of any other property or securities then being certified to the Trustee and pledged pursuant to paragraph (4) of subsection (A) of this Section, the fair value to the Company of such property or securities (as determined by an engineer, appraiser or other expert in accordance with the provisions of paragraphs (8) or (9) of this subsection (B)), a computation showing that such fair value does not exceed the fair value (as stated in subparagraph (b) of such officers' certificate) of the nonbondable property, if any, to be released, a statement that such property or securities have been received as consideration or part consideration for the mortgaged and pledged property to be released, and a computation showing any deduction required by the proviso to said paragraph (4) or, in case such proviso is inapplicable, a statement to that effect;
(4) the cash, if any, then being deposited with the Trustee pursuant to paragraph (1) of subsection (A) of this Section, or, if any cash is then being deposited with the trustee or other holder of an unfunded lien pursuant to the provisions of this Section, in connection with the release of the property to be
released, a certificate of such trustee or other holder, as the case may be, stating that such cash has been deposited with it;
(5) any purchase money obligations or securities then
being pledged with the Trustee pursuant to the provisions of paragraph
(2) or paragraph (4) of subsection (A) of this Section, or, if any
such purchase money obligations or securities are then being pledged
with the trustee or other holder of an unfunded lien pursuant to the
provisions of this Section, in connection with the release of the
property to be released, a certificate of such trustee or other
holder, as the case may be, stating that such purchase money
obligations or securities have been pledged with it;
(6) all such deeds, indentures supplemental hereto or
instruments of further assurance which, as set forth in the opinion of
counsel furnished pursuant to paragraph (10) of this subsection (B),
may be necessary or advisable to subject to the lien of this Indenture
any property additions certified to the Trustee pursuant to paragraph
(3) of subsection (A) of this Section and any other property certified
to the Trustee pursuant to paragraph (4) of subsection (A) of this
Section;
(7) a certificate or opinion of an engineer, appraiser or other expert stating separately the fair value of the bondable property and of the nonbondable property to be released and also stating that, in the opinion of the expert signing such certificate or opinion, the proposed release will not impair the security under this Indenture in contravention of the provisions thereof; and if the fair value of the property or securities the release of which is requested and of all other property or securities released from the lien of this Indenture since the commencement of the then current calendar year, as set forth in any certificates or opinions furnished pursuant to the provisions of this paragraph and of Section 9.04 hereof, is ten per centum (10%) or more of the aggregate principal amount of the bonds at the time outstanding, the certificate or opinion required by this paragraph shall be made by an independent engineer, appraiser or other expert; provided, however, that such certificate or opinion need not be by an independent
engineer, appraiser or other expert if the fair value of the property or securities to be released as set forth in the certificate or opinion is less than the greater of (i) Twenty-five Thousand Dollars ($25,000) or (ii) one per centum (1%) of the aggregate principal amount of the bonds at the time outstanding;
(8) if the pledge of securities pursuant to the provisions of paragraph (4) of subsection (A) of this Section is to be made the basis for the release of mortgaged and pledged property, a certificate or opinion of an engineer, appraiser or other expert stating the fair value to the Company of such securities; and if the fair value to the Company of such securities and of all other securities which shall have been pledged pursuant to the provisions of paragraph (4) of subsection (A) of this Section and of Section 9.04 hereof since the commencement of the then calendar year, as set forth in any certificates or opinions furnished pursuant to the provisions of this paragraph and of Section 9.04 hereof, is ten per centum (10%) or more of the aggregate principal amount of the bonds at the time outstanding, the certificate or opinion required by this paragraph shall be made by an independent engineer, appraiser or other expert; provided, however, that such a certificate of an independent engineer, appraiser or other expert shall not be required with respect to any securities so pledged, if the fair value to the Company of such securities, as set forth pursuant to the provisions of this paragraph is less than the greater of (i) Twenty-five Thousand Dollars ($25,000) or (ii) one per centum (1%") of the aggregate principal amount of the bonds at the time outstanding;
(9) if any property is being certified to the Trustee pursuant to the provisions of paragraph (3) or paragraph (4) of subsection (A) of this Section, a certificate or opinion of an engineer, appraiser or other expert stating separately the fair value to the Company of such property certified pursuant to the provisions of paragraph (3) of subsection (A) of this Section and of such property certified pursuant to paragraph (4) of subsection (A) of this Section; and if
(a) within six months prior to the date of the acquisition thereof by the Company, such property has been used or operated
by a person or persons other than the Company in a business similar to that in which it has been or is to be used or operated by the Company, and
(b) the fair value to the Company of such property, as set forth in such certificate or opinion, is not less than the greater of (i) Twenty-five Thousand Dollars ($25,000) or (ii) one per centum (1%) of the aggregate principal amount of the bonds at the time outstanding,
such certificate or opinion shall be made by an independent engineer, appraiser or other expert; and
(10) an opinion of counsel
(a) stating that the Company has full corporate authority and all necessary permission from governmental authorities to dispose of the property to be released and to acquire, own and operate any property or securities to be received as consideration therefor, or that no such permission is required therefor, and unless such opinion shall show that no consent or approval of any governmental authority, is requisite to the acquisition, ownership or operation of such property or securities, it shall specify and be accompanied by officially authenticated certificates, or other documents, by which such consent or approval is or may be evidenced;
(b) stating that the unfunded lien bonds, if any, the principal amount of which is being deducted pursuant to the proviso following paragraph (4) of subsection (A) of this Section, are secured by an unfunded lien existing on some or all of the mortgaged and pledged property to be released and that no other part of the mortgaged and pledged property is subject to such unfunded lien;
(c) stating that any purchase money obligations and any securities pledged with the Trustee, or with the trustee or other holder of an unfunded lien, pursuant to the provisions of paragraph (2) of subsection (A) of this Section or paragraph (4) of subsection (A) of this Section, have been validly issued, that such purchase money obligations and securities have been duly
subjected to the lien of this Indenture or assigned to the Trustee subject to such unfunded lien, that any shares of stock included in any such securities are fully paid and nonassessable, and that any such purchase money obligations are secured by a valid lien upon property released, subject to no liens prior or equal to the lien thereof except any liens which were permitted liens on such property released and except any unfunded lien subject to which such property released was sold or exchanged; and
(d) specifying the deeds, indentures supplemental hereto or instruments of further assurance necessary to subject to the lien of this Indenture all the right, title and interest of the Company in and to the property then being certified to the Trustee pursuant to the provisions of paragraphs (3) and (4) of subsection (A) of this Section, or stating that no such instruments are necessary for such purpose, stating that the Company has title to, or contemporaneously with the release of the property to be released will have title to, such property, that this Indenture is, or upon the delivery of the deeds, indentures supplemental hereto or instruments of further assurance, if any, specified in said opinion, will be, a lien upon such property subject to no defect in title and, in the case of property certified pursuant to paragraph (3) of subsection (A) of this Section, subject to no lien thereon prior to the lien of this Indenture except permitted liens.
(C) If under the provisions of any mortgage or other instrument
which is an unfunded lien there is required to be made with the trustee or
other holder of such unfunded lien a deposit of cash or pledge of purchase
money obligations or securities in order to obtain a release therefrom of any
part of the mortgaged and pledged property to be released' from the lien
hereof, the Company shall not be required to deposit or pledge with the Trustee
such cash, purchase money obligations or securities. In any such event, in lieu
of the deposit or pledge with the Trustee of such cash, purchase money
obligations or securities in accordance with the provisions of this Section or
Section 9.04 hereof, and in addition to the instruments required to be
delivered to the Trustee pursuant to this Section, the Company shall furnish to
the
Trustee an opinion of counsel stating that such cash, purchase money obligations or securities are required to be deposited or pledged with the trustee or other holder of such unfunded lien, together with such instruments as shall be stated in such opinion of counsel to be adequate to evidence the right of the Trustee to receive such cash or purchase money obligations or securities or any property substituted therefor remaining with such trustee or other holder of such unfunded lien upon the discharge of such unfunded lien.
SECTION 9.04. (A) So long as the Company is not in default in the payment of interest on any of the bonds then outstanding hereunder and none of the completed defaults specified in Section 10.01 hereof shall have occurred and shall be continuing, the Company may, in any calendar year, sell, exchange or otherwise dispose of any bondable property of an aggregate value not exceeding Twenty-five Thousand Dollars ($25,000), without compliance with the provisions of Section 9.03, and the Trustee shall release the same upon receipt by it of
(1) a written request of the Company for such release evidenced by a writing signed in the name of the Company by its President or one of its Vice-Presidents and its Treasurer or one of its Assistant Treasurers;
(2) a certified copy of a resolution of the Board of Directors authorizing or approving such request;
(3) an officers' certificate stating (i) that the Company has sold, exchanged or otherwise disposed of, or has contracted to sell, exchange or otherwise dispose of the property so to be released (and briefly describing such property) for a consideration representing the fair value of such property as stated in the certificate of the engineer, appraiser or other expert delivered to the Trustee pursuant to the provisions of paragraph (4) of this subsection (A), and stating the nature of such consideration; (ii) that such release is desirable in the conduct of the business of the Company; and (iii) that the Company is not in default in the payment of interest on any of the bonds then outstanding hereunder and that none of the completed defaults specified in Section 10.01 hereof has occurred and is continuing;
(4) a certificate of an engineer, appraiser or other expert as to the fair value of the property so to be released, and the fair value of all other bondable property released pursuant to the provisions of this subsection (A) since the beginning of the then current calendar year, and as to the fair value to the Company of any property to be received by the Company in exchange for the property so to be released, and stating that, in the opinion of the signer or signers, the proposed release will not impair the security under this Indenture in contravention of the provisions thereof;
provided, however, that if the fair value of the property the release of which
is so requested shall be equal to or greater than one per centum (1%) of the
aggregate principal amount of the bonds at the time outstanding, the Trustee
shall release such property only upon compliance with the provisions of
Section 9.03.
The Company covenants that, upon receipt of such consideration, it will deposit, pledge or subject to the lien of this Indenture (in accordance with the provisions of paragraphs (4), (5) and (6) of subsection (B) of Section 9.03 hereof) the consideration, if any, received by it upon the sale, exchange or other disposition of any property so released pursuant to the provisions of this subsection (A) which shall be accompanied by an opinion of counsel that the requirements of this paragraph have been complied with.
(B) The Trustee shall, whenever from time to time requested by the
Company in a writing signed in the name of the Company by its President or one
of its Vice-Presidents and its Treasurer or one of its Assistant Treasurers,
such request to be accompanied by a certified copy of a resolution of the Board
of Directors of the Company as provided by paragraph (2) of subsection (B) of
Section 9.03 hereof, but without requiring compliance with any other provisions
of Section 9.03 hereof, except as below specified, and irrespective of the
values stated in the certificate provided for in paragraph (2) of this
subsection (B), release from the lien hereof any nonbondable property (other
than cash, purchase money obligations received with respect to the release of
any bondable property, unfunded lien bonds,
bonds authenticated and delivered hereunder, or obligations of a governmental body or agency held by the Trustee, none of which shall be released except as provided in other Sections hereof) upon receipt by the Trustee of:
(1) an officers' certificate containing (i) a statement
that the Company is not in default in the payment of the interest on
any bonds then outstanding hereunder and that none of the completed
defaults specified in Section 10.01 hereof has occurred and is
continuing, (ii) a brief description of the property so to be
released, (iii) a statement that the Company has sold or exchanged, or
contracted to sell or exchange, the property so to be released for a
consideration which may consist of any property or securities other
than unfunded lien bonds or bonds authenticated and delivered
hereunder, (iv) a statement that the property so to be released is
nonbondable property (other than cash, purchase money obligations
received with respect to the release of any bondable property,
unfunded lien bonds, bonds authenticated and delivered hereunder,
obligations of a governmental body or agency held by the Trustee), and
(v) a brief description of the entire consideration received and to be
received by the Company therefor;
(2) a certificate of an engineer, appraiser or other expert, or, under the circumstances specified in paragraphs (7), (8) and (9) of subsection (B) of Section 9.03 hereof, a certificate of an independent engineer, appraiser or other expert, as to the fair value of the property so to be released and the fair value to the Company of the consideration specified in paragraph (1) of this subsection (B), stating that, in the opinion of the signer or signers, the proposed release will not impair the security under this Indenture in contravention of the provisions thereof;
(3) the deposit, pledge or subjection to the lien of this Indenture (in accordance with the provisions of paragraphs (4), (5) and (6) of subsection (B) of Section 9.03 hereof) of the consideration specified in paragraph (1) above; and
(4) an opinion of counsel in accordance with the provisions of paragraph (10) of subsection (B) of Section 9.03 hereof.
SECTION 9.05. Should any part of the mortgaged and pledged property be
taken by exercise of the power of eminent domain, or should any governmental
body at any time exercise any right which it may have to require the sale to
it, or to a purchaser designated by it, of any part of the mortgaged and
pledged property, the Trustee, upon request of the Company, shall release the
part of the mortgaged and pledged property so taken or sold, upon being
furnished with an opinion of counsel to the effect that such part of the
mortgaged and pledged property has been lawfully taken or sold as aforesaid.
The aforesaid opinion of counsel shall state the amount of proceeds received or
to be received for the property so taken or sold (which proceeds shall, in any
event, be required to be cash or obligations of a governmental body or agency)
and the amount so stated shall be deemed to be the fair value of such property
for the purposes of paragraph (5) of subsection (A) and paragraph (1) of
subsection (B) of Section 7.04 hereof. Subject to the provisions of subsection
(C) of Section 9.03 hereof, the proceeds of all property so taken or sold,
together with any amount paid to the Company in connection with such taking or
sale as severance damages to property of the Company not so taken or purchased,
shall be deposited or pledged with the Trustee.
SECTION 9.06. (A) So long as the Company is not in default in the
payment of the interest on any of the bonds then outstanding hereunder and none
of the completed defaults specified in Section 10.01 hereof shall have occurred
and be continuing, any money received by the Trustee pursuant to the provisions
of this Article IX or the provisions of Section 5.14 hereof and any money which
it is specifically provided may be withdrawn, used or applied pursuant to this
Section and any moneys received by the Trustee the withdrawal, use or
application of which is not otherwise provided for may, at the option of the
Company, evidenced by a writing signed in the name of the Company by its
President or a Vice-President and its Treasurer or an Assistant Treasurer, and
accompanied by an officers' certificate stating that the Company is not in
default in the payment of the interest on any of the bonds then outstanding
hereunder and none of the completed defaults specified in Section 10.01 hereof
has occurred and is continuing,
(1) be withdrawn from time to time by the Company in an
amount equal to (i) the amount of bondable value of property additions
which the Company elects to make the basis of a withdrawal under this
Section and (ii) the principal amount of bonds authenticated and
delivered hereunder which might then be made the basis for the
authentication and delivery of bonds under the provisions of Section
4.04 hereof and which the Company elects to make the basis of a
withdrawal under this Section in lieu of the right of the Company to
the authentication and delivery of bonds on such basis; provided, that
in case the withdrawal is applied for in whole or in part upon the
basis of bonds authenticated and delivered hereunder which might then
be made the basis for the authentication and delivery of bonds under
the provisions of Section 4.04 hereof, the Company shall comply with
the provisions of Section 4.04 hereof, except the provisions therein
relating to Section 4.06 and Section 4.07 hereof; or
(2) be used by the Trustee for the purchase of bonds issued hereunder in accordance with the provisions of Section 8.06 hereof; or
(3) be applied by the Trustee to the payment at maturity of any bonds issued hereunder or the redemption of any bonds issued hereunder as are by their terms redeemable before maturity, of such series as may be designated by the Company or by the Trustee upon the failure of the Company to make such designation, any such redemption to be in the manner and subject to the conditions provided in the bonds to be redeemed and in Article VIII hereof; and for such purpose the Trustee may publish notice of redemption in the name of the Company or in its own name as Trustee;
provided, however, that, notwithstanding the foregoing, any money received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority shall be immediately used or applied by the Trustee as provided in paragraphs (2) and (3) of this subsection (A) except that if the Company shall fail to designate the series to be purchased or
redeemed or shall fail to take any other action required in connection with such use or application of such money, the Trustee shall do so. If any money received by the Trustee pursuant to the provisions this Article IX or the provisions of Section 5.14 hereof or any money which it is specifically provided may be withdrawn, used or applied pursuant to the provisions of this Section, and any moneys received by the Trustee the withdrawal, use or application of which is not otherwise provided for shall not be so withdrawn, used or applied within the next succeeding three years after the same shall have been deposited with the Trustee, it shall thereafter be used or applied by the Trustee as provided in paragraphs (2) and (3) of this subsection (A) except that if the Company shall fail to designate the series to be purchased or redeemed or shall fail to take any other action required in connection with such use or application of such money, the Trustee shall do so.
(B) So long as the Company is not in default in the payment of the interest on any of the bonds outstanding hereunder and none of the completed defaults specified in Section 10.01 hereof shall have occurred and be continuing, any money received by the Trustee representing the release or the taking by eminent domain or purchase of nonbondable property (other than purchase money obligations or obligations of a governmental body or agency received with respect to the release of bondable property) may also, at the option of the Company, evidenced by a writing signed in the name of the Company by its President or a Vice-President and its Treasurer or an Assistant Treasurer, and irrespective of the value stated in the certificate provided for in paragraph (2) of this subsection (B), be withdrawn from time to time by the Company to be applied to the purchase of any nonbondable property or reimbursements of the purchase price thereof, upon receipt by the Trustee of,
(1) an officers' certificate containing (i) a statement that the Company is not in default in the payment of the interest on any bonds then outstanding hereunder and that none of the completed defaults specified in Section 10.01 hereof has occurred and is continuing, (ii) a statement that the Company has purchased, or contracted to purchase the property so to be purchased, (iii) a statement that the property so to be purchased is nonbondable
property, and (iv) a brief description of the property so purchased;
(2) a certificate of an engineer, appraiser or other expert, or, under the circumstances specified in paragraph (9) of subsection (B) of Section 9.03 hereof, a certificate of an independent engineer, appraiser or other expert, as to the fair value to the Company of the property so purchased;
(3) the subjection to the lien of this Indenture (in
accordance with the provisions of paragraph (6) of subsection (B) of
Section 9.03 hereof) of the property so purchased; and
(4) an opinion of counsel in accordance with the
provisions of subparagraph (d) of paragraph (10) of subsection (B) of
Section 9.03 hereof.
SECTION 9.07. (A) All unfunded lien bonds received by the Trustee shall be held by the Trustee as part of the mortgaged and pledged property and without impairment of the obligation represented thereby or the lien thereof for the protection and further security for the bonds issued hereunder. Except during the continuance of a completed default specified in Section 10.01, no payment by way of interest or otherwise on any of the unfunded lien bonds held by the Trustee shall be made or demanded and the coupons thereto pertaining as they mature shall be cancelled by the Trustee and delivered so cancelled to the Company, unless the Company shall direct with respect to any such unfunded lien bonds to have such payments made and demanded, in which event the Company shall be entitled to receive all such payments. In any event, except during the continuance of a completed default as aforesaid, all moneys received by the Trustee (a) on account of the principal of or interest or premium on said unfunded lien bonds, or (b) by reason of the sale or delivery of any of said bonds to the sinking fund or other similar device for the retirement of bonds provided for in any lien securing the same (as to both (a) and (b) above, to the extent that an officers' certificate delivered to the Trustee shall state that such moneys do not represent the proceeds of insurance on, or of the release of, or of the taking by eminent domain or purchase of, bondable property including the proceeds of and substitutes for any thereof) shall be paid over by the Trustee to or upon
the written order of the Company; provided that if and to the extent that such officers' certificate shall not state that such moneys do not represent the proceeds of insurance on, or of the release of, or of the taking by eminent domain or purchase of, bondable property, including the proceeds of and substitutes for any thereof, the same shall be retained by the Trustee and held as part of the mortgaged and pledged property, and may be withdrawn, used or applied, in the manner, for the purposes, and subject to the conditions provided in Section 9.06 hereof.
So long as the Company is not in default in the payment of the interest on any bonds then outstanding hereunder and none of the completed defaults specified in Section 10.01 hereof shall have occurred and be continuing, the Trustee, if so directed by the Company, shall cause any unfunded lien bonds held by it to be cancelled, and the obligation thereby evidenced to be satisfied and discharged, provided that it shall have received notice from the trustee or other holder of the unfunded lien securing the same that such trustee or other holder, on receipt of the unfunded lien bonds held by the Trustee, will cause such unfunded lien to be satisfied and discharged of record; and upon similar direction, shall sell or surrender any unfunded lien bonds held by it subject to this Section 9.07 (A) to the trustee or other holder of the unfunded lien securing the same for cancellation, or to be held uncancelled for the purposes of any sinking fund or other similar device for the retirement of bonds for which provision may have been made in the unfunded lien securing the unfunded lien bonds so sold or surrendered, provided, however, that no such unfunded lien bonds shall be caused by the Trustee to be cancelled or shall be sold or surrendered for cancellation as aforesaid, until the Trustee shall have received (i) an opinion of counsel to the effect (a) that there is no lien outstanding (other than permitted liens) covering any part of the property upon which such unfunded lien exists junior to such unfunded lien and senior to the lien hereof, or (b) that the provisions of the unfunded lien securing the unfunded lien bonds so to be sold or surrendered are such that no transfer of ownership or possession of such unfunded lien bonds by the trustee or other holder of such unfunded lien is permissible thereunder except upon default thereunder or except to the Trustee hereunder to be held subject to the provisions of this Section 9.07 (A), or to the trustee or other holder of an unfunded
lien for cancellation or to be held uncancelled under the terms of an unfunded lien under like conditions, or (c) that all of the property subject to the unfunded lien, with respect to which such unfunded lien bonds have been deposited with the Trustee, has been released from the lien of this Indenture and (ii) an officers' certificate stating that all conditions precedent, specified in this Indenture, to the right of the Company to have said unfunded lien bonds cancelled and the obligation thereby evidenced satisfied and discharged have been complied with; and provided further that if all of the property subject to the unfunded lien securing unfunded lien bonds deposited with the Trustee, shall be released from the lien of this Indenture, such unfunded lien bonds shall be delivered to or upon the order of the Company.
Unless a completed default specified in Section 10.01 shall have occurred, the Trustee may exercise, but only with the consent of the Company, and upon the occurrence of any completed default specified in Section 10.01 hereof, the Trustee may exercise in its absolute discretion, without the consent of the Company, any and all rights of a bondholder with respect to the unfunded lien bonds then held by the Trustee or may take any other action which shall in its judgment be desirable or necessary to avail itself of the security created for such unfunded lien bonds by the unfunded liens securing the same. The Trustee shall be reimbursed from the trust estate for all expenses by it properly incurred by reason of any such action taken, without negligence or bad faith, with interest upon all such expenditures at the rate of six per centum (6%) per annum; and the amount of such expenses and interest shall, until repaid, constitute a lien upon the mortgaged and pledged property prior to the lien of the bonds and coupons issued hereunder.
(B) Any purchase money obligations, obligations of a governmental body or agency and any other evidences of indebtedness other than unfunded lien bonds held by the Trustee, may be released by the Trustee from the lien of this Indenture upon payment to the Trustee of the unpaid portion of such obligations or evidences of indebtedness. The principal of and interest on any such securities shall be collected by the Trustee as and when the same become payable. Cash received upon the payment of the principal of or the release of any such securities
may be withdrawn, used or applied pursuant to the provisions of Section 9.06 hereof. Upon receipt by the Trustee of an officers' certificate stating that, so far as known to the signers, the Company is not in default in the performance of any of the covenants or provisions of this Indenture, the interest received by the Trustee on any such securities, except that due subsequent to the maturity thereof, together with any premium received upon payment of the principal thereof, shall be paid over to the Company.
All sums received by the Trustee upon the redemption or retirement of any stock held by the Trustee under this Article IX may be withdrawn, used or applied pursuant to the provisions of Section 9.06 hereof. All dividends received by the Trustee on any such stock shall be paid over to the Company, except dividends declared payable in stock of the corporation declaring the same and except where such dividends shall have been declared from or with respect to other than earnings of the corporation declaring the same, and such payment shall be made upon receipt by the Trustee of an officers' certificate stating that, so far as known to the signers, the Company is not in default in the performance of any of the covenants or provisions of this Indenture and stating that the dividend to be paid over to the Company is not a dividend excepted as aforesaid; and to that end the Trustee upon receipt of such an officers' certificate shall from time to time deliver to the Company such suitable assignments and orders as the Company may reasonably request for the payment of such dividends. Dividends on such stocks declared from or with respect to other than earnings of the corporation declaring the same may be withdrawn, used or applied pursuant to the provisions of Section 9.06 hereof. So long as the Company is not in default in the payment of the interest on any bonds then outstanding hereunder and none of the completed defaults specified in Section 10.01 hereof shall have occurred and be continuing, the Company shall have the right to vote any such stock or voting securities held by the Trustee; and to that end the Trustee shall from time to time deliver to the Company such suitable powers of attorney and proxies as the Company may reasonably request to vote on any such securities, but no such power of attorney or proxy shall be voted in contravention of the terms of this Indenture.
So long as the Company is not in default in the payment of the interest on any bonds then outstanding hereunder and none of the completed defaults specified in Section 10.01 hereof shall have occurred and be continuing, the Trustee may exercise, but only with the consent of the Company, and, upon the occurrence of any of such defaults, the Trustee may exercise in its absolute discretion, without the consent of the Company, any and all rights of an owner with respect to any such obligations, evidences of indebtedness or stock held under this Article IX and may take any action which in its judgment may be desirable or necessary to avail itself of the benefit of any security created for any such obligations, evidences of indebtedness or stock including, but not in limitation, the extension or modification thereof at a higher or lower or the same rate of interest or dividends and joining in any plan of reorganization, readjustment, arrangement, composition or similar plan with respect thereto, whether voluntary or involuntary, and may accept and hold hereunder any new obligations or securities issued in exchange therefor under any such plan; but, subject to the provisions of Sections 14.02 and 14.03 hereof, the Trustee shall be under no obligation to exercise any such rights unless requested so to do and reasonably indemnified by the holders of not less than a majority in principal amount of the bonds then outstanding hereunder. The Trustee shall be reimbursed by the Company upon demand for all expenses by it properly incurred by reason of any such action taken, with interest upon all such expenditures at the rate of six per centum (6%) per annum; and the amount of such expenses and interest shall, until repaid, constitute a lien upon the mortgaged and pledged property prior to the lien of the bonds and coupons issued hereunder.
SECTION 9.08. In case the mortgaged and pledged property or any part thereof shall be in the possession of a receiver, trustee or other court officer lawfully appointed, the powers in and by this Article IX conferred upon the Company may, notwithstanding the occurrence and continuance of a completed default specified in Section 10.01 hereof, be exercised by such receiver, trustee or other court officer under the order or orders of the court appointing such receiver, trustee or other court officer. If the Trustee shall be in possession
of the mortgaged and pledged property or any part thereof under any provision of this Indenture, then all the powers in this Article IX conferred upon the Company may, notwithstanding the occurrence and continuance of a completed default specified in Section 10.01 hereof, be exercised by the Trustee.
SECTION 9.09. The Trustee shall not be required under any of the provisions of this Article IX to release any part of the mortgaged and pledged property from the lien hereof or to pay over any moneys held by it at any time when the Company is in default in payment of the interest on any bonds then outstanding hereunder or when a completed default specified in Section 10.01 hereof shall have occurred and be continuing; but, notwithstanding any default in payment of such interest or any such completed default specified in Section 10.01 hereof, the Trustee may do so, and the Company may exercise any of the powers conferred upon it in and by this Article IX, upon compliance with the conditions specified in this Article IX with respect thereto, if the Trustee in its discretion, subject to the provisions of Sections 14.02 and 14.03, hereof shall deem that such release or payment or such exercise of powers by the Company will not adversely affect the interests of the holders of the bonds, and shall consent thereto in writing.
SECTION 9.10. In no event shall any purchaser or purchasers of any part of the mortgaged and pledged property sold or disposed of under any provisions of this Article IX be required to ascertain the authority of the Trustee to execute any release, to see to the application of any purchase money or to inquire as to any facts required by the provisions hereof for the exercise of any authority.
SECTION 9.11. Any new property acquired to take the place of any property released or to be substituted for any property held by the Trustee or in connection with the withdrawal of cash under any provision of this Article IX shall forthwith and without further conveyance become subject to the lien of and be covered by this Indenture as a part of the mortgaged and pledged property.
ARTICLE X.
REMEDIES OF TRUSTEE AND BONDHOLDERS UPON DEFAULT.
SECTION 10.01. Upon the occurrence of any one or more of the following events (herein sometimes called "completed defaults"), viz.:
(a) Default in the payment of the principal of any bond hereby secured when the same shall have become due and payable, whether at maturity as therein expressed or by declaration, or otherwise; or
(b) Default continued for thirty days in the payment of any interest upon any bond hereby secured; or
(c) Default in the payment of any installment of any sinking fund or other purchase fund for a period of fifteen days after the same shall become due and payable; or
(d) Default in the payment of principal (whether at maturity as therein expressed or by declaration, or otherwise) of, or premium, if any, or interest upon any outstanding unfunded lien bonds, continued beyond the period of grace, if any, specified in the unfunded lien securing the same; or
(e) By decree of a court of competent jurisdiction the Company shall be adjudicated a bankrupt or insolvent, or an order shall be made for the winding up or liquidation of the affairs of the Company or approving a petition seeking reorganization or readjustment of the Company under the Federal bankruptcy laws or other law or statute of the United States of America or of the State of incorporation of the Company, or, by order of such a court, a trustee or liquidator or a receiver or receivers shall be appointed of the Company or of all or substantially all of the property of the Company or of all or any part of the mortgaged and pledged property, and any such decree or order shall have continued unstayed on appeal or otherwise and in effect for a period of thirty days; or
(f) The Company shall file a petition in voluntary bankruptcy, or shall consent to the filing of any such petition, or
shall
make an assignment for the benefit of creditors or shall consent to the appointment of a trustee or liquidator or receiver of the Company or of all or any part of its property, or shall file a petition or answer or consent seeking reorganization or readjustment under the federal bankruptcy laws or other law or statute of the United States of America or any State thereof, or shall consent to the filing of any such petition, or shall file a petition to take advantage of any debtor's act; or
(g) Default continued for thirty days after written notice shall have been given to the Company by the Trustee (or to the Company and the Trustee by the holders of at least twenty-five per centum (25%) in principal amount of the bonds at the time outstanding) in the due observance or performance of any other covenant, agreement or condition on the part of the Company in the bonds or in this Indenture contained;
the Trustee by notice in writing delivered to the Company, or the holders of not less than twenty-five per centum (25%) in principal amount of the bonds then outstanding hereunder by notice in writing delivered to the Company and the Trustee, may declare the principal of all bonds hereby secured then outstanding and the interest accrued thereon immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable. This provision, however, is subject to the condition that if, at any time after the principal of the bonds shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, or any sale of the mortgaged and pledged property shall have been made under this Indenture, all arrears of interest upon all the bonds (with interest on overdue installments of interest at the highest rate of interest borne by any of the bonds outstanding under the Indenture) and the principal (and premium, if any) of any and all bonds which shall have become due otherwise than by acceleration and the expenses of the Trustee, shall be paid by the Company, or collected out of the mortgaged and pledged property, or be provided for by the deposit with the Trustee of a sum sufficient to pay the same, and any and all defaults under the Indenture, other than the nonpayment of
principal on bonds which shall not have become due by their terms shall have been remedied--then and in every such case the holders of not less than a majority in aggregate principal amount of the bonds then outstanding, by written notice to the Company and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default, or shall impair any right consequent thereon.
SECTION 10.02. The Trustee shall, within ninety days after the occurrence thereof, give to the bondholders, in the manner and to the extent provided in subsection (C) of Section 7.04 hereof, notice of all defaults known to the Trustee, unless such default shall have been cured before the giving of such notice (the term "defaults" for the purposes of this Section being hereby defined to be the events specified in paragraphs (a), (b), (c), (d), (e), (f) and (g) of Section 10.01 hereof not including any periods of grace provided for in said paragraphs), but, in the case of any default of the character specified in said paragraph (g), no such notice shall be given by the Trustee until at least sixty days after the occurrence of such default; provided that, except in the case of default in the payment of the principal of or premium, if any, or interest on any of the bonds, or in the payment of any sinking or purchase fund installment, the Trustee. shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or responsible officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the bondholders.
SECTION 10.03. Upon the occurrence of one or more completed defaults, the Company, upon demand of the Trustee, shall forthwith surrender to the Trustee, the actual possession of, and it shall be lawful for the Trustee, by such officer or agent as it may appoint, to take possession of, all the mortgaged and pledged property (with the books, papers and accounts of the Company), and to hold, operate and manage the same, and from time to time to make all needful repairs and such extensions, additions and improvements as to the Trustee shall seem wise; and to receive the tolls, rents, revenues, issues, earnings, income, products and profits thereof, and out of the same to pay all proper costs, liabilities and
expenses of so taking, holding sad managing the same, including reasonable compensation to the Trustee, its agents and counsel, and any charges of the Trustee hereunder, and any taxes and assessments and other charges prior to the lien of this Indenture which the Trustee may deem it wise to pay, and all expenses of such repairs, extensions, additions and improvements, and to apply the remainder of the moneys so received by the Trustee, subject to the provisions of Section 10.12 hereof with respect to extended, transferred or pledged coupons or claims for interest, as follows:
First. In case the principal of none of the bonds shall have become due, by declaration or otherwise, and be unpaid, to the payment of interest in the order of the maturity of the installments of such interest (with interest on overdue installments of interest, to the extent permitted by law, at the highest rate of interest borne by any of the bonds outstanding under the Indenture), such payments to be made ratably to the persons entitled thereto, without distinction as to series, according to the amount due to each by the terms of the bond or coupon held by him; or
Second. In case the principal of any of the bonds, less than the whole number outstanding, shall have become due by their terms, or by redemption, to the payment of all the interest then due on all the bonds outstanding in the order of the maturity of the installments of interest (with interest on overdue installments of interest, to the extent permitted by law, at the highest rate of interest borne by any of the bonds outstanding under the Indenture), and, if any surplus remains, toward the payment of the principal of the bonds then due, such payments in every instance to be made ratably to the persons entitled thereto according to the amounts due to each by the terms of the bond or coupon held by him; or
Third. In case the principal of all the bonds shall have become due, by declaration or otherwise, to the payment of the whole amount then due and unpaid either for principal or interest, or for both principal and interest, upon the bonds (with interest on overdue installments of interest, to the extent permitted by law, at the highest rate of interest borne by any of the bonds outstanding under the Indenture); and in case such proceeds shall be insufficient to pay in full the whole amount so due and unpaid, then, to the payment of such principal and interest ratably, according to
the aggregate of such principal and unpaid interest without preference or priority of any one series over any other series of bonds, or of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest; and then
Fourth. In case any bonds have been called for redemption and default made in the payment of the redemption price, to the payment of any premiums payable on such redemption, ratably and without preference or priority of any one series over any other;
any payment as aforesaid shall be made only upon presentation of the several bonds or coupons, as the case may be, for stamping thereon the payment if only partially paid and for surrender thereof if fully paid.
Upon payment in full, as above provided, of whatever sum or sums may be due for principal, premium and interest, or otherwise, the mortgaged and pledged property (other than cash or securities required to be held by the Trustee under the terms of this Indenture otherwise than pursuant to this Section) in the possession of the Trustee and any excess cash in the possession of the Trustee arising pursuant to this Section shall be returned to the Company, its successors or assigns, as though no default had occurred.
Upon the occurrence of one or more completed defaults, or if a receiver or the Trustee shall have entered into possession of the mortgaged and pledged property, the Trustee shall be entitled to receive all sums payable for principal, interest or otherwise upon any bonds or obligations that shall then be in its possession and subject to the lien of this Indenture and to apply, as hereinbefore in this Section provided, the moneys so received; and as holder of any such bonds, to perform any and all acts or to make and execute any and all transfers, requests, requisitions or other instruments for the purpose of carrying out the provisions of this Section. In the event that a receiver of the mortgaged or pledged property, or any part thereof, shall have been appointed and shall be in possession thereof, the Trustee from time to time in its discretion may turn over any part or all of the moneys so collected and remaining in the hands of the Trustee to such receiver and may co-operate with such receiver in managing and operating the mortgaged and pledged property in such manner as the Trustee shall deem for the best interest of the holders of the bonds.
Section 10.04. Upon the occurrence of one or more completed defaults it shall be lawful for the Trustee by such officer or agent as it may appoint, with or without entry, to sell all the mortgaged and pledged property as an entirety, or in such parcels as the holders of a majority in principal amount of the bonds outstanding hereunder shall in writing request, or in the absence of such request, as the Trustee may determine, at public auction, at some convenient place in the City of Alexandria, State of Louisiana, or such other place or places as may be required by law, at such time and upon such terms as the Trustee may fix and briefly describe in the notice of such sale, having first given notice of such sale by publication in at least one daily newspaper of general circulation in the place or places where such sale is to take place, at least once a week for four successive weeks (on any business day of each such week) next preceding such sale, and any other notice which may be required by law, and from time to time to adjourn such sale in its discretion by announcement at the time and place fixed for such sale without further notice.
Section 10.05. In case of the breach of any of the covenants, agreements or conditions of this Indenture, the Trustee shall have the right and power to take appropriate judicial proceedings for the enforcement of its rights and the rights of the bondholders hereunder by a suit or suits at law, or in equity, for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, or for any or all of such purposes, as the Trustee shall deem most effectual. The Trustee shall have power to institute and to maintain such suits and proceedings as it may deem to be necessary or expedient to prevent any impairment of the security hereunder by any acts of the Company, or of others, in violation of this Indenture, or which are unlawful, or as the Trustee may deem to be necessary or expedient to preserve and to protect its interests and the security and interests of the holders of the bonds in respect of the mortgaged and pledged property and in respect of the income, earnings, issues and profits arising therefrom; including power to institute and to maintain suits or proceedings to restrain the enforcement of, or compliance with, or the observance of, any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement of, compliance with or observance of such enactment, rule or order would impair the security hereunder or be prejudicial to the interests of the holders of the bonds.
In case of a completed default hereunder, the Trustee may either after entry, or without entry, proceed by suit or suits at law or in equity or by any other appropriate remedy to enforce payment of the bonds then outstanding hereunder and to foreclose this mortgage and to sell the mortgaged and pledged property under the judgment or decree of a court of competent jurisdiction; and it shall be obligatory upon the Trustee to take action, either by such proceedings or by the exercise of its powers with respect to entry or sale, as it may determine, upon being requested in writing so to do by the holders of not less than a majority in principal amount of the bonds then outstanding hereunder and, subject to the provisions of Sections 14.02 and 14.03 hereof, upon being reasonably indemnified.
Section 10.06. Anything in this Indenture to the contrary notwithstanding, the holders of not less than a majority in principal amount of the bonds then outstanding hereunder shall have the right, at any time, to direct the time, method and place of conducting all proceedings to be taken for any sale of the mortgaged and pledged property, or for the foreclosure of this Indenture, or for the appointment of a receiver or any other proceedings hereunder for any remedy available to the Trustee or for exercising any trust or power conferred upon the Trustee under this Indenture; provided that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture and subject to the provisions of Sections 14.02 and 14.03 hereof, provided that if the Trustee by its responsible officers shall in good faith determine that the action or proceeding so directed would involve it in personal liability or be unjustly prejudicial to the rights of the non-assenting holders of bonds, it shall have the right to decline to follow any such direction, The holders of not less than two-thirds in aggregate principal amount of the bonds outstanding may on behalf of the holders of all of the bonds waive any past default hereunder and its consequences except a completed default specified in paragraphs (a) and (b) of Section 10.01 hereof; provided, however, that the holders of not less than a majority in aggregate principal amount of the bonds then outstanding may waive defaults and rescind and annul any declaration and its consequences as provided in Section 10.01 hereof. In the case of any such waiver, the Company, the Trustee and the holders of the bonds shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 10.07. In case of a completed default hereunder, and upon the filing of a bill in equity, or other commencement of judicial proceedings to enforce the rights of the Trustee and of the bondholders under this Indenture, the Trustee shall be entitled, as a matter of right, to the appointment of a receiver or receivers of the mortgaged and pledged property, and of the tolls, rents, revenues, issues, earnings, income, products and profits thereof, pending such proceedings, with such powers as the court making such appointment shall confer.
Section 10.08. Upon any sale being made under or by virtue of this Indenture, whether under the power of sale hereby given or under judgment or decree in any judicial proceedings for the foreclosure or otherwise for the enforcement of this Indenture, the principal of all bonds then secured hereby, if not previously due, shall at once become and be immediately due and payable.
SECTION 10.09. Upon any such sale made under or by virtue of this Indenture, whether under the power of sale hereby given or under judgment of decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Indenture, any purchaser, for the purpose of making settlement or payment for the property purchased shall be entitled to use and apply any of the bonds and any matured and unpaid interest obligations thereon, by presenting the same so that there may be credited as paid thereon, the sums payable out of the net proceeds of such sale in respect of such bonds and such interest obligations, after allowing for the proportion of the total purchase price required to pay the cost and expenses of the sale, compensations and other charges, and thereupon such purchaser shall be credited on account of such purchase price payable by him, with the portion of such net proceeds that shall be applicable to the payment of, and that shall have been credited in respect of, the bond so turned in; and at any such sale any bondholder may bid for and purchase such property, may make payment on account thereof, as aforesaid, and upon compliance with the terms of sale, may hold, retain and dispose of such property without further accountability therefor. The provisions of this Section are subject to the provisions of Section 10.12 hereof.
SECTION 10.10. Upon the completion of any sale under or by virtue of this Indenture, whether under the power of sale hereby given or under judgment or decree in any judicial proceedings for foreclosure or otherwise
for the enforcement of this Indenture, the Trustee or the court officer conducting the sale shall execute and deliver to the accepted purchaser or purchasers a good and sufficient deed or deeds of conveyance of the property and franchises sold; and the Trustee and its successors are hereby appointed the true and lawful attorney and attorneys, irrevocable, of the Company, in its name and stead, to make all necessary deeds and conveyances of the property thus sold; and for that purpose they may execute all necessary deeds and instruments of assignment and transfer, and may substitute one or more persons with like power, the Company hereby ratifying and confirming all that its said attorney or attorneys, or such substitute or substitutes, shall lawfully do by virtue hereof. Nevertheless, the Company shall, if so requested by the Trustee, ratify such sale by executing and delivering to the Trustee or to such purchaser or purchasers as may be designated in such request, any such instruments as, in the judgment of the Trustee, may be advisable. Upon any such sale the receipt of the Trustee or of the officer making such sale shall be a sufficient discharge to the purchaser or purchasers at any sale for his or their purchase money and such purchaser or purchasers, his or their assigns or personal representatives, shall not, after paying such purchase money and receiving such receipt of the Trustee or of such officer therefor, be obliged to see to the application of such purchase money, or be in anywise answerable for any loss, misapplication or non-application thereof.
SECTION 10.11. Any such sale made under or by virtue of this Indenture, whether under the power of sale hereby given or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Indenture, shall operate to divest all right, title, interest, claim and demand whatsoever, either at law or in equity, of the Company, of, in and to the property so sold, and shall be a perpetual bar both at law and in equity against the Company, its successors and assigns and against any and all persons, firms or corporations claiming or who may claim the property sold or any part thereof, from, through or under the Company, its successors or assigns.
SECTION 10.12. The proceeds of any sale made under or by virtue of this Indenture, whether under the power of sale hereby given or under judgment or decree in any judicial proceedings for the foreclosure or otherwise for the enforcement of this Indenture, together with any other
amounts of cash which may then be held by the Trustee as part of the mortgaged and pledged property, shall be applied, as follows:
First--To the payment of all taxes, assessments, governmental charges or liens prior to the lien of this Indenture, except those subject to which such sale shall have been made, and of all the costs and expenses of such sale, including reasonable compensation to the Trustee, its agents and attorneys, and of all other sums payable to the Trustee hereunder by reason of any expenses or liabilities incurred (without negligence or bad faith on the part of the Trustee) or advances made in connection with the management or administration of the trusts hereby created;
Second--To the payment in full of the amounts then due and unpaid for principal and interest upon the bonds then secured hereby (with interest on overdue installments of interest, to the extent permitted by law, at the highest rate of interest borne by any of the bonds outstanding under this Indenture); and in case such proceeds shall be insufficient to pay in full the amounts so due and unpaid, then to the payment thereof ratably, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, any such payment to be made only upon presentation of the several bonds and coupons for stamping thereon the payment if only partially paid and for surrender thereof if fully paid; provided, however, that if any coupon or claim for interest upon any of the bonds secured hereby shall have been funded, or if the time for payment of any such coupon or claim for interest shall have been extended, except pursuant to action taken under Article XVI hereof, whether or not by or with the consent of the Company, or if any thereof at or after maturity shall have been transferred or pledged separate from the bond to which they relate, such coupons or claims for interest shall not be entitled in case of default hereunder to the benefit or security of this Indenture except after the prior payment in full of the principal of all bonds issued hereunder and then secured hereby and of all coupons and claims for interest on such bonds the payment of which has not been so extended, or not so transferred or pledged, but the foregoing proviso shall not be applicable to any coupon or claim for interest, the time for the payment of which shall
have been extended, if such extension be pursuant to a plan proposed by the Company to all holders of any one or more series of bonds then outstanding and accepted by and binding upon the holder of such coupon or claim for interest;
Third--In case any bonds have been called for redemption and default made in the payment of the redemption price, to the payment of any premiums payable on such redemption, ratably and without preference or priority of any one series over any other;
Fourth--Any surplus remaining to the Company, its successors or assigns or to whomsoever may be lawfully entitled to receive the same.
SECTION 10.13. Neither the Company nor any one claiming through or under it shall or will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension, redemption or other laws now or hereafter in force in any locality where any of the mortgaged and pledged property may be situated, in order to prevent or hinder the enforcement or foreclosure of this Indenture, or the absolute sale of the mortgaged and pledged property, or the final and absolute putting into possession thereof, immediately after such sale, of the purchaser or purchasers thereat, but the Company, for itself and all who may claim through or under it, hereby waives the benefit of all such laws and hereby waives all right of appraisement and redemption to which it may be entitled under the laws of the State of Louisiana or of any other state where any of the mortgaged and pledged property may be situated. And the Company, for itself and all who may claim through or under it, waives any and all right to have the estates comprised in the security intended to be created hereby marshaled upon any foreclosure of the lien hereof, and agrees that any court having jurisdiction to foreclose such lien may sell the mortgaged and pledged property as an entirety.
SECTION 10.14. In case default shall be made in (a) the payment of the principal (and premium, if any) of any bonds hereby secured when the same shall become payable, whether at maturity, upon redemption, by declaration or otherwise, or (b) the payment of any interest on any bonds hereby secured and such default shall have continued for thirty (30) days--then (i) the Company covenants that upon demand of the
Trustee it will pay to the Trustee for the benefit of the holders of the bonds and coupons then secured hereby, the whole amount due and payable on all such bonds and coupons for principal (and premium, if any) and interest (with interest upon the overdue installments of interest, to the extent permitted by law, at the highest rate of interest borne by any of the bonds outstanding under the Indenture), and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including a reasonable compensation to the Trustee, its agents, attorneys and counsel, and any expenses or liabilities incurred by the Trustee hereunder, without negligence or bad faith on the part of the Trustee, and (ii) the Trustee, in its own name and as Trustee of an express trust, shall be entitled and empowered to institute such action or proceeding at law or in equity as the Trustee, being advised by its counsel, shall deem appropriate, for the collection of the sums so due and unpaid and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company and any other obligor and collect in the manner provided by law, out of the property of the Company and any other obligor, wherever situated, the moneys adjudged or decreed to be payable.
The Trustee shall be entitled to institute and prosecute any action and enforce any judgment or final decree as aforesaid, either before or after or during the pendency of any proceedings for the enforcement of the lien of this Indenture upon the mortgaged and pledged property and the right of the Trustee to such judgment or final decree shall not be affected by any entry or sale hereunder, or by the exercise of any other right, power or remedy for the enforcement of the provisions of this Indenture or the foreclosure of the lien hereof; and in case of a sale of any of the mortgaged and pledged property and of the application of the proceeds of sale to the payment of the debt hereby secured, the Trustee in its own name and as trustee of an express trust shall be entitled to enforce payment of and to receive all amounts then remaining due and unpaid upon any and all the bonds and coupons then outstanding hereunder, for the benefit of the holders thereof, together with the costs and expenses of collection, including reasonable compensation to the Trustee, its agents, attorneys and counsel, and any unpaid expenses or liabilities incurred by the Trustee hereunder without negligence or bad faith on the part of the Trustee, and shall be entitled to institute and prosecute any action and enforce any judgment or final decree as aforesaid for any portion of the
debt remaining unpaid, with interest. No judgment or decree obtained by the Trustee and no levy of any execution upon any of the mortgaged and pledged property or upon any other property, shall in any manner or to any extent affect the lien of this Indenture upon the mortgaged and pledged property or any part thereof, or any lien, rights, powers or remedies of the Trustee hereunder, or any lien, rights, powers or remedies of the holders of the said bonds, but such lien, rights, powers and remedies of the Trustee and of the bondholders shall continue unimpaired as before. In case of any reorganization, receivership, insolvency or bankruptcy proceedings affecting the Company or its property, the Trustee, irrespective of whether the principal of the bonds shall then be due and payable and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall have power to intervene in such proceedings and take any action therein that may be permitted by the court and shall be entitled to file and prove a claim for the entire amount due and payable by the Company under this Indenture at the date of the institution of such proceedings and for any additional amount which may become due and payable by the Company hereunder after such date, without regard to or deduction for any amount which may have been or which may thereafter be received, collected or realized by the Trustee from or out of the mortgaged and pledged property or any part thereof or from or out of the proceeds thereof or any part thereof.
Any moneys thus collected or received by the Trustee under this
Section or Section 10.20 hereof shall be applied by it first to the payment of
its proper expenses, liabilities (incurred without negligence or bad faith),
disbursements and compensation and the proper expenses, liabilities (incurred
without negligence or bad faith), disbursements and compensation of its agents
and attorneys, and, second, toward payment of the amounts then due and unpaid
upon such bonds and coupons in respect of which such money shall have been
collected, ratably and without preference or priority of any kind (subject to
the provisions of Section 10.12 hereof) according to the Amounts due and
payable upon such bonds and coupons, respectively (with interest on overdue
installments of interest, to the extent permitted by law, at the highest rate
of interest borne by any of the bonds outstanding under this Indenture), at the
date fixed by the Trustee for the distribution of such moneys, upon
presentation of the several bonds and coupons and upon stamping such payment
thereon, if partly paid, and upon surrender thereof, if fully paid.
Upon filing a bill in equity or upon other commencement of judicial proceedings to enforce any right under this Indenture, the Trustee shall be entitled to exercise the right of entry, and also any and all rights and powers herein conferred and provided to be exercised by the Trustee upon the occurrence of any completed default; and as a matter of right, the Trustee shall be entitled to the appointment of a receiver of the mortgaged and pledged property, and of the earnings, revenues, rents, issues, profits and other income thereof and therefrom, with all such powers as the court or courts making such appointment shall confer; but notwithstanding the appointment of any receiver the Trustee shall be entitled, as pledgee, to continue to retain possession and control of any stocks, bonds, cash and indebtedness deposited with the Trustee hereunder.
SECTION 10.15. All rights of action (including the right to file proof of claim) under this Indenture or under any of the bonds or coupons, may be enforced by the Trustee without the possession of any of the bonds or coupons or the production thereof on any trial or other proceeding relative thereto and any such suit or proceeding instituted by the Trustee shall be brought in its name as Trustee and any recovery of judgment shall be for the equal benefit of the holders of the outstanding bonds and coupons, subject to the provisions of SECTION 10.12 hereof.
SECTION 10.16. No holder of any bond or coupon shall have any right to institute any suit, action or proceeding at law or in equity upon, or in respect of this Indenture, or for the execution of any trust or power created hereby, or for any other remedy hereunder, unless
(1) such holder shall previously have given to the Trustee written notice of the occurrence of a default;
(2) the holders of not less than twenty-five per centum (25%) in principal amount of the bonds then outstanding hereunder shall have tendered to the Trustee reasonable indemnity against all costs, expenses and liabilities which might be incurred in or by reason of such action, suit or proceeding, and shall have requested the Trustee in writing to take action in respect of such default;
(3) the Trustee shall have declined to take such action or shall have failed so to do within sixty (60) days thereafter; and
(4) no directions inconsistent with such written request shall have been given pursuant to Section 10.06 hereof;
it being understood and intended that no one or more holders of the bonds or coupons shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by his or their action or to enforce any right hereunder except in the manner herein provided, and that all proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit, subject to the provisions of Sections 10.03 and 10.12 hereof, of all holders of outstanding bonds and coupons. Notwithstanding the provisions of Section 10.17 hereof or any other provision of this Indenture or any indenture supplemental hereto, nothing in this Indenture or in any such supplemental indenture contained shall, however, affect or impair the right of any bondholder, which is absolute and unconditional, to enforce the payment of the principal of and interest on his bonds at and after maturity thereof as therein expressed or the obligation of the Company, which is also absolute and unconditional, to pay at the stated or accelerated maturity herein and in the bonds provided the principal of and interest and premium, if any, on each of the bonds issued hereunder to the respective holders thereof at the time and place in said bonds and the appurtenant coupons expressed.
SECTION 10.17. Notwithstanding any other provision of this Indenture, all the parties hereto agree, and each holder or owner of any bond by his acceptance thereof after the date of the execution hereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any bondholder or group of bondholders, holding in the aggregate more than ten per centum (10%) in principal amount of the bonds outstanding, or to any suit instituted by any bondholder for the enforcement of the payment of the principal of or interest on any bond, on or after the respective due date expressed in such bond.
SECTION 10.18. The Company may waive any period of grace provided for in this Article X.
SECTION 10.19. In case the Trustee shall have proceeded to enforce any right under this Indenture by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored to their former positions and rights hereunder with respect to the mortgaged and pledged property, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken.
SECTION 10.20. The Trustee is hereby irrevocably appointed (and the successive respective holders of bonds and coupons issued hereunder, by taking and holding the same, shall be conclusively deemed to have so appointed the Trustee) the true and lawful attorney-in-fact of the respective holders of the bonds and coupons issued hereunder, with authority to make or file, irrespective of whether the bonds or any of them are in default as to payment of principal or interest, in the respective names of the holders of the bonds or coupons or in behalf of all holders of the bonds or coupons as a class, any proof of debt, amendment to proof of debt, petition or other similar document; to receive payment of any sums becoming distributable on account thereof; and to execute any other papers and documents and to do and perform any and all acts and things for and in behalf of the respective holders of the bonds or coupons as a class, as may be necessary or advisable, in the opinion of the Trustee in order to have the respective claims of the holders of the bonds or coupons against the Company or any other obligor allowed in any equity receivership, insolvency, liquidation, bankruptcy or other proceedings relative to the Company or any other obligor, their creditors, or their property, and to receive payment of or on account of such claims; and any receiver, assignee or trustee in bankruptcy is hereby authorized by each of the bondholders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the bondholders, to pay to the Trustee any amount due it for proper compensation and expenses, including counsel fees, incurred by it up to the date of such distribution, and for liabilities so incurred without negligence or bad faith on the part of the Trustee. Nothing herein contained shall be
construed to authorize the Trustee to accept any composition or plan of reorganization on behalf of the bondholders or to surrender any of the rights of the bondholders.
SECTION 10.21. All powers and remedies given by this Article to the Trustee or to the bondholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the holders of the bonds, and no delay or omission of the Trustee or of any holder of any of the bonds or coupons to exercise any right or power accruing upon any default, shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 10.16 hereof, every power and remedy given by this Article to the Trustee or to the bondholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the bondholders. No waiver of any default hereunder, whether by the Trustee or by the bondholders, shall extend to or shall affect any subsequent default or shall impair any rights or remedies consequent thereon.
ARTICLE XI.
EVIDENCE OF BONDHOLDERS' ACTION AND OWNERSHIP OF BONDS.
SECTION 11.01. Whenever in this Indenture it is provided that the holders of a specified percentage in aggregate principal amount of the bonds may take any action (including the making of any demand or request, the giving of any notice or consent or the taking of any other action) the fact that at the time of taking any such action the holders of such specified percentage have joined therein may be evidenced (i) by any instrument or any number of instruments of similar tenor executed by bondholders in person or by attorney appointed in writing, or (ii) by the record of the holders of bonds voting in favor thereof at any meeting of bondholders duly called and held in accordance with the provisions of Article XVI hereof, or (iii) by a combination of such instrument or instruments and any such record of such a meeting of bondholders.
Proof of the execution of any such instrument, or of a writing appointing any such attorney, or of the holding by any person of any of the bonds or coupons shall, subject to the provisions of Sections 14.02
and 14.03 hereof, be sufficient for any purpose of this Indenture (except as otherwise herein expressly provided) if made in the following manner:
(a) The fact and date of the execution by any person of any instrument or writing may be proved by the certificate of any notary public, or other officer authorized to take acknowledgments of deeds to be recorded in the state in which he purports to act, that the person signing such instrument or writing acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer;
(b) The amount of bonds transferable by delivery, and the series and serial numbers thereof, held by such person, and the date of his holding the same, may be proved by a certificate executed by any trust company, bank, banker or other depositary wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such person had on deposit with such depositary, the bonds described in such certificate. The holding by the person named in any such certificate of any bond specified therein shall be presumed to continue unless (1) another certificate bearing a later date issued in respect of the same bond shall be produced, or (2) the bond specified in such certificate (or another coupon bond or bonds issued in exchange or substitution for said bond) shall be produced, or (3) the bond specified in such certificate shall then be registered as to principal or shall have been surrendered in exchange for a registered bond without coupons. The Trustee may nevertheless in its discretion require further proof in cases where it deems further proof desirable. The ownership of registered bonds without coupons shall be proved by the registry books. The record of any bondholders' meeting shall be proved in the manner provided in Section 16.06 hereof.
SECTION 11.02. The Company and the Trustee and any paying agent and any bond registrar may deem and treat the bearer of any temporary or coupon bond outstanding hereunder, which shall not at the time be registered as to principal as hereinbefore authorized, and the bearer of any coupon for interest on any such bond, whether such bond shall be registered or not, as the absolute owner of such bond or coupon, as the case may be, whether or not such bond or coupon shall be overdue, for
the purpose of receiving payment thereof or on account thereof and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
The Company and the Trustee and any paying agent and any bond registrar may deem and treat the person in whose name any registered bond without coupons shall be registered upon the books of the Company as herein authorized, as the absolute owner of such bond, whether or not such bond shall be overdue, for the purpose of receiving payment of or on account of the principal of and interest on such bond and for all other purposes, and they may deem and treat the person in whose name any coupon bond shall be so registered as to principal as the absolute owner of such bond, whether or not such bond shall be overdue, for the purpose of receiving payment of or on account of the principal thereof and for all other purposes, except to receive payment of interest represented by outstanding coupons; and all such payments so made to any such registered holder or upon his order, shall be valid and effectual to satisfy and discharge the liability upon such bond to the extent of the sum or sums so paid, and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
Neither the Company nor the Trustee shall be bound to recognize any person as the holder of a bond outstanding under this Indenture unless and until his bond is submitted for inspection, if required, except as may otherwise be provided by regulations made under Section 16.05 hereof, and his title thereto satisfactorily established, if disputed.
SECTION 11.03. In determining whether the holders of the requisite aggregate principal amount of bonds have concurred in any direction, demand, request, notice, consent or other action under this Indenture, bonds which are owned by the Company or any other obligor on the bonds or by any affiliate thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination, provided that for the purpose of determining whether the Trustee shall be protected in relying on any such direction or consent only bonds which the Trustee knows are so owned shall be so disregarded.
SECTION 11.04. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 11.01 hereof, of the taking of any
action by the holders of the percentage in aggregate principal amount of the bonds specified in this Indenture in connection with such action, any holder of a bond the serial number of which is shown by the evidence to be included in the bonds the holders of which have consented to such action may, by filing written notice with the Trustee at its principal office and upon proof of holding as provided in Section 11.01 hereof, revoke such action so far as concerns such bond. Except as aforesaid any such action taken by the holder of any bond shall be conclusive and binding upon such holder and upon all future holders of such bond, irrespective of whether or not any notation of such consent is made upon such bond, and in any event any action taken by the holders of the percentage in aggregate principal amount of the bonds specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the bonds.
ARTICLE XII.
IMMUNITY OF INCORPORATORS, SUBSCRIBERS TO THE CAPITAL STOCK,
STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 12.01. No recourse under or upon any obligation, covenant or agreement contained in this Indenture or in any indenture supplemental hereto, or in any bond or coupon hereby secured, or because of the creation of any indebtedness hereby secured, or for any claim based thereon, or otherwise in respect thereof, shall be had against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation under any rule of law, statute or constitution or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise; it being expressly agreed and understood that this Indenture, any indenture supplemental hereto and the obligations hereby and thereby secured, are solely corporate obligations, and that no personal liability whatever shall attach to, or be incurred by, such incorporators, subscribers to the capital stock, stockholders, officers or directors, as such, of the Company or of any successor corporation, or any of them, because of the incurring of the indebtedness hereby authorized, or under or by reason of any of the obligations, covenants or agreements contained in this Indenture
or in any indenture supplemental hereto or in any of the bonds or coupons hereby secured, or implied therefrom, or because thereof or otherwise in respect thereof, and that any and all personal liability of every name and nature, and any and all rights and claims against every such incorporator, subscriber to the capital stock, stockholder, officer or director, as such, whether arising at common law or in equity, or created by rule of law, statute, constitution or otherwise, are expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issue of the bonds and interest obligations secured hereby.
ARTICLE XIII.
EFFECT OF MERGER, CONSOLIDATION, ETC.
SECTION 13.01 Nothing in this Indenture shall prevent any consolidation of the Company with, or merger of the Company into, any corporation having corporate authority to own and operate the properties to be vested in it by any such consolidation or merger, or shall prevent any conveyance, transfer or lease, subject to the lien of this Indenture, of all or substantially all the mortgaged and pledged property as an entirety, or substantially as an entirety, to any corporation lawfully entitled to acquire or lease and operate the same; provided, however, and the Company covenants and agrees, that such consolidation, merger, conveyance, transfer or lease shall be upon such terms as fully to preserve and in no respect to impair the lien or security of this Indenture, or any of the rights or powers of the Trustee or the bondholders hereunder; and provided, further, that any such lease shall be made expressly subject to immediate termination by the Company or by the Trustee at any time during the continuance of a completed default hereunder, and also by the purchaser of the property so leased at any sale thereof hereunder, whether such sale be made under the power of sale hereby conferred or under judicial proceedings; and provided further that, upon any such consolidation, merger, conveyance or transfer, or upon any such lease the term of which extends beyond the date of maturity of any of the bonds secured hereby, the due and punctual payment of the principal and interest of all said bonds according to their tenor and the due and punctual performance and observance of all the covenants and conditions of this Indenture to be kept or performed by the Company shall by an indenture supplemental hereto, in form satisfactory to the Trustee, executed and delivered to the Trustee, be expressly assumed by the corporation formed by such consolidation or into which such
merger shall have been made, or acquiring all or substantially all the mortgaged and pledged property as an entirety, as aforesaid, or by the lessee under any such lease the term of which extends beyond the date of maturity of any of the bonds secured hereby.
SECTION 13.02. In case the Company, as permitted by Section 13.01 hereof, shall be consolidated with or merged into any other corporation, or shall convey or transfer, subject to the lien of this Indenture, all or substantially all the mortgaged and pledged property as an entirety, or substantially as an entirety, the successor corporation formed by such consolidation, or into which the Company shall have been merged, or which shall have received a conveyance or transfer as aforesaid--upon executing and causing to be recorded an indenture supplemental hereto as provided in Section 13.01--shall succeed to and be substituted for the Company, with the same effect as if it had been named herein, and shall have and may exercise under this Indenture the same powers and rights as the Company, and (without in anywise limiting or impairing by the enumeration of the same the scope and intent of the foregoing general powers and rights) such successor corporation thereupon may cause to be executed, issued and delivered, either in its own name or in the name of Central Louisiana Electric Company, Inc., as its name shall then exist, in respect of property of the character defined in Section 1.03 hereof as property additions, such bonds as could or might have been executed, issued and delivered by the Company had it acquired such property of such character by purchase on the date of such consolidation, merger, conveyance or transfer and had such consolidation, merger, conveyance or transfer not occurred, and upon the order of such successor corporation in lieu of the Company, and subject to all the terms, conditions and restrictions in this Indenture prescribed, concerning the authentication and delivery of bonds, the Trustee shall authenticate and deliver any bonds which shall have been previously signed and delivered by the officers of the Company to the Trustee for authentication, and such bonds as the successor corporation shall thereafter, in accordance with the provisions of this Indenture, cause to be executed and delivered to the Trustee for such purpose, and such successor corporation shall also have and may exercise in respect of the property of such character, and subject to all the terms, conditions and restrictions in this Indenture prescribed applicable thereto, whether as to withdrawal of cash, release of property or otherwise, the
same powers and rights which the Company might or could exercise had it
acquired the property of such character by purchase on the date of such
consolidation, merger, conveyance or transfer and had such consolidation,
merger, conveyance or transfer not occurred. All the bonds so issued shall in
all respects have the same legal right and security as the bonds theretofore
issued in accordance with the terms of this Indenture as though all of said
bonds had been authenticated and delivered at the date of the execution hereof.
As a condition precedent to the execution by such successor corporation and the
authentication and delivery by the Trustee of any such additional bonds or the
withdrawal of cash or the release of property under any of the provisions of
this Indenture, on the basis of property of the character defined in Section
1.03 hereof as property additions, acquired, made or constructed by the
successor corporation, or by any corporation with which the Company or any
successor corporation may be so consolidated or into which the Company or any
successor corporation may be so merged or to which the Company or any successor
corporation may make any such conveyance, the indenture with the Trustee to be
executed and caused to be recorded by the successor corporation as in this
Section provided or one or more subsequently executed indentures, shall contain
a conveyance or transfer and mortgage in terms sufficient to subject such
property to the lien hereof; and provided further that the lien created thereby
and the lien thereon shall have similar force, effect and standing as the lien
of this Indenture would have if the Company should not be consolidated with or
merged into such other corporation or should not convey or transfer, subject to
this Indenture, all or substantially all of the mortgaged and pledged property
as an entirety as aforesaid, to such successor corporation, and should itself
on the date of such consolidation, merger, conveyance or transfer acquire or
construct such property, and request the authentication and delivery of bonds
or the withdrawal of cash or the release of property under the provisions of
this Indenture in respect thereof.
To the extent permitted by Sections 14.02 and 14.03 hereof the Trustee may receive an opinion of counsel as conclusive evidence that any such assumption and any such lien and any such indenture comply with the foregoing conditions and provisions of this Section.
In case of any such consolidation or merger or conveyance or transfer such changes in phraseology and form (but not in substance) may be
made in the bonds thereafter to be issued hereunder, as may be appropriate.
SECTION 13.03. In case the Company, as permitted by Section 13.01 hereof, shall be consolidated with or merged into any other corporation, or shall convey or transfer, subject to this Indenture, all or substantially all the mortgaged and pledged property as an entirety, or substantially as an entirety as aforesaid, neither this Indenture nor the supplemental indenture with the Trustee to be executed and caused to be recorded by the successor corporation as in Section 13.02 hereof provided, shall, unless such indenture shall otherwise provide, become or be a lien upon any of the properties or franchises of the successor corporation except (a) those acquired by it from the Company and those appurtenant thereto and property which the successor corporation shall thereafter acquire or construct which shall form an integral part of, and be essential to the use or operation of, any property then or thereafter subject to the lien hereof, (b) the property made and used by the successor corporation as the basis under any of the provisions of this Indenture for the authentication and delivery of additional bonds, or the withdrawal of cash, or for a credit under any requirement hereof, or the release of property, and (c) such franchises, repairs and additional property as may be acquired, made or constructed by the successor corporation (i) to maintain, renew and preserve the franchises covered by this Indenture and to maintain the property mortgaged and intended to be mortgaged hereunder as an operating system or systems in good repair, working order and condition, or (ii) in pursuance of some covenant or condition hereof to be performed or observed by the Company.
ARTICLE XIV.
CONCERNING THE TRUSTEE.
SECTION 14.01. The Trustee shall at all times be a bank or trust company organized and doing business under the laws of the United States or of any State, with a combined capital and surplus of at least Two Million Dollars ($2,000,000) and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by Federal or State authority. If the Trustee publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority referred to in this Section, then for the
purposes of this Section the combined capital and surplus of the Trustee shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
The Company covenants that whenever necessary to avoid or fill a vacancy in the office of Trustee, it will, in the manner provided in Section 14.18 hereof, appoint a Trustee so that there shall at all times be a Trustee eligible under this Section.
SECTION 14.02. The Trustee hereby accepts the trust hereby created. The Trustee undertakes, prior to a completed default, and after the curing of all completed defaults which may have occurred, to perform such duties and only such duties as are specifically set forth in this Indenture, and in case of a completed default (which has not been cured) to exercise such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in its exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of evidence furnished to it by or on behalf of the Company pursuant to any provision of this Indenture, will examine the same to determine whether or not such evidence conforms to the requirements of this Indenture.
SECTION 14.03. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own wilful misconduct, except that
(a) prior to a completed default hereunder and after the curing of all completed defaults which may have occurred, the Trustee shall not be liable except for the performance of such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee but the duties and obligations of the Trustee prior to a completed default and after the curing of all completed defaults which may have occurred, shall be determined solely by the express provisions of this Indenture; and
(b) prior to a completed default hereunder and after the curing of all completed defaults which may have occurred, and in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely as to the truth of the statements and the correctness of opinions
expressed therein, upon certificates or opinions conforming to the requirements of this Indenture; and
(c) the Trustee shall not be personally liable for any error of judgment made in good faith by a responsible officer or officers of the Trustee, unless it shall be proved that such Trustee was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be personally liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority in principal amount of the bonds at the time outstanding (determined as provided in Section 1.02 hereof) relating to the time, method, and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred upon the Trustee, under this Indenture.
SECTION 14.04. The recitals of fact contained herein and in the bonds (other than the Trustee's certificate of authentication) shall be taken as the statements of the Company and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the value of the mortgaged and pledged property or any part thereof, or as to the title of the Company thereto, or as to the validity or adequacy of the security afforded thereby and hereby, or as to the validity of this Indenture or of the bonds or coupons issued hereunder.
SECTION 14.05. Subject to the provisions of Sections 14.02 and 14.03 hereof, the Trustee shall not be personally liable in case of entry by it upon the mortgaged and pledged property for debts contracted or liability or damages incurred in the management or operation of said property.
SECTION 14.06. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee on the Company shall be deemed to have been sufficiently given or served, for all purposes, by being deposited postage prepaid in a postoffice or a postoffice letter box addressed (until another address is filed by the Company with the Trustee for the purposes of this Section), as follows: Central Louisiana Electric Company, Inc., 528 Monroe Street, Alexandria, Louisiana.
SECTION 14.07. To the extent permitted by Sections 14.02 and 14.03 hereof:
(1) The Trustee may rely and shall be protected in acting upon any resolution, certificate, opinion, notice, request, consent, order, appraisal, report, bond, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) The Trustee may consult with counsel (who may be an officer or employee of, or counsel to the Company) and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel;
(3) The Trustee shall be under no obligation to exercise any of the trusts or powers hereof at the request, order or direction of any of the bondholders, pursuant to the provisions of this Indenture, unless such bondholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; and
(4) The Trustee shall not be liable for any action taken by it or failure to act in good faith and believed by it to have been authorized or within the discretion or powers conferred upon it by this Indenture.
SECTION 14.08. The Trustee shall not be under any responsibility for the selection, appointment or approval of any expert for any of the purposes expressed in this Indenture, except that nothing in this Section contained shall relieve the Trustee of its obligation to exercise reasonable care with respect to the selection, appointment or approval of independent experts who may furnish opinions or certificates to the Trustee pursuant to any provision of this Indenture.
Any resolution of the Board of Directors or Executive Committee shall be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted, and the Trustee may accept such copy as conclusive evidence of the adoption of such resolution.
Nothing contained in this Section shall be deemed to modify the obligation of the Trustee to exercise after a completed default (which has not
been cured) the rights and powers vested in it by this Indenture with the degree of care and skill specified in Section 14.02 hereof.
SECTION 14.09. The Trustee in its individual or any other capacity, may become the owner or pledgee of bonds or coupons secured hereby with the same rights it would have if not Trustee.
SECTION 14.10. Subject to the provisions of Section 15.04 hereof, all moneys received by the Trustee whether as Trustee or paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other trust funds except to the extent required by law. The Trustee may allow and credit to the Company interest on any moneys received by it hereunder at such rate, if any, as may be agreed upon with the Company from time to time and as may be permitted by law.
SECTION 14.11. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties hereunder of the Trustee, which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust, and the Company will reimburse the Trustee with interest, at the rate of six per centum (6%) per annum until paid, for all advances made by the Trustee, in accordance with any of the provisions of this Indenture and will pay to the Trustee from time to time its expenses and disbursements (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ). The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending against any claim of liability in the premises. The obligations of the Company to the Trustee under this Section shall constitute additional indebtedness secured hereby, provided that the aggregate amount of such obligations shall not exceed ten per centum (10%) of the greatest principal amount of bonds at any one time outstanding under this Indenture. Such additional indebtedness shall
be secured by a lien prior to that of the bonds upon the mortgaged and pledged property, including all property or funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular bonds or coupons.
None of the provisions contained in this Indenture shall require the Trustee to advance or expend or risk its own funds, or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there is reasonable ground for belief that the repayment of such advances or expenditures or liability is not reasonably assured to it by the security afforded to it by the terms of this Indenture.
SECTION 14.12. Whenever in the administration of the trusts of this Indenture, prior to a completed default hereunder, the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by the President or a Vice-President and the Treasurer or an Assistant Treasurer or the Comptroller or an Assistant Comptroller of the Company and delivered to the Trustee, and such certificate shall be full warrant to the Trustee for any action taken or suffered by it under the provisions of this Indenture upon the faith thereof.
SECTION 14.13. Whenever it is provided in this Indenture that the Trustee shall take any action upon the happening of a specified event or upon the fulfillment of any condition or upon the request of the Company or of bondholders, the Trustee taking such action shall have full power to give any and all notices and to do any and all acts and things incidental to such action.
SECTION 14.14. (A) If the Trustee has or acquires any conflicting interest, as defined by subsection (D) of this Section, such Trustee shall within ninety days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign by giving written notice to the Company, but such resignation shall not become effective until the appointment of a successor trustee and such successor's acceptance of such appointment. The Company covenants to take prompt steps
to have a successor appointed in the manner hereinafter provided in Section 14.18 hereof. Upon giving such notice of resignation, the resigning Trustee shall publish notice thereof in one daily newspaper of general circulation in the City of New Orleans, Louisiana, once in each of three successive calendar weeks, in each case on any business day of the week, which need not be the same day in each week. If the resigning Trustee fails to publish such notice within ten days after giving written notice of resignation to the Company, the Company shall publish such notice.
(B) In the event that the Trustee shall fail to comply with the provisions of the preceding subsection (A) of this Section, the Trustee shall within ten days after the expiration of such ninety day period transmit notice of such failure to the bondholders, in the manner and to the extent provided in subsection (C) of Section 7.04 hereof with respect to reports pursuant to subsection (A) of Section 7.04 hereof.
(C) Subject to the provisions of Section 10.17 hereof any bondholder who has been a bona fide holder of a bond or bonds for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor if the Trustee fails, after written request therefor by such holder, to comply with the provisions of subsection (A) of this Section.
(D) The Trustee shall be deemed to have a conflicting interest if--
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company are outstanding unless such other indenture is a collateral trust indenture under which the only collateral consists of bonds issued under this Indenture; provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding if the Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture and such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for
the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the bonds or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the Company, but may not be at the same time an executive officer of both the Trustee and the Company; (ii) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary or in any other similar capacity or, subject to the provisions of paragraph (1) of this subsection (D), to act as trustee whether under an indenture or otherwise;
(5) ten per centum (10%) or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director, partner or executive officer thereof, or twenty per centum (20%) or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten per centum (10%) or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of or holds as collateral security for an obligation which is in default, (i) five per centum (5%) or more of the voting securities or ten per centum (10%) or
more of any other class of security of the Company, not including the bonds issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) ten per centum (10%) or more of any class of security of an underwriter for the Company.
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five per centum (5%) or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten per centum (10%) or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of or holds as collateral security for an obligation which is in default, ten per centum (10%) or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty per centum (50%) or more of the voting securities of the Company; or
(9) the Trustee owns on May 15th in any calendar year in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five per centum (25%) or more of the voting securities or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs (6), (7), or (8) of this subsection (D). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five per centum (25%) of such voting securities or twenty-five per centum (25%) of any such class of security. Promptly after May 15th in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of May 15th. If the Company fails to make payment in full of principal or interest upon the bonds when and as the same become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such thirty-day period and after such date, notwithstanding the foregoing provisions of this paragraph, all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7), and (8) of this subsection (D).
The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (D) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (D).
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection (D) only, (a) the terms "security" and "securities" shall include only such securities as are generally known as corporate securities, but shall not include any note or other evidence of indebtedness issued to evidence an obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms or any certificate of interest or participation in any such note or evidence of indebtedness; (b) an obligation shall be deemed to be in default when a default in payment of principal shall have continued for thirty days or more and shall not have been cured; and (c) the Trustee shall not be deemed to be the owner or holder of (i) any security which it holds as collateral security (as trustee or otherwise) for an obligation which is not in default as above defined, or (ii) any security which it holds as collateral security under this Indenture, irrespective of any default hereunder, or (iii) any security which it holds as agent for collection, or as custodian, escrow agent or depositary, or in any similar representative capacity.
For the purposes of this subsection (D) only, the term "voting security" shall mean any security presently entitling the owner or holder thereof to vote in the direction or management of the affairs of a person, or any security issued under or pursuant to any trust, agreement or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of such security are presently entitled to vote in the direction or management of the affairs of a person.
For the purposes of this subsection (D) only, the term "director" shall mean any director of a corporation or any individual performing
similar functions with respect to any organization whether incorporated or unincorporated.
For the purposes of this subsection (D) only, the term "executive officer" shall mean the President, every Vice-President, every Trust Officer, the Cashier, the Secretary and the Treasurer of a corporation, and any individual customarily performing similar functions with respect to any organization whether incorporated or unincorporated, but shall not include the Chairman of the Board of Directors.
For the purposes of this subsection (D) only, the term "underwriter" when used with reference to the Company shall mean every person who, within three years prior to the time as of which the determination is made, has purchased from the Company with a view to, or has sold for the Company in connection with, the distribution of any security of the Company outstanding at such time, or has participated or has had a direct or indirect participation in any such undertaking, or has participated or has had a participation in the direct or indirect underwriting of any such undertaking, but such term shall not include a person whose interest was limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors' or sellers' commission.
For the purposes of this subsection (D) only, the term "Company" shall include any obligor on bonds secured hereby.
(E) The percentages of voting securities and other securities specified in subsection (D) of this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this subsection E))
means such amount of the outstanding voting securities of such person
as entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a person means such percentage of the aggregate amount of securities of the class outstanding.
(3) The term "amount", when used in regard to securities, means the principal amount if relating to evidences of indebtedness, the number of shares if relating to capital shares, and the number of units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for the account of the issuer. The following securities shall not be deemed outstanding within the meaning of this definition:
(a) Securities of an issuer held in a sinking fund relating to securities of the issuer of the same class;
(b) Securities of an issuer held in a sinking fund relating to another class of securities of the issuer, if the obligation evidenced by such other class of securities is not in default as to principal or interest or otherwise;
(c) Securities pledged by the issuer thereof as security for an obligation of the issuer not in default as to principal or interest or otherwise;
(d) Securities held in escrow if placed in escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed outstanding if any person other than the issuer is entitled to exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as another security if both securities confer upon the holder or holders thereof substantially the same rights and privileges, provided, however, that, in the case of secured evidences of indebtedness, all of which are issued under a single indenture, differences in the interest rates or maturity dates of various series thereof shall not be deemed sufficient to constitute such series different classes, and provided, further, that, in the case of unsecured evidences of indebtedness, differences in the interest rates or maturity dates thereof shall not be deemed sufficient to constitute them securities of different classes, whether or not they are issued under a single indenture.
(F) The provisions of this Section which have been made specifically applicable to the Trustee, shall apply to the Trustee, and if an individual trustee or a separate or co-trustee is appointed pursuant to Section 14.19
hereof, to any individual trustee or separate or co-trustee, except that in case of the resignation of an individual trustee or a separate or co-trustee such resignation and the appointment of a successor shall be governed by the provisions of paragraph (3) of Section 14.19 hereof.
Section 14.15. (A) Subject to the provisions of subsection (B) of this Section, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company within four months prior to a default (as defined in the last paragraph of this subsection), or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in a special account for the benefit of the Trustee individually, the holders of the bonds, and the holders of other indenture securities (as defined in the last paragraph of this subsection)
(1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest effected after the beginning of such four months' period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this subsection or from the exercise of any right of set-off which the Trustee could have exercised if a petition in bankruptcy had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise after the beginning of such four months' period, or an amount equal to the proceeds of any such property, if disposed of, subject, however, to the rights, if any, of the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the trustee
(a) to retain for its own account (i) payments made on account of any such claim by any person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona fide sale of any such claim by the Trustee to a third person, and (iii) distributions made in cash, securities, or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Bankruptcy Act or applicable State law;
(b) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such four months' period;
(c) to realize, for its own account, but only to the extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such four months' period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was so received the Trustee had no reasonable cause to believe that a default as defined in the last paragraph of this subsection would occur within four months; or
(d) to receive payment on any claim referred to in paragraph
(b) or (c), against the release of any property held as security for
such claim as provided in paragraph (b) or (c), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (b), (c), and (d), property substituted after the beginning of such four months' period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in such special account and the proceeds thereof shall be apportioned between the Trustee, the bondholders, and the holders of other indenture securities in such manner that the Trustee, the bondholders, and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Bankruptcy Act or applicable State law, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of
the funds and property in such special account and before crediting to the respect claims of the Trustee, the bondholders, and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Bankruptcy Act or applicable State law, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this paragraph, with respect to any claim, the term "dividends" shall include any distribution with respect to such claim, in bankruptcy or receivership or in proceedings for reorganization pursuant to the Bankruptcy Act or applicable State law, whether such distribution is made in cash, securities, or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim. The court in which such bankruptcy, receivership, or proceeding for reorganization is pending shall have jurisdiction (i) to apportion between the Trustee, the bondholders, and the holders of other indenture securities, in accordance with the provisions of this paragraph, the funds and property held in such special account and the proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due consideration in determining the fairness of the distributions to be made to the Trustee, the bondholders, and the holders of other indenture securities, with respect to their respective claims, in which event it shall not be necessary to liquidate or to appraise the value of any securities or other property held in such special account or as security for any such claim, or to make a specific allocation of such distributions as between the secured and unsecured portions of such claims, or otherwise to apply the provisions of this paragraph as a mathematical formula.
Any trustee who has resigned or been removed after the beginning of such four months' period shall be subject to the provisions of this subsection as though such resignation or removal had not occurred. If any trustee has resigned or been removed prior to the beginning of such four months' period, it shall be subject to the provisions of this subsection if and only if the following conditions exist--
1. the receipt of property or reduction of claim which would have given rise to the obligation to account, if such trustee had continued as trustee, occurred after the beginning of such four months' period; and
2. such receipt of property or reduction of claim occurred within four months after such resignation or removal.
As used in this Section, the term "default" shall mean any failure to make payment in full of the principal of or interest upon the bonds or upon the other indenture securities when and as such principal or interest becomes due and payable; and the term "other indenture securities" shall mean securities upon which the Company is an obligor (as defined in the Trust Indenture Act of 1939) outstanding under any other indenture (i) under which the Trustee is also trustee, (ii) which contains provisions substantially similar to the provisions of this subsection, and (iii) under which a default exists at the time of the apportionment of the funds and property held in said special account.
(B) There shall be excluded from the operation of subsection (A) of this Section a creditor relationship arising from--
(1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee; and for the purposes of this paragraph the term "security" shall mean any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, pre-organization certificate, or subscription, transferable share, investment contract, voting trust certificate, certificate of deposit for a security, or, in general, any interest or instrument commonly known as a "security" or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guaranty of, or warrant or right to subscribe to or purchase, any of the foregoing;
(2) advances authorized by a receivership or bankruptcy court of competent jurisdiction or by this Indenture for the purpose of preserving the property subject to the lien of this Indenture or of discharging tax liens or other liens or encumbrances, prior to the lien of this Indenture, on the mortgaged and pledged property, if notice of such advance and of the circumstances surrounding the making thereof is given to the bondholders as provided in subsections (A), (B) and (C) of Section 7.04 hereof with respect to advances by the Trustee as such;
(3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises rented; or an indebtedness created as a result of goods or securities sold in a cash transaction as defined in the last paragraph of this subsection;
(5) the ownership of stock or of other securities of a corporation organized under the provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall within the classification of self-liquidating paper as defined in the last paragraph of this subsection.
As used in this Section, the term "cash transaction" shall mean any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; the term "self-liquidating paper" shall mean any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacture, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company, arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation; the term "Trustee" shall include the Trustee and any individual or separate or co-trustee appointed pursuant to Section 14.19 hereof; and the term "Company" shall include any obligor on bonds secured hereby.
Section 14.16. The Trustee may at any time resign and be discharged of the trusts hereby created by giving written notice to the
Company specifying the day upon which such resignation shall take effect and
thereafter publishing notice thereof, in one daily newspaper of general
circulation in the City of New Orleans, Louisiana, once in each of three
successive calendar weeks, in each case on any business day of the week, which
need not be the same day in each week, and such resignation shall take effect
upon the day specified in such notice unless previously a successor trustee
shall have been appointed by the bondholders or the Company in the manner
hereinafter provided in Section 14.18 hereof, and in such event such
resignation shall take effect immediately on the appointment of such successor
trustee. This Section shall not be applicable to resignations pursuant to
Section 14.14 hereof.
Section 14.17. The Trustee, may be removed at any time by holders of a majority in principal amount of the bonds then outstanding (determined as provided in Section 1.02 hereof) or by their attorneys in fact duly authorized, evidenced as provided in Article XI hereof, notification thereof being given to the Company and to the Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions of Section 14.01 hereof, then the Trustee shall resign immediately in the manner and with the effect specified in Section 14.16 hereof, and, in the event that the Trustee does not resign immediately in such case, then it may be removed forthwith (i) by the Company evidenced by an instrument signed in the name of the Company by the President or a Vice-President and the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer and filed with the Trustee or (ii) by the holders of a majority in principal amount of the bonds then outstanding (determined as provided in Section 1.02 hereof) or by their attorneys in fact duly authorized, evidenced as provided in Article XI hereof, notification thereof being given to the Company and to the Trustee.
Section 14.18. In case at any time the Trustee shall resign or shall be removed (unless the Trustee shall be removed as provided in subsection (C) of Section 14.14 hereof in which event the vacancy shall be filled as provided in said subsection) or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, a vacancy shall
be deemed to exist in the office of Trustee, and a successor or successors may be appointed by the holders of a majority in principal amount of the bonds then outstanding (determined as provided in Section 1.02 hereof), or by their attorneys in fact duly authorized, evidenced as provided in Article XI hereof, notification thereof being given to the Company and the retiring trustee as well as the new trustee; provided, nevertheless, that until a new trustee shall be appointed by the bondholders as aforesaid, the Company, by instrument executed by order of its Board of Directors or Executive Committee and duly signed by its President or a Vice-President and its Secretary or an Assistant Secretary or its Treasurer or an Assistant Treasurer, may appoint a trustee to fill such vacancy. The Company shall publish notice of any such appointment made by it in the manner provided in Section 14.16 hereof.
If in a proper case no appointment of a successor trustee shall be made pursuant to the foregoing provisions of this Section within six months after a vacancy shall have occurred in the office of trustee, the holder of any bond outstanding hereunder or any retiring trustee may apply to any court of competent jurisdiction to appoint a successor trustee. Said court may thereupon after such notice, if any, as such court may deem proper and prescribe, appoint a successor trustee.
If the Trustee resigns because of a conflict of interest as provided in subsection (A) of Section 14.14 hereof and a successor has not been appointed by the Company or the bondholders, or, if appointed, has not accepted the appointment within thirty days after the date of such resignation, the resigning Trustee may apply to any court of competent jurisdiction for the appointment of a successor trustee.
Any trustee appointed under the provisions of this Section in
succession to the Trustee shall be a bank or trust company eligible under
Section 14.01 hereof and qualified under Section 14.14 hereof.
Any trustee which has resigned or been removed shall nevertheless retain a lien upon the mortgaged and pledged property, including all property or funds held or collected by the trustee as such, except funds held in trust for the benefit of particular bonds or coupons to secure the amounts due to the trustee as compensation, reimbursement, expenses and indemnity, afforded to it by Section 14.11 hereof.
Section 14.19. At any time or times, for the purpose of conforming to any legal requirements, restrictions or conditions in any State or jurisdiction in which any part of the mortgaged and pledged property then subject or to become subject to this Indenture may be located, the Company and the Trustee shall have power to appoint, and, upon the request of the Trustee the Company shall for such purpose join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to appoint another corporation or one or more persons approved by the Trustee either to act as an individual trustee or trustees, or separate trustee or trustees, or co-trustee or co-trustees jointly with the Trustee of all or any of the property subject to the lien hereof. In the event that the Company shall not have joined in such appointment within fifteen days after the receipt by it of a request so to do, the Trustee alone shall have power to make such appointment.
Every individual trustee, every separate trustee and every co-trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following provisions and conditions, namely:
(1) The rights, powers, duties and obligations conferred or imposed upon trustees hereunder or any of them shall be conferred or imposed upon and exercised or performed by the Trustee, or the Trustee and such individual trustee or individual trustees or separate trustee or separate trustees or co-trustee or co-trustees jointly, as shall be provided in the supplemental indenture appointing such individual trustee or individual trustees or separate trustee or separate trustees or co-trustee or co-trustees, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed by such individual trustee or individual trustees or separate trustee or separate trustees or co-trustee or co-trustees;
(2) The bonds secured hereby shall be authenticated and delivered, and all powers, duties, obligations and rights, conferred upon the Trustee in respect of the custody of all bonds and other securities and of all cash pledged or deposited hereunder, shall be exercised solely by The National Bank of Commerce in New Orleans or its successor in the trust hereunder;
(3) The Company and the Trustee, at any time by an instrument in writing executed by them jointly, may accept the resignation of or remove any individual trustee or separate trustee or co-trustee appointed under this Section or otherwise, and, upon the request of the Trustee, the Company shall, for such purpose, join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to make effective such resignation or removal. In the event that the Company shall not have joined in such action within fifteen days after the receipt by it of a request so to do, the Trustee alone shall have power to accept such resignation or to remove any individual trustee or separate trustee or co-trustee. A successor to an individual trustee or a separate trustee or co-trustee so resigned or removed may be appointed in the manner provided in this Section.
No trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder.
The provisions of Sections 14.02 and 14.03 which have been made specifically applicable to the Trustee shall also apply to all individual trustees, separate trustees, and co-trustees appointed pursuant to this Section 14.19.
Any notice, request or other writing, by or on behalf of the holders of the bonds delivered to The National Bank of Commerce in New Orleans, or its successor in the trust hereunder, shall be deemed to have been delivered to all of the then individual trustees or separate trustees or co-trustees as effectually as if delivered to each of them. Every instrument appointing any trustee or trustees other than a successor to The National Bank of Commerce in New Orleans shall refer to this Indenture and the conditions in this Article expressed, and upon the acceptance in writing by such individual trustee or trustees or separate trustee or trustees or co-trustee or co-trustees, he, they or it shall be vested with the estates or property, specified in such instrument, either jointly with The National Bank of Commerce in New Orleans or its successor, or separately, as may be provided therein, subject to all the trusts, conditions and provisions of this Indenture; and every such instrument shall be filed with The National Bank of Commerce in New Orleans or its successor in the trust here-
under. Any individual trustee or trustees, or separate trustee or trustees, or any co-trustee or co-trustees may at any time by an instrument in writing constitute The National Bank of Commerce in New Orleans or its successor in the trust hereunder his, their or its agent or attorney in fact, with full power and authority, to the extent which may be permitted by law, to do any and all acts and things and exercise all discretion authorized or permitted by him, them or it, for and in behalf of him, them or it, and in his, their or its name. In case any individual trustee or trustees or separate trustee or trustees or co-trustee or co-trustees, or a successor to any of them, shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of said individual trustee or separate trustee or co-trustee, so far as permitted by law, shall be vested in and be exercised by The National Bank of Commerce in New Orleans or its successor in the trust hereunder, without the appointment of a new trustee as successor to such individual trustee or separate trustee or co-trustee.
SECTION 14.20. Any successor trustee appointed hereunder shall execute, acknowledge and deliver to his or its predecessor trustee, and also to the Company, an instrument accepting such appointment hereunder, and thereupon such successor trustee, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of his or its predecessor in trust hereunder, with like effect as if originally named as trustee herein; but the trustee ceasing to act shall nevertheless, on the written request of the Company, or of the successor trustee, or of the holders of ten per centum (10%) in principal amount of the bonds then outstanding hereunder, execute, acknowledge and deliver such instruments of conveyance and further assurance and do such other things as may reasonably be required for more fully and certainly vesting and confirming in such successor trustee all the right, title and interest of the trustee to which he or it succeeds, in and to the mortgaged and pledged property and such rights, powers, trusts, duties and obligations, and the trustee ceasing to act shall also, upon like request, pay over, assign and deliver to the successor trustee any money or other property subject to the lien of this Indenture, including any pledged securities, which may then be
in his or its possession. Should any deed, conveyance or instrument in writing from the Company be required by the new trustee for more fully and certainly vesting in and confirming to such new trustee such estates, properties, rights, powers, trusts and duties, any and all such deeds, conveyances and instruments in writing shall, on request, be executed, acknowledged and delivered by the Company.
SECTION 14.21. Any corporation into which the Trustee may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Trustee shall be a party or any corporation to which substantially all the business and assets of the Trustee may be transferred, provided such corporation shall be eligible under the provisions of Section 14.01 hereof and qualified under Section 14.14 hereof shall be the successor trustee under this Indenture, without the execution or filing of any paper or the performance of any further act on the part of any other parties hereto, anything herein to the contrary notwithstanding. In case any of the bonds contemplated to be issued hereunder shall have been authenticated but not delivered, any such successor to the Trustee may, subject to the same terms and conditions as though such successor had itself authenticated such bonds, adopt the certificate of authentication of the original Trustee or of any successor to it as trustee hereunder, and deliver the said bonds so authenticated; and in case any of said bonds shall not have been authenticated, any successor to the Trustee may authenticate such bonds either in the name of any predecessor trustee hereunder or in the name of the successor trustee and in all such cases such certificates shall have the full force which it is anywhere in said bonds or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to authenticate bonds in the name of the Trustee shall apply only to its successor or successors by merger or consolidation or sale as aforesaid.
SECTION 14.22. In order further to assure the Trustee that it will be compensated, reimbursed and indemnified as provided in Section 14.11 hereof and that the prior lien provided for in Section 14.11 hereof upon the mortgaged and pledged property to secure the payment of such compensation, reimbursement and indemnity will be enforced for the benefit of the Trustee, all parties to this Indenture agree, and each holder or owner of any bond by his acceptance thereof shall be deemed to have agreed that in the event of
(1) the adjudication of the Company as a bankrupt by any court of competent jurisdiction,
(2) the filing of any petition seeking the reorganization of the Company, readjustment or other similar relief under the Federal Bankruptcy Laws or any other applicable law or statute of the United States of America or of any State thereof,
(3) the appointment of one or more trustees or receivers of all or substantially all of the property of the Company,
(4) the filing of any bill to foreclose this Indenture,
(5) the filing by the Company of a petition to take advantage of any insolvency act, or
(6) the institution of any other proceeding wherein it shall become necessary or desirable to file or present claims against the Company,
the Trustee may file from time to time in any such proceeding or proceedings
one or more claims, supplemental claims and amended claims as a secured
creditor for its reasonable compensation for all services rendered by it
(including services rendered during the course of any such proceeding or
proceedings) and for reimbursement for all advances, expenses and disbursements
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all persons not regularly in its employ) made or incurred by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties herein of the Trustee, and for any
and all amounts to which the Trustee is entitled as indemnity as provided in
Section 14.11 hereof; and the Trustee and its counsel and agents may file in
any such proceeding or proceedings applications or petitions for compensation
for such services rendered, for reimbursement for such advances, expenses and
disbursements, and for such indemnity. The claim or claims of the Trustee filed
in any such proceeding or proceedings shall be reduced by the amount of
compensation for services, reimbursements for advances, expenses and
adjustments, and indemnity paid to it following final allowance to it and to
its counsel and agents by the court in any such proceeding as an expense of
administration or in connection with a plan of reorganization or readjustment.
To the extent that compensation,reim-
bursement and indemnity are denied to the Trustee or to its counsel or other agents because of not being rendered or incurred in connection with the administration of an estate in a proceeding or in connection with a plan of reorganization or readjustment or other similar relief approved as required by law, because such services were not rendered in the interests of and with benefit to the estate of the Company as a whole but in the interests of and with benefit to the holders of the bonds, in the execution of the trusts hereby created or in the exercise and performance of any of the powers and duties hereunder of the Trustee or because of any other reason, the court may, to the extent permitted by law, allow such claim, as supplemented and amended, in any such proceeding or proceedings and, for the purpose of any plan of reorganization or readjustment or other similar relief of the Company's obligations, may classify the Trustee as a secured creditor of a class separate and distinct from that of other creditors and of a class having priority and precedence over the class in which the holders of bonds are placed by reason of having a lien, prior and superior to that of the holders of the bonds, upon the mortgaged and pledged property, including all property or funds held or collected by the Trustee as such, except funds held in trust for the benefit of particular bonds or coupons. The amount of the claim or claims of the Trustee for services rendered and for advances and the expenses and disbursements, including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ, which are not allowed and paid in any such proceedings but for which the Trustee is entitled to the allowance of a secured claim as herein provided, may be fixed by the court or judge in any such proceeding or proceedings to the extent that such court or judge has or exercises jurisdiction over the amount of any such claim or claims.
If, and to the extent that, the Trustee and its counsel and other persons not regularly in its employ do not receive compensation for services rendered, reimbursement of its advances, expenses and disbursements, or indemnity as herein provided, as the result of allowances made in any such proceeding or by any plan of reorganization or readjustment or other similar relief of obligations of the Company, the Trustee shall be entitled, in priority to the holders of the bonds, to receive any distributions of any securities, dividends or other disbursements which would otherwise be made to the holders of bonds in any such proceeding or proceedings and the Trustee is hereby constituted and appointed, irrevocably, the attorney-in-fact
for the holders of the bonds and each of them to collect and receive, in their name, place and stead, such distributions, dividends or other disbursements, to deduct therefrom the amounts due to the Trustee, its counsel and other persons not regularly in its employ on account of services rendered, advances, expenses and disbursements made or in-cuffed, or indemnity, and to pay and distribute the balance, pro rata, in accordance with the provisions of this Indenture, to the holders of the bonds and coupons. The Trustee shall have a lien upon any securities or other considerations to which the holders of bonds may become entitled pursuant to any such plan of reorganization or readjustment or other similar relief of obligations, or in any such proceeding or proceedings; and the court or judge in any such proceeding or proceedings may determine the terms and conditions under which any such lien shall exist and be enforced.
ARTICLE XV.
DEFEASANCE
SECTION 15.01. The Trustee may, and upon request of the Company shall, cancel and discharge the lien hereof and of all indentures supplemental hereto and execute and deliver to the Company such deeds and instruments as shall be requisite to satisfy the lien hereof and of all indentures supplemental hereto, and reconvey and transfer to the Company the mortgaged and pledged property, whenever all indebtedness secured hereby shall have been paid, including all proper charges of the Trustee hereunder, and thereupon these presents and the estate and rights hereby granted and conveyed shall cease, determine and be void; provided, however, that the Company shall deliver to the Trustee an officers' certificate and an opinion of counsel in accordance with the provisions of Section 3.01 hereof.
Bonds and interest obligations for the payment of which, and bonds for the redemption of which, moneys in the necessary amount shall have been set apart by or deposited with the Trustee, with irrevocable direction so to apply the same (subject to the provisions of Section 15.04 hereof) shall for the purposes of this Article be deemed to have been paid; provided that in case of redemption the notice requisite to the validity of such redemption shall have been given or arrangements shall have been made insuring to the satisfaction of the Trustee that the same will be given; and provided further that the foregoing provision in this paragraph shall
not apply as of any particular time prior to ten days before the redemption date or maturity date of any such bonds unless at such time the moneys for the payment or redemption thereof are made immediately available for such purpose to the holders or registered owners of the bonds upon presentation or surrender thereof without awaiting the payment or redemption date thereof and unless notice to such effect shall have been given by the Company by publication in a daily newspaper of general circulation, in the City of New Orleans, Louisiana, or such notice shall have been provided for to the satisfaction of the Trustee.
If on or prior to the maturity of the bonds of any series the Company shall deposit with the Trustee as trust funds, or shall leave with it if previously so deposited, moneys sufficient to pay all of the bonds of such series, including principal and interest due or to become due to such date of maturity, then such bonds shall no longer be entitled to any lien or benefit under this Indenture.
SECTION 15.02. All moneys deposited with the Trustee pursuant to
Section 15.01 hereof shall be held in trust and applied by it to the payment,
either directly or through any paying agent, to the holders of the particular
bonds and coupons, for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest and premium, if any.
SECTION 15.03. Upon the satisfaction and discharge of this Indenture all moneys then held by any paying agent under the provision of this Indenture shall, upon demand of the Company, be repaid to it and thereupon such paying agent shall be released from all further liability with respect to such moneys.
SECTION 15.04. In case within six (6) years after the maturity or redemption date of any bond issued hereunder or coupon or interest claim appurtenant thereto any amount deposited or left with the Trustee with respect to such bond or coupon or interest claim shall not have been claimed by the holder thereof entitled thereto, the Trustee shall, upon demand, pay over to the Company, such amount not so claimed; and the Trustee shall thereupon be relieved from all responsibility for such amount to the holder and owner of such bond and coupon and interest claim, and in the event of such payment to the Company the holder of any such bond or coupon or
interest claim shall be deemed to be an unsecured creditor of the Company for an amount equivalent to the amount so paid over to the Company with respect to such bond or coupon or interest claim, without interest; provided, however, that before being required to make any such payment to the Company, the Trustee shall, at the expense of the Company, cause to be published once during each of two successive calendar weeks, upon any business day of each such calendar week, in a daily newspaper of general circulation in the City of New Orleans, Louisiana, notice that said moneys remain unclaimed and that after the date named in said notice, which date shall not be less than fifteen (15) days after the date of the first publication of such notice, the balance of such moneys then unclaimed will be returned to the Company.
ARTICLE XVI.
MEETINGS OF BONDHOLDERS.
SECTION 16.01. A meeting of bondholders may be called at any time and from time to time pursuant to the provisions of this Article XVI for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by bondholders pursuant to any of the provisions of Article X hereof;
(2) to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article XIV hereof;
(3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 17.02 hereof; or
(4) to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the bonds under any other provision of this Indenture or under applicable law.
SECTION 16.02. The Trustee may at any time call a meeting of bondholders to take any action specified in Section 16.01 hereof, to be held
at such time and at such place in the City of New Orleans, Louisiana, as the Trustee shall determine. Notice of every meeting of bondholders, setting forth the time and the place of such meeting and the action proposed to be taken at such meeting and specifying each series of bonds which would be affected by the proposed action, shall be published at least four times in one daily newspaper of general circulation, in the City of New Orleans, Louisiana, the first publication in any such newspaper to be not less than twenty nor more than one hundred and eighty days prior to the date fixed for the meeting and shall be mailed not less than thirty days before such meeting (i) to each registered holder of bonds, which would be affected by the action proposed to be taken at the meeting, then outstanding hereunder addressed to him at his address appearing on the registry books, (ii) to each holder of any such bond payable to bearer who shall have filed within two years with the Trustee an address for notices to be addressed to him, (iii) to all other bondholders whose names and addresses are preserved at the time by the Trustee, as provided in subsection (A) of Section 7.02 hereof, and (iv) to the Company addressed to it at 528 Monroe Street, Alexandria, Louisiana, or at such other address as may be designated by the Company from time to time; provided, however, that the mailing of such notice to any bondholder shall in no case be a condition precedent to the validity of any action taken at such meeting.
For the purposes of this Article and of Article XVII hereof, bonds shall be deemed to be affected by action taken at any meeting if such action adversely affects or diminishes the rights of holders thereof against the Company or against its property. Any modification of the provisions of any sinking fund or other similar fund established in respect of any particular series shall be deemed to affect only the bonds of that series. The Trustee may in its discretion determine whether or not, in accordance with the foregoing, bonds of any particular series would be affected,by action proposed to be taken at a meeting and any such determination shall be conclusive upon the holders of bonds of such series and all other series. Subject to the provisions of Sections 14.02 and 14.03 hereof, the Trustee shall not be liable for any determination made in good faith in connection therewith.
SECTION 16.03. In case at any time the Company, pursuant to a resolution of its Board of Directors, or the holders of at least ten per
centrum (10%) in aggregate principal amount of the bonds then outstanding, which would be affected by the action proposed to be taken, shall have requested the Trustee to call a meeting of bondholders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within twenty days after receipt of such request, then the Company or the holders of bonds in the amount above specified may determine the time and place in the United States of America for such meeting and may call such meeting to take any action authorized in Section 16.01 hereof, by publishing notice thereof as provided in Section 16.02 hereof.
SECTION 16.04. To be entitled to vote at any meeting of bondholders a person shall (i) be a holder of coupon bonds transferable by delivery of a series which would be affected by the proposed action; or (ii) be a registered holder of bonds of such a series (whether the same be fully registered or registered as to principal); or (iii) be a person appointed by an instrument in writing as proxy for the holder or holders of bonds of such a series by a holder of coupon bonds transferable by delivery or by the holder of a certificate then in effect issued pursuant to Section 11.01 hereof or by a registered holder of bonds (whether the same be fully registered or registered as to principal). The only persons who shall be entitled to be present or to speak at any meeting of bondholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 16.05. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of bondholders, in regard to proof of the holding of bonds and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidences of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit. Except as otherwise permitted or required by any such regulations, the holding of bonds shall be proved in the manner specified in Section 11.01 hereof and the appointment of any proxy shall be proved in the manner specified in said Section 11.01 or by having the signature
of the person executing the proxy witnessed or guaranteed by any bank, bankers or trust company authorized by said Section 11.01 to certify to the holding of bonds transferable by delivery.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by bondholders as provided in Section 16.03 hereof, in which case the Company or the bondholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 11.03 hereof, at any meeting each bondholder or proxy shall be entitled to one vote for each and every unit of the lowest principal amount of any of the bonds then outstanding, the holders of which are entitled to vote as in this Article set forth, provided, however, that no vote shall be cast or counted at any meeting in respect of any bond challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of bonds held by him or instruments in writing as aforesaid duly designating him as the person to vote on behalf of other bondholders. Any meeting of bondholders duly called pursuant to the provisions of Sections 16.02 or 16.03 hereof may be adjourned from time to time, and the meeting may be held as so adjourned without further notice.
SECTION 16.06. The vote upon any resolution submitted in accordance with the provisions of Section 16.01 hereof shall be by written ballots on which shall be subscribed the signatures of the holders of bonds or certificates or their representatives by proxy and the serial number or numbers of the bonds held or represented by them. The chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of bondholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said notice was published as provided in Section 16.02 hereof. The record shall show the serial numbers of the bonds voting in favor of any resolution submitted in accordance with the provisions of Section 16.01 hereof. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 16.07. Nothing in this Article contained shall be deemed or construed to authorize or permit, by reason of any call of a meeting of bondholders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the bondholders under any of the provisions of this Indenture or of the bonds.
ARTICLE XVII.
SUPPLEMENTAL INDENTURES.
SECTION 17.01. The Company, when authorized by a resolution of its Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall not contain any provisions which are in conflict with the Trust Indenture Act of 1939 as then in effect) for one or more of the following purposes:
(a) to correct or amplify the description of any property hereby mortgaged or intended so to be or to convey, transfer and assign to the Trustee and subject to the lien of this Indenture, with the same force and effect as though included in the granting clause hereof, additional property then owned by the Company, acquired through consolidation, merger, purchase or otherwise;
(b) to evidence the succession of another corporation to the Company, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Company pursuant to Article XIII hereof;
(c) to set forth the terms and provisions of any series of bonds to be issued hereunder (other than bonds of Series A) and the form of the bonds and coupons of such series;
(d) to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the mortgaged and pledged property and the holders of the bonds as its Board of Directors and the Trustee shall consider to be for the protection of the holders of the bonds, and to make the occurrence and continuance of a default in any of such additional covenants, restrictions or conditions a default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default or may limit the right of the holders of a majority in aggregate principal amount of the bonds to waive such default; and
(e) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture and which shall not adversely affect the interests of the holders of the bonds.
The Company shall deliver to the Trustee the resolution of the Board of Directors authorizing any such supplemental indenture together with an opinion of counsel that the proposed supplemental indenture is authorized by and conforms to the requirements of this Section. To the extent permitted by Sections 14.02 and 14.03 the Trustee may rely upon such opinion of counsel as conclusive evidence that any such supplemental indenture complies with the foregoing provisions of this Section.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appro-
priate agreements and stipulations which may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the bonds at the time outstanding, notwithstanding any of
the provisions of Section 17.02 hereof.
SECTION 17.02. With the consent (evidenced as provided in Section 11.01 hereof) of the holders of not less than seventy-five per centum (75%) in aggregate principal amount of the bonds at the time outstanding which would be affected by the action proposed to be taken, the Company, when authorized by a resolution of its Board of Directors, and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the holders of the bonds and coupons; provided, however, that anything in this Article to the contrary notwithstanding (a) the bondholders shall have no power to (i) extend the fixed maturity of any bonds, reduce the rate or extend the time of payment of interest thereon or modify the terms of payment of principal at maturity or by redemption, or otherwise modify the terms of payment of any bond without the consent of the holders of each bond which would be so affected, or (ii) reduce the percentage of bonds, the holders of which are required to consent to any such supplemental indenture without the consent of the holders of all bonds outstanding, or (iii) permit the creation of any lien ranking prior to or equal with the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holders of all bonds then outstanding, or (iv) deprive the holder of any outstanding bond of the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holder of each bond so affected; and (b) no action hereinabove specified which would affect the rights of the holders of bonds of one or more but less than all series may be taken unless approved by holders of not less than seventy-five per centum (75%) in principal amount of outstanding bonds of such one or more series taken in the aggregate affected.
No such supplemental indenture shall contain any provisions which are in conflict with the Trust Indenture Act of 1939 as then in effect, unless all of the bonds then outstanding and then to be issued under this Indenture as supplemented by such Supplemental Indenture shall either be exempt securities, as defined in the Trust Indenture Act of 1939 as then in effect, or are to be issued in a transaction exempt from the provisions thereof.
Upon the request of the Company, accompanied by a copy of a resolution of its Board of Directors certified by the Secretary or an Assistant Secretary of the Company authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of bondholders as aforesaid and an opinion of counsel to the effect that such supplemental indenture complies with the provisions of this Section, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture.
It shall not be necessary for the consent of the bondholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company shall publish a notice, setting forth in general terms the substance of such supplemental indenture, at least once in a daily newspaper of general circulation in the City of New Orleans, Louisiana. Any failure of the Company to publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 17.03. Upon the execution of any supplemental indenture pursuant to the provisions of this Article, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, duties and obligations under this Indenture of the Company, the Trustee and the holders of bonds of all series outstanding thereunder shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 17.04. Bonds authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new bonds so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered without cost to the holders of bonds then outstanding, upon surrender of such bonds and, in the case of coupon bonds, with all unmatured coupons and all matured coupons not fully paid, the new bonds so issued to be of an aggregate principal amount equal to the aggregate principal amount of those so surrendered.
ARTICLE XVIII.
MISCELLANEOUS.
SECTION 18.01. Nothing in this Indenture, expressed or implied, is intended or shall be construed, to confer upon, or to give to, any person, firm or corporation, other than the parties hereto and the holders of the bonds and coupons outstanding hereunder, any right, remedy, or claim under or by reason of this Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants, conditions, stipulations, promises and agreements in this Indenture contained by and 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 of the coupons outstanding hereunder.
SECTION 18.02. So long as the Company is not in default in the payment of interest on any bonds outstanding hereunder and none of the completed defaults specified in Section 10.01 hereof shall have occurred and be continuing, any money which has been deposited with the Trustee under any of the provisions hereof (other than money which has been deposited with the Trustee for the purpose of effecting payment or redemption of any bonds issued hereunder or interest thereon or which the Trustee has been directed to hold and apply for the purpose of such
payment or redemption or which has been deposited with the Trustee pursuant to the provisions of any sinking, purchase, improvement, or other similar fund provided for the bonds of any series) shall, at the request of the Company evidenced by a resolution, be invested or reinvested by the Trustee in any bonds or other obligations of the United States of America designated by the Company, maturing not more than two years from the date of their purchase by the Trustee, and until a completed default specified in Section 10.01 hereof shall have occurred and be continuing, any interest on such bonds and obligations which may be received by the Trustee, shall be forthwith paid to the Company. Such bonds and obligations shall be held by the Trustee as a part of the mortgaged and pledged property and subject to the same provisions hereof as the cash used to purchase the same, but upon a like request of the Company, the Trustee shall sell all or any designated part of the same and the proceeds of such sale shall be held by the Trustee subject to the same provisions hereof as the cash used by it to purchase the bonds and obligations so sold. If such sale shall produce a net sum less than the cost of the bonds or other obligations so sold, the Company covenants that it will pay promptly to the Trustee such amount of cash as with the net proceeds from such sale will equal the cost of the bonds or other obligations so sold, and if such sale shall produce a net sum greater than the cost of the bonds or obligations so sold, the Trustee shall promptly pay to the Company an amount in cash equal to such excess.
SECTION 18.03. In the event that any bond issued hereunder shall not be presented for payment when the principal thereof becomes due, either at maturity or otherwise, or at the date fixed for the redemption thereof, or in the event that any coupon shall not be presented for payment at the due date thereof, the Company, having deposited with the Trustee for the purpose, or having left with it if previously so deposited, moneys sufficient to pay the principal of such bond (and premium, if any), together with all interest due thereon to the date of the maturity of such bond or to the date fixed for the redemption thereof, or to pay such coupon, as the case may be, for the use and benefit of the holder thereof, it shall be the duty of the Trustee to hold the moneys, so deposited, for the benefit of the holder of such bond or overdue coupon, as the case may be, subject to the provisions of Section 15.04 hereof.
SECTION 18.04. Subject to the provisions of Article XIII and Article XIV hereof, whenever in this Indenture any of the parties hereto is named or referred to, this shall be deemed to include the successors or assigns of such party, and all the covenants and agreements in this Indenture contained by or on behalf of the Company or by or on behalf of the Trustee shall bind and inure to the benefit of the respective successors and assigns of such parties whether so expressed or not.
SECTION 18.05. If any provision of this Indenture limits, qualifies or conflicts with another provision of this Indenture which would be required to be included in an indenture qualified under the provisions of the Trust Indenture Act of 1939 by any provisions of Sections 310 to 317, inclusive, of said Act, such required provisions shall control.
SECTION 18.06. Whenever, except in Section 17.01 hereof, reference is made in this Indenture to the Trust Indenture Act of 1939, reference is made to such Act as approved August 3, 1939.
SECTION 18.07. Whenever the Trustee shall execute, whether by notarial act or act under private signature, an instrument cancelling this Indenture or releasing any specified property from the lien hereof, the several Clerks of Court and Recorders of Mortgages in and for the respective parishes of the State of Louisiana, in which the mortgaged property is situated, shall be, and they are hereby, expressly authorized, empowered and directed to give effect to such instrument according to its terms and to cancel of record the lien hereof in its entirety, or with respect to such specified property, as the case may be, without being bound to ascertain the authority of the Trustee to execute such instrument, or to inquire as to any facts, required by the provisions hereof for the exercise of such authority, or to inquire as to the application of any money or other property paid or delivered to the Trustee as a condition of the execution of such instrument; it being the intent hereof, without limitation of any other provision of this Indenture, that the Trustee shall be and he is hereby irrevocably appointed special agent and representative of the bondholders for the purpose of cancelling or releasing of record the lien hereof at any time or from time to time.
SECTION 18.08. The titles of the several Articles of this Indenture shall not be deemed to be any part thereof.
SECTION 18.09. This Indenture shall be simultaneously executed in several counterparts, and all such counterparts executed and delivered, each as an original, shall constitute but one and the same instrument.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC., has caused this Indenture to be signed in its corporate name by its President or one of its Vice-Presidents and sealed with the corporate seal attested by its Secretary or one of its Assistant Secretaries and The National Bank of Commerce in New Orleans to evidence its acceptance of the trust hereby created has caused this Indenture to be signed in its corporate name by one of its Vice- Presidents and sealed by its corporate seal attested by one of its Assistant Cashiers, all as of the day and year first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By /s/ F. H. COUGHLIN
President.
[SEAL]
Attest: /s/ T.P. STREET
Secretary.
Signed, sealed, acknowledged
and delivered by CENTRAL LOUISIANA
ELECTRIC COMPANY, INC., in the
presence of:
/s/ TEMPIE S. HALE
/s/ KATHRYN P. HOLLIS
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
By /s/ F. C. DOYLE
Vice President.
[SEAL]
Attest: /s/ E. C. BOYER
Assistant Cashier.
Signed, sealed, acknowledged
and delivered by THE NATIONAL
BANK OF COMMERCE IN NEW ORLEANS in
the presence of:
/s/ [ILLEGIBLE]
/s/ [ILLEGIBLE]
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STATE OF LOUISIANA )
)
PARISH OF RAPIDES )
|
BE IT KNOWN, That on this 6th day of July, 1950, before me the undersigned, a Notary Public in and for said Parish and State, duly qualified and commissioned as such, personally appeared F. H. Coughlin the President and T. P. Street the Secretary of Central Louisiana Electric Company, Inc., the grantor in the foregoing instrument, to me personally known and known to me to be such officers, respectively, of such Company, and personally known to me to be the identical persons whose names are subscribed and affixed to the foregoing instrument as such officers, respectively, and who subscribed the name of the Company thereto, and in my presence and in the presence of the undersigned witnesses, of lawful age and domicile, severally acknowledged that the same is their respective, free and voluntary act and deed as such officers and the free and voluntary act and deed of said Company for the uses and purposes therein expressed; and the said persons being each by me duly and severally sworn as individuals did depose and say that they are such officers, respectively, of said Company; that they know the seal of said Company; that the seal affixed to the foregoing instrument was and is such corporate seal; that said seal was so affixed and said instrument was so signed on behalf of said Company by the order and authority of the Board of Directors of said Company; and that they signed their names thereto as such officers, respectively, of said Company by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their names on the day and date first hereinabove written, in the presence of Tempie S. Hale and Kathryn P. Hollis, witnesses of lawful age and domicile, and of me, said Notary Public.
Witness:
/s/ TEMPIE S. HALE
/s/ KATHRYN P. HOLLIS
/s/ F. H. COUGHLIN
------------------------
President.
/s/ T. P. STREET
------------------------
Secretary.
/s/ [ILLEGIBLE]
------------------------
Notary Public.
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[SEAL]
My Commission expires at death or on removal from office.
STATE OF LOUISIANA )
)
PARISH OF ORLEANS )
|
BE IT KNOWN, That on this 6th day of July, 1950, before me the undersigned, a Notary Public in and for said Parish and State, duly qualified and commissioned as such, personally appeared F. C. Doyle the Vice President, and E. C. Boyer the Assistant Cashier of The National Bank of Commerce in New Orleans, a national banking association, duly organized and existing under the laws of the United States of America, Trustee under the foregoing instrument, to me personally known and known to me to be such officers, respectively, of said Bank, and personally known to me to be the identical persons whose names are subscribed and affixed to the foregoing instrument as such officers respectively, and who subscribed the name of the said Bank thereto, and in my presence and in the presence of the undersigned witnesses, of lawful age and domicile, severally acknowledged that the same is their respective, free and voluntary act and deed as such officers and the free and voluntary act and deed of said Bank for the uses and purposes therein expressed; and the said persons being each by me duly and severally sworn as individuals did depose and say that they are such officers, respectively, of said Bank; that they know the seal of said Bank; that the seal affixed to the foregoing instrument was and is such corporate seal; that said seal was so affixed and said instrument was so signed on behalf of said Bank by the order and authority of the Board of Directors of said Bank; and that they signed their names thereto as such officers, respectively, of said Bank by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their names on the day and date first hereinabove written, in the presence of R. J. Emmer and A. J. Joubert witnesses of lawful age and domicile, and of me, said Notary Public.
Witness:
/s/ R. J. EMMER
/s/ A. J. JOUBERT Vice President
/s/ F. C. DOYLE
Assistant Cashier
/s/ E. C. BOYER
Notary Public
/s/ [ILLEGIBLE]
[SEAL]
My Commission expires at death.
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United States Internal Revenue documentary tax stamps required in connection with the issuance of $5,500,000 principal amount of Central Louisiana Electric Company, Inc. First Mortgage Bonds, Series A, 3%, dated July 1, 1950, and due July 1, 1980, have been affixed to a counterpart of this Indenture in our possession and cancelled.
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
AS TRUSTEE,
By /s/ E. C. BOYER --------------------------- Assistant Cashier |
EXHIBIT 4(a)(2)
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
TO
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 1, 1951
ISSUE OF FIRST MORTGAGE BONDS, SERIES B, 3 3/4%,
AND
FIRST MORTGAGE BONDS, SERIES C, 3 3/4%
DUE OCTOBER 1, 1976
SUPPLEMENTAL TO INDENTURE OF MORTGAGE AND DEED OF TRUST
DATED AS OF JULY 1, 1950
TABLE OF CONTENTS*
PAGE
PARTIES ........................................................................................1
RECITALS .......................................................................................1
FORM OF COUPON BOND OF SERIES B AND SERIES C ...................................................2
FORM OF COUPON FOR BONDS OF SERIES B AND SERIES C ..............................................9
FORM OF REGISTERED BOND WITHOUT COUPONS OF SERIES B AND SERIES C ..............................10
RECITAL OF COMPLIANCE WITH LEGAL REQUIREMENTS .................................................16
GRANTING CLAUSES ..............................................................................17
DESCRIPTION OF PROPERTY .......................................................................18
GENERAL AND AFTER-ACQUIRED PROPERTY CLAUSES ...................................................64
APPURTENANCES, ETC . ..........................................................................66
PROPERTIES EXCEPTED FROM LIEN OF INDENTURE ....................................................66
HABENDUM ......................................................................................84
SUBJECT CLAUSE ................................................................................84
GRANT IN TRUST ................................................................................85
DEFEASANCE CLAUSE .............................................................................85
COVENANT CLAUSE................................................................................85
ARTICLE I.
DESCRIPTION OF BONDS OF SERIES B AND BONDS OF SERIES C.
SEC. 1.1. Description of Bonds of Series B ................................................85
SEC. 1.2. Description of Bonds of Series C ................................................87
ARTICLE II.
SINKING AND IMPROVEMENT FUND FOR BONDS OF SERIES B AND
BONDS OF SERIES C.
SEC. 2.1. Covenant to deposit certain amount with Trustee as sinking fund for Bonds
of Series B .....................................................................88
SEC. 2.2. Covenant to deposit certain amount with Trustee as sinking fund for Bonds
of Series C .....................................................................90
SEC. 2.3. Cancellation of Bonds acquired through sinking fund .............................92
SEC. 2.4. Compensation and reimbursement of Trustee for administration of sinking
fund ............................................................................92
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ARTICLE III.
AMENDMENTS OF ORIGINAL INDENTURE.
PAGE
SEC. 3.1. Section 1.03 (viii) amended .........................................................92
SEC. 3.2. Section 2.07 amended ................................................................93
SEC. 3.3. Section 2.10 amended ................................................................93
SEC. 3.4. Section 4.04 amended ................................................................93
SEC. 3.5. Section 5.07 amended ................................................................93
SEC. 3.6. Section 5.10 amended ................................................................93
SEC. 3.7. Line 2 of Section 5.20 amended ......................................................94
SEC. Section 5.20 amended by addition to last line covering additions to earned
surplus .............................................................................94
SEC. 3.9. Sections 8.02 and 15.01 amended .....................................................94
SEC. 3.10. Application of Section 5.15 limited .................................................95
SEC. 3.11. First Supplemental Indenture exempted from Section 17.02 of original
Indenture ...........................................................................95
SEC. 3.12. New Sections 5.24 and 5.25 added to Article V of original Indenture .................95
SEC. 3.13 Reference to certain additions to and amendments of "Saving and Excepting"
clauses of original Indenture .......................................................96
ARTICLE IV.
STAMPING AND REVISION OF BONDS OF SERIES A.
SEC. 4.1. Form of stamping ....................................................................96
SEC. 4.2. Revision of Bonds of Series A .......................................................96
ARTICLE V.
MISCELLANEOUS.
SEC. 5.1. Lien of Indenture ...................................................................97
SEC. 5.2. Original Indenture confirmed as supplemented ........................................97
SEC. 5.3. Trustees liabilities limited to original Indenture as supplemented ..................97
SEC. 5.4. Counterparts of First Supplemental Indenture ........................................97
SEC. 5.5. Date of First Supplemental Indenture ................................................97
TESTIMONIUM ....................................................................................98
EXECUTION ......................................................................................98
ACKNOWLEDGMENTS ................................................................................99
RECORDING DATA .................................................................................102
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FIRST SUPPLEMENTAL INDENTURE, dated as of October 1, 1951, between CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation duly organized and existing under and by virtue of the laws of the State of Louisiana (hereinafter sometimes called the "Company"), party of the first part, and THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, a national banking association duly organized and existing under and by virtue of the laws of the United States of America, as Trustee under the Indenture of Mortgage hereinafter mentioned (hereinafter sometimes called the "Trustee"), party of the second part.
WHEREAS, the Company heretofore executed and delivered its Indenture of Mortgage (hereinafter called "Original Indenture"), dated as of July 1, 1950, to the Trustee, to secure the Company's First Mortgage Bonds, limited to $100,000,000 aggregate principal amount at any one time outstanding and issuable in series, from time to time, in the manner and subject to the conditions set forth in the Original Indenture, and by said Original Indenture granted and conveyed unto the Trustee, upon the trusts, uses and purposes specifically therein set forth, certain real estate, franchises and other property therein described, including property acquired after the date thereof except as therein otherwise provided; and
WHEREAS, the Company has heretofore issued under the Original Indenture $5,500,000 principal amount of its First Mortgage Bonds, Series A, 3%, of which $5,445,000 principal amount remains outstanding as of the date of this supplemental indenture (hereinafter called "First Supplemental Indenture"), the Original Indenture as amended or supplemented by all indentures supplemental thereto, including this First Supplemental Indenture (being hereinafter referred to as the "Indenture"); and
WHEREAS, the Original Indenture provides for the issuance of bonds thereunder in one or more series, the form of each series of bonds and of the coupons to be attached to the coupon bonds to be
substantially in the forms set forth therein with such omissions, variations, and insertions as are authorized or permitted by the Original Indenture and determined and specified by the Board of Directors of the Company; and
WHEREAS, the Company by appropriate corporate action in conformity with the terms of the Original Indenture has duly determined to create a second and third series of bonds under the Indenture to be designated, respectively, as "First Mortgage Bonds, Series B, 3 3/4%" (herein sometimes called the "bonds of Series B"), and "First Mortgage Bonds, Series C, 3 3/4%" (herein sometimes called the "bonds of Series C"), which said series are to have the same terms and conditions except as to certain redemption provisions and which said bonds of Series B and Series C, and the interest coupons to be attached to the coupon bonds of said series, are to be substantially in the following forms, respectively:
[FORM OF COUPON BOND OF SERIES B AND SERIES C]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series * , 3 3/4%
Due October 1, 1976
No. $1000
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CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (hereinafter called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to bearer, or, if this bond be registered as to principal, to the registered holder hereof, on October 1, 1976, at the office or agency of the Company in the City of New Orleans, Louisiana, One Thousand Dollars ($1000) in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay interest thereon semi-annually on April 1 and October 1 of each year at the rate of three and three-fourths per centum (3 3/4%) per annum at such
office or agency in like coin or currency, from October 1, 1951, until this bond shall mature, according to its terms or on prior redemption or by declaration or otherwise, but only upon presentation and surrender of the coupons for such interest installments as are evidenced thereby, hereto appertaining, as they shall severally mature, and at the highest rate of interest borne by any of the bonds outstanding under the Indenture hereinafter referred to, from such date of maturity until the obligation of the Company with respect to payment of the principal hereof, and premium, if any, shall have been discharged.
This bond is one of an authorized issue of bonds of the Company known as its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000) at any one time outstanding, issued and to be issued, in one or more series, and equally and ratably secured (except insofar as a sinking fund or other similar fund established in accordance with the provisions of the Indenture may afford additional security for the bonds of any specific series) by an indenture (herein called the "Original Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE OF NEW ORLEANS, as Trustee (hereinafter called the "Trustee"), as supplemented and amended by a First Supplemental Indenture dated as of October 1, 1951, executed by the Company to the Trustee, to which Original Indenture, First Supplemental Indenture and all other indentures supplemental thereto (said Original Indenture as so sup- plemented and amended being herein called the "Indenture") reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Company in respect of such security, the rights, duties and immunities of the Trustee, and the terms and conditions upon which the bonds are, and are to be, secured. As provided in the Indenture, the bonds may be issued in series for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This bond is one of the bonds described in the Indenture and designated therein as "First Mortgage Bonds, Series 3 3/4% (hereinafter referred to as the "bonds of Series * ").
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 75% in aggregate principal amount of all the bonds at the time outstanding, determined and evidenced as in the Indenture provided, or in case the rights under the Indenture of the holders of bonds of one or more, but less than all, of the series of bonds outstanding shall be affected, then with the consent of the holders of not less than 75% in aggregate principal amount of the bonds at the time outstanding of the one or more series affected, determined and evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the holders of the bonds and coupons; provided, however, that no such supplemental indenture shall (I) extend the fixed maturity of any bonds, or reduce the rate or extend the time of payment of interest thereon, or modify the terms of payment of principal at maturity or by redemption, or otherwise modify the terms of payment of any bond, without the consent of the holder of each bond so affected, or (ii) reduce the percentage of bonds, the holders of which are required to consent to any such supplemental indenture, without the consent of the holders of all bonds then outstanding, or (iii) permit the creation of any lien ranking prior to or equal with the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holders of all bonds then outstanding, or (iv) deprive the holder of any outstanding bond of the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holder of each bond so affected. Any such consent by the holder of this bond (unless effectively revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders of this bond, irrespective of whether or not any notation of such consent is made upon this bond. No reference herein to the Indenture and no provision of this bond or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay at the stated or accelerated maturity herein and in the Indenture provided, the principal of and interest and premium, if any, on this bond at the time and place and at the rate and in the coin or currency herein prescribed.
The coupon bonds of Series * are issuable in the denomination of $1,000. The registered bonds without coupons of Series * are issuable in denominations of $1,000 and any multiple of $1,000. At the office or agency to be maintained by the Company in said City of New Orleans and in the manner, subject to the limitations, and upon payment of the charges provided in the Indenture, coupon bonds of such series, with all unmatured coupons and any matured coupons in default thereto appertaining, may be exchanged for a like aggregate principal amount of registered bonds without coupons of such series, and registered bonds without coupons of such series may be exchanged for a like aggregate principal amount of coupon bonds of such series bearing all unmatured coupons and any matured coupons in default or for a like aggregate principal amount of registered bonds without coupons of such series of other authorized denominations.
The bonds of Series * are entitled to the benefit of the Sinking and Improvement Fund provided for in Article H of the First Supplemental Indenture.
The bonds of Series * may be redeemed, either at the option of the Company or pursuant to certain requirements of the Indenture, on any date prior to maturity, as a whole or from time to time in part, upon publication at least once in each of four successive calendar weeks, upon any business day of each such calendar week, of notice of such redemption in a newspaper printed in the English language and customarily published on each business day and of general circulation in the Borough of Manhattan, The City of New York, New York, and like publication in a similar newspaper of said City of New Orleans, the first publication in each case to be not less than thirty (30) days and not more than sixty (60) days before such redemption date (provided, however, that if all the bonds of Series * at the time outstanding shall be registered bonds without coupons or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, such notice may be given by mailing the same to each registered holder of a bond so to be redeemed directed to his registered address not less than thirty (30) days and not more than sixty (60) days before the redemption date); all as provided in the Indenture.
To be
inserted
in Bonds
of Series B.
If redeemed by the application of moneys in the Sinking and Improvement Fund for bonds of Series B provided for in Article H of the First Supplemental Indenture or moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series B are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, at the redemption price at the time applicable, as set forth in Column A of the following schedule, and if redeemed otherwise than by the application of such moneys, the bonds of Series B are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in Column B of the following schedule, together with, in each case, interest accrued to the date fixed for redemption:
Redemption Price
(Percentage of Principal Amount)
--------------------------------
If redeemed during the period Col. A Col. B
------------------------------------- --------- ---------
October 2, 1951 - September 30, 1952...... 108.41 111.00
October 1, 1952 - September 30, 1953...... 108.18 110.00
October 1, 1953 - September 30, 1954...... 107.94 110.00
October 1, 1954 - September 30, 1955...... 107.69 110.00
October 1, 1955 - September 30, 1956...... 107.44 109.00
October 1, 1956 - September 30, 1957...... 107.18 109.00
October 1, 1957 - September 30, 1958...... 106.91 109.00
October 1, 1958 - September 30, 1959...... 106.63 109.00
October 1, 1959 - September 30, 1960...... 106.35 108.00
October 1, 1960 - September 30, 1961...... 106.05 108.00
October 1, 1961 - September 30, 1962...... 105.75 107.00
October 1, 1962 - September 30, 1963...... 105.44 107.00
October 1, 1963 - September 30, 1964...... 105.12 107.00
October 1, 1964 - September 30, 1965...... 104.79 106.00
October 1, 1965 - September 30, 1966...... 104.45 106.00
October 1, 1966 - September 30, 1967...... 104.10 106.00
October 1, 1967 - September 30, 1969...... 103.74 105.00
October 1, 1968 - September 30, 1969...... 103.38 105.00
October 1, 1969 - September 30, 1970...... 103.00 104.00
October 1, 1970 - September 30, 1971...... 102.60 104.00
October 1, 1971 - September 30, 1972...... 102.20 103.00
October 1, 1972 - September 30, 1973...... 101.79 103.00
October 1, 1973 - September 30, 1974...... 101.36 102.00
October 1, 1974 - September 30, 1975...... 100.92 101.00
October 1, 1975 - September 30, 1976...... 100.47 100.50
|
To be
inserted
in Bonds
of Series C.
If redeemed by the application of moneys in the Sinking and Improvement Fund for bonds of Series C provided for in Article II of the First Supplemental Indenture or moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series C are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts at the principal amount thereof together with accrued interest to the date fixed for redemption, without premium, and if remoneys,otherwise than by the application of such the bonds of Series C are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in the following schedule, together with, in each case, interest accrued to the date fixed for redemption:
Redemption Price
(Percentage of
If redeemed during the period Principal Amount)
------------------------------------ ------------------
October 2, 1951 - September 30, 1952................ 103 2/8
October 1, 1952 - September 30, 1953................ 103
October 1, 1953 - September 30, 1954................ 102 7/8
October 1, 1954 - September 30, 1955................ 102 3/4
October 1, 1955 - September 30, 1956................ 102 5/8
October 1, 1956 - September 30, 1957................ 102 1/2
October 1, 1957 - September 30, 1958................ 102 1/2
October 1, 1958 - September 30, 1959................ 102 3/8
October 1, 1959 - September 30, 1960................ 102 1/4
October 1, 1960 - September 30, 1961................ 102 1/8
October 1, 1961 - September 30, 1962................ 102
October 1, 1962 - September 30, 1963................ 101 7/8
October 1, 1963 - September 30, 1964................ 101 3/4
October 1, 1964 - September 30, 1965................ 101 5/8
October 1, 1965 - September 30, 1966................ 101 1/2
October 1, 1966 - September 30, 1967................ 101 3/8
October 1, 1967 - September 30, 1968................ 101 1/4
October 1, 1968 - September 30, 1969................ 101 1/8
October 1, 1969 - September 30, 1970................ 101
October 1, 1970 - September 30, 1971................ 100 7/8
October 1, 1971 - September 30, 1972................ 100 3/4
October 1, 1972 - September 30, 1973................ 100 5/8
October 1, 1973 - September 30, 1974................ 100 1/2
October 1, 1974 - September 30, 1975................ 100 1/4
October 1, 1975 - October 1,1976.................... 100
|
If this bond is called for redemption and payment hereof is duly provided for as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the Trustee in trust for the purpose funds sufficient to pay the principal of all of the bonds of any series, or such of the bonds of any series as have been or are to be called for redemption, and premium, if any, thereon, and all interest payable on such bonds to the date on which they become due and payable at maturity or upon redemption or otherwise, and shall comply with the other provisions of the Indenture in respect thereof, then from the date of such deposit such bonds shall no longer be entitled to any lien or benefit under the Indenture.
The principal hereof may be declared or may become due prior to the express date of the maturity hereof on the conditions, in the manner and at the time set forth in the Indenture, upon the occurrence of a completed default as in the Indenture provided; subject, however, to the right, under certain circumstances, of the holders of a majority in the principal amount of the bonds outstanding to annul such declaration.
This bond is negotiable and shall pass by delivery unless registered as to principal at the office or agency of the Company in said City of New Orleans, and such registration noted hereon, after which no valid transfer hereof can be made, except at such office or agency, until after registered transfer to bearer, but after such registered transfer to bearer this bond shall be again transferable by delivery. Such registration, however, shall not affect the negotiability of the coupons, which shall always remain payable to bearer, be treated as negotiable and pass by delivery. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the bearer of this bond if it is not registered as to principal, or, if this bond is registered as herein authorized, the person in whose name this bond is registered, as the absolute owner hereof, and the bearer of any coupon hereunto appertaining, as the absolute owner thereof, whether or not this bond or such coupon shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any
incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.
Neither this bond nor the coupons hereto attached shall become valid or obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture, or its successor thereunder, shall have signed the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this bond to be signed in its name by its President or one of its Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed hereto and attested by its Secretary or one of its Assistant Secretaries, and interest coupons bearing the facsimile signature of its Treasurer to be attached hereto, and this bond to be dated October 1, 1951.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
(Form of Coupon for Bonds of Series * )
$18.75
On the first day of , 19 , unless the bond hereinafter mentioned shall have been called for previous redemption and payment of the redemption price thereof shall have been duly provided for, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. will pay to bearer, upon surrender of this coupon, at its office or agency in the City of
New Orleans, Louisiana, Eighteen Dollars and Seventy-five Cents in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, being six months' interest then due on its First Mortgage Bond, Series * , 3 3/4 %, No. .
Treasurer.
[FORM OF REGISTERED BOND OF SERIES B AND SERIES C.]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series * , 3 3/4%,
Due October 1, 1976
No. $
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (herein after called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to or registered assigns on October 1, 1976, at the office or agency of the Company in the City of New Orleans, Louisiana, Dollars ($ ) in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay interest thereon semi-annually on April 1 and October 1 of each year, at the rate of three and three-fourths per centum (3 3/4%) per annum., at such office or agency, in like coin or currency, from the interest payment date next preceding the date of this bond, or if this bond be dated prior to April 1, 1952 then from October 1, 1951, until this bond shall mature, according to its terms or on prior redemption or by declaration or otherwise, and at the highest rate of interest borne by any of the bonds outstanding under the Indenture hereinafter referred to, from such date of maturity until the obligation of the Company with respect to payment of the principal hereof, and premium, if any, shall have been discharged.
This bond is one of an authorized issue of bonds of the Company known as its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000) at any one time outstanding, issued and to be issued, in one or more series, and equally and ratably secured (except insofar as a sinking fund or other similar fund established in accord
ance with the provisions of the Indenture may afford additional security for the bonds of any specific series) by an indenture (herein called the "Original Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as Trustee (hereinafter called the "Trustee"), as supplemented and amended by a First Supplemental Indenture dated as of October 1, 1951, executed by the Company to the Trustee, to which Original Indenture, First Supplemental Indenture and all other indentures supplemental thereto (said Original Indenture as so supplemented and amended being herein called the "Indenture") reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Company in respect of such security, the rights, duties and immunities of the Trustee, and the terms and conditions upon which the bonds are, and are to be, secured. As provided in the Indenture, the bonds may be issued in series for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This bond is one of the bonds described in the Indenture and designated therein as "First Mortgage Bonds, Series* , 3 3/4%" (hereinafter referred to as the "bonds of Series* ").
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 75% in aggregate principal amount of all the bonds at the time outstanding, determined and evidenced as in the Indenture provided, or in case the rights under the Indenture of the holders of bonds of one or more, but less than all, of the series of bonds outstanding shall be affected, then with the consent of the holders of not less than 75% in aggregate principal amount of the bonds at the time outstanding of the one or more series affected, determined and evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the holders of the bonds and coupons; provided, however, that no such supplemental indenture shall (I) extend the fixed maturity of any bonds, or reduce the rate or extend the time of payment of interest thereon, or modify the terms of payment of principal at maturity or by redemption, or otherwise modify the terms of payment of any bond, without the consent of the holder of each bond so affected, or (ii) reduce the percentage of bonds, the holders of which are required
to consent to any such supplemental indenture, without the consent of the holders of all bonds then outstanding, or (iii) permit the creation of any lien ranking prior to or equal with the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holders of all bonds then outstanding, or (iv) deprive the holder of any outstanding bond of the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holder of each bond so affected. Any such consent by the holder of this bond (unless effectively revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders of this bond, irrespective of whether or not any notation of such consent is made upon this bond. No reference herein to the Indenture and no provision of this bond or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay at the stated or accelerated maturity herein and in the Indenture provided, the principal of and interest and premium, if any, on this bond at the time and place and at the rate and in the coin or currency herein prescribed.
The coupon bonds of Series* are issuable in the denomination of $1,000. The registered bonds without coupons of Series* are issuable in denominations of $1,000 and any multiple of $1,000. At the office or agency to be maintained by the Company in said City of New Orleans and in the manner, subject to the limitations, and upon payment of the charges provided in the Indenture, coupon bonds of such series, with all unmatured coupons and any matured coupons in default thereto appertaining, may be exchanged for a like aggregate principal amount of registered bonds without coupons of such series, and registered bonds without coupons of such series may be exchanged for a like aggregate principal amount of coupon bonds of such series bearing all unmatured coupons and any matured coupons in default or for a like aggregate principal amount of registered bonds without coupons of such series of other authorized denominations.
The bonds of Series* are entitled to the benefit of the Sinking and Improvement Fund provided for in Article II of the First Supplemental Indenture.
The bonds of Series* may be redeemed, either at the option of the Company or pursuant to certain requirements of the Indenture, on any date prior to maturity, as a whole or from time to time in part, upon publication at least once in each of four successive calendar weeks, upon any business day of each such calendar week, of
notice of such redemption in a newspaper printed in the English language and
customarily published on each business day and of general circulation in the
Borough of Manhattan, The City of New York, New York, and like publication in a
similar newspaper of said City of New Orleans, the first publication in each
case to be not less than thirty (30) days and not more than sixty (60) days
before such redemption date (provided, however, that if all the bonds of Series
* at the time outstanding shall be registered bonds without coupons or coupon
bonds registered as to principal, such publication need not be made, but, in
lieu thereof, such notice may be given by mailing the same to each registered
holder of a bond so to be redeemed directed to his registered address not less
than thirty (30) days and not more than sixty (60) days before the redemption
date); all as provided in the Indenture.
To be
inserted
in bonds
of Series B.
If redeemed by the application of moneys in the Sinking and Improvement Fund for bonds of Series B, provided for in Article II of the First Supplemental Indenture or moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series B are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, at the redemption price at the time applicable, as set forth in Column A of the following schedule, and if redeemed otherwise than by the application of such moneys, the bonds of Series B are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in Column B of the following schedule, together with, in each case, interest accrued to the date fixed for redemption:
(There will be inserted here in all registered bonds without coupons of Series B, the same tables of redemption prices and corresponding dates as are specified for such redemption in the form of coupon bond of Series B hereinbefore set forth.)
To be
inserted
in bonds
of Series C.
If redeemed by the application of moneys in the Sinking and Improvement Fund for bonds of Series C provided for in Article II of the First Supplemental Indenture or moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series C are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts at the principal amount thereof together with accrued interest to the date fixed for redemption, without premium, and if redeemed otherwise than by the application of such moneys, the bonds of Series C are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in the following schedule, together with, in each ease, interest accrued to the date fixed for redemption:
(There will be inserted here in all registered bonds without coupons of Series C, the same table of redemption prices and corresponding dates as are specified for such redemption in the form of coupon bond of Series C hereinbefore set forth.)
If this bond is called for redemption and payment hereof is duly provided for as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the Trustee in trust for the purpose funds sufficient to pay the principal of all of the bonds of any series, or such of the bonds of any series as have been or are to be called for redemption, and premium, if any, thereon, and all interest payable on such bonds to the date on which they become due and payable at maturity or upon redemption or otherwise, and shall comply with the other provisions of the Indenture in respect thereof, then from the date of such deposit such bonds shall no longer be entitled to any lien or benefit under the Indenture.
The principal hereof may be declared or may become due prior to the express date of the maturity hereof on the conditions, in the manner and at the time set forth in the Indenture, upon the occurrence of a completed default as in the Indenture provided; subject, however, to the right, under certain circumstances, of the holders of a majority in the principal amount of the bonds outstanding to annul such declaration.
This bond is transferable as prescribed in the Indenture by the registered holder hereof in person, or by his duly authorized attorney, at the office or agency of the Company in said City of New Orleans, upon surrender and cancellation of this bond, and upon payment, if the Company shall require it, of the transfer charges prescribed in the Indenture, and thereupon, a new registered bond or bonds without coupons of authorized denominations of the same series and for the same aggregate principal amount will be issued to the transferee in exchange herefor as provided in the Indenture. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the person in whose name this bond is registered as the absolute owner hereof, whether or not this bond shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.
This bond shall not become valid or obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture, or its successor thereunder, shall have signed the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this bond to be signed in its name by its President or one of its Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed hereto and attested by its Secretary or one of its Assistant Secretaries, and this bond to be dated
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
and
WHEREAS, all acts and things prescribed by law and by the charter and by-laws of the Company necessary to make the bonds of Series B and Series C, when executed by the Company and authenticated by the Trustee, as in the Original Indenture provided, valid, binding and legal obligations of the Company, entitled in all respects to the security of the said Original Indenture and indentures supplemental thereto, have been performed; and
WHEREAS, provision is made in Sections 5.10 and 17.01 of the Original Indenture for such further instruments and indentures supplemental to the Original Indenture, as may be necessary or proper to carry out more effectually the purposes of the Original Indenture, and to subject to the lien of the Original Indenture any property acquired after the date of the Original Indenture and intended to be covered thereby, with the same force and effect as though included in the granting clauses thereof, and to add such further covenants, restrictions or conditions for the protection of the mortgaged and pledged property and the holders of the bonds as the Board of Directors of the Company and the Trustee shall consider to be for the protection of the holders of the bonds, and to set forth the terms and provisions of any series of bonds to be issued under the Original Indenture and the form of the bonds and coupons of such series; and the Company since the date of the Original Indenture has acquired additional property
not heretofore specifically subjected to the lien of the Original Indenture; and it is desired to add certain further covenants, restrictions and conditions for the protection of the mortgaged and pledged property and the holders of the bonds, as provided in this First Supplemental Indenture, which the Board of Directors of the Company and the Trustee consider to be for the protection of the holders of the bonds; and the Company desires to issue bonds of Series B and Series C; and the Company desires to amend certain provisions of the Original Indenture and to obtain the release of certain parcels of land from the lien of said Indenture without compliance with the terms of said Indenture, as hereinafter provided; and the Company therefore deems it advisable to enter into this First Supplemental Indenture in the form and terms hereof; and
WHEREAS, the execution and delivery of this First Supplemental Indenture has been duly authorized by the Board of Directors of the Company at a meeting duly called and held according to law, and the holders of all of the bonds outstanding under the Original Indenture have duly consented to the amendments of certain provisions of the Original Indenture and to the release of certain parcels of land from the lien of said Indenture without compliance with the terms of said Indenture, as hereinafter provided, and all conditions and requirements necessary to make this First Supplemental Indenture a valid, binding and legal instrument in accordance with its terms, for the purposes herein expressed, and the execution and delivery hereof, in the form And terms hereof, have been in all respects duly authorized;
Now, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That Central Louisiana Electric Company, Inc., by way of further assurance and
in consideration of the premises and of the acceptance by the Trustee of the
trusts hereby created 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 order to further secure the payment of the principal
of, the premium, if any, and the interest on all bonds at any time issued and
outstanding under the Indenture, according to their tenor and effect, and the
performance and observance by the Company of all the covenants and conditions
herein and therein contained, and of said bonds, has executed and delivered this
First Supplemental Indenture, and hath granted, bargained, sold, aliened,
remised, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected, pledged, set over and
confirmed, and by these presents does grant, bargain, sell, alien, remise,
release, convey, assign, transfer, mortgage, hypothecate, affect, pledge, set
over and confirm, unto The National Bank of Commerce in New Orleans, as Trustee,
and to its successors in the trust, and to its and their assigns forever, all
the following described properties of the Company, that is to say:
All property, real, personal and mixed, tangible and intangible, owned
by the Company on the date of the execution hereof or which may be hereafter
acquired by it (except such property now owned or hereafter acquired as is
expressly excepted from the lien of the Indenture by the terms of the Original
Indenture or this First Supplemental Indenture).
The property covered by the lien of the Indenture shall include
particularly, among other property, without prejudice to the general and
particular descriptions of property contained in the Original Indenture or this
First Supplemental Indenture or to the generality of the language in the
Original Indenture or hereinbefore or hereinafter contained, the following
described property:
I.
THE FOLLOWING DESCRIBED REAL ESTATE, TOGETHER WITH ALL IMPROVEMENTS
THEREON, SITUATED IN THE STATE OF LOUISIANA:
Parcel 1. A certain tract or parcel of land within the
corporate limits of the Town of Slidell, Parish of St. Tammany,
consisting of Lots Twelve (12), Thirteen (13), Fourteen (14), Fifteen
(15), Sixteen (16) and Seventeen (17), the West side of said land being
One Hundred Fifty (150) feet in length and bounded by Harvey Boulevard,
the South side being Three Hundred Thirty-six and three-tenths (336.3)
feet in length and bounded by Florida Street, the East side being One
Hundred Forty-one (141) feet in length and bounded by Fourth Street,
the north side being Three Hundred feet (300) in length and bounded by
Lots Eleven (11) and Eighteen (18) according to the latest plan of said
land being in Square One (1) in the Northeast Quarter (NE 1/4) of
Section Ten (10), Township 9 South, Range Fourteen (14) East.
Parcel 2. A certain tract of land in the Town of Slidell, St. Tammany Parish; Lots Eighteen (18) and Nineteen (19) in
Square One (1) of the Brugier Addition to the said Town; each of said lots
measures Forty-seven and three-tenths (47.3) feet on Fourth Street and extends
toward Harvey Boulevard as follows: Lot Eighteen (18) a distance of One Hundred
Forty-nine (149) feet; Lot Nineteen (19) a distance of One Hundred Eighteen
(118) feet; said Square One (1) is bounded on the North by Hall Avenue; on the
South by Florida Avenue, on the East by Fourth Street and on the West by Harvey
Boulevard.
Parcels 1 and 2 being part of the property acquired by Louisiana Public Utilities Co., Inc., from Slidell Ice & Light Co. by Act passed before L. V. Cooley, Jr., Notary Public, Parish of St. Tammany, dated October 31, 1925, registered in the conveyance records of St. Tammany Parish in Book 90, Folio 573.
Parcels 1 and 2 have located thereon an electric generating plant.
Parcel 3. A parcel of land lying and being situated in the Northwest corner of Section Ten (10) in the Town of Slidell, St. Tammany Parish, Louisiana, and more fully described as follows, to-wit: From the intersection of the West boundary line of Section Ten with the Bayou Lacombe Road or road going to the C. C. C. Camp, go South 400 feet; thence East 115 feet; thence North 400 feet; thence West 115 feet along said Bayou Lacombe Road to the point of beginning, as described in release by holder of mortgage note in M. 0. B. 63, folio 367 of the official records of St. Tammany Parish, Louisiana, also being a part of the same property as acquired by the said Paul W. Rivet from the said Brugier Realty & Investment Co., Inc., per deed recorded in C. 0. B. 119, folio 393 and M. 0. B. 51, folio 622 by the said corporation from Mrs. Josephine E. Brugier per deed recorded in C. 0. B. 99 folio 241.
Being the same property acquired by Louisiana Public Utilities Co., Inc. from Paul W. Rivet by Act before Gus A. Fritchie, Notary Public for the Parish of St. Tammany, dated November 21, 1942, recorded in the Conveyance Records of St. Tammany Parish on December 10, 1942, in Conveyance Book 157, page 341.
There is located on Parcel 3 above described an electric substation.
Parcel 4. A certain piece or parcel of land in the Town of Covington, St. Tammany Parish, in the John Collins Spanish Grant No. 41, Township 6 South, Range Eleven (11) East,
Greensburg District, and being part of what is known as Square No. Five (5) of that part of the Town of Covington designated as Morgan Commerce and Virtue, more fully described as commencing at point "A" which is an iron stake set at the Southwest corner of said Square Five (5) and the intersection of the North line of Theard Avenue with the East line of Topaz Street, thence North-westerly along the East line of Topaz Street Two Hundred Two (202) feet Six (6) inches to point "B"; thence at right angles Easterly One Hundred Seventy-two (172) feet to a point "C"; thence at right angles Northerly Thirty (30) feet to a point "D"; thence at right angles Easterly One Hundred Twenty-eight (128) feet to a point "E" on the West line of Ruby Street; thence at right angles Southerly along the West line of Ruby Street Two Hundred Thirty-two (232) feet Six (6) inches to point "F" on the North line of Theard Avenue; thence Westerly along the North line of Theard Avenue Three Hundred (300) feet to "A".
There is located on said Parcel 4 above described an electric plant.
Parcel 5. A certain parcel of ground in the Town of Mandeville, St. Tammany Parish, designated as Lots Eight (8) and Nine (9) in Square 49, bounded by Villerie, Girod, Montgomery Streets and Marigny Avenue, which said lots measure each Forty (40) feet front on Villerie Street by a depth of One Hundred Forty (140) feet between parallel lines forming the corner of Villerie and Penn Streets as will more fully appear by reference to subdivision of said Square No. Forty-nine (49) made by Joseph Pugh C. E. dated March 6, 1909, according to which plan Penn Street runs through said Square from Villerie to Montgomery Street.
There is located on said Parcel 5 above described a substation.
Parcels 3, 4 and 5 being part of the property acquired by Louisiana. Public Utilities Co., Inc., from St. Tammany's Ice and Mfg. Co., Inc., by Act of Sale dated February 6, 1926, recorded in C.O.B. 92, folio 189 of the records of St. Tammany Parish.
Parcel 6. A parcel of real estate in the Town of Mandeville, Parish of St. Tammany, designated as Lots Six (6) and Seven (7) in Square bounded by Villerie, Girod, Montgomery Streets and Marigny Avenue, which said lots measure Forty (40)
feet front on Villerie Street by a depth of One Hundred Forty (140) feet between parallel lines forming the corner of Villerie and Penn Streets as will more fully appear by reference to a subdivision of said Square Forty-nine (49) made by Joseph Pugh, C.E. dated March 6, 1909, according to which plan Penn Street runs through said Square from Villerie to Montgomery Street.
Being the same property acquired by Louisiana Public Utilities Co. Inc. from Samuel P. Ross by Act before J. Monroe Simmons, Notary Public for the Parish of St. Tammany, dated August 11, 1927, registered C.B.O. 100, Folio 307 of the records of St. Tammany Parish.
There is located on Parcel 6 above described an old ice plant building.
Parcel 7. All that part of Lot One Hundred Sixty-seven (167) of Square
Forty-two (42) in the Town of Franklinton, Washington Parish, as per plat of
said town on file in the office of the Clerk of Court described as follows:
Beginning at the Southeast corner of said Lot One Hundred Sixty-seven (167)
(which is the southeast corner of Square 42) and runs a northerly course along
the West line of Hancock Street Fifty (50) feet to corner; thence Westerly
parallel with the North side of Mills Street One Hundred (100) feet to corner;
thence South course parallel with West side of Hancock Street Fifty (50) feet to
north side of Mills Street; thence Easterly course along North side of Mills
Street to place of beginning.
Parcel 7 being the same property acquired by Louisiana Public Utilities Co. Inc., from Franklinton Light & Power Co. Inc. by Act passed before Magee W. Ott, Notary Public, for the Parish of Washington, dated December 12, 1925, and registered in the conveyance records of Washington Parish, Book 46, folio 142.
There is located on said Parcel 7 above described an electric plant.
Parcel 8. A certain tract of land within the corporate limits of the Town of DeRidder, Parish of Beauregard, consisting of the following: Beginning at a stake in the South line of Section Thirty-three (33), Township Two (2) South, Range Nine (9) West of the Louisiana Meridian at a point Two Hundred Eighteen and five-tenths (218.5) feet West of the Southeast corner of said section; thence West along the South line thereof Two
Hundred Ninety-five and One-tenth (295.1) feet to the point of intersection of said section line with the East boundary line of the right-of-way of the Kansas City Shreveport and Gulf Ry. Co. stake at intersection; thence Northerly along said right-of-way line and parallel with and Fifty (50) feet from the center line of the main track of said railway a distance of Two Hundred Ninety-five and one-tenth (295.1) feet to a stake in the said line for corner; thence East Two Hundred Ninety-five and one-tenth (295.1) feet to stake for corner; thence South Three Degrees Fifteen Minutes (3(degree) 15') West Two Hundred Ninety-five and one tenth (295.1) feet to the beginning and containing Two (2) acres more or less, var. Six Degrees Thirty Minutes (6(degree) 30') East.
Parcel 8 being the same property acquired by the Louisiana Public Utilities Co. Inc. from DeRidder Light & Power Plant by act before Ped C. Kay, Notary Public for the parish of Beauregard dated December 15, 1925, and registered in the conveyance records of Beauregard Parish, in Book 33, under entry No. 24668.
There is located on said Parcel 8 above described an electric sub-station.
Parcel 9. A certain tract of land within the corporate limits of
Leesville, Parish of Vernon, beginning Sixty-six (66) feet North of the
Northwest corner of Block Twenty-three (23) of the new survey of the Town of
Leesville, said point being Three Hundred Thirty-five and one-tenth (335.1) feet
East of the Kansas City Southern Railway Company's right-of-way along the North
line of Mechanic Street of said town and thence running North Six Hundred Nine
(609) feet to a point Twenty-five (25) feet South of spur track connecting the
Kansas City Southern Railway and the Leesville East and West railroad; thence in
a southeasterly direction along the right-of-way of said spur track a distance
of Nine Hundred Fifty and Six-tenths (950.6) feet: thence South One Hundred
Seventy and Five-tenths (170.5) feet; thence West Nine Hundred Thirteen and
Nine-tenths (913.9) feet to the point of beginning, the said tract being in the
Southwest Quarter (SW 1/4) of the Southeast Quarter (SE 1/4) of Section Fourteen
(14), Township Two (2) North, Range Nine (9) West, and containing 8.61 acres
more or less.
Parcel 9 being part of the same property acquired by Louisiana Public Utilities Co. Inc., from Samuel R. Morgan by Act before W. W. Thompson, Notary Public of the Parish of Vernon,
dated December 15, 1925, and registered in the conveyance records of Vernon Parish in Book 72, folio 481.
There is located on Parcel 9 above described an ice plant, water wells, pump, reservoir, and an electric substation.
Parcel 10. The West One-Half (W1/2) of a four (4) acre lot designated as the four-acre lot on the Crosby Subdivision as per map of the same as recorded in Book 3, page 137 of conveyance. records, De Soto Parish, less the right-of-way of the Kansas City Southern Railroad Company in the Town of Mansfield.
Parcel 10 being part of the property acquired by Louisiana Public Utilities Co. Inc. from Mansfield Light & Power Company by act before Inie Adams, Notary Public for the parish of De Soto, registered in the conveyance records of De Soto Parish on the 22nd day of August, 1927, under entry #59436.
There is located on said Parcel 10 above described a gas regulator station and warehouse.
Parcel 11. A certain parcel of real estate in the Town of Franklinton,
Parish of Washington described as: A parcel of land within the corporate limits
of the Town of Franklinton and being in Jesse Day Headright No. 53 Township Two
(2) South, Range Ten (10) East, St. Helena Meridian, described as follows,
to-wit: Commencing at the intersection of the East margin of Lee Street and the
North margin of Carter Street and running South Seven and One-half Degrees (7
1/2(degree)) East along the East margin of Lee Street extended a distance of
Forty (40) feet to a stop, the point of beginning. From said point of beginning
running South Seven and one-half Degrees (7 1/2(degree)) East along the East
margin of Lee Street extended One Hundred (100) feet to a corner; thence at
right angles to the left or North Eighty-two and One-half Degrees (82
1/2(degree)) East Fifty (50) feet to a corner; thence at right angles to the
left or North Seven and One-half Degrees (7 1/2(degree)) West One Hundred (100)
feet to a corner; thence at right angles to the left or South Eighty-two and
One-half (82 1/2(degree)) Degrees West Fifty (50) feet to the place of
beginning, it being understood that the North and South lines of said land shall
be parallel with Carter Street and the East and West lines shall be parallel
with the extension of Lee Street.
Parcel 11 being the same property described in the Deed from Delos R. Johnston to Louisiana Public Utilities Co., Inc. dated March 7, 1931, recorded in Book 58 of conveyances, page 3.
There is located on said parcel 11 aforesaid a sub-station.
Parcel 12. A parcel of ground in the Town of Zwolle, Sabine Parish, described as a part of Lot One (1) in Block Five (5) in the Town of Zwolle as per the recorded plan thereof described as: Beginning One Hundred Ten (110) feet East of the Northwest corner of the above described lot; running thence East Thirty (30) feet; thence South Twenty-six (26) feet; thence West Thirty (30) feet; thence North Twenty-six (26) feet to the place of beginning.
Parcel 12 being the same property conveyed in the Deed from M. L. Corley to Louisiana Public Utilities Co. Inc., dated February 12, 1930, recorded in Book 49 of Conveyances, folio 397.
There is located on parcel 12 above described a sub-station.
Parcel 13. A parcel of real estate in the Village of Oberlin, Parish of Allen, described as: Beginning on the North line of Seventh Avenue in said Village of Oberlin, being also the South line of the Northwest Quarter (NW1/4) of the Northeast Quarter (NE1/4) of Section Fifteen (15), Township Five (5) South, Range (4) West of the Louisiana Meridian at a point due North of the West line of Eighth Street in said Village of Oberlin; thence North on an extension of said West line of Eighth Street a distance of Forty (40) feet; thence West Thirty (30) feet; thence South Forty (40) feet to the South line of the Northwest Quarter (NW1/4) of the Northeast Quarter (NE1/4) of said Section Fifteen (15) ; thence East along said line thirty (30) feet to the place of beginning. Being the same property as that described in the Deed from Jonathan T. Funchess to Louisiana Public Utilities Co. Inc. dated September 27, 1927, by act recorded in Book 25, at page 310 of the recorder's office of parish of Allen, Louisiana.
There is located on said Parcel 13 above described a substation.
Parcel 14. The following described property in the Town of Zwolle, Sabine Parish, described as Lot Seven (7) in Block Fifteen (15) of the Arkansas Townsite Addition to the Town of Zwolle.
Being the same property as that described in the Deed from Sabine Lumber Company to Louisiana Public Utilities Co. Inc. dated March 24, 1934, by act recorded under entry No. 66340 of the recorder's office of the parish of Sabine, Louisiana.
There is located on said Parcel 14 above described an office building.
Parcel 15. A parcel of land in the Town of Pleasant Hill, Sabine Parish, described as a parcel in Section Twenty-nine (29), Township Ten (10) North, Range Eleven (11) west, beginning at the East corner of Main Street of the T. C. Armstrong property and running North Fifty-five degrees (55(degree)) East One Hundred Forty feet (141'); thence South thirty-five Degrees (35(degree)) East to the property of Dr. R. L. Armstrong; thence South Fifty-five degrees (55(degree)) West to the Texas & Pacific Railway Company; thence North Thirty-five Degrees (35(degree)) West to the Quarter section line between the South-east Quarter (SE1/4) of the Southeast Quarter (SE1/4) and the South-west Quarter (SW1/4) of the South-east Quarter (SE1/4) of said Section Twenty-nine (29); thence North along said Quarter section line to the North line of East Main Street; thence North Thirty-five Degrees (35(degree)) West along the North line of East Main Street to the place of beginning, said property being bounded on the North by the property now or formerly owned by T. C. Armstrong, on the East by the property now or formerly owned by O. L. Sanders, on the South by the property now or formerly owned by Dr. R. L. Armstrong and on the West by the Texas & Pacific Railway Co. right-of-way and Main Street.
Being part of the property conveyed in the deed from Crystal Ice and Bottle Co. Ltd. to Louisiana Public Utilities Co., Inc. dated March 22, 1927, recorded in the conveyance records of Sabine Parish in Book 43, folio 132.
There is located on said Parcel 15 above described a substation.
Parcel 16. The following described property in the Town of Lafayette, Parish of Lafayette, described as a part of the property formerly belonging to C. Arthur Voorhies North of and adjoining the Voorhies Addition to said City and is situated within the following metes and bounds: Beginning at a point One Hundred Fifty (150) feet South Forty-eight Degrees (48(degree)) East of the Northeast corner of the intersection of La Mar and Stewart Streets, which corner of La Mar and Stewart Streets is Fifty one and Two-tenths (51.2) feet South Forty-eight Degrees (48(degree)) East of the outer edge of the cement sidewalk on the West side
of La Mar Street and Fifty-five and Four-tenths (55.4) feet South Forty-eight Degrees (48(degree)) East of the inner edge of the sidewalk and from said point of beginning running North Forty two degrees (42(degree)) East Twenty (20) feet; thence South Forty eight Degrees (48(degree)) East Thirty (30) feet; thence South Forty two Degrees (42(degree)) West Twenty (20) feet; thence North Forty eight degrees (48(degree)) West a distance of Thirty (30) feet, bounded, North, East and West by the property now or formerly of C. Arthur Voorhies and South by Stewart Street.
Being the same property described in the deed from C. Arthur Voorhies to Louisiana Public Utilities Co., Inc. dated October 28, 1931, recorded in Book D- 10, folio 396.
There is located on said Parcel 16 above described a regulator system.
Parcel 17. That certain parcel of ground, situated within the corporate limits of the City of Lafayette, Parish of Lafayette, State of Louisiana, being part of the parcel of ground acquired by the vendor by Act No. 94497 recorded in Book L- 9, page 76 of the recorder's office of the pariah of Lafayette, having a front of one hundred feet (100') on the street dedicated to public use by the Texas Company by act duly recorded, by a depth in parallel lines of sixty feet (60'), the southern line of the parcel of ground described herein being parallel with the southern line of the property of L. Broussard or assigns and Frank Armand, or assigns, situated north of the property described herein; the northeastern corner of the parcel of ground described herein being one hundred ninety two feet (192') south fifty degrees (50(degree)) forty-five minutes (45') east of the southwest corner of the intersection of said street dedicated by the Texas Company, as aforesaid, and Lovers' Lane. This parcel of ground is bounded north by property of L. Broussard, or assigns, and Frank Armand, or assigns, south and west by property of vendor, and east by said dedicated street.
Being same property acquired by Louisiana Public Utilities Co., Inc. from Lafayette Compress and Warehouse Company, Inc. under an Act of Sale dated October 24, 1931, recorded in Conveyance Book No. D 10, page 405, Entry No. 101423.
There is located on Parcel 17 a gas metering station.
Parcel 18. A parcel of land in the Town of Leesville, Vernon Parish, described as: Commencing at the Northwest corner of Block Forty-six (46) of the West Side Addition to the Town of Leesville and running due West Three Hundred Twenty (320) feet; thence North One Hundred Seventy-five (175) feet; thence East Three Hundred Fifty (350) feet to the intersection of the West line of Block Fifty-one (51) of said West Side Addition; thence South along the west line of said West Side Addition One Hundred Seventy-five (175) feet to the place of beginning, said land being situated in the Southwest Quarter (SW1/4) of the Northwest Quarter (NW1/4) of Section Twenty-three (23), Township Two (2) North, Range Nine (9) West.
Being the same property acquired from P. L. Ferguson by Louisiana Public Utilities Co. Inc. by deed dated April 9, 1930, recorded in Book 89 of Conveyances, folio 187. There is located on said Parcel 18 above described a water standpipe.
Parcel 19. Real estate in the Town of Mansfield, Parish of De Soto,
described as follows: Beginning Two Hundred Twenty-two and Two-tenths (222.2)
feet North from the Southeast corner of Block Thirty-five (35) of the Town of
Mansfield; thence West One Hundred Ninety-eight (198) feet to the place of be-
ginning; thence North Sixty-six (66) feet; thence West One Hundred Ninety-eight
(198) feet; thence South Fifty-five and Nine-tenths (55.9) feet; thence North
Eighty-eight degrees Three minutes (881 31); East One Hundred Fifty-seven and
Five-tenths (157.5) feet; thence South Fifteen (15) feet; thence East Forty and
Five-tenths (40.5) feet to the place of beginning.
Being the same property as that acquired by Louisiana Public Utilities Co. Inc. from the DeSoto Corporation by Act passed before Helen B. Bennett, Notary Public, Parish of De Soto, dated October 7, 1940, and registered in the conveyance records of De Soto Parish in Book 134, folio 492.
There is located on said Parcel 19 above described a cooling tower and two substations.
Parcel 20. Property in the Town of Mansfield, Parish of De Soto, described as follows: Block Thirty-six (36) of the Town of Mansfield, being a lot situated at the corner of Edward and
Water Streets measuring One Hundred Ninety-eight (198) feet by One Hundred Thirty-two (132) feet.
Being the same property as that acquired by Louisiana Public Utilities Co. Inc. from Mrs. Mary Sherman Petty et al by Act before S. E. Colvin, Notary Public, for the parish of De Soto, dated August 17, 1927, recorded in the conveyance records of De Soto Parish on August 18, 1927 under entry No. 59407.
There is located on said Parcel 20 above described an electric plant.
Parcel 21. A certain tract of land containing 0.17 of an acre, more or less, within the corporate limits of the City of Oakdale, Parish of Allen, described as follows: Beginning at a point 1073 feet east along the center line of Section 10, Township 3 South Range 3 West, and 208.7 feet north of southwest corner of SW/4 NW/4, Section 10, Township 3 South, Range 3 West, thence cast for a distance of 110 feet to the west right of way line of U. S. Highway No. 165, thence southwesterly along the west right of way line of said highway for a distance of 103.6 feet, thence northwesterly at right angles to the west right of way line of U. S. Highway No. 165 for a distance of 75 feet, thence north for a distance of 65 feet to point of beginning, all of the above being located in the SW/4 NW/4, Section 10, Township 3, South, Range 3 West, of the Louisiana Meridian.
There is located on Parcel 21 above described an oil circuit breaker.
Parcel 22. A certain lot of ground situated in the town of Kinder,
Parish of Allen, Louisiana, in that portion thereof known as "Phillips
Addition," and according to the plat of dedication of said addition on file in
the office of the recorders of Allen Parish and Calcasieu Parish, Louisiana, is
known and designated as lot six of block "D" of said addition, which lot fronts
on Eleventh Street, being the same property acquired by Louisiana Public
Utilities Co., Inc.
from W. O. Compton under date of July 21, 1945.
There is located on Parcel 22 above described an electric substation.
Parcel 23. The following described property in the City of Mansfield, Parish of De Soto, described as:
(a) The South Twelve (12) feet by Sixty-nine and ninety-eight hundredths (69.98) feet of Lots Seventeen (17), Eighteen
(18) and Nineteen (19) in Block Fifteen (15) in Crosby Subdivision, Town of Mansfield.
(b) Beginning on the North side of Welsh Street where said street intersects the section line between Sections Eight (8) and Nine (9) in Township Twelve (12) North of Range Thirteen (13) West and running West along the said street Fifty (50) feet; thence North between parallel lines to the stream of Bayou Na Bonne Chesse, the said lot being bounded on the South by the continuation of Welsh Street of the Town of Mansfield and on the East by the section line dividing Sections Eight (8) and Nine (9) in said Township and Range, and on the North by the Bayou Na Bonne Cheese and containing a width of Fifty (50) feet.
(c) Commencing at the intersection of Crosby Street and Polk Street on the South side of Polk Street and on the East side of Crosby Street and running thence East along Polk Street Two Hundred Ten (210) feet for a place of beginning; running thence West Twenty (20) feet; thence South Twenty (20 feet; thence East Twenty (20) feet; thence North Twenty (20) feet to the place of beginning.
Being the same property as that described in the Deed from Mansfield Gas Co. to Louisiana Public Utilities Co., Inc. dated May 19, 1926, recorded in Book 75 of Conveyances, folio 459. There is located on Parcel 23 above described a gas regulator station.
Parcel 24. That certain tract or parcel of land lying and being
situated in the Village of Cotton Valley, Webster Parish, Louisiana, described
as follows, to-wit: Beginning at an iron stake at the Northeast corner of the S.
G. Roby Hotel lot, running thence North twelve (12) degrees, forty-five (45)
minutes West, along the West line of the L. & A. Railway right-of-way, two
hundred ten (210) feet, thence West three hundred ninety-seven (397) feet,
thence South twelve (12) degrees, forty-five (45) minutes East two hundred five
(205) feet, thence East four hundred forty-three (443) feet to place of
beginning; and being in the Southwest Quarter (SW1/4) of the Southeast Quarter
(SE1/4) and the Southeast Quarter (SE1/4) of the Southwest Quarter (SW1/4) of
Section Eight (8), Township Twenty-one (21) North, Range Ten (10) West;
Being the same property acquired by Gulf Public Service Company from C.
A. Tooke et al, under two acts of sale of date
January 13th 1926, of record in Conveyance Book 70, pages 399 and 400, Reg. No. 21531 and 21532, of date January 27th, 1926, Clerk's. Office, Webster Parish, Louisiana.
There is located on Parcel 24 above described a water works plant and office building.
Parcel 25. Lots One (1), Two (2) and Three (3), of Block Nine (9), of Central Park Addition to the Town of Glenmora, Rapides Parish, La.
Being the same property acquired by Gulf Public Service Company from Glenmora Power Co. Inc., under an act of sale of date December 8th, 1925, of record in Book 137 of Conveyances, Page 173, Ent. No. 107,893, of date December 18th, 1925.
Parcel 25A. Lots One (1), Two (2) and Three (3), of Block Ten (10), of Central Park Addition to the Town of Glenmora, Rapides Parish, La.
Being the same property acquired by Gulf Public Service Company from Dufer J. Milner, under an act of sale of date December 18th, 1926, and of record in Book 144 of Conveyances, Page 502, Ent. No. 119,254, of date January 28th, 1927, Clerk's Office, Rapides Parish, Louisiana.
There is located on Parcels 25 and 25A above described, an electric plant.
Parcel 26. A certain lot of ground situated in the Village of Campti, Natchitoches Parish, La., containing one-half (1/2) an acre, and being bounded North by Mrs. Saylor, South by property of Gourdon, East by property of Parker and West by a Street, with a line running East and West, splitting the well and cistern as the southern boundary line of said property; being the same property acquired by Gulf Public Service Company from G. E. Atkins, under an Act of sale of date July 1st, 1927, of record in Book 159 of Conveyances, Page 438, of date July 1st, 1927, Natchitoches Parish, Louisiana.
There is located on Parcel 26 above described an electric plant.
Parcel 27. That certain tract or parcel of land situated in the Town of Coushatta, Red River Parish, Louisiana, described as follows:
Beginning at the intersection point of the northerly boundary line of John C. Perrault Grant and the East boundary line of the right of way of the Louisiana Railway & Navigation Company, thence run North 80 degrees East along the line of
said Perrault Grant One hundred and Six and 1/10 feet to corner marked by an iron pipe, thence run Southeasterly parallel to the main line of said Railroad Two Hundred and Twelve (212) feet, thence southwesterly perpendicular to the main line of said Railroad One Hundred feet to right of way line of said Railroad, thence northwesterly along said right of way line to point of beginning, being a portion of the John C. Perrault Grant, See. 37, in Township 12 N. Range Ten W.;
Being the lot acquired by Gulf Public Service Company from C. A. Tooke et al (together with other property), under act of sale of date June 30th, 1927, and of record in Conveyance Book 45, Page 167, of date July 1st, 1927, Clerk's Office, Red River Parish, La.
There is located on Parcel 27 above described an electric plant.
Parcel 28. A triangular shaped tract of land containing 1.68 acres, situated in the Northeast quarter (NE1/4) of Section nineteen (19), Township Twelve (12) North, Range ten (10) West, Red River Parish, Louisiana, and being bounded upon the North by property of J. A. Johnson; upon the East and South by the Mansfield Highway and upon the West by property of C. P. Steward; the lines thereof as run out by survey being as follows:
From the intersection of sections Seventeen (17), Eighteen (18),
Nineteen (19), and Twenty (20), in Township Twelve (12) North, Range Ten (10)
West of Red River Parish, Run West along the North line of Section Nineteen (19)
a distance of One Thousand and Seven Feet (1007') to an Iron Pipe, which marks
the point of beginning; thence turn an interior angle of Fifty-six (56) Degrees
and Twenty (20) Minutes and run in a Southwesterly direction along the Mansfield
Road a distance of Five Hundred Sixty-five and Five Tenths (565.5') Feet to an
Iron Pipe; thence turn an interior angle of thirty-three (33) Degrees and Forty
(40) minutes and run North a distance of Four Hundred and Sixty-nine (469') feet
to an Iron Pipe; thence turn an interior angle of Ninety (90) Degrees and No (0)
Minutes and run East a distance of Three Hundred Thirteen (313') Feet to the
point of beginning.
Being property purchased by Gulf Public Service Company from C. W. Smith, under act of sale executed before
Henry W. Bethard, Jr., Notary Public, of date October 10th 1930, of record in Book 49 of Conveyances, Page 187, Ent. No. 24,127, of date October 24th, 1930, Clerk's Office, Red River Parish, La.
There is located on Parcel 28 above described a gas booster station.
Parcel 29. That certain lot or parcel of ground, lying and being situated in the City of Natchitoches, Natchitoches Parish, Louisiana, having a front of 55' 5" on the North side of Lafayette St. of said City, and running back 96' between parallel lines, being the same parcel of ground acquired by the Natchitoches Gas Company, Inc., from James Dey, on February 18th, 1926, as per deed recorded in Conveyance Book No. 156, Page 53, Ent. No. 56,037, of the Records of Natchitoches Parish, Louisiana.
There is located on Parcel 29 above described a gas odorizing and metering station.
Parcel 30. Those three (3) lots or tracts of land, lying and being
situated within the corporate limits of the Town of DeQuincy, Calcasieu Parish,
State of Louisiana, and known and designated as Lots One (1), Two (2) and Three
(3) of Block Eleven (11), of the original Town site of DeQuincy, Louisiana;
Being the same property acquired by Gulf Public Service Company from the Town of DeQuincy, under authentic act of sale dated January 16th, 1926, of record in Book 217 of Conveyances, Page 128, Ent. No. 96,833, of date January 19th, 1926, Clerk's Office, Calcasieu Parish, Louisiana.
There is located on Parcel 30 above described an electric and water works plant.
Parcel 31. That certain tract of land lying and being situated in what is commonly known as the Fuseher-Lewis Addition to the Town of Eunice, St. Landry Parish, State of Louisiana, in the SW1/4 of Section 30, T-6-S, R-1 East, being the West Half of Block No. One Hundred (100), measuring one hundred sixty five (165) feet on Laurel Avenue by a depth parallel with East Street of Three hundred (300) feet, bounded North by Vine Avenue, South by Laurel Avenue, East by a Public Alley, and West by East Street;
Being the same property acquired by Gulf Public Service Company from the Town of Eunice, under an authentic act of sale dated February 13, 1926, of record in Book M-5 of Conveyances, Page 429, Ent. No. 104,162, of date February 15, 1926, Clerk's Office, St. Landry Parish, Louisiana.
There is located on Parcel 31 above described an electric and water works plant.
Parcel 32. A certain lot of ground, situated in the Town of Washington,
St. Landry Parish, Louisiana, lying in Section 27, T.5 South, Range 4 East,
bounded North by Water Street, South by Railroad switch, East by Breaux and
Maubolis, formerly Cotton Oil Company, and West by Morgan's Louisiana & Texas R.
R. & S. S. Co.; said lot having a front of one hundred (100') feet on Water St.;
being the same property acquired by the Town of Washington from Mrs. Christina
Bidstrup, widow of Herman L. Bidstrup, by an act of sale executed before J. W.
Bailey, Jr., Notary Public, and of record in Conveyance Book "A" No. 4, Pages
587, 588, of date February 2nd, 1903, Clerk's Office, St. Landry Parish,
Louisiana.
There is located on Parcel 32 above described an electric and water works plant.
Parcel 33. That certain lot or tract of land lying and being situated in the Town of Washington, St. Landry Parish, Louisiana, and having a front of fifteen (15') feet on the, Northeast side of Hill Street of said Town and running back a depth of Thirty-eight (38') feet between parallel lines, at which point the said tract widens out to a width of forty-two (42') feet and runs back from said point a depth of Forty-two (42') feet between parallel lines; being the tract upon which there is now situated the water tank or reservoir of the Town of Washington, Louisiana;
Being the same property acquired by the Gulf Public Service Company from the Town of Washington, Louisiana, under an act of sale of date March 16th, 1927, of record in Book P-5 of Conveyances, Page 70, Ent. No. 109,594, of date April 6th, 1927.
There is located on Parcel 33 above described a water reservoir.
Parcel 34. That certain block or parcel of ground situated in the South Crowley Addition to the City of Crowley, Parish of Acadia, State of Louisiana, and more fully described as being all of Block six (6) of said addition, and being the property acquired by the City of Crowley, from the Liquidators of the Crowley State Bank, by act of sale recorded in Conveyance Book 0-3, Page 51, Ent. No. 60437, of date June 1st, 1922.
There is located on Parcel 34 above described an electric and water works plant.
Parcel 35. That certain lot or parcel of ground situated in Block 91 of the City of Crowley, Parish of Acadia, State of Louisiana, and having a front of 5' x 43'6" on the North side of West Hutchinson Avenue of said Town, by a depth of 37'6" and bounded on the North by Lot No. 3 and on the East by Lot No. 2 of said Block 91, on the South by West Hutchinson Ave., and on the West by the remaining portion of Lot One of Block 91 owned by the City of Crowley; being a part of Lot 1 of Block 91 of the City of Crowley, which was acquired by the City of Crowley from Wm. W. Duson by an act of sale of record in Book K of Conveyances, Page 290, Ent. No. 6580, of date January 20th, 1894, Clerk's office, Acadia Parish, Louisiana.
The above described property being acquired by Gulf Public Service Company from the City of Crowley, under an act of sale of date July 6th, 1927, of record in Book F-4 of Conveyances, Folio 111 et seq., Registry No. 84372, of date July 6th, 1927, Clerk's Office, Acadia Parish, Louisiana.
There is located on Parcel 35 above described a water reservoir.
Parcel 36. A tract of land lying and being situated in the City of Crowley, Parish of Acadia, State of Louisiana, and being bounded upon the North and East by property of W. E. Hockaday, on the South by property of Freeland Bros., and on the West by the State Highway known as the Old Spanish Trail, which was acquired from W. E. Hockaday for the purpose of and is being used as a sub-station site by the Gulf Public Service Company.
Being property acquired by Gulf Public Service Company from W. E. Hockaday by act of purchase dated October 28, 1927 recorded in conveyance book B-4 at page 455 under entry number 85271 of the records of Acadia Parish, Louisiana.
There is located on Parcel 36 above described an electric substation.
Parcel 37. Those three certain tracts or lots of land, which adjoin each other, the whole forming an irregular or "L" shaped tract situated within the corporate limits of the Town of Breaux Bridge, St. Martin Parish, La. (acquired by Gulf Public Service Company from Louisiana Public Service Co., Inc., under act of sale of date December 8th, 1925, of record in Book 100 of Conveyances, page 546, Ent. No. 46,475, of date December 18th, 1925, Clerk's Office, St. Martin Parish, Louisiana); and which said three lots are bounded, as a whole, as follows: On the north by property of Breaux Bridge Bank & Trust Company, in part, property of Hypolite Rivoire, in part, and by Bridge Street in part (having a front of approximately one hundred and fifty-six (156) feet on the South side of Bridge Street), on the east by the Bayou Teche, on the south by property of Daniel Boudier and on the West by Washington St. in part, and in part by property of H. Rivoire; and which said three lots were acquired by the Louisiana Public Service Company, Inc., from Collins Conrad and A. J. Dauterive under an act of sale of date August 31st, 1925, of record in Book 100 of Conveyances, page 169, Ent. No. 46251, of date August 31, 1925, Clerk's Office, St. Martin Parish, Louisiana.
LESS AND EXCEPT the following described property to-wit:
A certain lot or parcel of ground situated in the Town of Breaux Bridge, St. Martin Parish, Louisiana, and being more particularly described as follows:
Beginning at an iron pipe at curb of concrete sidewalk on Washington Street and run north 28 deg. 00' E a distance of 89 feet to an iron pipe; then run south 21 deg. 45' east a distance of 35 feet to the property of J. 0. Bourdier; thence run south 27 deg. and 45' west a distance of 89 feet to the curb of concrete sidewalk on Washington Street; thence run north 21 deg. and 45' west a distance of 36 feet along the curb of concrete sidewalk on Washington Street to the point of beginning.
The said excluded lot being the lot sold to Congregation of St. Francis of Assisi, by act dated April 6, 1945, recorded in
Conveyance Book 77, at Folio 428, under Entry No. 45165 of the records of St. Martin Parish, Louisiana.
There is located on Parcel 37 above described an office building.
Parcel 38. A certain lot or tract of land situated within the corporate limits of the Town of Jeanerette, Parish of Iberia, State of Louisiana, containing 0.257 acre, and measuring 112 feet front on the "Avenue", having a depth, between parallel lines of 100 feet, bounded on the North by property of Beaullieu on the South by the "Avenue", on the East partly by property of Walter E. Landry and partly by property of Milton Landry, and on the West by property of Beaullieu. Being a portion of that certain tract of land situated in the Town of Jeanerette, Louisiana, containing and measuring ten acres in superficial area and bounded as follows: On the North by M. L. & T. R. R., on the South by the "Avenue", on the East by property of Landry, Morvant and others, and on the West by property of Frank Beaullieu, Sr. which was acquired by Frank Beaullieu, Sr., from the Succession of Narcisse Druilhet, Sr., and recorded in Conveyance Book 95, at folio 69 of the records of Iberia Parish, Louisiana.
Being property acquired by Gulf Public Service Company from Celia Wattigny, widow of Frank Beaullieu and others, by act of purchase dated August 29th, 1941, recorded in Conveyance Book 148, at folio 305, under Entry No. 60511 of the records of Iberia Parish, Louisiana.
There is located on Parcel 38 above described an electric switching and substation.
Parcel 39. A certain lot of ground situated within the corporate limits of the City of New Iberia, Parish of Iberia, State of Louisiana, on the West side of St. Peter Street, measuring Fifty (50) feet front on said St. Peter Street, by a depth between parallel lines of One Hundred and fifty (150) feet, and bounded on the North or above by property of Austin A. Williams, South or below by that of W. B. Kramer, East or in front by said St. Peter Street, and on the West or rear by property of Viator or assigns.
Being the property acquired from A. P. Moresi by Gulf Public Service Company, under an act of sale of date May 17th.
1926, of record in Book 107 of Conveyances, page 159, Ent. No. 40,904, of date May 28th, 1926, Clerk's Office, Iberia Parish, La.
There is located on Parcel 39 above described a meter and transformer repair plant.
Parcel 40. A certain lot or parcel of ground, situated within the corporate limits of the City of New Iberia, Iberia Parish, Louisiana, being a portion of Lot No. 25 of Block 167, and being more particularly described as:
Beginning at a point on the West side of Fulton Street at the southeast corner of the property of Alice Morris, and running in a southwesterly direction along the south property line of Alice Morris, a distance of fifty (50') feet; thence in a northwesterly direction parallel to Fulton Street a distance of sixty-five (65') feet; thence in a southwesterly direction parallel to the south property line of Alice Morris, a distance of one hundred fifty (150') feet to the east side of Main Street; thence in a northwesterly direction along the east side of Main Street to the south property line of the Gulf Public Service Company; thence in a northeasterly direction along the south property line of the Gulf Public Service Company, a distance of two hundred (200') feet to the west side of Fulton Street; thence in a southeasterly direction along the West side of Fulton Street to the point of beginning.
Being the property acquired by Gulf Public Service Company from Alice Morris, formerly the wife of Maryan J. Blair, and now the wife of Alonzo C. Felton; Clara Blair and Maryan J. Blair, Jr., under an act of sale of date May 9th, 1940; recorded in Conveyance Book 139, Page 169, Ent. No. 57787, of date May 27th 1940, Clerk's Office, Iberia Parish, Louisiana.
There is located on Parcel 40 above described a vehicle storage building.
Parcel 41. A certain lot of ground, situated on the East side of Main Street, in the City of New Iberia, Louisiana, measuring fifty (50) feet front on said Main Street by a depth of two hundred (200) feet, to Fulton Street, bounded North by estate of 0. J. Trainor, South by J. Gall or assigns, East by Fulton Street, and West by Main Street.
There is located on Parcel 41 above described a water works plant.
Parcel 42. A certain lot of ground situated within the corporate limits
of the City of New Iberia, Parish of Iberia, State of Louisiana, having a front
on Main Street of sixty-eight (68) feet, with a depth of one hundred and ninety
(190) feet to Fulton Street, and bounded North by property of estate of J. E.
Leitemeyer, deceased (being that above described), South by property of J. Gall,
East by Fulton Street, and West by Main Street.
There is located on Parcel 42 above described a materials warehouse and water reservoir.
Parcel 43. A certain fractional portion of Lots one and two (1 & 2), situated in the City limits of the City of New Iberia, Louisiana, each lot measuring fifty (50) feet front on Fulton Street; Lot No. 1 measuring one hundred and fourteen (114) feet in depth to lot belonging to the Railroad Company, heretofore known as the New Orleans, Opelousas & Great Western Railroad Company on the North side, and Lot No. 2 measuring ninety-eight (98) feet more or less on the line dividing same with Lot No. 1, to said Railroad Company's property, and eighty-four (84) feet more or less, on the East side, and being bounded North by property of Southern Pacific R. R. & S. S. Co., South by Fulton Street, East by N. I. & N. R. R. Co., and West by S. P. R. R. Co. Parcels number 41, 42 and 43 being the same land and property acquired by Gulf Public Service Company from the City of New Iberia, under an act of sale dated May 31st, 1926, of record in Book 107 of Conveyances, Page 166, Ent. No. 40,909, of date June 4th, 1926, Clerk's Office, Iberia Parish, La.
There is located on Parcel 43 above described an electric plant.
Parcel 44. A certain lot or parcel of ground, situated in the Town of Patterson, Parish of St. Mary, State of Louisiana, measuring forty (40') feet front on "No Name" Street and having a depth of fifty (50') feet, between parallel lines, and more particularly described as follows: From a point situated a distance of 22.5' (measured at right angles) from the center line of Main Street (United States Highway No. 90) and on the South boundary line of "No Name" Street run a distance of 233' in a southwesterly direction along the south side of "No Name" Street to the point of beginning; thence at right angles
to "No Name" Street a distance of 50' in a southeasterly direction to a point; thence parallel with "No Name" Street a distance of 40' in a southwesterly direction to a point; thence a distance of 50' in a northwesterly direction to a point on the south side of "No Name" Street; thence a distance of 40' in a northeasterly direction along the south side of "No Name" Street to the point of beginning, as shown on plat annexed to, made part of and paraphed for identification with Ent. No. 70368 of the Conveyance Records of St. Mary Parish, Louisiana.
Being property acquired by Gulf Public Service Company from V. J. Roundtree by Act of purchase dated October 12th, 1943, recorded in Conveyance Book 6-J, at folio 71, under Ent. No. 70368 of the records of St. Mary Parish, Louisiana.
There is located on Parcel 44 above described an electric substation.
Parcel 45. A certain lot or parcel of ground, situated in the Town of
Baldwin, Parish of St. Mary, State of Louisiana, containing and measuring sixty
(60) feet front on Bollard Street or Bollard Road, having a depth of sixty-six
(66) feet, between parallel lines, the said parcel of ground being the North
sixty (60) feet of Lot #4 of Block M of the official map of the Town of Baldwin,
as shown on a plat annexed to, made part of and paraphed for identification with
Ent. No. 66797 of the Conveyance Records of St. Mary Parish, Louisiana.
Being property acquired by Gulf Public Service Company from Walker Development Company and others by Act of purchase dated December 28th, 1940, recorded in Conveyance Book 5-Y at folio 254, under Ent. No. 66797 of the records of St. Mary Parish, Louisiana.
There is located on Parcel 45 above described an electric substation.
Parcel 46. A certain lot or parcel of ground situated in the Town of Mamou, Parish of Evangeline, State of Louisiana, measuring fifty (50) feet front on Fifth Street and having a depth of fifty (50) feet, between parallel lines; said lot or parcel of ground being the West 50 feet of Lot 13 in Block 86 of the Town site of Mamou, Evangeline Parish, Louisiana.
Being property acquired by Gulf Public Service Co., Inc. from Avie Aucoin by act of purchase dated February 26th, 1945,
recorded in Conveyance Book B-72 under Entry No. 87,859 of the records of Evangeline Parish, Louisiana.
There is located on Parcel 46 above described an electric substation.
Parcel 47. That certain tract or parcel of land containing Thirty-five thousandths (.035) of one (1) acre, more or less, situated in the West Half (W1/2) of Section Twenty-seven (27), Township Nine (9) South, Range One (1) East of Louisiana Meridian in Acadia Parish, Louisiana, bounded North and East by lands owned in indivision by George E. Anding and Willie M. Anding; South by dredged drainage ditch and West by public gravel road, which said tract or parcel of land is further described as follows:
Commencing at the point where the West fence line of the Ninety-seven
(97) acre tract of land situated in the West Half (W1/2) of Section Twenty-seven
(27), Township Nine (9) South, Range One (1) East, of Louisiana Meridian in
Acadia Parish, Louisiana, owned by Anding, intersects the North line of the
dredged drainage ditch which runs approximately East and West through said
section; running thence in an Easterly direction along the North line of dredged
ditch a distance of thirty (30) feet; running thence in a Northerly direction
parallel to the West fence line of said Ninety-seven (97) acre tract a distance
of fifty (50) feet; running thence in a Westerly direction parallel to North
line of dredged drainage ditch a distance of thirty (30) feet to fence line;
running thence in a Southerly direction along fence line a distance of fifty
(50) feet to point of beginning.
Being property acquired by Gulf Public Service Co., Inc. from George E. Anding and Willie E. Anding, by act of purchase dated December 27, 1945, recorded in Conveyance Book C-8, at Folio 443, under Entry No. 191656 of the records of Acadia Parish, Louisiana.
There is located on Parcel 47 above described an electric substation.
Parcel 48. That certain tract of land situated in Allen Parish described as beginning at a point on the west side of the right of way of Highway 165, where the west side of said right of way intersects the south line
of S/2 of the NE/4 of the SE/4 of Section 21, Township 5 South, Range, 4 West, Louisiana |
Meridian, and from said point of beginning run west along the south line of the
said S/2 of NE/4 of SE/4, Section 21, Township 5 South, Range 4 West, a distance of 40 feet; thence run north a distance of 30 feet, thence run east on a line parallel with the south line of the above described tract to the highway right of way of Highway 165; thence run in a southwesterly direction along the west line of the right of way of Highway 165 to the point of beginning, and being a part of the same property acquired by Leona Ardoin by deed recorded in Conveyance Book 55, page 450, of the records of Allen Parish, Louisiana, and bearing file No. 68635. |
Being the same property acquired by Gulf Public Service Co., Inc. from Leona Ardoin Reeves and William Reeves, under an act of sale of date July 16, 1948, and of record in Conv. Book 71, of date July 19, 1948, Clerk's Office, Allen Parish, Louisiana.
There is located on Parcel 48 above described an electric substation.
Parcel 49. All that certain portion of ground situated in the Town of Madisonville, St. Tammany Parish, Louisiana, described as follows:
From the United States Geological Survey Bench Mark Number TT26C at St. John and Cedar Streets in the town of Madisonville, above said Parish and State, run north 88 degrees 45 minutes west 1.6 feet, thence south 1 degree 15 minutes west 947.1 feet to an iron post at the intersection of the east right of way line of the Cedar Street extension and the south right of way line of the St. Joseph Street extension, the point of beginning of the property herein conveyed. From said point of beginning run south 88 degrees 45 minutes east 83.0 feet along the south right of way of the St. Joseph Street extension to an iron corner; thence south 1 degree 15 minutes west 123 feet to an iron corner; thence north 88 degrees 45 minutes west 83.0 feet to an iron corner on the east right of way of the Cedar Street extension; thence along said right of way north 1 degree 15 minutes east 123 feet to the point of beginning. All as per process verbal and blue print of survey by Robert A. Berlin, Registered Surveyor.
Being the same property acquired by Gulf Public Service Co., Inc. from Sidney L. Dittmer, under an act of sale of date
September 20, 1947, and of record in Book 180 of conveyances, page 126, of date October 7, 1947, Clerk's Office, St. Tammany Parish, Louisiana.
There is located on Parcel 49 above described an electric substation.
Parcel 50. The following parcel of ground located in the town of Madisonville, Parish of St. Tammany, Louisiana, to-wit:
From the corner common to Section 39 and 43, on the right bank of the Tchefuncte River, thence west 600 feet to a corner on the east side of Main Street in Madisonville, Louisiana, thence along the east side of Main Street south 510 feet 6 inches to a corner on the south side of entrance drive to power plant, to the place of beginning;
Beginning at the above corner thence east 240 feet, thence south 230 feet, thence west 240 feet to a corner on the east side of Main Street, thence along the east side of said street north 230 feet to the place of beginning and containing 1.26 acres and is a part of Section 43, T-7-S, R-10-E, Greensburg District, La.
Being the same property acquired by Gulf Public Service Co., Inc. from Madisonville Power Company, Inc. under an act of sale of date October 28, 1947, and of record in Conveyance Book 181, folio 104.
There is located on Parcel 50 above described an old electric plant not in use.
Parcel 51. A certain lot or parcel of ground, together with all rights, ways, privileges, servitudes and appurtenances thereunto belonging, situated in the Northeast Quarter (NE/4) of Sec. 32, T-6-S, R-2-W, in Estes Northern Addition to the Village of Basile, Parish of Evangeline, State of Louisiana, containing and measuring fifty-two and five-tenths (52.5') feet front on the east side of Louisiana State Highway No. 7, having a width in the rear (or along its eastern line) of fifty (50') feet, and having a depth of fifty (50') feet along its northern line and a depth of sixty-six (66') feet along its southern line, the northern line of the lot conveyed hereunder running along and coinciding with the fence in place on the property of the vendors herein, which fence projects in an easterly direction from Louisiana State Highway No. 7.
Being the same property acquired by Gulf Public Service Co., Inc. from Mrs. Eddie Hester Estes, et al, under an act of sale of date September 2, 1947, and of record in Conv. Book B-89, page 496, under entry No. 102557, of date September 25, 1947, Clerk's Office Evangeline Parish, Louisiana.
There is located on Parcel 51 above described an electric substation.
Parcel 52. A certain lot or parcel of ground, together with all rights, ways, privileges, servitudes and appurtenances thereunto belonging, situated within the corporate limits of the Town of Berwick, Parish of St. Mary, State of Louisiana, located at the intersection of Oregon Street and Sixth Street, having a frontage of two hundred and fifty (250) feet along the south side of Oregon Street and a frontage of two hundred and thirty (230) feet along the west side of Sixth Street (or the continuation thereof), having a depth of one hundred and sixty-one (161) feet along its west line and a depth of eighty-two (82) feet along its south line, being shown and depicted in detail on a plat of survey made by J. C. Thomas, Jr., Surveyor, dated August 6th, 1949, and being the same property acquired by Gulf Public Service Co., Inc. from Elmo Justilian, et al, under an Act of Sale dated August 9, 1949, recorded in Conveyance Book 7-J, under Entry No. 79,461 of the records of St. Mary Parish, Louisiana.
There is located on Parcel 52 above described an electric plant and substation.
Parcel 53. A certain lot of ground, unimproved, together with all rights, ways, privileges, servitudes and appurtenances thereunto belonging, situated within the corporate limits of the City of New Iberia, Parish of Iberia, State of Louisiana, containing and measuring fifty (50) feet front on the north side of Darcey Street, having a depth, between parallel lines, of one hundred and fifty (150) feet, being bounded on the North by property of Perry J. Burke, or railroad right-of-way, on the South by Darcey Street, on the East by Lot A of the plat of survey hereinafter referred to, and on the West by Lot C of said plat (the said Lot C being formerly the property of Perry J. Burke and now the property of Ben R. Falconer). Being Lot B of a plat of survey of the Perry J. Burke Subdivision
dated September 18th, 1948, made by J. R. Kingston, Jr., Civil Engineer, recorded in Miscellaneous Book 8, at Folio 223, under Entry No. 2804 of the records of Iberia Parish, Louisiana, and being the same property acquired by Gulf Public Service Co., Inc. from Perry J. Burke, under an Act of Sale dated August 25, 1949, recorded in Conveyance Book 187, under Entry No. 77551 of the records of Iberia Parish, Louisiana.
There is located on Parcel 53 above described an electric substation.
Parcel 54. A certain lot or parcel of ground together with all rights,
ways, privileges, servitudes and appurtenances thereunto belonging, situated in
the City of Lafayette, Parish of Lafayette, State of Louisiana, measuring twenty
(20) feet front on Argonne Street and having a depth of fifteen (15) feet
between parallel lines, said lot or parcel of ground being the Southwest corner
portion of Lot 6, Blk 2 of the Veazey Addition to the City of Lafayette and
being further identified by plat attached to Entry No. 224437 of the records of
Lafayette Parish.
Being the same property acquired by Gulf Public Service Co., Inc. from John Mathieu under an Act of Sale dated May 6, 1949, recorded in Conveyance Book G-18, Page 400, under Entry No. 224437.
There is located on Parcel 54 above described a gas regulator station.
Parcel 55. The following described property situated in the Town of
DeQuincy, Parish of Calcasieu, State of Louisiana, to-wit: Lots Nine (9) and Ten
(10) of the Town of DeQuincy, Louisiana, as per plat recorded in Conveyance Book
43, at page 272 of the records of Calcasieu Parish, Louisiana. Being the same
property acquired by Gulf Public Service Co., Inc., from James J. Abdalla under
an Act of Sale dated June 28th, 1949 recorded on June 28th, 1949, under Entry
No. 432052 of the records of Calcasieu Parish, Louisiana.
There is located on Parcel 55 above described a water well.
Parcel 56. A certain parcel of ground situated in the Callahan Subdivision of the City of Oakdale, Allen Parish, Louisiana, and being designated as all of Lot Six (6) and the East twenty (20') feet of Lot One (1) of said Addition, the
parcel herein described measuring ninety (90') feet on Oak Street by a depth, between parallel lines, of one hundred fifty-five (155') feet, and being bounded on the North by Jasper & Eastern Railroad right-of-way, South by Lots 2 and 5, East by Oak Street and West by Lot 1, all of said Subdivision.
Being the same property acquired by Gulf Public Service Co., Inc., from James C. Callahan under an Act of Sale dated February 13th, 1950, recorded in Conveyance Book 75, at folio 347, under Entry No. 95747 of the records of Allen Parish, Louisiana.
There is located on Parcel 56 above described an electric substation and warehouse.
Parcel 57. A certain piece, parcel or tract of land being a portion of B. F. Garlington Tract and part of Section 38 and/or Section 32, T 3 N, R 3 E, Avoyelles Parish, Louisiana, fronting 100 feet on the Center Point Marksville State Highway, with an area of .24 acres and is more particularly described as follows, to-wit:
Starting at a point where the western boundary of Section 33, T 3 N, R 3 E, intersects the southwestern boundary of the 60 foot R/W of the Center Point-Marksville Highway No. 57-D run along the southwestern boundary of said Highway North 46 degrees 40 minutes West a distance of 780.5 feet to the point of beginning; thence run along the boundary of said Highway North 46 degrees 40 minutes West a distance of 100 feet; thence run South 29 degrees 35 minutes West a distance of 120.4 feet and to a point on the property line of Truett Ryan; thence run along the property line of Truett Ryan South 60 degrees 22 minutes East a distance of 97.1 feet; thence run North 29 degrees 35 minutes East a distance of 96.7 feet to the point of beginning; all as is more particularly shown by plat of survey made by Irion Lafargue, Registered Surveyor, dated June 20, 1951, blue print of which is attached to deed from Benjamin F. Garlington to Central Louisiana Electric Company, Inc.
Being that property acquired by Central Louisiana Electric Company, Inc. from Benjamin F. Garlington by act of sale dated July 9, 1951, recorded in Conveyance Book A-143, page 426, Entry No. 137397, of the records of Avoyelles Parish, Louisiana.
There is located on Parcel 57 above described an electric substation.
Parcel 58. A certain parcel of land containing approximately 0.209 acres of land in Section 35 T2S R2E Evangeline Parish, Louisiana, and further described as being the strip of land lying between State Highway # 23 on the south, and Bayou Cocodrie on the north, lying to the west of and bounded on the east by the strip of land purchased by Central Louisiana Electric Co., Inc., from H. H. Hazelton on January 30, 1945, and bounded on the west by section line between Section 35 and 34 and property belonging to Lewis.
Being that property acquired by Central Louisiana Electric Company, Inc. from Hugh H. Hazelton by act of sale dated October 16, 1951, recorded in Conveyance Book No. B-114 under Entry No. 133612, records of Evangeline Parish, Louisiana.
There is located on Parcel 58 above described a spray header.
Parcel 59. Two certain lots or parcels of ground, unimproved, together with all rights, ways and privileges thereto belonging or in any way appertaining, being, lying and situated in the City of Pineville, Rapides Parish, Louisiana, and being more particularly described as Lots Eight (8) and Nine (9) of the Marrus Subdivision of Pineville, Louisiana, said two lots having a combined frontage of 98 feet on Webster Street and extending back therefrom to the rear or West line of said Marrus Subdivision, bounded on the North by property now or formerly belonging to the Stephen Barrett Realty Company, on the South by Lot Seven (7) of said Marrus Subdivision, and in front by Webster Street; all as is more particularly shown by the official plat of said Marrus Subdivision recorded in Plat Book 1, page 224 of the records of Rapides Parish, Louisiana; being that property acquired by Central Louisiana Electric Company, Inc. from Mrs. Ruth B. Marrus, et al, by acts of sale dated June 7, 1950, and June 12, 1950, recorded in Conveyance Book 387, pages 627 and 629, records of Rapides Parish, Louisiana, under Filing Nos. 343529 and 343530.
Parcel 60. A certain piece, parcel or lot of ground, together with all buildings and improvements thereon, rights, ways, privileges and appurtenances thereto belonging, lying and being situated in the City of Pineville, Rapides Parish, Louisiana, and being more particularly described as follows: Begin at a point on the West side of Main Street in said City of Pineville, running
from the traffic bridge on Red River, said point being located at the intersection of the property line between the properties now or formerly belonging to Moore and Frank R. Hayden on Main Street, thence run a distance of 80 feet on Main Street away from Red River to the point of beginning of the property herein described; thence continue along Main Street a distance of 64 feet to the property line of Stephen Barrett; from the line thus established run back between parallel lines (parallel with the property line of Stephen Barrett) a distance of 140 feet; said property having a width throughout of 64 feet; being bounded on one side by the property of Stephen Barrett and on the other side and in the rear by property of Frank R. Hayden, and in front by Main Street; acquired by Louisiana Ice & Electric Company, Inc. from Frank C. Landers, Trustee in Bankruptcy, and Louisiana Ice & Utilities, Inc. by deed dated January 2, 1935, recorded in Conveyance Book 199, page 273 Filing No. 193663, records of Rapides Parish, Louisiana.
There is located on Parcel 60 above described an office building.
Parcel 61. A certain tract of land, unimproved, together with all rights, ways, privileges, servitudes and appurtenances thereunto belonging, situated in the Tenth Ward of the Parish of St. Mary, State of Louisiana, containing and measuring twenty-eight and ninety-two one-hundredths (28.92) acres in superficial area, being bounded on the North partly by the right-of-way of the Southern Pacific Railroad (Morgan's Louisiana & Texas Railroad & Steamship Company), partly by property of Henry Brown, his heirs or assigns, and partly by property of the Estate of W. P. Foster, on the South by remainder of the property of the Estate of Joseph Heinen, on the East partly by property of the Estate of W. P. Foster and partly by the Charenton Drainage & Navigation Canal, and on the West partly by remainder of property of the Estate of Joseph Heinen and partly by property of Henry Brown, his heirs or assigns. Being a portion of the lands originally acquired by Joseph Heinen, situated in Section 13, Township 14 South, Range 9 East, and being more particularly shown and depicted on a plat of survey made by T. F. Kramer, Civil Engineer & Surveyor, dated June 26th, 1951.
Parcel 62. Another certain strip or parcel of land, unimproved, situated between the above described property and the water line of the Charenton Drainage & Navigation Canal, which strip or parcel of land is bounded on the North or Northwest by the line indicated on Kramer plat by the letters I, J, and K, on the South by mean Gulf level water line of the Charenton Drainage & Navigation Canal, on the East by property of the Estate of W. P. Foster, and on the West by State Route No. 916, all as shown on the plat of survey made by T. F. Kramer, Civil Engineer & Surveyor, dated June 26th, 1951.
This property extends up to the water line of the Charenton Drainage & Navigation Canal, but the strip of land herein described, paralleling the Charenton Drainage & Navigation Canal, is subject to an easement granted to the United States of America in connection with the construction of said Canal.
Parcels 61 and 62 as above described were acquired by Central Louisiana Electric Company, Inc., from Josephine Ronkartz Heinen, et al, under an Act of Sale dated July 31, 1951, recorded in Conveyance Book 7-U, under Entry No. 82,894, of the records of St. Mary Parish, Louisiana.
The properties herein described as having been acquired by Gulf Public Service Company, a corporation organized and existing under the laws of the State of Delaware, were conveyed and transferred unto Gulf Public Service Co., Inc., a corporation organized and existing under the laws of the State of Louisiana, by deed dated November 2, 1944, which deed was filed in the office of the Recorder of Conveyances of each of the Parishes of the State of Louisiana in which any of said properties is situated. The properties herein described as having been acquired by Louisiana Public Utilities Co., Inc. were conveyed and transferred unto the said Gulf Public Service Co., Inc. by joint agreement of merger dated October 24, 1946, under which said Louisiana Public Utilities Co., Inc. was merged with and into Gulf Public Service Co., Inc., which agreement was filed and recorded in the office of the Secretary of State of the State of Louisiana, and copies thereof, certified by said Secretary of State, were filed for record in the office of the Recorder of Mortgages of Iberia Parish, Louisiana and in the office of the Recorder of Mortgages of Lafayette Parish, Louisiana, in which Parishes the registered offices of said Gulf Public Service Co., Inc. and said Louisiana Public Utilities Co., Inc. were located, and in
the Conveyance Records of each Parish in the State of Louisiana in which either Gulf Public Service Co., Inc. or Louisiana Public Utilities, Inc. had immovable property. All of the properties herein described as having been acquired, as aforesaid, by Gulf Public Service Co., Inc. were conveyed and transferred unto Central Louisiana Electric Company, Inc. by a joint agreement of merger dated as of October 11, 1951, under which Gulf Public Service Co., Inc. was merged with and into Central Louisiana Electric Company, Inc., which agreement was filed and recorded in the office of the Secretary of State of the State of Louisiana, and copies thereof, certified by the Secretary of State, were filed for record in the offices of the Recorders of Mortgages of the Parishes of Iberia and Rapides, Louisiana, wherein the registered offices of said Central Louisiana Electric Company, Inc. and Gulf Public Service Co., Inc. are located, and in the offices of the Recorders of Conveyances of all Parishes in the State of Louisiana in which either Central Louisiana Electric Company, Inc. or Gulf Public Service Co., Inc. owned immovable property.
II.
THE FOLLOWING OIL, GAS AND MINERAL LEASE TOGETHER WITH ALL IMPROVEMENTS THEREON, SITUATED IN THE STATE OF LOUISIANA, ACQUIRED BY THE COMPANY FROM GULF PUBLIC SERVICE CO., INC.:
1. An oil, gas and mineral lease dated November 21, 1928 and
recorded in Book 86, at page 397 of the conveyance records of the
Parish of DeSoto, granted by Joe Rambin, S. A. Rambin, J. N. Rambin, C.
A. Rambin, J. A. Rambin, Mary E. DeSoto, born Rambin, wife of S. L.
DeSoto, residents of DeSoto Parish, Louisiana, and D. J. Rambin,
resident of Arkansas, to Louisiana Public Utilities Co., Inc. in so far
as the same affects ten acres around the gas well situated thereon,
which ten acres are described as follows:
SW/4 of SW/4 of SE/4 Section 13, T-12-N, R-12-W.
2. An oil, gas and mineral lease dated December 16, 1915; executed by J. W. Parsons and others to R. P. Brooks, and recorded in Book 39, at page 63 of the conveyance records of DeSoto Parish, Louisiana, and assigned to Louisiana Public Utilities Co., Inc. in so far as the same affects ten aces, with the well situated thereon, which ten acres are described as follows:
Northeast Quarter of Northeast Quarter of Northwest Quarter,
Section 15, T-12-N, R-12-W.
3. An oil, gas and mineral lease granted by Samuel Dreyfuss and others to R. P. Brooks, dated March 30, 1921 and recorded in Book 55, at page 573, of the conveyance records of the parish of DeSoto, Louisiana, and assigned to Louisiana Public Utilities Co., Inc., in so far as the same affects ten acres, with the well situated thereon, which ten acres are described as follows:
Northeast Quarter of Northwest Quarter of Northeast Quarter,
Section 15, T-12-N, R-12- W, but limited to the Nacatosh sand.
4. An oil, gas and mineral lease dated June 20, 1914 and recorded in Book 36, at page 160 granted by Natalie Oil Company to Mansfield Gas Company and assigned to Louisiana Public Utilities Co., Inc., and bearing upon and affecting
Three acres of land in a square in the Northwest corner of
the West Half of the Northeast Quarter of Northeast Quarter of
Section 23, T-12-N, R-12-W, DeSoto Parish, La.
5. An oil, gas and mineral lease granted by Mrs. Bessie Ferguson Taylor, unto the W. T. Coleman Oil and Gas Co., Inc., of date November 12, 1936, as recorded in Book 120, page 119 of the Conveyance Records of De Soto Parish, Louisiana, covering and affecting the following described lands:
The E 1/3 of NE 1/4 of SW 1/4 and the W 1/3 of the NW 1/4 of SE 1/4 of Section 18, T. 12 N., R. 11 W., containing 262/3 acres, more or less, and including the shallow Nacatosh sand gas well thereon, together with all material, supplies and lines belonging to this well and lease.
6. An oil, gas and mineral lease granted by E. F. Ferguson, et al, unto W. T. Coleman (and assigned by W. T. Coleman unto the W. T. Coleman Oil and Gas Co., Inc.) of date May 9, 1935, as recorded in Book 106, page 523 of the Conveyance Records of De Soto Parish, Louisiana, in so far as the same may affect and apply to the following described lands:
The south 2/3 of the SW 1/4 of SW 1/4 of Section 18, T. 12
N., R. 11 W., containing 262/3 acres, more or less, and
including the shallow Nacatosh sand gas well thereon, together with all material, supplies and lines belonging to this well and lease.
7. An oil, gas and mineral lease granted by E. E. Walker unto W. T. Coleman (and assigned by W. T. Coleman to the W. T. Coleman Oil and Gas Co., Inc.) of date March 23, 1935, as recorded in Book 108, page 113 of the Conveyance Records of De Soto Parish, Louisiana, covering and affecting the following described lands:
The SE 1/4 of SW 1/4 of Section 18, T. 12 N., R. 11 W., containing 40 acres, more or less, and including the shallow Nacatosh sand gas well thereon, together with all material, supplies and lines belonging to this well and lease.
8. An oil, gas and mineral lease granted by W. B. Hill, et al, unto W. T. Coleman Oil and Gas Co., Inc. of date January 23, 1935, as recorded in the Conveyance Records of De Soto Parish, Louisiana, in Book 107, page 489, only in so far as the same may affect and apply to the following described lands:
The NW 1/4 of NE 1/4 of Section 19, T. 12 N., R. 11 W., containing 40 acres, more or less, and including the shallow Nacatosh sand gas well thereon, together with all material, supplies and lines belonging to this well and lease.
9. An oil, gas and mineral lease granted by W. M. Pollock, et al, unto W. K. Williams of date August 26, 1940, as recorded in Book 134 at page 370 of the Conveyance Records of De Soto Parish, Louisiana, covering and affecting the following described lands:
E 1/2 of NE 1/4 of Section 19, T. 12 N., R. 11 W., containing 80 acres, more or less, and including the two producing gas wells thereon and sometimes referred to as Scott No. 1 and Scott No. 2.
And with each of said leases all the gas wells and all buildings, constructions and improvements and all gathering lines, meters, regulators and all other equipment placed and erected or to be placed and erected thereon; provided, however, that should any or all of said leases terminate, under any of the terms
thereof, then the leasehold subject hereto shall revert to the lessors, respectively, free and dear of the lien of the Indenture.
III.
FRANCHISES.
All and singular the franchises, grants, immunities, privileges and rights of the Company owned and held by it at the date of the execution hereof or which may hereafter be granted, issued or executed to it, for the construction, maintenance and operation of electric light and power plants and systems, gas distributing systems, and water works systems, as well as all franchises, grants, immunities, privileges and rights of the Company used or useful in operation of the property mortgaged hereunder, including all and singular the franchises, grants, immunities, privileges and rights of the Company granted by the governing authorities of the cities, towns and parishes enumerated in the schedule below and by all other municipalities or political subdivisions, and all renewals, extensions and modifications of said franchises, grants~ immunities, privileges and rights or any of them, including the following (except item 48 below) acquired by the Company from Gulf Public Service Co., Inc.:
A. Those certain franchises granted by the governing bodies of the following named cities, towns and villages in the State of Louisiana, to wit:
1. Electric franchise granted by the City of Abita Springs to Louisiana Public Utilities Co. Inc., by ordinance enacted March 6, 1945, for a term of 25 years.
2. Electric franchise granted by the City of Covington to Louisiana Public Utilities Co., Inc., by ordinance enacted May 7, 1946, for a term of 25 years.
3. Electric franchise granted by the City of DeRidder to Louisiana Public Utilities Co., Inc. by ordinance enacted April 28, 1941, for a term of 25 years.
4. Electric franchise granted by the Town of Franklinton to Louisiana Public Utilities Co., Inc., by ordinance enacted June 20, 1946, for a term of 25 years.
5. Electric franchise granted by the Town of Grand Cane to Gulf Public Service Co., Inc., by ordinance enacted October 3rd, 1949, for a term of 25 years.
6. Electric franchise granted by the Town of Kinder to Louisiana Public Utilities Co., Inc., by ordinance enacted June 4, 1946, for a term of 25 years.
7. Electric franchise granted by the City of Leesville to Louisiana Public Utilities Co., Inc., by ordinance enacted October 2, 1945, for a term of 25 years.
8. Electric franchise granted by the Town of Mandeville to Louisiana Public Utilities Co., Inc., by ordinance enacted June 11, 1946, for a term of 25 years.
9. Electric franchise granted by the Town of Many to Louisiana Public Utilities Co., Inc., by ordinance enacted April 9, 1946, for a term of 25 years.
10. Gas franchise granted by the Town of Mansfield to Louisiana Public Utilities Co., Inc., by ordinance enacted August 28, 1937, for a term of 25 years.
11. Electric franchise granted by the Town of Noble to Gulf Public Service Co., Inc., by ordinance enacted December 13th, 1949, for a term of 25 years.
12. Electric franchise granted by the City of Oakdale to Louisiana Public Utilities Co., Inc., by ordinance enacted March 4, 1942, for a term of 25 years.
13. Electric franchise granted by the Village of Oberlin to Louisiana Public Utilities Co., Inc., by ordinance enacted May 7, 1946, for a term of 25 years.
14. Electric franchise granted by the Village of Pearl River. to Louisiana Public Utilities Co., Inc., by ordinance enacted October 16, 1935, for a term of 25 years.
15. Electric franchise granted by the Town of Slidell to Louisiana Public Utilities Co., Inc., by ordinance enacted January 2, 1945, for a term of 25 years.
16. Electric franchise granted by the Village of South Mansfield to Louisiana Public Utilities Co., Inc., by ordinance enacted December 9, 1941, for a term of 25 years.
17. Gas franchise granted by the Village of South Mansfield to Louisiana Public Utilities Co., Inc., by ordinance enacted November 2, 1937, for a term of 25 years.
18. Water franchise granted by the City of Leesville to Louisiana Public Utilities Co., Inc., by ordinance enacted October 2, 1945, f or a term of 25 years.
19. Electric and water franchise granted by the City of New Iberia to Gulf Public Service Co., Inc., by ordinance dated April 19th, 1949, for a term of 25 years.
20. Gas franchise granted by the City of Natchitoches to Gulf Public Service Co., Inc., by ordinance dated October 11th, 1950, for a term of 25 years.
21. Electric and water franchise granted by the Town of DeQuincy to Gulf Public Service Co., Inc., by ordinance dated July 6th, 1949, for a term of 25 years.
22. Electric franchise granted by the Town of Breaux Bridge to Gulf Public Service Company by ordinance dated December 3, 1929, f or a term of 25 years.
23. Electric franchise granted by the Town of Glenmora to Gulf Public Service Company by ordinance dated February 25, 1944,. for a term of 17 years.
24. Electric franchise granted by the Town of Coushatta to Gulf Public Service Company by ordinance dated November 3, 1922, for a term of 49 years.
25. Gas franchise granted by the Town of Coushatta to Gulf Public Service Company by ordinance dated July 14, 1942, for a term of 25 years.
26. Electric and water franchise granted by the Town of Washington to Gulf Public Service Company by ordinance dated March 16, 1927, for a term of 25 years.
27. Water franchise granted by the Town of Cotton Valley to Gulf Public Service Company by ordinance dated October 5, 1944, f or a term of 25 years.
28. Electric franchise granted by Town of Madisonville, to Madisonville Industries, Inc., by Ordinance enacted October 7, 1930, as amended by Ordinance enacted May 2, 1944, said franchise as amended being for a term expiring October 7, 1968.
29. Electric franchise granted by the Town of Converse to Gulf Public Service Co., Inc., by Ordinance enacted November 12, 1948, for a term of 25 years.
30. Gas franchise granted by the City of Lafayette to Gulf Public Service Co., Inc., by Ordinance enacted October 19, 1948, for a term of 25 years.
31. Electric franchise granted by the Town of Mansfield, to Gulf Public Service Co., Inc. by Ordinance enacted January 27, 1948, for a term of 25 years.
32. Electric franchise granted by the Town of Merryville to Gulf Public Service Co., Inc. by Ordinance enacted February 11, 1947, for a term of 25 years.
33. Electric franchise granted by the Town of Pleasant Hill to Gulf Public Service Co., Inc., by Ordinance enacted March 2, 1948, for a term of 25 years.
34. Electric franchise granted by the Town of Zwolle, to Gulf Public Service Co., Inc. by Ordinance enacted February 4, 1947, for a term of 25 years.
35. Electric franchise granted by the City of Crowley to Gulf Public Service Co., Inc. by Ordinance enacted December 9, 1947, for a term of 25 years.
36. Water franchise granted by the City of Crowley to Gulf Public Service Co., Inc., by Ordinance enacted December 9, 1947, for a term of 25 years.
37. Electric franchise granted by the City of Eunice, to Gulf Public Service Co., Inc., by Ordinance enacted April 6, 1948, for a term of 25 years.
38. Water franchise granted by the City of Eunice, to Gulf Public Service Co., Inc., by Ordinance enacted April 6, 1948, for a term of 25 years.
39. Electric franchise granted by the City of Jeanerette, to Gulf Public Service Co., Inc., by Ordinance enacted January 9, 1947, for a term of 25 years.
40. Electric franchise granted by the Town of Berwick, to Gulf Public Service Co., Inc., by Ordinance enacted May 4, 1948, for a term of 25 years.
41. Electric franchise granted by Town of Patterson, to Gulf Public Service Co., Inc., by Ordinance enacted November 4, 1947, for a term of 25 years.
42. Electric franchise granted by Town of Mamou, to Gulf Public Service Co., Inc., by Ordinance enacted September 2, 1947, for a term of 25 years.
43. Electric franchise granted by the Town of Basile, to Gulf Public Service Co., Inc., by Ordinance dated July 1, 1947, for a term of 25 years.
44. Electric franchise granted by the Village of Campti, to Gulf Public Service Co., Inc., by Ordinance enacted May 24, 1947 for a term of 25 years.
45. Gas franchise granted by the Village of Campti, to Gulf Public Service Co., Inc., by Ordinance enacted May 24, 1947, for a term of 25 years.
46. Electric franchise granted by the Village of Loreauville, to Gulf Public Service Co., Inc., by Ordinance enacted December 19, 1947, for a term of 25 years.
47. Electric franchise granted by the Town of Baldwin, to Gulf Public Service Co., Inc., by Ordinance enacted November 26, 1947, for a term of 25 years.
48. Electric franchise granted by the City of Pineville to Central Louisiana Electric Company, Inc., by Ordinance enacted November 11, 1950, for a term of 15 years, beginning March 18, 1955.
B. Those certain franchises granted by the following named Parishes in the State of Louisiana, to wit:
1. Electric franchise granted by Allen Parish to Louisiana Public Utilities Co., Inc., by ordinance enacted August 9, 1945, for a term of 25 years.
2. Electric franchise granted by Beauregard Parish to Louisiana Public Utilities Co., Inc., by ordinance enacted August 14, 1945, for a term of 25 years.
3. Electric franchise granted by DeSoto Parish to Louisiana Public Utilities Co., Inc., by ordinance enacted December 5, 1928, for a term of 25 years.
4. Gas franchise granted by DeSoto Parish to Louisiana Public Utilities Co., Inc., by ordinance enacted November 12, 1945, for a term of 25 years.
5. Gas franchise granted by Lafayette Parish to Gulf Public Service Co., Inc., by ordinance enacted April 14th, 1949, for a term of 25 years.
6. Electric franchise granted by Sabine Parish to the Crystal Ice & Bottling Company, Ltd., by ordinance enacted January 17, 1927, for an indefinite term.
7. Electric franchise granted by St. Tammany Parish to Louisiana Public Utilities Co., Inc., by ordinance enacted March 11, 1930, for a term of 25 years.
8. Electric franchise granted by St. Tammany Parish to Madisonville Industries, Inc., under ordinance enacted February 14th, 1939, for a term of 25 years.
9. Electric franchise granted by Vernon Parish to Louisiana Public Utilities Co., Inc., by ordinance enacted August 6, 1945, for a term of 25 years.
10. Electric franchise granted by Washington Parish to Louisiana Public Utilities Co., Inc., by ordinance enacted August 8, 1945, for a term of 25 years.
11. Electric franchise granted by Evangeline Parish to Louisiana Public Utilities Co. Inc., by ordinance enacted May 14th, 1945, for a term of twenty-five (25) years.
12. Electric franchise granted by Rapides Parish to Gulf Public Service Company by ordinance dated November 10th, 1931, for a term of 25 years.
13. Electric franchise granted by Natchitoches Parish to Gulf Public Service Co., Inc., under ordinance enacted March 29, 1951, for a term of 25 years.
14. Electric franchise granted by Red River Parish to Gulf Public Service Co., Inc., under ordinance enacted March 16th, 1951, for a term of 25 years.
15. Gas franchise granted by Natchitoches Parish to Gulf Public Service Company by ordinance dated July 10th, 1940, for a term of 25 years.
16. Gas franchise granted by Red River Parish to Gulf Public Service Company by ordinance dated July 10th, 1940, for a term of 25 years.
17. Electric franchise granted by St. Landry Parish to Gulf Public Service Co., Inc., by ordinance dated September 27th, 1949, for a term of 25 years.
18. Electric franchise granted by Acadia Parish to Gulf Public Service Co., Inc., by ordinance dated May 10th, 1951, for a term of 25 years.
19. Electric franchise granted by Evangeline Parish to Gulf Public Service Co., Inc., by ordinance dated May 14th, 1945, for a term of 25 years.
20. Electric franchise granted by St. Mary Parish to Gulf Public Service Company by ordinance dated February 8th, 1933 for a term of 25 years.
21. Electric franchise granted by Iberia Parish to Gulf Public Service Co., Inc., by ordinance dated November 17th, 1949, for a term of 25 years.
22. Electric franchise granted by St. Martin Parish to Gulf Public Service Co., Inc., by ordinance dated September 21st, 1949, for a term of 25 years.
23. That certain Electric franchise granted by Calcasieu Parish to Gulf Public Service Company by Ordinance dated June 1, 1937, for a term of 25 years, such franchise being limited to territory within Ward 6 of said parish.
IV.
ELECTRIC TRANSMISSION SYSTEMS.
All electric transmission lines of the Company owned by it at the date of the execution hereof or which may be hereafter acquired or constructed by it, including towers, poles, pole lines, wires, switch racks, switch boards, insulators and other appliances and equipment, and all other property of the Company forming a part thereof or pertaining thereto, and all service lines extending therefrom, together with all the Company's real property, rights of way, easements, permits, privileges, franchises and rights over or relating to the construction, maintenance or operation thereof, through, over, under, or upon any private property or in the public streets or highways within, as well as without, the corporate limits of any municipal corporation, including, without limiting the generality of the foregoing, the following which were acquired by the Company from Gulf Public Service Co., Inc.:
(a) Commencing at the generating plant of the Company in the City of Mansfield, De Soto Parish, thence with a 13.2 K.V. 3 phase line, connecting the Cities of Benson, Converse, Noble, Zwolle and Many with connecting line to Mitchell and Pleasant Hill.
(b) A 6.6 K.V. single phase line connecting with the 13.2 K.V. line of the Company in the City of Pleasant Hill, thence connecting the towns of Pelican and Oxford.
(c) Commencing at the Company's substation, in the City of De Ridder, Beauregard Parish, thence with a 33 K.V. 3 phase line connecting the towns of Rosepine and Leesville, and commencing at said substation, thence with a 33 K.V. 3 phase line connecting the City of Merryville.
(d) Commencing at the metering station of Gulf States Utilities Company in the City of Kinder, Allen Parish, thence with a 33 K.V. 3 phase line connecting the City of Oberlin.
(e) Commencing at the metering station from Hillyer, Deutsch Edwards, Inc., in the City of Oakdale, Allen Parish, thence with a 33 K.V. line connecting the town of Oberlin (said line not being energized at the present time).
(f) Commencing at the city limits of Franklinton, Washington Parish, from Franklinton distribution system, thence with a
6.6 K.V. single phase line north and west, connecting Clifton and Mt. Hermon. A 6.6 K.V. single phase line commencing at said distribution system running south and east connecting Enon.
(g) Commencing at the metering station from Louisiana Power & Light Company near Franklinton, thence with a 33 K.V. 3 phase line connecting the Cities of Covington, Abita Springs, Mandeville, Lacombe, Bonfouca and Slidell.
(h) A 6.6 K.V. single phase line connecting with the distribution system of the Company in Slidell and connecting the Town of Pearl River.
(i) A 4.6 K.V. 3 phase line connecting Covington and Mandeville.
(j) A 2.3 K.V. single phase line connecting Lewisburg and Mandeville. (k) Commencing at the generating plant of the Company in the City of Mansfield, De Soto Parish, thence with a 13.2 K.V. three phase line through the City of Grand Cane and to the City of Longstreet, with branch lines to Kickapoo, Keatchie, and Gloster.
(l) Commencing at the generating plant of the Company in the City of New Iberia, Iberia Parish, thence with a 33 K.V. 3 phase line connecting the communities of Olivier, Jeanerette, Baldwin, Garden City, Centerville, Patterson, and Berwick.
(m) Commencing at the generating plant of the Company in the City of New Iberia, Iberia Parish, thence with a 33 K.V. 3 phase line connecting the Town of Jeanerette.
(n) A 6.6 K.V. line, 3 phase, connecting with the 33 KY. line of the Company at Olivier, Iberia Parish, thence connecting the Town of Loreauville, Iberia Parish, Louisiana.
(o) Commencing at the generating plant of the Company in the City of Crowley, Acadia Parish, thence with a 33 K.V. 3 phase line connecting Roberts Cove, Acadia Parish, and Eunice, St. Landry Parish, Louisiana.
(p) Commencing at the generating plant of the Company in the City of Eunice, St. Landry Parish, a 33 K.V. 3 phase line, thence to Mamou, Evangeline Parish.
(q) Commencing at the generating plant of the Company in the City of Eunice, St. Landry Parish, a 33 K.V. 3 phase line, thence to Basile, Evangeline Parish.
V.
ELECTRIC DISTRIBUTION SYSTEMS.
All electric distribution systems of the Company owned by it at the date of the execution hereof or which may be hereafter acquired or constructed by it, including substations, transformers, switchboards, towers, poles, wires, insulators, subways, franchises, manholes, cables, appliances, equipment and all other property of the Company, real or personal, forming a part of or pertaining to or used, occupied or enjoyed in connection with such distribution systems, or any of them, together with the Company's rights in or relating to the construction, maintenance or operation thereof, through, over, under, or upon any private property or any public streets or highways, within as well as without corporate limits of any municipal corporation, including the following which were acquired by the Company from Gulf Public Service Co., Inc.:
The overhead electric distribution systems located at, near and in the vicinity of the following enumerated cities, towns, villages and communities and in rural areas adjacent thereto, to wit:
Name of City, Name of City, Town, Village or Town, Village or Community Name of Parish Community Name of Parish ------------ -------------- ---------------- -------------- Abita Springs St. Tammany Franklinton Washington Baldwin St. Mary Glenmora Rapides Basile Evangeline Garden City St. Mary Benson De Soto Gloster De Soto Berwick St. Mary Grand Cane De Soto Bonfouca St. Tammany Jeanerette Iberia BreauxSt. Martin Keatchie De Soto Campti Natchitoches Kickapoo De Soto Centerville St. Mary Kinder Allen Clifton Washington Lacombe St. Tammany Converse Sabine Leesville Vernon Coushatta Red River Lewisburg St. Tammany Covington St. Tammany Loreauville Iberia Crowley Acadia Ludington Beauregard DeQuincy Calcasieu Madisonville St. Tammany De Ridder Beauregard Mamou Evangeline Enon Washington Mandeville St. Tammany Eunice St. Landry Mansfield De Soto |
62
Name of City, Name of City,
Town, Village or Town, Village or
Community Name of Parish Community Name of Parish
------------ -------------- ---------------- --------------
Many Sabine Patterson St. Mary
Merryville Beauregard Pearl River St. Tammany
Mitchell Sabine Pelican De Soto
Mt. Hermon Washington Pleasant Hill Sabine
New Iberia Iberia Rosepine Vernon
Noble Sabine Slidell St. Tammany
Oakdale Allen South Mansfield De Soto
Oberlin Allen Washington St. Landry
Oxford De Soto Zwolle Sabine
|
VI.
GAS TRANSMISSION SYSTEMS.
All of the gas transmission systems of the Company owned by it on the date of the execution hereof or which may be hereafter acquired or constructed by it, including all mains, regulators, meters, buildings, structures and all equipment, appliances, appurtenances and sites forming a part of such transmission systems, or any of them, or occupied, enjoyed and used in connection therewith, including the following which were acquired from Gulf Public Service Co., Inc.:
1. The gas transmission pipeline of the Company in the Naborton
Field in De Soto Parish, described as commencing with gathering lines
from wells in Section 24, Township 12 North, Range 12 West, thence with
two 4 inch pipes, in a northwesterly direction across Section 24,
Section 23 and into Section 22 where said two 4 inch pipes connect with
an 8 inch pipe, said 8 inch pipe continuing in a northwesterly
direction across Sections 22, 21, 16, 17 and 18 in Township 12 North,
Range 12 West, and thence across Section 13 and part of Section 14 to
the dividing line between Sections 11 and 14 then due west on said
dividing line and continuing along dividing line of Sections 10 and 15
to the city limits and continuing along Gibbs Street to the City Gate
Regulator Station in the city limits of Mansfield, Sections 13, 11, 14,
10 and 15 being situated in Township 12 North, Range 13 West.
2. The gas transmission pipe line of the Company which connects with other lines of the Company at a point in Section 16, Township 12 North, Range 13 West, De Soto Parish, Louisiana, and extends in a southerly direction a distance of approximately 1 1/4 miles to a point of connection with the pipe line of Apex Gas Co., Inc., in Section 21, Township 12 North, Range 13 West, said gas transmission pipe line being located wholly within said Sections 16 and 21.
3. The Natchitoches Parish and Red River Parish gas transmission systems consisting of:
(a) Pipe line from Wemple Station in Red River Parish to City of Natchitoches in Natchitoches Parish;
(b) Pipe line from Wemple Station-Natchitoches pipe line to Campti, Natchitoches Parish; and
(c) Pipe line from Armistead to Coushatta, Red River Parish.
VII.
GAS DISTRIBUTION SYSTEMS
All of the gas distribution systems of the Company owned by it on the date of the execution hereof or which may be hereafter acquired or constructed by it, including all mains, regulators, services, meters, buildings, structures and all equipment, appliances, appurtenances and sites forming a part of such distribution systems, or any of them or occupied, enjoyed and used in connection therewith, including the following which were acquired by the Company from Gulf Public Service Co., Inc.:
1. Gas distribution system of the Company at Mansfield and South Mansfield in the Parish of De Soto and at Lafayette in the Parish of Lafayette.
2. The gas distribution system of the Company in the City of Natchitoches, Natchitoches Parish, Louisiana.
3. The gas distribution system of the Company in the Village of Campti, Natchitoches Parish, Louisiana.
4. The gas distribution system of the Company in the Town of Coushatta, Red River Parish, Louisiana.
5. The gas distribution systems of the Company supplying gas service to the unincorporated communities of Armistead, Hanna and Lake End in Red River Parish, and Timon and Powhattan in Natchitoches Parish.
VIII.
WATERWORKS PLANTS AND DISTRIBUTION SYSTEMS.
The waterworks plants and water distribution systems of the Company owned by it at the date of the execution hereof or which may be hereafter acquired or constructed by it, together with the buildings, structures, erections, pumps, pump machinery, reservoirs, filters, filter-galleries, chlorinating equipment, tanks, wells, water rights, water supplies, water mains, hydrants, pipe lines, service pipes, meters, plant pipes, engines, boilers, appurtenances, appliances, facilities, machinery, equipment, fixtures and all other property used or provided for use in construction, maintenance, repair and/or operation thereof, both now owned and which may hereafter be acquired by the Company, including the waterworks plants and distribution systems which were acquired by the Company from Gulf Public Service Co., Inc., at (a) Leesville in Vernon Parish, (b) Cotton Valley in Webster Parish, (c) Washington in St. Landry Parish, (d) Eunice in St. Landry Parish, (e) DeQuincy in Calcasieu Parish, (f) Crowley in Acadia Parish, and (g) New Iberia in Iberia Parish.
IX.
All real estate or interests therein, now owned or which may be hereafter acquired by the Company for use or which may be used by it in connection with its business as an electric, gas and water company, together with all of the right, title, and interest of the Company, now owned or hereafter acquired in and to any and all works, plants, buildings, structures, erections, and constructions now or hereafter placed upon any of the real estate mentioned, described or referred to as being subject to the lien of the Indenture, with the fixtures, tenements, hereditaments, and appurtenances thereunto appertaining or belonging.
X.
THE FOLLOWING DESCRIBED PROPERTY, WHEREVER SITUATE:
First: The electric generating plants and electric transmission and/or distribution systems now or hereafter owned by the Company, and any electric generating plants and electric transmission and/or distribution systems hereafter constructed or acquired by the Company, and any additions to or extensions of any such existing or future electric generating plants and/or electric transmission and/or distribution systems, together with all engines, dynamos, motors, generators, boilers, turbines, pole lines, poles, wires, cross-arms, insulators, transformers, meters, buildings, erections, structures, stations, substations, power houses, power producing and power transmitting equipment, water, water rights, water wheels, headworks, race-ways, hydraulic works, hydro-electric plants, cables, conduits, instruments, apparatus, appliances, machinery, facilities, fixtures and all other property used or provided for use in the construction, repair, maintenance and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also with all the rights, privileges, franchises, easements, licenses, ordinances, rights of way, liberties, immunities and permits of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair and/or operation of said electric generating plants and electric transmission and/or distribution systems, and each of them, and any additions thereto and extensions thereof.
Second: The gas generating plants, gas storage plants and gas gathering and/or transmission and/or distribution systems now owned by the Company, and any gas generating plants, gas storage plants and/or gas transmission and/or distribution systems hereafter constructed or acquired by the Company, and any additions to or extensions of any such existing or future plants and systems, together with the buildings, erections, structures, generating and purifying apparatus, holders, engines, boilers, benches, retorts, tanks, pipe lines, connections, service pipes, meters, conduits, instruments, appliances, apparatus, facilities, machinery, fixtures and all other property used or provided for use in the construction, maintenance, repair and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also with all rights,
privileges, rights of way, franchises, licenses, easements, grants, liberties, immunities, permits and ordinances of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair and/or operation of said gas generating plants, gas storage plants and gas gathering and/or transmission and/or distribution systems, and each of them, and any additions thereto and extensions thereof.
Third: The waterworks plants and water distribution systems now owned by the Company, and any waterworks plants and/or waterworks distribution systems hereafter constructed or acquired by the Company, together with the buildings, structures, erections, pumps, pumping machinery, reservoirs, filters, filter-galleries, chlorinating equipment, tanks, wells, water rights, water supply, water mains, hydrants, pipelines, service pipes, meters, standpipes, engines, boilers, apparatus, appliances, facilities, machinery, equipment, fixtures, and all other property used or provided for use in the construction, maintenance, repair and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also with all of the rights, privileges, rights of way, franchises, licenses, easements, permits, liberties, immunities, grants and ordinances of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair and operation of said plants and systems and each of them, and any additions thereto and extensions thereof.
TOGETHER WITH all and singular the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the aforesaid properties or any part thereof, with the reversion and reversions, remainder and remainders, and (subject to the provisions of Section 9.01 of the Indenture) the tolls, rents, revenues, issues, income, product and profits thereof, and all the estate, right, title, interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid property and every part and parcel thereof.
SAVING AND EXCEPTING, however, from the properties mortgaged and pledged by the Indenture (whether now owned by the Company or hereafter acquired by it) all bills, notes and accounts receivable,
cash on hand and in bank, contracts, merchandise and appliances kept for purposes of sale, and all bonds, obligations, evidences of indebtedness, shares of stock and other securities, and certificates or evidences of interest therein-other than any of the foregoing which may be hereafter specifically transferred or assigned to or pledged or deposited with the Trustee under the Indenture or required by the provisions of the Indenture so to be-and all office furniture and equipment, motor vehicles, tools, testing equipment and consumable materials and supplies; provided, however, that, if upon the happening of an event of default as in the Indenture defined, the Trustee or any receiver appointed under the Indenture shall enter upon and take possession of the mortgaged property, the Trustee or such receiver may, to the extent permitted by law, at the same time likewise take possession of any and all of the property described in this paragraph then on hand and use and administer the same to the extent as if such property were part of the mortgaged property, unless and until such event of default shall be remedied or waived and possession of the mortgaged property restored to the Company, its successors or assigns.
ALSO SAVING AND EXCEPTING, however, from the property hereby mortgaged and pledged:
(a) All parcels of land now owned or hereafter acquired by the Company and not used by it or useful in connection with its business as an electric, gas or water company or as an electric, gas or water utility, including the following parcels which the Trustee does hereby release from the lien of the Indenture:
Parcel 1. All of that certain lot or parcel of unimproved land, situated in the Parish of Vernon, State of Louisiana, and described as follows, to-wit:
A plot of ground measuring 100 feet on the north side of gravel road in the SW/4 of the SW/4 of Section 26, township 2, Range 9 West, more particularly described as follows:
Beginning at an iron pin 150 feet south 41 degrees 19 minutes east from the intersection of the east right of way line of the main line of the Kansas City Southern Railway and the north line of gravel road, thence north 48 degrees 41 minutes east a distance of 100 feet; thence south 41 degrees 19 minutes east a distance of 100 feet; thence south 48 degrees 41 minutes
west a distance of 100 feet; thence north 41 degrees 19 minutes west a distance of 100 feet to point of beginning.
Being the same property as that described in the Deed from Columbus Pitre to Louisiana Public Utilities Co., Inc., recorded in Book 143, page 445, records of Vernon Parish, which deed is dated June 22, 1942.
Parcel 2. A certain lot or parcel of unimproved land in the Town
of Slidell, St. Tammany Parish, described as Lot Twenty-five (25) in
Square No. 11 of the Brugier Addition, as per the official map of the
said Town on file in the office of the Clerk of Court of said parish.
Said Lot twenty-five (25) has a frontage of Fifty (50) feet on Florida
Avenue and extends northward between parallel lines a distance of One
Hundred Forty-four (144) feet and having a depth in the rear of Fifty
(50) feet. Said Square No. Eleven (11) which contains Lot Twenty-five
(25) being bounded on the south by Florida Avenue, on the East by Fifth
Street, on the North by Hall Avenue and on the West by Fourth Street.
Being part of the property acquired by Louisiana Public Utilities Co. Inc. from Slidell Ice & Light Company by Act passed before L. V. Cooley, Jr., Notary Public, for the Parish of St. Tammany, dated October 31, 1925, registered in the conveyance records of St. Tammany Parish in Book 90, Folio 573.
Parcel 3. The following described unimproved property in the
Parish of DeSoto, described as an irregular tract of land being a part
of the Southeast Quarter (SE/4) of the Northwest Quarter (NW/4) of
Section Twenty (20), Township Twelve (12) North, Range Thirteen (13)
West and more particularly described as follows: Commencing at the
intersection of the Southwesterly right of way line of the Texas &
Pacific R. R. with the Northwesterly right of way line of the Kansas
City Southern R. R.; thence in a Northwesterly direction along the
aforesaid Southwesterly right of way line of the Texas & Pacific R. R.
a distance of Two Hundred Seventy-five and Three-tenths (275.3) feet to
the place of beginning; thence south eighteen degrees fifteen minutes
(18(degree) 15') West a distance of Five Hundred twenty-nine (529) feet
to a point; thence west two hundred eight (208) feet more or less to
the east line of the Southwest Quarter (SW/4) of the Northwest Quarter
(NW/4) of said Section Twenty (20); thence North
along said East line of the Southwest Quarter (SW/4) of the Northwest
Quarter (NW/4) a distance of Six Hundred forty-eight and five-tenths
(648.5) feet more or less to the aforesaid Southwesterly right of way
of the Texas & Pacific R. R.; thence Southeasterly along said
Southwesterly right of way line of the Texas & Pacific R. R. a distance
of four hundred four (404) feet, more or less, to the place of
beginning, containing four (4) acres, more or less.
Parcel 4. A parcel of unimproved real estate in the Parish of
DeSoto described as beginning at a point on the line dividing the
Southeast Quarter (SE/4) of the Northwest Quarter (NW/4) and the
Southwest Quarter (SW/4) of the Northwest Quarter (NW/4) of Section
Twenty (20), Township Twelve (12) North, Range Thirteen (13) West Ten
(10) chains and forty (40) links North of the Southwest corner of the
Southeast Quarter (SE/4) of the Northwest Quarter (NW/4) of said
section; running thence West Two (2) chains and Ninety-five (95) links;
thence North Three (3) chains and Seventy (70) links; thence south
fifty-two degrees Ten minutes (52(degree) 10') East three (3) chains
seventy-two (72) links to the West line of the Southeast Quarter (SE/4)
of the Northwest Quarter (NW/4) of said section Twenty (20); thence
south one (1) chain fifty (50) links to the place of beginning.
Parcels 3 and 4 being part of the property conveyed by Crystal Ice and Bottling Co. Ltd. to Louisiana Public Utilities Co. Inc. by deed dated March 24, 1927 recorded in Book 77, Folio 464, records of DeSoto Parish.
Parcel 5. A certain parcel or tract of land together with all improvements and appurtenances thereto belonging, situated in the Town of Glenmore, Parish of Rapides, State of Louisiana, and being more particularly described as follows: Beginning one hundred fourteen feet South of Sycamore Street on the East side of the Pelican Highway; thence South following the Pelican Highway to the East and West Quarter Line, Section Seventeen, Township One, South Range Two West; thence East to the right of way of the Missouri Pacific Railroad Company; thence North along the Missouri Pacific Railroad Company right of way to the South side of Sycamore Street, if said street was continued; thence West to the point of beginning.
This being the same property acquired by Gulf Public Service Company from W. C. Pringle, under an act of sale of date March 3rd, 1926, and of record in Book 139 of Conveyances, Page 29, Ent. No. 109,806, of date March 3rd, 1926. There is located on said parcel an ice storage and sales station.
Parcel 6. The following described property in the Parish of
Vermilion, described as those two (2) certain lots of ground lying and
being situated in the Stebbins Addition to the Town of Abbeville, known
and designated as Lots Ninety-three (93) and Ninety-five (95) of said
Addition, each of said lots measuring Sixty-six (66) feet Eight (8)
inches North and South by One Hundred Twenty (120) feet East and West
bounded on the North by Lot Ninety-one (91), East by Lots Ninety-four
(94) and Ninety-six (96), South by Street and West by Gueynon Street.
Parcel 7. Those certain four (4) lots of ground lying and being
situated in the Town of Abbeville and being designated as Lots
Eighty-five (85), Eighty-six (86), Eighty-seven (87) and Eighty-eight
(88) of Stebbins Addition to the Town of Abbeville all as per plan of
said addition made by Edwards & Montagne, less Fifteen (15) feet on the
northern boundary line of Lots Eighty-five (85) and Eighty-six (86)
reserved for a switch for the benefit of all lots of said Addition on
the line of the Iberia & Vermilion Railroad Company, Lot Eighty-five
(85) being bounded on the North by the Iberia & Vermilion Railroad
Company, on the West by Gueynon Street, on the East by lot Eighty-six
(86) and on the South by Lot Eighty-seven (87). Lot Eighty-six (86) is
bounded on the North by the Iberia & Vermilion Railroad Company and on
the South by Lot Eighty-eight (88), on the East by Young Street and on
the West by Lot Eighty-five (85); Lot Eighty-seven (87) is bounded on
the North by Lot Eighty-five (85), on the South by Lot Eighty-nine
(89), on the East by Lot Eighty-eight (88) and on the West by Gueynon
Street; Lot Eighty-eight (88) is bounded on the North by Lot Eighty-six
(86), on the South by Lot Ninety (90), on the East by Young Street and
on the West by Lot Eighty-seven (87); each of said lots measured
Sixty-six (66) feet Eight (8) inches by One Hundred Twenty (120) feet.
Parcel 8. Those two certain lots of ground lying and being situated in the Stebbins Addition to the Town of Abbeville, known and designated as Lots Eighty-nine (89) and Ninety-one (91) of said Addition, all as per the plan of said Edwards & Montagne, Surveyors, on file in the Clerk's office of Vermilion Parish.
Parcels 6, 7 and 8 being the same property acquired by Louisiana Public Utilities Co., Inc. from Raymond H. Burtz by Act passed before Walter B. Gordy, Notary Public for the parish of Vermilion dated April 26, 1926, recorded in the conveyance records of Vermilion Parish in Book 87, folio 109, under entry No. 41643.
There is located on Parcels 6, 7 and 8 above described an ice plant and residence.
Parcel 9. The following described property in the City of Crowley, in the parish of Acadia, described as Lots One (1) and Two (2) in Block Eight (8) of W. W. Duson's additions to the City of Crowley, having a front of One Hundred (100) feet on the South side of the Louisiana Western Railroad by a depth of One Hundred (100) feet between parallel lines along the East line of Parkerson Avenue to the North line of the property described under parcel 10 hereafter.
Parcel 10. A certain parcel of ground in the City of Crowley, Parish of Acadia, described as a lot of ground situated in southwest corner of Block Eight (8) of the W. W. Duson Addition to the City of Crowley adjoining the property above described under Parcel Nineteen and having a depth of One Hundred (100) feet on the North side of Mills Street and a depth of One Hundred (100) feet between parallel lines along the East side of Parkerson Avenue to the South line of the property described under Parcel Thirteen aforesaid.
Said parcels 9 and 10 being the same property acquired by Louisiana Public Utilities Co. Inc., by deed from Albert F. Horn by Act passed before J. Matt Buatt, Notary Public, Parish of Acadia, dated December 16, 1926, recorded in the conveyance records of Acadia Parish in Book B-4, folio 274.
There is located on Parcels 9 and 10 above described an ice plant.
Parcel 11. The following piece or parcel of land in the Town of White Castle, Parish of Iberville, described as lots Twelve (12), Thirteen (13) and Fourteen (14) in Square Five (5) of Plan of Soniat's New Addition to said Town (see Con. Bk. 25, entry 293).
Lot Twelve (12) measures forty-three feet, nine inches (43' 9") front on Railroad Avenue, one hundred twenty-six feet one inch and seven lines (126' 1" 7"') on the eastern line, one hundred twenty-five feet, ten inches, five lines (125' 10" 5"') on the western line, and forty-three feet, nine inches (43' 9") on 'the northern line.
Lot Thirteen (13) measures forty-three feet, nine inches (43' 9") front on Railroad Avenue, one hundred twenty-five feet, ten inches, five lines (125' 10" 5"') on the eastern line, one hundred twenty-five feet, seven inches, three lines (125' 7" 3"') on the western line, and forty-three feet, nine inches (43' 9") on the northern line.
Lot Fourteen (14) measures forty-three feet, nine inches (44' 9") front on Railroad Avenue, one hundred twenty-five feet, seven inches, three lines (125' 7" 3"') on the eastern line, one hundred twenty-five feet, four inches, one line (125' 4" 1"') on the western line fronting on Leona Avenue, and forty-three feet, nine inches (43' 9") on the northern line.
Said lots are contiguous and are bounded together on the front or south by Railroad Avenue, on the east by Lot 11, on the North by Lot 15 and part of Lot 8 and on the west by Leona Avenue.
Parcel 15 being the same property which was conveyed by Deed from Alcide Barbier and Alcee Doiron by Act before Joseph Grace, Notary Public, Parish of Iberville, June 30, 1927, and registered in the conveyance records of the parish of Iberville in Conveyance Book 51, entry 206.
There is located on Parcel 11 above described an ice sales station.
Parcel 12. Property in the Town of Port Allen, Parish of West
Baton Rouge described as a parcel of ground constituting the westerly
portion of Square Thirteen (13) of "The Oaks Subdivision" in the Town
of Port Allen. The said plot measures one hundred (100) feet front on
Oaks Avenue by a depth between parallel lines of One Hundred Eighty-two
(182) feet.
Parcel 12 being the same property conveyed in the Deed from The Oaks, Inc. to Louisiana Public Utilities Co., Inc. dated June 11, 1929, recorded in C. B. 18, Entry No. 88 on June 11, 1929.
There is located on said Parcel 12 above described an ice sales station.
Parcel 13. A parcel of land in the Town of Many, Sabine Parish, described as a parcel of land in the North-west comer of Lot Two (2) of Giauque's Third Addition to Many described as: Beginning at the North-west corner of said Lot Two (2), running thence South Seventy degrees (70(degree)) East Twenty (20) feet; thence South Twenty Degrees (20(degree)) West Two Hundred (200) feet; thence North Seventy Degrees (70(degree)) West Twenty (20) feet; thence North Twenty Degrees (20(degree)) East Two Hundred (200) feet to the place of beginning, and Lot Three (3) of Giauque's Third Addition to Many less the following described lots, to-wit: Beginning at the North-west corner of said Lot Three (3), running east Sixty (60) feet; thence South One Hundred Twenty-five (125) feet; thence West Sixty (60) feet; thence North One Hundred Twenty-five (125) feet to the place of beginning and excepting a lot described as: Beginning at the Southwest corner of the lot of land now or formerly owned by J. L. Dees in the North-west corner of said Lot Three (3) and running South on the West line of said Lot Three One Hundred Sixty-five (165) feet; thence East parallel with the North line of said Lot Three (3) Sixty (60) feet; thence North parallel with the West line of said Lot Three (3) to the South-east corner of said J. L. Dees' lot; thence West on the South line of said J. L. Dees' lot to the place of beginning.
Being the same property as that acquired by Louisiana Public Utilities Co., Inc. from Crystal Ice and Bottle Company, Ltd., dated March 22, 1927, and recorded in the conveyance records of Sabine Parish in Book 43, folio 132.
There is located on said Parcel 13 above described an ice plant.
Parcel 14. The following described property in the Town of Franklin, St. Mary Parish, described as a parcel of ground on the West side of Bayou Teche in the Town of Franklin measuring Thirty-four (34) feet front on the East side of Main Street, described as follows:
Beginning at a point on the East side of
Main Street at the intersection of the Southwest corner of the property now or formerly owned by Mrs. E. B. Spiller and measuring in a Northeasterly direction Four Hundred Fifty-seven (457) feet to Bayou Teche; thence in a Southeasterly direction and fronting on Bayou Teche a distance of One Hundred Fifteen (115) feet; thence in a Southwesterly direction a distance of Two Hundred Two (202) feet to a stake; thence in a Northwesterly direction a distance of Seventy-one (71) feet to a stake and thence Westerly a distance of Two Hundred Twenty-nine (229) feet to the East side of Main Street; thence in a Northwesterly direction fronting on the East line of Main street a distance of Thirty-four (34) feet to the place of beginning. Said property being bounded on the North by the property of Mrs. E. B. Spiller, or assigns, on the East by Bayou Teche, on the South partly by lands of W. R. Gates and Bell et als, or assigns, and on the West by said Main Street.
Being the same property acquired by Louisiana Public Utilities Co. Inc. from the Franklin Ice Works, Ltd. by deed dated March 24, 1926, recorded in the conveyance records of St. Mary Parish in Book 4-K of conveyances, entry 51745.
There is located on said Parcel 14 above described an ice plant.
Parcel 15. The following property in the city of New Iberia, Parish of Iberia, Louisiana described as:
A parcel of land bounded on the North by Bayou Teche, on the South by the property now or formerly of J. H. Slaughter, F. G. Patout and Elks Theatre Co. Inc.; on the East by Swain Street, and on the West by a strip of land Twenty (20) feet in width leased by the New Iberia & Northern R. R. Company by act before Ventress J. Smith, dated September 1, 1910, recorded September 3, 1910 in C. 0. B. 72, folio 38 of the records of Iberia Parish (less a strip of land Twenty-five (25) feet wide granted to the New Iberia & Northern R. R. Company for a right-of-way along the front of Bayou Teche) and which said property measures as follows: to-wit: One Hundred Forty-four and One-half (144 1/2) feet more or less on Swain Street, Two Hundred Sixty one (261) feet more or less front on Bayou Teche, Two Hundred Forty-seven (247) feet more or less on the line separating said properties from the property now or formerly of J. H. Slaughter,
F. G. Patout and Elks Theatres, Inc. and One Hundred Eighty-four (184) feet more or less on the line separating said property from the strip of land Twenty-five (25) feet in width leased by the New Iberia & Northern R. R. Company recorded in C. 0. B. 72, folio 38 of the records of Iberia Parish.
Being the same property described in the Deed from New Iberia Ice & Cream Co. Inc. to Louisiana Public Utilities Co. Inc. dated March 4, 1927, recorded in Book 108, entry No. 41481.
Parcel 16. That certain parcel of real estate in the City of New Iberia, Parish of Iberia, described as that certain lot measuring Thirty-five (35) feet front on Swain Street by a depth between parallel lines of Eighty-nine (89) feet and running back to the property now or formerly of Jennaro and bounded as follows: in front by said Swain Street, in rear by the property now or formerly of Jennaro, above by the property now or formerly of John R. Taylor and below by the property of New Iberia Ice & Cream Co. Inc.
Parcel 17. That certain parcel of real estate in the City of New Iberia, Parish of Iberia, measuring Thirty-six (36) feet front by Thirty-five (35) feet in depth and bounded as follows: North by the property now or formerly of Fred Patout, East by the property of the New Iberia Ice & Cream Co. Inc.; South by the property now or formerly of Taylor and West by the property now or formerly of Jennaro.
Parcels 16 and 17 being the same property acquired by Louisiana Public Utilities Co. Inc. from Joseph H. Slaughter by deed dated April 18, 1932.
Parcel 18. A certain strip of land measuring Twenty-five (25) feet in width and adjoining and paralleling the rear of the property above described as Parcel Fifteen (15), and running from the right-of-way of the New Iberia & Northern R. R. across the property of Elks Lodge, formerly Alma House Property, the said strip of land being under a 99-year lease as recorded in C. 0. B. 72, Folio 38 of the records of Iberia Parish.
Being the same property as that described in the Deed from New Iberia Ice & Cream Co. Inc. to Louisiana Public Utilities Co. Inc. dated March 4, 1927, recorded in Book 108, Entry No. 41481.
There is located on said Parcels 15, 16, 17 and 18 above described an ice plant.
Parcel 19. A parcel of land located in the Village of Concoe,
formerly Turnerville, in the parish of Iberville, forming a part or
portion of the property purchased by Victor J. Kurzweg from Mrs. M. P.
Grover, et al and known as the "Grover Tract", said tract being
designated by the letter "H" on plan of survey of town lots made and
prepared by J. C. Kleinpeter, Surveyor, July, 1920, for the said
Kurzweg and annexed to and made a part of the sale by Victor J. Kurzweg
to Crystal Ice Products, Inc. dated October 29, 1926, said tract being
further described as fronting One Hundred Sixty-seven (167) feet Ten
(10) inches on the Forty-six (46) foot Parish Public Road, which runs
from the Town of Plaquemine through said Village of Concoe or
Turnerville, having as its northern boundary the center line of the T.
& P. R. R. Co. spur, designated on the said map as its southern
boundary, Lots One (1), Four (4), Five (5) and Six (6) of Square E of
said plan and in the rear bounded for a distance of One Hundred Ten
(110) feet by the fifteen (15) foot street designated on said plan and
for a distance of Eighty (80) feet on the Thirty-six (36) foot street
also designated on said plan, said rear boundary being in the shape of
an obtuse angle.
Being the same property conveyed in the Deed from Crystal Ice Products Co. to Louisiana Public Utilities Co., Inc. dated July 8, 1927, recorded in Book 51, folio 250.
There is located on said parcel 19 above described an ice plant.
Parcel 20. The following described property in the City of Donaldsonville, Parish of Ascension, described as six lots of land designated on the plan of the lands of the Donaldsonville Land and Improvement Co., Ltd., said plan being on file in the Recorder's office of said Parish and Paraphed "Ne Varietur" by C. A. Gondran, Notary Public for identification, with an act of sale from said company to Mrs. Montreal Accosta under date of May 3, 1895, said plan being recorded in Book 37 of conveyances at page 284. Three of said lots are numbered and located as follows: Lots Seventeen (17), Eighteen (18) in Square Two (2) measure Forty-two and Two-tenths (42.2) feet; Lot Nineteen (19) measures Forty-two and One-tenth (42.1) feet; all of said
three lots are situated and adjoin each other and said Lot Seventeen
(17) in said Square Two (2) forms the Northwest corner of intersection
of Second and Peytavin Streets and are One Hundred Ten (110) feet deep.
Three of said lots are numbered and located as follows: Lots Fourteen
(14), Fifteen (15) and Sixteen (16) in Square Two (2) on the same plan
of the lots of said company, said lots measuring front on Second Street
Forty-five and Two-tenths (45.2) feet each with a depth of One Hundred
Sixty-eight and Five-tenths (168.5) feet; Square Two (2) being bounded
by First, Peytavin, St. Vincent and Second Streets, said three lots
Seventeen (17), Eighteen (18) and Nineteen (19) all facing Peytavin
Street.
Being the same parcel conveyed by Crystal Ice Products Company, Inc. to Louisiana Public Utilities Co. Inc., by Act before Sidney A. Marchand, Notary Public, Parish of Ascension, July 8, 1927, registered in the conveyance records, Parish of Ascension, in Book of Conveyance 68, folio 9.
There is located on said Parcel 20 above described an ice plant.
Parcel 21. A certain lot of ground, located within the corporate limits of the Town of Thibodaux, in the Parish of Lafourche, on the East Bank of Bayou Lafourche, in what was formerly known as the North Thibodaux Addition, and forming part of Block 13 of said addition; which said lot of ground begins at a point marked on the ground by an iron pipe imbedded in cement at or near the southeast corner of Block 13 of said North Thibodaux Addition, which is at or near the northwest corner of the intersection of said St. Patrick Highway and North Seventh Street; and from said point runs westerly along the northern line of North Seventh Street a distance of 221.2 feet to a point in the south line of Block 13 aforesaid also marked by an iron pipe imbedded in cement; thence northerly parallel with St. Patrick Highway a distance of 102.3 feet to a point marked by another iron pipe also imbedded in cement; thence easterly a distance of 216 feet to a point in the west line of said highway also marked by an iron pipe imbedded in cement; and thence southerly along the west line of said highway a distance of 83.9 feet to a point of beginning. The property herein sold comprises Lots 13, 14 and 15, parts of Lots 9., 10, 11 and 12, part of Lot 6,
and a small part of Lot 16 of said block; and as a whole is bounded northerly and westerly by remainder of property of vendor, southerly by North Seventh Street, and east by St. Patrick Highway; and together with said property the ice factory and all other improvements thereon situated.
The ice factory and other improvements were acquired by Louisiana Public Utilities Co., Inc., on July 1, 1943, by act of sale recorded in Conveyance Book No. 111 and Mortgage Book ZZ-8, under entry No. BE-64366, records of Lafourche parish.
Parcel 22. Property in the City of Lafayette, Parish of Lafayette,
described as that portion of land in the City of Lafayette that is
bounded on the Northwest by the Morgan's Louisiana & Texas R. & S.
Co.'s right-of-way, on the South by Wye track that connects the
Alexandria Branch main track and main line of Louisiana Western R. on
the Northeast by the South right-of-way line of the Alexandria Branch,
on the South by the North right-of-way line of the Louisiana Western
R., on the West by the East edge of the extension of Green Street, the
above described real estate being more fully described as follows:
Beginning at a point "D" said point being the intersection of the North
right-of-way line of the Louisiana Western R. and the South
right-of-way line of the Alexandria Branch, turning an angle of Fifteen
Degrees (15(degree)) from the Alexandria Branch right-of-way from North
to West and running a Three Degrees (3(degree)) curve in the
northwesterly direction along the North right-of-way of Louisiana
Western R. a distance of Seven Hundred Fifty-four (754) feet to a point
"C"; thence turn tangent to curve at this point "C"; and turn an angle
of One Hundred Thirty-six Degrees Forty Minutes (136(degree) 40') from
right to left and run on this line which is the East side of Green
Street produced a distance of Two Hundred Fifty-three (253) feet to the
point "B"; thence turn angle from right to left of One Hundred Fifteen
Degrees (1150) which will be a tangent to a Twelve Degree (12(degree))
curve at point "B"; thence run a Twelve Degree (12(degree)) curve in a
northerly direction from this tangent for a distance of Four Hundred
Fifty (450) feet to point "A", this line being the present East
right-of-way line of the Alexandria Branch of Morgan's Louisiana &
Texas R. & S. Co.'s Wye track which connects the Alexandria Branch with
the Louisiana Western
R.; thence turn tangent to a Twelve Degree (12(degree)) curve at point "A" and measure an angle of Eighteen Degrees Fifteen Minutes (18(degree) 15') to the left from said tangent and run a distance of Twelve Hundred Thirty (1230) feet along the south right-of-way of the Alexandria Branch to a point "D" which is the place of beginning and containing four and three-quarters acres.
Being the same property as that acquired by Louisiana Public Utilities Co., Inc. from Samuel R. Morgan by act before William P. Mills, Notary Public, dated May 11, 1926, registered in the conveyance records of Lafayette Parish in Book V-7, folio 251; less and except that certain parcel of 1.25 acres (more or less) sold by Louisiana Public Utilities Co. to Patrick E. Mouton on May 2, 1946, by deed of record under entry No. 190,492, records of Lafayette Parish, Louisiana, said excepted tract being described as follows:
Beginning at a point where a line 151 feet southerly from and parallel to the south side of the Louisiana Public Utilities Co., Inc. Ice Plant building joins Morgan's Louisiana & Texas Railroad & S. S. Co. right of way (the location of said line being marked by concrete posts set therein at points 151' southerly from and opposite the eastern and western ends of the south side of said Ice Plant building); thence running easterly along said line to the center line of the railroad yard track located on the property of Louisiana Public Utilities Co., Inc., thence turning southerly 90 degrees and running a distance of 75.0 feet, thence turning easterly 90 degrees and measuring the full distance to the easterly line of the parcel acquired as aforesaid by act of record in Conv. Book V-7, at page 251, thence south along the easterly boundary of said property to the north right of way line of Louisiana Western Railroad and running a three-degree (3(degree)) curve in a northwesterly direction along the north right of way of La. Western Railroad to point of beginning.
There is located on said Parcel 22 above described an ice plant.
Parcel 23. Real estate in the Town of Abbeville, Parish of Vermilion, described as Six and Seventy-four One-hundredths (6.74) acres of land more or less, and being a portion of irregular Section Fifty-two (52) Township Twelve (12) South, Range Three (3) East and designated as Lot One (1) of the Partition
in re Succession of C. T. Guidry Sr. as per process verbal of sale
recorded in Book 27, page 258 of conveyances, and bounded as follows:
On the North by the Public Road; on the South by Bayou Vermilion; on
the East by Bayou Vermilion; on the West by the property now or
formerly of the heirs of Anthony LeBlanc, subject, however, to an
outstanding royalty of one-thirty-second (1/32) of all oil, gas or
other minerals except sulphur produced from said land and a royalty of
12 1/2(cent) per long ton for all sulphur produced from said land.
Being the same property as that acquired by the Louisiana Public Utilities Co., Inc. from Dr. Amable A. Comeaux by Act passed before A. O. Landry, Notary Public, Vermilion Parish, dated September 30, 1940, recorded in the conveyance records of Vermilion Parish, Book 151, folio 55.
There is located on said parcel 23 above described an ice storage plant.
Parcel 24. A certain tract of land situated within the corporate limits of the Village of Delcambre, Parish of Iberia, fronting on the right of way of the Texas and New Orleans Branch Railway and extending south 200 feet from said Railway right of way, and bounded on the north by the right of way of the Texas and New Orleans Branch Railway, on the east by the Delcambre Canal, on the south by the property of Cypremont Sugar Company, Inc., and on the west by the property of Mrs. Lawrence D. Belair, being the same property acquired by Louisiana Public Utilities Co., Inc. from Cypremont Sugar Company, Inc. under date of September 22, 1944.
There is located on said tract an ice plant.
Parcel 25. A certain lot of ground in the City of Natchitoches,
La., on the East side of Boyd Street, measuring 295 feet on said Boyd
Street, and measuring 300 feet on and parallel with the right of way of
the Texas and Pacific Railway Company, measuring 60 feet 7 inches on
Bossier St., and 220 feet on its south boundary extending from Boyd
Street to the right of way of the Texas and Pacific Railway Company,
and bounded on the North by Bossier St., on the South by property of H.
A. Cooke, on the East by right of way of the Texas & Pacific Rail. way
and on the West by Boyd St.;
Being the lot acquired by Gulf Public Service Company from C. A. Tooke et at., under act of sale of date June 30th, 1927, and of record in Book 159 of Conveyances, Page 431 et seq., Ent. No. 58,098, of date July 1st, 1927, Natchitoches Parish, Louisiana.
There is located on Parcel 25 above described an ice plant.
Parcel 26. That certain lot or tract of land situated within the
corporate limits of the City of Opelousas, Louisiana, and being bounded
on the North by Grolee Street, on the West by Opelousas Gulf & N. E. R.
R., on the South by Cotton Companies Co., East by Cotton Companies Co.
Being the same property acquired by Gulf Public Service Company from A. Moresi and wife, under authentic act of sale dated May 11th, 1926, and recorded in Book N-5 of Conveyances, Page 118, Ent. No. 105419, of date May 21st, 1926, Clerk's Office, St. Landry Parish, Louisiana. There is located on Parcel 26 above described an ice plant.
Parcel 27. Six (6) certain lots or parcels of land, situated in the Alfred Bacciochi Addition to the Town of Eunice, St. Landry Parish, La., having a frontage of two hundred and ninety-three and 5/100 (293.05) feet upon First Street, by a depth of one hundred (100) feet running east between parallel lines to the right of way of the Louisiana Western (Southern Pacific) Railroad Company, bounded on the North by strip of land hereinafter described, South by right of way of the Gulf Coast Lines Railroad (formerly N. 0. T. & N. R. R.), on the East by the right of way of the Louisiana Western (Southern Pacific) Railroad Company and on the West by First Street.
Also a strip of land Twenty-three (23) feet in width North and South by a depth of one hundred (100) feet East and West, bounded North by what is known as the Haas Addition to said Town of Eunice, South by lot No. 25 of Block No. 14 of the Alfred Bacciochi Addition to the Town of Eunice, East by right of way of Louisiana Western (Southern Pacific) Railroad Company, and West by First Street.
The above described lots and strip of land are situated in the Northeast quarter of Southeast quarter of Section 23, Township 6, South Range 1 West.
Being the same property acquired by Gulf Public Service Company from Andrew Moresi and Alf. A. Moresi, under an
authentic act of sale dated May 14, 1926, of record in Book N-5 of Conveyances, Page 83, Ent. No. 105,358, of date May 14, 1926, Clerk's Office, St. Landry Parish, La.
There is located on Parcel 27 above described an ice plant.
Parcel 28. A certain lot or parcel of ground situated within the corporate limits of the Town of Jeanerette, Parish of Iberia, State of Louisiana, beginning at a point 233 feet north 39 degrees 16' east from the point of intersection of the northeast side property line of Main Street and the southeast property line of Cooper Street; thence south 48 degrees 45' east 195.5 feet; thence north 46 degrees 20' east 272 feet; thence south 48 degrees 45' east 85 feet; thence south 32 degrees 361 west 120 feet; thence south 48 degrees 45' east, 257.4 feet; thence north 32 degrees 36' east 300 feet to Bayou Teche; thence running along Bayou Teche for a distance of 470 feet more or less to the intersection of the property lines of Gulf Public Service Company and Consolidated Company, Inc.; thence south 39 degrees 16' west 297.5 feet; thence north 48 degrees 45' west 81 feet to the property line of Cooper Street; thence along Cooper Street south 39 degrees 16' west 155 feet to point of beginning; being the property acquired by Gulf Public Service Company partly by act of purchase from Louisiana Public Service Company, Inc., dated December 8, 1925, recorded in Conveyance Book 105 at Folio 148, under Entry No. 39956 of the records of Iberia Parish, Louisiana, and partly by act of purchase from A. P. Moresi, dated May 17th, 1926, recorded in Conveyance Book 107, at Folio 159, under Entry No. 40904 of the records of Iberia Parish, Louisiana.
There is located on Parcel 28 above described an ice and bottling plant and warehouse.
Said parcels numbered I to 28, inclusive, having been acquired by the Company from Gulf Public Service Co., Inc.
Parcel 29. (a) A parcel of land containing 24.04 acres in the West Half of the Southwest Quarter of Section 7, Township 4 North, Range I East, Rapides Parish, Louisiana, and being more particularly described as follows: Begin at the Southwest corner of said Section 7 and run thence North 89(degree) 50' East along the South line of said Section 549.76 feet to establish a point of beginning; from said point of beginning as thus established run thence North 89(degree) 50' East along the South line of said Section 7 a distance
of 778.5 feet to the Southeast corner of the property herein described; thence run North 0(degree) 12' East 1332 feet to the South line of Holloway Prairie Road right of way; thence run North 88' 15' West along the South line of said right of way a distance of 779 feet; thence run South 0(degree) 12' West 1358.1 feet back to the point of beginning as hereinabove established;
(b) A lot of unimproved ground situated in the West Half of the
Southwest Quarter of Section 7, Township 4 North, Range I East, Rapides
Parish, Louisiana, containing .04 acres and being more particularly
described as follows: Start at the Southwest corner of said Section 7
and run thence North 89(degree) 50' East along the South line of said
Section 549.76 feet; thence run North 0(degree) 12' East 1474.5 feet,
more or less, to a point 16.4 feet North of the right of way of the
Holloway Prairie Road to establish a point of beginning. From the point
of beginning as thus established run thence South 0(degree) 12' West
16.4 feet to the North line of the right of way of the Holloway Prairie
Road; thence East along the North line of said right of way a distance
of 110 feet to the West line of a 37 foot road sometimes designated as
Jones Street; thence North 0(degree) 12' East along the West line of
said Jones Street a distance of 15.8 feet; thence run Westerly back to
the point of beginning;
All as is more fully shown by plat of survey made by Irion Lafargue, Registered Surveyor, on January 17, 1951, attached to and made part of original instrument No. 356569 of the records of the office of the Recorder of Rapides Parish Louisiana;
Being that property acquired by Central Louisiana Electric Company, Inc. from the Most Reverend Charles P. Greco, individually and as Bishop of the Roman Catholic Diocese of Alexandria, La., by deed dated August 10, 1951, recorded in Conveyance Book 416, page 428, Filing No. 356569, records of Rapides Parish, Louisiana.
(b) All machinery, equipment, fixtures, supplies and materials now used or hereafter acquired for use in connection with the ice and cold storage, ice cream, dairy, and/or soft drink bottling business of the Company.
(c) All motor vehicles now used or hereafter acquired for use in connection with the ice and cold storage, ice cream, dairy, and/or soft drink bottling business of the Company, together with all tires, spare parts, materials and supplies appertaining thereto.
(d) All machinery, equipment, fixtures, supplies and materials, now owned or hereafter acquired, not used by or useful to the Company in its business as an electric, gas or water company or as an electric, gas or water utility, not located on any parcel of real estate now owned or hereafter acquired, referred to as being subject to the lien of the Indenture.
(e) All additions, improvements, betterments, extensions and replacements now or hereafter made to or acquired for or in connection with the property set forth in paragraphs (a), (b), (c) and (d) above.
TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Trustee and its successors in the trust hereby created and its and their assigns forever;
SUBJECT, HOWEVER, to existing leases, to easements and other rights of way for pole lines and other similar encumbrances and restrictions which the Company hereby certifies, in its judgment, do not impair the use of said property by the Company in its business, to liens securing indebtedness which has neither been assumed by the Company nor upon which it customarily pays interest charges, existing solely upon real property, or rights in and relating thereto, which real property or rights have been or may be acquired for right-of-way purposes, to liens of taxes and assessments for the current year and taxes and assessments not yet due, to alleys, streets and highways that may run across or encroach upon said lands, and to liens, if any incidental to construction; and, with respect to any property which the Company may hereafter acquire, to all terms, conditions, agreements, covenants, exceptions and reservations expressed or provided in such deeds and other instruments, respectively, under and by virtue of which the Company shall hereafter acquire the same and to any and all liens existing thereon at the time of such acquisition within the restrictions contained in the Indenture; and subject also to other liens and encumbrances of the character defined in the Indenture as "permitted liens" insofar as the same may attach to any of the property embraced herein;
IN TRUST NEVERTHELESS, upon the terms and trusts herein and in the Original Indenture set forth; this first Supplemental Indenture being made for the purpose, inter alia, of subjecting the real estate and premises and other property above described (other than property excluded above) to the lien and operation of the Indenture, so that the same shall be held specifically by the Trustee under and subject to the terms and conditions of the Indenture in identically the same manner and for the same trusts, uses and purposes, aa though the said real estate and premises and other property had been specifically described in the Original Indenture;
PROVIDED, HOWEVER, and these presents are upon the condition that if the Company, its successors or assigns, shall pay or cause to be paid the principal of and interest on all said bonds, together with the premium, if any, payable on such of said bonds as may have been called for redemption prior to maturity, or shall provide, as permitted by the Indenture, for the payment thereof by depositiug with the Trustee the entire amount due or to become due thereon for principal, interest and premium, if any, and if the Company shall also pay or cause to be paid all other sums payable under the Indenture by it, then the Indenture and the estate and rights thereby granted shall cease, determine and be void, otherwise to be and remain in full force and effect.
IT IS HEREBY FURTHER COVENANTED, DECLARED AND AGREED by and between the Company and the Trustee, for the benefit of those who shall hold said bonds and coupons or any of them, as follows:
ARTICLE I.
DESCRIPTION OF BONDS OF SERIES B AND BONDS OF SERIES C.
SECTION 1.1. The second series of bonds to be issued under the Indenture and secured thereby is hereby created, which shall be designated, and distinguished from the bonds of all other series, by the title "First Mortgage Bonds, Series B, 3 3/4%", elsewhere herein referred to as the "bonds of Series B".
The aggregate principal amount of the bonds of Series B is not limited except as provided in the Indenture.
The bonds of Series B shall be dated, and shall bear interest from, October 1, 1951, except as provided in Section 2.03 of the Indenture
with respect to registered bonds without coupons, and shall be due October 1, 1976, and shall bear interest at the rate of three and three-fourths per centum (3 3/4%) per annum, payable semi-annually on the first day of April and the first day of October in each year, until maturity, and at the highest rate of interest borne by any of the bonds outstanding under the Indenture from such date of maturity until the obligation of the Company with respect to payment of the principal thereof shall have been discharged. The principal of and the premium (if any) and the interest on the bonds of Series B shall be payable at the office or agency of the Company in the City of New Orleans, Louisiana, in such coin or currency of the United States of America as, at the time of payment, shall be legal tender for public and private debts.
The bonds of Series B shall be redeemable, either at the option of the Company or pursuant to any provision of the Indenture requiring such redemption, either as a whole or in part f rom time to time, at any time prior to maturity, upon notice published as provided in Section 8.02 of the Indenture, at least once in each of four (4) successive calendar weeks upon any business day of each such calendar week, the first publication to be not less than thirty (30) days and not more than sixty (60) days before such redemption date (or upon mailing of such notice of redemption as provided in the first paragraph of Section 8.02 of the Indenture in the event such paragraph shall be applicable). If redeemed by the application of moneys in the Sinking and Improvement Fund for bonds of Series B provided for in Article 11 of this Supplemental Indenture or moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture, or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereby by any municipal corporation or other governmental subdivision or governmental body or public authority, the Bonds of Series B are redeemable at the redemption price at the time applicable specified in Column A of the schedule contained in the form of coupon bond of Series B set forth in the recitals hereof, together with interest accrued to the date fixed for redemption. If redeemed otherwise than by the application of such moneys, the bonds of Series B are redeemable at the redemption price at the time applicable specified in Column B of said schedule, together with interest accrued to the date fixed for redemption.
Coupon bonds of Series B shall be issuable in the denomination of $1,000 and shall be registerable as to principal. Registered bonds
without coupons of Series B shall be issuable in denominations of $1,000 and any multiple of $1,000. Bonds of Series B shall be interchangeable at the option of the holders thereof, in like aggregate principal amounts, coupon bonds for registered bonds without coupons, registered bonds without coupons for coupon bonds and the several denominations of registered bonds without coupons.
SECTION 1.2. The third series of bonds to be issued under the Indenture and secured thereby is hereby created, which shall be designated, and distinguished from the bonds of all other series, by the title "First Mortgage Bonds, Series C, 3 3/4%", elsewhere herein referred to as the "bonds of Series C ".
The aggregate principal amount of the bonds of Series C which may be authenticated and delivered is limited (except as provided in Sections 2.03, 2.04, 2.05, 2.06 or 2.07 of the Indenture in respect of exchanges and interchanges of bonds and except as provided in Section 2.08 of the Indenture in respect of the issue of bonds in substitution for mutilated, destroyed, lost or stolen bonds) to Nine Hundred and Sixty Thousand Dollars ($960,000).
The bonds of Series C shall be dated, and shall bear interest from, October 1, 1951, except as provided in Section 2.03 of the Indenture with respect to registered bonds without coupons, and shall be due October 1, 1976, and shall bear interest at the rate of three and three-fourths per centum (3 3/4%) per annum, payable semi-annually on the first day of April and the first day of October in each year, until maturity, and at the highest rate of interest borne by any of the bonds outstanding under the Indenture from such date of maturity until the obligation of the Company with respect to payment of the principal thereof shall have been discharged. The principal of and the premium (if any) and the interest on the bonds of Series C shall be payable at the office or agency of the Company in the City of New Orleans, Louisiana, in such coin or currency of the United States of America as, at the time of payment, shall be legal tender for public and private debts.
The bonds of Series C shall be redeemable, either at the option of the Company or pursuant to any provision of the Indenture requiring such redemption, either as a whole or in part from time to time, at any time prior to maturity, upon notice published as provided in Section 8.02 of the Indenture, at least once in each of four (4) successive calendar weeks upon any business day of each such calendar
week, the first publication to be not less than (30) days and not more than sixty (60) days before such redemption date (or upon mailing of notice of redemption as provided in the first paragraph of Section 8.02 of the Indenture in the event such paragraph shall be applicable) . If redeemed by the application of moneys in the Sinking and Improvement Fund for bonds of Series C provided for in Article H of this Supplemental Indenture or moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture, or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereby by any municipal corporation or other governmental subdivision or governmental body or public authority, the Bonds of Series C are redeemable at the principal amount thereof, together with interest accrued to the date fixed for redemption, without premium. If redeemed otherwise than by the application of such moneys, the bonds of Series C are redeemable at the redemption price at the time applicable specified in the schedule contained in the form of coupon bond of Series C set forth in the recitals hereof, together with interest accrued to the date fixed for redemption.
Coupon bonds of Series C shall be issuable in the denomination of $1,000 and shall be registerable as to principal. Registered bonds without coupons of Series C shall be issuable in denominations of $1,000 and any multiple of $1,000. Bonds of Series C shall be interchangeable at the option of the holders thereof, in like aggregate principal amounts, coupon bonds for registered bonds without coupons, registered bonds without coupons for coupon bonds and the several denominations of registered bonds without coupons.
ARTICLE II.
SINKING AND IMPROVEMENT FUND FOR BONDS OF
SERIES B AND BONDS OF SERIES C.
SECTION 2.1. The Company covenants and agrees that it will on or before the first day of October, 1952, and annually thereafter on or before the first day of October in each year to and including the first day of October, 1975, as long as any of the Bonds of Series B issued hereunder shall be outstanding, pay to the Trustee as and for a Sinking and Improvement Fund for the bonds of Series B an amount in cash equal to two per centum (2%) of the greatest principal amount of bonds of Series B at any one time outstanding under the Indenture;
provided, however, that the amount of cash payable to the Trustee on any such date pursuant to the provisions of this Section shall be reduced by an amount equal to the sum of the following credits:
(a) The aggregate principal amount, or the cost thereof (exclusive of accrued interest) to the Company, whichever shall be the lesser, of bonds of Series B which the Company shall deliver to the Trustee for that purpose; and
(b) An amount equal to sixty per centum (60%) of the amount of
bondable value of property additions which the Company shall elect to
make the basis of a credit against such payment, but the amount of the
credit which may be taken by the Company in any year under this
paragraph (b) shall not exceed one-half (1/2) of the total cash
required to be paid to the Trustee pursuant to the provisions of this
Section and provided, further, that any credits taken pursuant to this
paragraph (b) and pursuant to paragraph (b) of Section 2.2 shall be in
the same proportion to the total cash payments required to be made to
the Trustee, with respect to the first day of October of the particular
year, pursuant to Section 2.1 and Section 2.2 respectively.
In the event that the Company shall elect to take credit against any
such payment pursuant to the provisions of the foregoing paragraph (a) of this
Section, the Company shall deliver to the Trustee an officers' certificate
complying with the provisions of Section 3.01 of the Indenture and stating that
(i) the bond or bonds so delivered to the Trustee on account of any sinking and
improvement fund payment have previously been disposed of by the Company for
value, otherwise than merely by way of pledge, and subsequently purchased by the
Company at the times and cost (exclusive of accrued interest) therein specified,
and (ii) such bonds have not theretofore been made the basis for the
authentication and delivery of bonds or the withdrawal, use or application of
cash under any provisions of the Indenture or for a credit pursuant to Section
5.07 of the Indenture or this Section 2.1. In the event that the Company shall
elect to take credit against any such payment pursuant to the provisions of the
foregoing paragraph (b) of this Section, the Company shall deliver to the
Trustee an officers' certificate of bondable value of property additions meeting
the requirements of subsection (B) of Section 1.06 of the Indenture, accompanied
by the instruments required by subsection (C) of Section 1.06 thereof.
All cash paid to the Trustee pursuant to the provisions of this Section shall, to the extent practicable, be applied promptly by the Trustee to the purchase of bonds of Series B in accordance with the provisions of Section 8.06 of the Indenture, or, at the option of the Company, shall, be applied promptly to the redemption of bonds of Series B. If any such moneys shall remain in the hands of the Trustee for more than three (3) months after the receipt thereof by the Trustee, all of such moneys, to the extent that they are sufficient (exclusive of premium and accrued interest) to redeem bonds in an aggregate principal amount which shall be a multiple of $1,000, shall be applied by the Trustee in accordance with the provisions of Article VIII of the Indenture to the redemption of bonds of Series B on such date, not later than the next succeeding interest payment date, as shall be fixed by the Trustee; and for such purpose the Trustee may publish notice of redemption in the name of the Company or its own name as Trustee. No moneys shall be applied as provided in this paragraph if any default in the payment of interest on any of the bonds of Series B shall have occurred and be continuing or if any of the completed defaults specified in Section 10.01 of the Indenture shall have occurred and be continuing.
SECTION 2.2. The Company covenants and agrees that it will on or before the first day of October, 1952, and annually thereafter on or before the first day of October in each year to and including the first day of October, 1975, as long as any of the bonds of Series C issued hereunder shall be outstanding, pay to the Trustee as and for a Sinking and Improvement Fund for the bonds of Series C an amount in cash equal to two per centum (2%) of the greatest principal amount of bonds of Series C at any one time outstanding under the Indenture; provided, however, that the amount of cash payable to the Trustee on any such date pursuant to the provisions of this Section shall be reduced by an amount equal to the sum of the following credits:
(a) The aggregate principal amount, or the cost thereof (exclusive of accrued interest) to the Company, whichever shall be the lesser, of bonds of Series C which the Company shall deliver to the Trustee for that purpose; and
(b) An amount equal to sixty per centum (60%) of the amount of bondable value of property additions which the Company
shall elect to make the basis of a credit against such payment; but the amount of the credit which may be taken by the Company in any year under this paragraph (b) shall not exceed one-half (1/2) of the total cash required to be paid to the Trustee pursuant to the provisions of this Section and provided, further, that any credits taken pursuant to this paragraph (b) and pursuant to paragraph (b) of Section 2.1 shall be in the same proportion to the total cash payments required to be made to the Trustee, with respect to the first day of October of the particular year, pursuant to Section 2.1 and Section 2.2 respectively.
In the event that the Company shall elect to take credit against any
such payment pursuant to the provisions of the foregoing paragraph (a) of this
Section, the Company shall deliver to the Trustee an officers' certificate
complying with the provisions of Section 3.01 of the Indenture and stating that
(i) the bond or bonds so delivered to the Trustee on account of any sinking and
improvement fund payment have previously been disposed of by the Company for
value, otherwise than merely by way of pledge, and subsequently purchased by the
Company at the times and cost (exclusive of accrued interest) therein specified,
and (ii) such bonds have not theretofore been made the basis for the
authentication and delivery of bonds or the withdrawal, use or application of
cash under any provisions of the Indenture or for a credit pursuant to Section
5.07 of the Indenture or this Section 2.2. In the event that the Company shall
elect to take credit against any such payment pursuant to the provisions of the
foregoing paragraph (b) of this Section, the Company shall deliver to the
Trustee an officers' certificate of bondable value of property additions meeting
the requirements of subsection (B) of Section 1.06 of the Indenture, accompanied
by the instruments required by subsection (C) of Section 1.06 thereof.
All cash paid to the Trustee pursuant to the provisions of this Section shall, to the extent practicable, be applied promptly by the Trustee to the purchase of bonds of Series C in accordance with the provisions of Section 8.06 of the Indenture, or, at the option of the Company, shall be applied promptly to the redemption of bonds of Series C. If any such moneys shall remain in the hands of the Trust tee for more than three (3) months after the receipt thereof by the Trustee, all of such moneys, to the extent that they are sufficient
(exclusive of premium and accrued interest) to redeem bonds in an aggregate principal amount which shall be a multiple of $1,000, shall be applied by the Trustee in accordance with the provisions of Article VIII of the Indenture to the redemption of bonds of Series C on such date, not later than the next succeeding interest payment date, as shall be fixed by the Trustee; and for such purpose the Trustee may publish notice of redemption in the name of the Company or in its own name as Trustee. No moneys shall be applied as provided in this paragraph if any default in the payment of interest on any of the bonds of Series C shall have occurred and be continuing or if any of the completed defaults specified in Section 10.01 of the Indenture shall have occurred and be continuing.
SECTION 2.3. All bonds of Series B or Series C delivered to the Trustee, or purchased or redeemed, pursuant to the provisions of this Article, shall be forthwith cancelled by the Trustee, and such bonds shall not be reissued.
SECTION 2.4. The Company further covenants to pay to the Trustee, on demand, the compensation of the Trustee in administering the sinking and improvement funds as provided in this Article II, together with the Trustee's expenses, including cost of advertisement of redemption notices and any other advertisements and other lawful charges, if any, and any accrued interest and premium paid or payable with respect to any such bonds of Series B and of Series C purchased or redeemed as provided for in this Article II, it being intended that the aforesaid compensation, expenses, charges, accrued interest and premium shall not be charged against sinking and improvement fund moneys.
ARTICLE III.
AMENDMENTS OF ORIGINAL INDENTURE.
SECTION 3.1. The second paragraph of the definition of "property additions" in Section 1.03 of the Original Indenture is hereby amended by changing "(viii)" to "(ix)" and inserting after the word "Louisiana" in the twenty-fourth line of said paragraph, the following clause, "; (viii) any natural gas wells or works or property used in the production of natural gas as distinguished from its transmission".
SECTION 3.2. The word "matured" in the fourth line of the second paragraph of Section 2.07 of the Original Indenture is hereby amended to read "unmatured".
SECTION 3.3. The word "second" in the ninth line of the fourth paragraph of Section 2.10 of the Original Indenture is hereby amended to read "first".
SECTION 3.4. Section 4.04 of the Original Indenture is hereby amended
by inserting after the words "Section 6.01 hereof" in the last line of the first
paragraph of Section 4.04 and in subdivision (iii) of subparagraph (b) of
Section 4.04, the words "or under any sinking and improvement fund or other
purchase or similar fund which may be created pursuant to the provisions of any
indenture supplemental to the Indenture".
SECTION 3.5. Section 5.07 of the Original Indenture is hereby amended by inserting after the words "property additions" in the third line of the second paragraph of said Section and in the first line of paragraph (4) of said Section, the following:
"(except property additions the bondable value of which has previously been made the basis for the authentication and delivery of bonds or the withdrawal of cash hereunder and except property additions acquired by merger, consolidation or dissolution and except any property included in property additions which within six months prior to the date of acquisition thereof by the Company was used or operated by a person or persons other than the Company in a business similar to that in which it has been or is to be used or operated by the Company)".
SECTION 3.6. Section 5.10 of the Original Indenture is hereby amended by inserting the following paragraph at the end thereof:
"That promptly after the acquisition by the Company hereafter of any parcel of real estate or other item of property of the character described in the granting clauses hereof as subject to the lien hereof and having a cost to the Company of Ten Thousand Dollars ($10,000) or more, it will execute and deliver to the Trustee and cause to be recorded, registered and filed, in such manner and in such places as may be required by law in order fully to preserve and protect the security of the bondholders and all rights of the Trustee hereunder, a supplemental
indenture appropriately describing and conveying to the Trustee such parcel of real estate or other item of property; and that if during 1952 or any calendar year thereafter the Company shall have acquired properties of the character mortgaged or intended to be mortgaged hereby, not theretofore included in any such supplemental indenture and having an aggregate cost to the Company of Twenty Thousand Dollars ($20,000) or more, it will promptly after the end of such year execute and deliver to the Trustee and cause to be so recorded, registered and/or filed a supplemental indenture appropriately describing and conveying to the Trustee such properties; provided, however, that in lieu of executing and delivering any supplemental indenture pursuant to the provisions of this paragraph, the Company may deliver to the Trustee an opinion of counsel that no such supplemental indenture is required in order to preserve and protect the security of the bondholders and all rights of the Trustee hereunder in respect of any such parcel of real estate or other properties. Upon the delivery of any supplemental indenture pursuant to the provisions of this Section, the Company shall deliver to the Trustee an opinion of counsel complying with the provisions of Section 3.01 hereof and stating that such supplemental indenture is in conformity with the requirements of this Section.
SECTION 3.7. The second line of Section 5.20 of the Original Indenture is hereby amended by inserting after the words "Series A", the words "or Series B or Series C".
SECTION 3.8. Section 5.20 of the Original Indenture is hereby amended by inserting in the last line after the word "acquisition", the following:
";provided that for the purposes of this Section no credits shall be made to such earned surplus accumulated after December 31, 1949, on account of premiums received by the Company on bonds issued hereunder except (I) in pro rata annual amounts as such premiums are amortized over the life of such bonds, or (ii) upon the redemption of such bonds prior to their maturity".
SECTION 3.9. The first paragraph of Section 8.02 and the second paragraph of Section 15.01 of the Original Indenture are hereby amended by inserting before the words "in the City of New Orleans", in said paragraphs, the words "in the Borough of Manhattan, The City of New York, New York, and in a similar newspaper".
SECTION 3.10. The covenant of the Company in Section 5.15 of the Original Indenture shall not apply to the acquisition by the Company of the properties formerly owned by Gulf Public Service Co., Inc., subject to the lien of the Indenture of Mortgage of said Gulf Company dated October 1, 1946 securing $5,804,000 principal amount of presently outstanding bonds, as a result of the merger of said Gulf Company with and into the Company hereinbefore referred to in the granting clauses of this First Supplemental Indenture, provided that said Indenture of Gulf Public Service Co., Inc. shall be satisfied and released and all bonds outstanding thereunder shall be cancelled and discharged, within 15 days from the effective date of said merger, and provided further that the effective date of said merger shall be prior to December 15, 1951, all as evidenced to the Trustee by an Officers' Certificate filed with the Trustee; and otherwise the terms of said Section 5.15 shall be deemed to be and to have been at all times in full force and effect without any modification thereof.
SECTION 3.11. The covenant of the Company in the last paragraph of
Section 17.02 of the Original Indenture shall not apply with respect to the
execution of this First Supplemental Indenture.
SECTION 3.12. The following Sections shall be inserted at the end of Article V of the Original Indenture:
"SECTION 5.24. The Company covenants and agrees that at no time shall the value of the properties of the Company and subsidiaries used or useful by or to the Company and subsidiaries for any business other than in connection with the electric, gas or water business or as an electric, gas or water utility, exceed 9% of the then value of the properties of the Company subject to the lien of the Indenture and used or useful by or to it in connection with its business as an electric, gas or water company or as an electric, gas or water utility. Such value shall be as stated on the books of the Company and of subsidiaries in the plant, property and equipment accounts and construction work in progress account or similar accounts, after deduction of reserves for renewals, replacements, and retirements (or depreciation) as stated on such books. As used in this Section, the term 'subsidiaries' means any corporation of which the Company or one or more subsidiaries own or control, directly or indirectly, 50% or more of the outstanding shares of capital stock having ordinary voting power to elect a majority of the board of directors in such corporation.
SECTION 5.25. The Company covenants and agrees that if any parcel of land excepted from the lien of the Indenture shall at any time become used or useful by or to the Company in connection with its business as an electric, gas or water company or as an electric, gas or water utility, the same shall thereupon be and become a part of the mortgaged and pledged property, subject to the lien of the Indenture, and the Company will immediately execute, deliver and cause to be recorded a supplemental indenture subjecting the same to the lien of the Indenture."
SECTION 3.13. Reference is hereby made to certain additions to and amendments of the "Saving and Excepting" clauses of the Original Indenture, as hereinbefore get forth.
ARTICLE IV.
STAMPING AND REVISION OF BONDS OF SERIES A.
SECTION 4.1. The bonds of Series A now outstanding and all bonds of Series A hereafter issued shall (unless revised as hereinafter provided) be stamped or typewritten with a notation as follows:
"The Indenture dated as of July 1, 1950 referred to in this bond has been amended by a First Supplemental Indenture dated as of October 1, 1951, executed and delivered with the consent of the holders of all of the bonds at the time outstanding under the Indenture, providing, inter alia, for the amendment of certain provisions of the Indenture and the release by the Trustee of certain parcels of land from the lien of the Indenture, a copy of which First Supplemental Indenture is on file with The National Bank of Commerce in New Orleans, Trustee under the Indenture, to which reference is hereby made.
THE NATIONAL BANK OF COMMERCE
IN NEW ORLEANS, TRUSTEE."
All outstanding bonds of Series A, and additional bonds of Series A prior to their issuance, shall be stamped or typewritten with the above notation as aforesaid.
SECTION 4.2. Any bonds of Series A at any time hereafter issued shall, if the Company so elects or if the holder of such bond so requests in writing, be in such revised form as may be approved by the Trustee so as to refer to this First Supplemental Indenture and the amendments of the Original Indenture hereby effected.
ARTICLE V.
MISCELLANEOUS.
SECTION 5.1. The Company is lawfully seized and possessed of all the real estate, franchises and other property described or referred to in the Original Indenture and in this First Supplemental Indenture as presently mortgaged and pledged thereunder, subject to the exceptions stated therein and except property which has been released from the lien of the Indenture in accordance with its terms, and upon the initial issue of bonds of Series B and of Series C thereunder such real estate, franchises and other property will be free and clear of any lien prior to or on a parity with the lien of the Indenture except as set forth in the granting clauses of the Indenture and except permitted liens as therein defined, and the Company has good right and lawful authority to mortgage and pledge the same as provided in and by the Original Indenture and this First Supplemental Indenture.
SECTION 5.2. As supplemented and amended by this First Supplemental Indenture, the Original Indenture is in all respects ratified and confirmed and said Original Indenture and this First Supplemental Indenture shall be read, taken and construed as one and the same instrument.
SECTION 5.3. The Trustee assumes no duties, responsibilities or liabilities by reason of this First Supplemental Indenture, other than as set forth in the Original Indenture, and this First Supplemental Indenture is executed and accepted by the Trustee subject to all the terms and conditions of its acceptance of the trust under the Original Indenture, as fully as if said terms and conditions were herein set forth at length.
SECTION 5.4. This First Supplemental Indenture shall be simultaneously executed in several counterparts and all such counterparts executed and delivered, each as an original, shall constitute but one and the same instrument.
SECTION 5.5. This First Supplemental Indenture has been dated as of October 1, 1951 solely for convenience in fixing interest periods. The date of actual execution hereof by each of the parties hereto is the date shown by the acknowledgment of execution hereof by its officers.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC., has caused this instrument to be signed in its corporate name by its President or one of its Vice-Presidents and sealed with the corporate seal attested by its Secretary or one of its Assistant Secretaries and The National Bank of Commerce in New Orleans to evidence its acceptance of the trust hereby created has caused this instrument to be signed in its corporate name by one of its Vice-Presidents and sealed by its corporate seal attested by one of its Assistant Cashiers, all as of the day and year first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
T. M. HAUER
[SEAL] Vice-President.
Attest:
T. P. STREET
Secretary.
|
Signed, sealed, acknowledged
and delivered by THE NATIONAL BANK
OF COMMERCE IN NEW ORLEANS in the
presence of:
H. S. FORD
J. R. FLAD
THE NATIONAL BANK OF COMMERCE IN NEW
ORLEANS,
By
F. C. DOYLE
[SEAL] Vice-President.
Attest:
F. PINOGES
Assistant Cashier.
Signed, sealed, acknowledged
and delivered by THE NATIONAL
BANK OF COMMERCE
IN NEW ORLEANS, in the presence
of:
H. S. FORD
J. R. FLAD
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 3rd day of December, 1951, before me the undersigned, a Notary Public in and for said Parish and State, duly qualified and commissioned as such, personally appeared T. M. Hauer, a Vice-President and T. P. Street, the Secretary of Central Louisiana Electric Company, Inc., the grantor in the foregoing instrument, to me personally known and known to me to be such officers, respectively, of such Company, and personally known to me to be the identical persons whose names are subscribed and affixed to the foregoing instrument as such officers, respectively, and who subscribed the name of the Company thereto, and in my presence and in the presence of the undersigned witnesses, of lawful age and domicile, severally acknowledged that the same is their respective, free and voluntary act and deed as such officers and the free and voluntary act and deed of said Company for the use's and purposes therein expressed; and the said persons being each by me duly and severally sworn as individuals did depose and say that they are such officers, respectively, of said Company; that they know the seal of said Company; that the seal affixed to the foregoing instrument was and is such corporate seal; that said seal was so affixed and said instrument was so signed on behalf of said Company by the order and authority of the Board of Directors of said Company; and that they signed their names thereto as such officers, respectively, of said Company by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their names on the day and date first hereinabove written, in the presence of H. S. Ford and J. R. Flad, witnesses of lawful age and domicile, and of me, said Notary Public.
Witness:
H. S. FORD T. M. HAUER
J. R. FLAD Vice-President.
T. P. STREET
Secretary.
HARRY B. KELLEHER
[SEAL) Notary Public.
|
My Commission expires at death or on removal from Office.
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 3rd day of December, 1951, before me the undersigned, a Notary Public in and for said Parish and State duly qualified and commissioned as such, personally appeared F. P. Doyle, the Vice-President, and F. Pinoges the Assistant Cashier of The National Bank of Commerce in New Orleans, a national banking association, duly organized and existing under the laws of the United States of America, Trustee under the foregoing instrument, to me personally known and known to me to be such officers, respectively, of said Bank, and personally known to me to be the identical persons whose names are subscribed and affixed to the foregoing instrument as such officers respectively, and who subscribed the name of the said Bank thereto, and in my presence and in the presence of the undersigned witnesses, of lawful age and domicile, severally acknowledged that the same is their respective, free and voluntary act and deed as such officers and the free and voluntary act and deed of said Bank for the uses and purposes therein expressed; and the said persons being each by me duly and severally sworn as individuals did depose and say that they are such officers, respectively, of said Bank; that they know the seal of said Bank; that the seal affixed to the foregoing instrument was and is such corporate seal; that said seal was so affixed and said instrument was so signed on behalf of said Bank by the order and authority of the Board of Directors of said Bank; and that they signed their names thereto as such officers, respectively, of said Bank by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their names on the day and date first hereinabove written, in the presence of H. S. Ford and J. R. Flad, witnesses of lawful age and domicile, and of me, said Notary Public.
Witness:
H. S. FORD F. C. DOYLE
J. R. FLAD Vice-President.
F. PINOGES
Assistant Cashier.
HARRY B. KELLEHER
[SEAL] Notary Public.
My Commission expires at death.
|
THE STATE OF LOUISIANA,} ss.:
PARISH OF ORLEANS }
I, T. P. Street, Secretary of Central Louisiana Electric Company, Inc., a Louisiana corporation, do hereby certify that the following is a true and correct copy of a resolution of the Board of Directors of said corporation, unanimously adopted at a duly convened meeting of said Board of Directors held on the 20th day of November, 1951, at which meeting a quorum was present and acting throughout, as taken by me from the minutes of said meeting and compared by me with the original of said resolution recorded in said minutes:
"RESOLVED, that the President or any Vice President, and the Secretary or any Assistant Secretary, of this Company, be and they hereby are authorized and directed to make and execute on behalf of this Company, to affix and attach the corporate seal of this Company to, and to acknowledge on behalf of this Company and deliver, a supplement dated as of October 1, 1951, to that certain Indenture of Mortgage dated as of July 1, 1950, executed by the Company to The National Bank of Commerce in New Orleans, as Trustee, in the form of the First Supplemental Indenture presented to this meeting, subject to such changes therein, whether of form or of substance, as may be approved by the officers executing the same, such approval to be conclusively evidenced by their execution thereof."
IN WITNESS WHEREOF, I have hereto set my hand and caused the corporate seal of said Central Louisiana Electric Company, Inc. to be hereunto affixed, this 3rd day of December, 1951.
T. P. STREET
[SEAL] Secretary of Central Louisiana Electric Company, Inc.
Recording data First Supplemental Indenture of Mortgage of Central Louisiana Electric Company, Inc. to The National Bank of Commerce in New Orleans, dated as of October 1, 1951.
AS SHOWN By THE RECORDERS' CERTIFICATES, THE FOREGOING FIRST SUPPLEMENTAL INDENTURE OF MORTGAGE IS DULY RECORDED IN THE FOLLOWING PARISHES IN THE STATE OF LOUISIANA:
Mortgage Registry
Parish Book Folio Number
------ -------- ----- ---------
Acadia 103 416 248737
Allen 38 141 106833
Avoyelles Special-M 199 141592
Beauregard 52 59 106707
Calcasieu 249 59 514592
DeSoto 54 341 220630
Evangeline 61 193 134713
Grant Special-3 459 14687
Iberia A-124 1ll 47704
Lafayette N-20 7 269023
Natchitoches 203-A 523 MA-936
Rapides 330 44 359267
Red River 40 149 78981
Sabine 28 165 141767
St. Landry 153 69 310683
St. Mary 137 587 59890
St. Martin 91 123 49208
St. Tammany 95 313 100643
Vernon 202 279 187563
Washington 108 72-A None
Webster 83 355 121492
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EXHIBIT 4(a)(3)
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
TO
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
as Trustee
Second Supplemental Indenture
DATED AS OF JUNE 1, 1952
Issue of First Mortgage Bonds, Series D, 3 3/4% Due June 1, 1982
Supplemental to Indenture of Mortgage and Deed of Trust Dated as of July 1, 1950
SECOND SUPPLEMENTAL INDENTURE, dated as of June 1, 1952, between Central Louisiana Electric Company, Inc., a corporation duly organized and existing under and by virtue of the laws of the State of Louisiana (hereinafter sometimes called the "Company"), party of the first part, and The National Bank of Commerce in New Orleans, a national banking association duly organized and existing under and by virtue of the laws of the United States of America, as Trustee under the Indenture of Mortgage hereinafter mentioned (hereinafter sometimes called the "Trustee"), party of the second part.
WHEREAS, the Company heretofore executed and delivered its Indenture of Mortgage (hereinafter called "Original Indenture"), dated as of July 1, 1950, to the Trustee, to secure the Company's First Mortgage Bonds, limited to $100,000,000 aggregate principal amount at any one time outstanding and issuable in series, from time to time, in the manner and subject to the conditions set forth in the Original Indenture, and by said Original Indenture granted and conveyed unto the Trustee, upon the trusts, uses and purposes specifically therein set forth, certain real estate, franchises and other property therein described, including property acquired after the date thereof except as therein otherwise provided; and
WHEREAS, the Company has heretofore issued under the Original Indenture $5,500,000 principal amount of its First Mortgage Bonds, Series A, 3% (hereinafter sometimes called "bonds of Series A"), of which $5,445,000 principal amount remains outstanding as of the date hereof; and
WHEREAS, the Original Indenture provides for the issuance of bonds thereunder in one or more series, the form of each series of bonds and of the coupons to be attached to the coupon bonds to be substantially in the forms set forth therein with such omissions, variations, and insertions as are authorized or permitted by the Original Indenture and determined and specified by the Board of Directors of the Company; and
WHEREAS, the Company heretofore executed and delivered its First Supplemental Indenture (hereinafter called the " First Supplemental Indenture") dated as of October 1, 1951, to the Trustee to
supplement the Original Indenture and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original Indenture as supplemented and amended by the First Supplemental Indenture, $4,844,000 principal amount of its First Mortgage Bonds, Series B, 3 3/4% (hereinafter sometimes called "bonds of Series B"), and $960,000 principal amount of its First Mortgage Bonds, Series C, 3 3/4% (hereinafter sometimes called "bonds of Series C"), all of which bonds of Series B and Series C remain outstanding as of the date of this Second Supplemental Indenture (hereinafter called "Second Supplemental Indenture"), the Original Indenture as amended or supplemented by all indentures supplemental thereto, including the First Supplemental Indenture and this Second Supplemental Indenture being hereinafter referred to as the "Indenture"; and
WHEREAS, the Company, by appropriate resolutions adopted by its Board
of Directors pursuant to the terms of the Indenture, has duly determined (a) to
create a fourth series of bonds under the Indenture, to be designated as "First
Mortgage Bonds, Series D, 3 3/4%" (herein sometimes called "bonds of Series D"),
(b) that such bonds shall be coupon bonds registerable as to principal and
registered bonds without coupons, (c) that such coupon bonds shall be
exchangeable for registered bonds without coupons, and (d) that the bonds of
Series D, and the interest coupons to be attached to the coupon bonds of said
series, are to be substantially in the following forms, respectively:
[FORM OF COUPON BOND OF SERIES D]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bonds, Series D, 3/4%
Due June 1, 1982
No. $1000
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (hereinafter called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to bearer, or, if this bond be registered as to principal, to the registered holder hereof, on June 1,
1982, at the office or agency of the Company in the City of New Orleans, Louisiana, One Thousand Dollars ($1000) in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay interest thereon semi-annually on June I and December 1 of each year at the rate of three and three-quarter per centum (3 3/4%) per annum, at such office or agency in like coin or currency, from June 1, 1952, until this bond shall mature, according to its terms or on prior redemption or by declaration or otherwise, but only upon presentation and surrender of the coupons for such interest installments as are evidenced thereby, hereto appertaining, as they shall severally mature.
This bond is one of an authorized issue of bonds of the Company known as its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000) at any one time outstanding, issued and to be issued, in one or more series, and equally and ratably secured (except insofar as a sinking fund or other similar fund established in accordance with the provisions of the Indenture may afford additional security for the bonds of any specific series) by an indenture (hereinafter called the "Original Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as Trustee (hereinafter called the "Trustee"), as supplemented and amended by a First Supplemental Indenture dated as of October 1, 1951, and a Second Supplemental Indenture dated as of June 1, 1952, executed by the Company to the Trustee, to which Original Indenture, First Supplemental Indenture, Second Supplemental Indenture and all other indentures supplemental thereto (said Original Indenture as so supplemented and amended being herein called the "Indenture") reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Company in respect of such security, the rights, duties and immunities of the Trustee, and the terms and conditions upon which the bonds are, and are to be, secured. As provided in the Indenture, the bonds may be issued in series for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This bond is one of the bonds described in the Indenture and designated therein as "First Mortgage Bonds, Series D, 3 3/4%" (hereinafter referred to as the "bonds of Series D").
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 75% in aggregate principal amount of all the bonds at the time outstanding, determined and evidenced as in the Indenture provided, or in case the rights under the Indenture of the holders of bonds of one or more, but less than all, of the series of bonds outstanding shall be affected, then with the consent of the holders of not less than 75% in aggregate principal amount of the bonds at the time outstanding of the one or more series affected, determined and evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the holders of the bonds and coupons; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any bonds, or reduce the rate or extend the time of payment of interest thereon, or modify the terms of payment of principal at maturity or by redemption, or otherwise modify the terms of payment of any bond, without the consent of the holder of each bond so affected, or (ii) reduce the percentage of bonds, the holders of which are required to consent to any such supplemental indenture, without the consent of the holders of all bonds then outstanding, or (iii) permit the creation of any lien ranking prior to or equal with the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holders of all bonds then outstanding, or (iv) deprive the holder of any outstanding bond of the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holder of each bond so affected. Any such consent by the holder of this bond (unless effectively revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders of this bond, irrespective of whether or not any notation of such consent is made upon this bond. No reference herein to the Indenture and no provision of this bond or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay at the stated or accelerated maturity herein and in the Indenture provided, the principal of and interest and premium, if any, on this bond at the time and place and at the rate and in the coin or currency herein prescribed.
The coupon bonds of Series D are issuable in the denomination of $1,000. The registered bonds without coupons of Series D are
issuable in denominations of $1,000 and any multiple of $1,000. At the office or agency to be maintained by the Company in said City of New Orleans and in the manner, subject to the limitations, and upon payment of the charges provided in the Indenture, coupon bonds of such series, with all unmatured coupons and any matured coupons in default thereto appertaining, may be exchanged for a like aggregate principal amount of registered bonds without coupons of such series, and registered bonds without coupons of such series may be exchanged for a like aggregate principal amount of coupon bonds of such series bearing all unmatured coupons and any matured coupons in default or for a like aggregate principal amount of registered bonds without coupons of such series of other authorized denominations.
The bonds of Series D are entitled to the benefit of the Sinking Fund provided for in Article II of the Second Supplemental Indenture.
The bonds of Series D may be redeemed, either at the option of the Company or pursuant to certain requirements of the Indenture, on any date prior to maturity, as a whole or from time to time in part, upon publication at least once in each of four successive calendar weeks, upon any business day of each such calendar week, of notice of such redemption in a newspaper printed in the English language and customarily published on each business day and of general circulation in the Borough of Manhattan, The City of New York, New York, and like publication in a similar newspaper of said City of New Orleans, the first publication in each case to be not less than thirty (30) days and not more than sixty (60) days before such redemption date (provided, however, that if all the bonds of Series D at the time outstanding shall be registered bonds without coupons or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, such notice may be given by mailing the same to each registered holder of a bond so to be redeemed directed to his registered address not less than thirty (30) days and not more than sixty (60) days before the redemption date) ; all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds of Series A provided for in Article II of the Second Supplemental Indenture or moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property
upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series D are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, at the redemption price at the time applicable, as set forth in Column A of the following schedule, and if redeemed otherwise than by the application of such moneys, the bonds of Series D are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in Column B of the following schedule, together with, in each ease, interest accrued to the date fixed for redemption:
Redemption Price
(Percentage of Principal Amount)
-------------------------------
If redeemed during the period Col. A Col. B
-------------------------------------- --------- ----------
June 1, 1952--May 31, 1953............... 103.12 106.00
June 1, 1953--May 31, 1954............... 103.06 105.80
June 1, 1954--May 31, 1955............... 103.00 105.59
June 1, 1955--May 31, 1956............... 102.93 105.38
June 1, 1956--May 31, 1957............... 102.87 105.18
June 1, 1957--May 31, 1958............... 102.80 104.97
June 1, 1958--May 31, 1959............... 102.73 104.76
June 1, 1959--May 31, 1960............... 102.65 104.56
June 1, 1960--May 31, 1961............... 102.58 104.35
June 1, 1961--May 31, 1962............... 102.50 104.14
June 1, 1962--May 31, 1963............... 102.42 103.94
June 1, 1963--May 31, 1964............... 102.33 103.73
June 1, 1964--May 31, 1965............... 102.25 103.52
June 1, 1965--May 31, 1966............... 102.16 103.32
June 1, 1966--May 31, 1967............... 102.06 103.11
June 1, 1967--May 31, 1968............... 101.96 102.90
June 1, 1968--May 31, 1969............... 101.86 102.70
June 1, 1969--May 31, 1970............... 101.76 102.49
June 1, 1970--May 31, 1971............... 101.65 102.28
June 1, 1971--May 31, 1972............... 101.54 102.08
June 1, 1972--May 31, 1973............... 101.42 101.87
June 1, 1973--May 31, 1974............... 101.30 101.66
June 1, 1974--May 31, 1975............... 101.18 101.46
June 1, 1975--May 31, 1976............... 101.05 101.25
June 1, 1976--May 31, 1977............... 100.92 101.04
June 1, 1977--May 31, 1978............... 100.7F 100.81
June 1, 1978--May 31, 1979............... 100.63 100.63
June 1, 1979--May 31, 1980............... 100.48 100.48
June 1, 1980--May 31, 1981............... 100.33 100.33
June 1, 1981--May 31, 1982............... 100.00 100.00
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If this bond is called for redemption and payment hereof is duly provided for as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the Trustee in trust for the purpose funds sufficient to pay the principal of all of the bonds of any series, or such of the bonds of any series as have been or are to be called for redemption, and premium, if any, thereon, and all interest payable on such bonds to the date on which they become due and payable at maturity or upon redemption or otherwise, and shall comply with the other provisions of the Indenture in respect thereof, then from the date of such deposit such bonds shall no longer be entitled to any lien or benefit under the Indenture.
The principal hereof may be declared or may become clue prior to the express date of the maturity hereof on the conditions, in the manner and at the time set forth in the Indenture, upon the occurrence of a completed default as in the Indenture provided; subject, however, to the right, under certain circumstances, of the holders of a majority in principal amount of the bonds outstanding to annul such declaration.
This bond is negotiable and shall pass by delivery unless registered as to principal at the office or agency of the Company in said City of New Orleans, and such registration noted hereon, after which no valid transfer hereof can be made, except at such office or agency, until after registered transfer to bearer, but after such registered transfer to bearer this bond shall be again transferable by delivery. Such registration, however, shall not affect the negotiability of the coupons, which shall always remain payable to bearer, be treated as negotiable and pass by delivery. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the bearer of this bond if it is not registered as to principal, or, if this bond is registered as herein authorized, the person in whose name this bond is registered, as the absolute owner hereof, and the bearer of any coupon hereunto appertaining, as the absolute owner thereof, whether or not this bond or such coupon shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, an such liability of incorporators, subscribers, stockholders, officers and directors, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.
Neither this bond nor the coupons hereto attached shall become valid or obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture, or its successor thereunder, shall have signed the certificate of authentication endorsed hereon.
IN WITNESS WHEREOF, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this bond to be signed in its name by its President or one of its Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed hereto and attested by its Secretary or one of its Assistant Secretaries, and interest coupons bearing the facsimile signature of its Treasurer to be attached hereto, and this bond to be dated June 1, 1952.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
Attest: President.
Secretary.
(Form of Coupon for Bonds of Series D)
$18.75
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On the first day of , 19 , unless the bond hereinafter mentioned shall have been called for previous redemption and payment of the redemption price thereof shall have been duly provided
for, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. will pay to bearer, upon surrender of this coupon, at its office or agency in the City of New Orleans, Louisiana, eighteen dollars and seventy-five cents in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debt, being six months' interest then due on its First Mortgage Bond, Series D, 3 3/4%, No.
Treasurer.
[FORM of REGISTERED BOND OF SERIES D.]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series D, 3 3/4%
Due June 1, 1982
No. $
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (hereinafter called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, on June 1, 1982, at the office or agency of the Company in the City of New Orleans, Louisiana, Dollars ($ ) in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay interest thereon semi-annually on June 1 and December 1 of each year, at the rate of three and three-quarter per centum (3 3/4%) per annum, at such office or agency, in like coin or currency, from the interest payment date next preceding the date of this bond, or if this bond be dated prior to December 1, 1952 then from June 1, 1952, until this bond shall mature, according to its terms or on prior redemption or by declaration or otherwise.
This bond is one of an authorized issue of bonds of the Company known as its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000) at any one time outstanding, issued and to be issued, in one or more series, and equally and ratably secured (except insofar as a sinking fund or other similar fund established in accordance
with the provisions of the Indenture may afford additional security for the bonds of any specific series) by an indenture (hereinafter called the "Original Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as Trustee (hereinafter called the "Trustee"), as supplemented and amended by a First Supplemental Indenture dated as of October 1, 1951, and a Second Supplemental Indenture dated as of June 1, 1952, executed by the Company to the Trustee, to which Original Indenture, First Supplemental Indenture, Second Supplemental Indenture and all other indentures supplemental thereto (said Original Indenture as so supplemented and amended being herein called the "Indenture") reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Company in respect of such security, the rights, duties and immunities of the Trustee, and the terms and conditions upon which the bonds are, and are to be, secured. As provided in the Indenture, the bonds may be issued in series for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This bond is one of the bonds described in the Indenture and designated therein as "First Mortgage Bonds, Series D, 33 3/4%" (hereinafter referred to as the "bonds of Series D").
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 75% in aggregate principal amount of all the bonds at the time outstanding, determined and evidenced as in the Indenture provided, or in case the rights under the Indenture of the holders of bonds of one or more, but less than all, of the series of bonds outstanding shall be affected, then with the consent of the holders of not less than 75% in aggregate principal amount of the bonds at the time outstanding of the one or more series affected, determined and evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the holders of the bonds and coupons; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any bonds, or reduce the rate or extend the time of payment of interest thereon, or modify the terms of payment of principal at maturity or by
redemption, or otherwise modify the terms of payment of any bond, without the
consent of the holder of each bond so affected, or (ii) reduce the percentage of
bonds, the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all bonds then outstanding, or
(iii) permit the creation of any lien ranking prior to or equal with the lien of
the Indenture on any of the mortgaged and pledged property without the consent
of the holders of all bonds then outstanding, or (iv) deprive the holder of any
outstanding bond of the lien of the Indenture on any of the mortgaged and
pledged property without the consent of the holder of each bond so affected. Any
such consent by the holder of this bond (unless effectively revoked as provided
in the Indenture) shall be conclusive and binding upon such holder and upon all
future holders of this bond, irrespective of whether or not any notation of such
consent is made upon this bond. No reference herein to the Indenture and no-
provision of this bond or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay at the stated or
accelerated maturity herein and in the Indenture provided, the principal of and
interest and premium, if any, on this bond at the time and place and at the rate
and in the coin or currency herein prescribed.
The coupon bonds of Series D are issuable in the denomination of $1,000. The registered bonds without coupons of Series D are issuable in denominations of $1,000 and any multiple of $1,000. At the office or agency to be maintained by the Company in said City of New Orleans and in the manner, subject to the limitations, and upon payment of the charges provided in the Indenture, coupon bonds of such series, with all unmatured coupons and any matured coupons in default thereto appertaining, may be exchanged for a like aggregate principal amount of registered bonds without coupons of such series, and registered bonds without coupons of such series may be exchanged for a like aggregate principal amount of coupon bonds of such series bearing all unmatured coupons and any matured coupons in default or for a like aggregate principal amount of registered bonds without coupons of such series of other authorized denominations.
The bonds of Series D are entitled to the benefit of the Sinking Fund provided for in Article II of the Second Supplemental Indenture.
The bonds of Series D may be redeemed, either at the option of the Company or pursuant to certain requirements of the Indenture,
on any date prior to maturity, as a whole or from time to time in part, upon publication at least once in each of four successive calendar weeks, upon any business day of each such calendar week, of notice of such redemption in a newspaper printed in the English language and customarily published on each business day and of general circulation in the Borough of Manhattan, The City of New York, New York, and like publication in a similar newspaper of said City of New Orleans, the first publication in each case to be not less than thirty (30) days and not more than sixty (60) days before such redemption date (provided, however, that if all the bonds of Series D at the time outstanding shall be registered bonds without coupons or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, such notice may be given by mailing the same to each registered holder of a bond so to be redeemed directed to his registered address not less than thirty (30) days and not more than sixty (60) days before the redemption date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds of Series D, provided for in Article II of the Second Supplemental Indenture or moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series D are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, at the redemption price at the time applicable, as set forth in Column A of the following schedule, and if redeemed otherwise than by the application of such moneys, the bonds of Series D are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in Column B of the following schedule, together with, in each case, interest accrued to the date fixed for redemption:
(There will be inserted here in all registered bonds without coupons of Series D, the same tables of redemption prices and corresponding dates as are specified for such redemption in the form of coupon bond of Series D hereinbefore set forth.)
If this bond is called for redemption and payment hereof is duly provided for as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the Trustee in trust for the purpose funds sufficient to pay the principal of all of the bonds of any series, or such of the bonds of any series as have been or are to be called for redemption, and premium, if any, thereon, and all interest payable on such bonds to the date on which they become due and payable at maturity or upon redemption or otherwise, and shall comply with the other provisions of the Indenture in respect thereof, then from the date of such deposit such bonds shall no longer be entitled to any lien or benefit under the Indenture.
The principal hereof may be declared or may become due prior to the express date of the maturity hereof on the conditions, in the manner and at the time set forth in the Indenture, upon the occurrence of a completed default as in the Indenture provided; subject, however, to the right, under certain circumstances, of the holders of a majority in principal amount of the bonds outstanding to annul such declaration.
This bond is transferable as prescribed in the Indenture by the registered holder hereof in person, or by his duly authorized attorney, at the office or agency of the Company in said City of New Orleans, upon surrender and cancellation of this bond, and upon payment, if the Company shall require it, of the transfer charges prescribed in the Indenture, and thereupon, a new registered bond or bonds without coupons of authorized denominations of the same series and for the same aggregate principal amount will be issued to the transferee in exchange herefor as provided in the Indenture. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the person in whose name this bond is registered as the absolute owner hereof, whether or not this bond shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in respect hereof, or based on. or in respect of the Indenture, against any incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.
This bond shall not become valid or obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture, or its successor thereunder, shall have signed the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this bond to be signed in its name by its President or one of its Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed hereto and attested by its Secretary or one of its Assistant Secretaries, and this bond to be dated
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
Attest: President.
Secretary.
and
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WHEREAS, all acts and things prescribed by law and by the charter and by-laws of the Company necessary to make the bonds of Series D, when executed by the Company and authenticated by the Trustee, as in the Original Indenture provided, valid, binding and legal obligations of the Company, entitled in all respects to the security of the said Original Indenture and indentures supplemental thereto, have been performed; and
WHEREAS, provision is made in Sections 5.10 and 17.01 of the Original Indenture for such further instruments and indentures supplemental to the Original Indenture, as may be necessary or proper to
carry out more effectually the purposes of the Original Indenture, and to subject to the lien of the Indenture any property acquired after the date of the Original Indenture and intended to be covered thereby, with the same force and effect as though included in the granting clauses thereof, and to add such further covenants, restrictions or conditions for the protection of the mortgaged and pledged property and the holders of the bonds as the Board of Directors of the Company and the Trustee shall consider to be for the protection of the holders of the bonds, and to set forth the terms and provisions of any series of bonds to be issued under the Indenture and the form of the bonds and coupons of such series; and the Company since the date of the Original Indenture has acquired additional property not heretofore specifically subjected to the lien of the Original Indenture; and it is desired to add certain further covenants, restrictions and conditions for the protection of the mortgaged and pledged property and the holders of the bonds, as provided in this Second Supplemental Indenture, which the Board of Directors of the Company and the Trustee consider to be for the protection of the holders of the bonds; and the Company desires to issue bonds of Series D; and the Company desires, pursuant to sub-section (e) of Section 17.01 to modify the language of the first paragraph of Section 14.01 of the Indenture so as to make the Indent-Lire comply with the requirement of the Trust Indenture Act of 1939 that the Trustee thereunder shall at all times be a corporation; and the Company therefore deems it advisable to enter into this Second Supplemental Indenture in the form and terms hereof; and
WHEREAS, the execution and delivery of this Second Supplemental Indenture has been duly authorized by the Board of Directors of the Company at a meeting duly called and held according to law, and all conditions and requirements necessary to make this Second Supplemental Indenture a valid, binding and legal instrument in accordance with its terms, for the purposes herein expressed, and the execution and delivery hereof, in the form and terms hereof, have been in all respects duly authorized;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH: That Central Louisiana Electric Company, Inc., by way of further assurance and in consideration of the premises and of the
acceptance by the Trustee of the trusts hereby created 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 order to further secure the payment of the principal of, the premium, if any, and the interest on all bonds at any time issued and outstanding under the Indenture, according to their tenor and effect, and the performance and observance by the Company of all the covenants and conditions herein and therein contained, and of said bonds, has executed and delivered this Second Supplemental Indenture, and has granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set over and confirmed, and by these presents does grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage, hypothecate, affect, pledge, set over and confirm, unto The National Bank of Commerce in New Orleans, as Trustee, and to its successors in the trust, and to its and their assigns forever, all the following described properties of the Company, that is to say:
All properties, real, personal and mixed, tangible and intangible, owned by the Company on the date of the execution hereof or which may be hereafter acquired by it (except such property now owned or hereafter acquired as is expressly excepted from the lien of the Indenture by the terms of the Original Indenture, the First Supplemental Indenture or this Second Supplemental Indenture).
The property covered by the lien of the Indenture shall include particularly, among other property without prejudice to the general and particular descriptions of property contained in the Original Indenture, in the First Supplemental Indenture and in this Second Supplemental Indenture, or to the generality of the language in the Indenture or hereinbefore or hereinafter contained, the following described property:
I.
A certain piece, parcel or tract of land, situated in the Town of
Leesville, Vernon Parish, Louisiana, and being more particularly described as
follows, to-wit: Beginning at the Southeast corner of Lot Ten (10) of Block Six
(6) of Allis First Addition to said Town of Leesville, Louisiana, and run West
100 feet; thence North 60 feet; thence East 100 feet; thence South 60 feet to
the point of
beginning; the East and South lines of.,the property herein described coinciding with the East and South lines of Lot Ten (10) of said Block Six (6) of said Allis First Addition to said Town of Leesville, Louisiana.
Being that property acquired by Central Louisiana Electric Company, Inc. from Rose S. Fertitta by act of sale dated April 9, 1952, recorded in Conveyance Book 208, page 492, records of Vernon Parish, Louisiana.
There is located on said above described parcel of land an electric substation.
A certain piece, parcel or tract of land situated in the McComb Addition to the City of Lafayette, Lafayette Parish, Louisiana, and being the end (nearest Plum Street) of that certain triangular parcel of land formed by the intersection of Clay Street with Fifteenth and Sixteenth Streets and the merger of the latter two streets; said parcel herein described being formed by running a line parallel with the Clay Street line of the triangle and located 15 feet Westerly from the Plum Street end thereof, and comprising all of the triangle between the line so formed and the end of the triangle nearest Plum Street.
Being that property acquired by Central Louisiana Electric Company, Inc. from Frank Guidry by deed dated March 19, 1952, recorded in Conveyance Book Q-20, page 137, records of Lafayette Parish, Louisiana.
There is located on the above described parcel of land a gas regulator station.
A certain piece or parcel of land, together with all rights, ways, privileges and appurtenances thereto belonging or appertaining, situated in the Parish of Rapides, State of Louisiana, being a part of Lot Three (3) of the Oak Isle Plantation in Section 31, Township 4 North, Range 2 West, said parcel of land having an area of 0.223 acres and fronting 100 feet on U. S. Highway No. 20, and being more particularly described as follows, to-wit: Start at the Southeast corner of Section 32, Township 4 North, Range 2 West, and run North 24 degrees East along the boundary line between Sections 32 and 33, Township 4 North, Range 2 West, a distance of 1280.3 feet to the Southern. boundary of the 100 foot right of way of. U. S. Highway No. 20; thence run North 65 degrees 19 minutes West along the Southern boundary of the 100 foot right of way of said
highway and its projection a distance of 1676.57 feet; thence continue along the Southern boundary of the right of way of said Highway North 66 degrees West a distance of 18 feet to the point of beginning; from said point of beginning so established continue thence along the Southern boundary of the right of way of said Highway North 66 degrees West a distance of 100 feet; thence run South 10 degrees 20 minutes West a distance of 100 feet; thence run South 66 degrees East a distance of 100 feet; thence run North 10 degrees 20 minutes East a distance of 100 feet to the point of beginning; said parcel of land being, as aforesaid, in Section 31, Township 4 North, Range 2 West, Rapides Parish, Louisiana; all as is more particularly shown by plat of survey made by Irion Lafargue, Registered Surveyor, dated July 25, 1951.
Being that property acquired by Central Louisiana Electric Company, Inc. from Mrs. Eulalie S. Cappel, et al, by deed dated September 12, 1951, recorded in Conveyance Book 431, page 514, records of Rapides Parish, Louisiana.
There is located on the above described parcel of land an electric substation.
II.
All real estate or interests therein, now owned or which may be hereafter acquired by the Company for use or which may be used by it in connection with its business as an electric, gas and water company, together with all of the right, title, and interest of the Company, now owned or hereafter acquired in and to any and all works, plants, buildings structures, erections, and constructions now or hereafter placed upon any of the real estate mentioned, described or referred to as being subject to the lien of the Indenture, with the fixtures, tenements, hereditaments, and appurtenances thereunto appertaining or belonging.
III.
The Following Described Property, Wherever Situate:
First: The electric generating plants and electric transmission and/or distribution systems now or hereafter owned by the Company, and any electric generating plants and electric transmission and/or distribution systems hereafter constructed or acquired by the Company, and any additions to or extensions of any, such existing
or future electric generating plants and/or electric transmission and/or distribution systems, together with all engines, dynamos, motors, generators, boilers, turbines, pole lines, poles, wires, cross arms, insulators, transformers, meters, buildings, erections, structures, stations, substations, power houses, power producing and power transmitting equipment, water, water rights, water wheels, headworks, race-ways, hydraulic works, hydro-electric plants, cables, conduits, instruments, apparatus, appliances, machinery, facilities, fixtures and all other property used or provided for use in the construction, repair, maintenance and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also with all the rights, privileges, franchises, easements, licenses, ordinances, rights of way, liberties, immunities and permits of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance repair and/or operation of said electric generating plants and electric transmission and/or distribution systems, and each of them, and any additions thereto and extensions thereof.
Second: The gas generating plants, gas storage plants and gas gathering and/or transmission and/or distribution systems now owned by the Company, and any gas generating plants, gas storage plants and/or gas transmission and/or distribution systems hereafter constructed or acquired by the Company, and any additions to or extensions of any such existing or future plants and systems, together with the buildings, erections, structures, generating and purifying apparatus, holders, engines, boilers, benches, retorts, tanks, pipe lines, connections, service pipes, meters, conduits, instruments, appliances, apparatus, facilities, machinery, fixtures and all other property used or provided for use in the construction, maintenance, repair and/or operation thereof, both that now owned and that which may be here after acquired by the Company, and together also with all rights, privileges, rights of way, franchises, licenses, easements, grants, liberties, immunities, permits and ordinances of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair,. and/or operation of said gas generating plants, gas storage plants and gas gathering and/or transmission and/or distribution systems, and each of them, and any additions thereto and extensions thereof.
Third: The waterworks plants and water distribution systems now owned by the Company, and any waterworks plants and/or waterworks distribution systems hereafter constructed or acquired by the Company together with the buildings, structures, erections, pumps, pumping machinery, reservoirs, filters, filter-galleries, chlorinating equipment, tanks, wells, water rights, water supply, water mains, hydrants, pipelines, service pipes, meters, standpipes, engines, boilers, apparatus, appliances, facilities, machinery, equipment, fixtures and all other property used or provided for use in the construction, maintenance, repair and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also with all of the rights, privileges, rights of way, franchises, licenses, easements, permits, liberties, immunities, grants and ordinances of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair and operation of said plants and systems and each of them, and any additions thereto and extensions thereof.
To HAVE AND To HOLD all such properties, real, personal and mixed, granted, bargained, sold, aliened, remised, released, conveyed assigned, transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Trustee and its successors in the trust hereby created and its and their assigns forever;
SUBJECT, HOWEVER, to existing leases, to easements and other rights of way for pole lines and other similar encumbrances and restrictions which the Company hereby certifies, in its judgment, do not impair the use of said property by the Company in its business, to liens securing indebtedness which has neither been assumed by the Company nor upon which it customarily pays interest charges, existing solely upon real property, or rights in and relating thereto, which real property or rights have been or may be acquired for right-of-way purposes, to liens of taxes and assessments for the current year and taxes and assessments not yet due, to alleys, streets and highways that may run across or encroach upon said lands, and to liens, if any, incidental to construction; and, with respect to any property which the Company may hereafter acquire, to all terms, conditions, agreements, covenants, exceptions and reservations expressed or provided
in such deeds and other instruments, respectively, under and by virtue of which the Company shall hereafter acquire the same and to any and all liens existing thereon at the time of such acquisition within the restrictions contained in the Indenture; and subject also to other liens and encumbrances of the character defined in the Indenture as "permitted liens" insofar as the same may attach to any of the property embraced herein;
SAVING AND EXCEPTING, however, from the properties mortgaged and pledged by the Indenture (whether now owned by the Company or hereafter acquired by it) all bills, notes and accounts receivable, cash on hand and in bank, contracts, merchandise and appliances kept for purposes of sale, and all bonds, obligations, evidences of indebtedness, shares of stock and other securities, and certificates or evidences of interest therein-other than any of the foregoing which may be hereafter specifically transferred or assigned to or pledged or deposited with the Trustee under the Indenture or required by the provisions of the Indenture so to be-and all office furniture and equipment, motor vehicles, tools, testing equipment and consumable materials and supplies; provided, however, that, if upon the happening of an event of default as in the Indenture defined, the Trustee or any receiver appointed under the Indenture shall enter upon and take possession of the mortgaged property, the Trustee or such receiver may, to the extent permitted by law, at the same time likewise take possession of any and all of the property described in this paragraph then on hand and use and administer the same to the extent as if such property were part of the mortgaged property, unless and until such event of default shall be remedied or waived and possession of the mortgaged property restored to the Company, its successors or assigns.
ALSO SAVING AND EXCEPTING, however, from the property hereby mortgaged and pledged:
(a) All parcels of land now owned or hereafter acquired by the Company and not used by it or useful in connection with its business as an electric, gas or water company or as an electric, gas or water utility.
(b) All machinery, equipment, fixtures, supplies and materials now used or hereafter acquired for use in connection with the ice and cold storage, ice cream, dairy, and/or soft drink bottling business of the Company.
(c) All motor vehicles now used or hereafter acquired for use in connection with the ice and cold storage, ice cream, dairy, and/or soft drink bottling business of the Company, together with an tires, spare parts, materials and supplies appertaining thereto.
(d) All machinery, equipment, fixtures, supplies and materials, now owned or hereafter acquired, not used by or useful to the Company in its business as an electric, gas or water company or as an electric, gas or water utility, not located on any parcel of real estate now owned or hereafter acquired, referred to as being subject to the lien of the Indenture.
(e) All additions, improvements, betterments, extensions and replacements now or hereafter made to or acquired for or in connection with the property set forth in paragraphs (a), (b), (c) and (d) above.
IN TRUST NEVERTHELESS, upon the terms and trusts herein and in the Original Indenture and the First Supplemental Indenture set forth;
PROVIDED, HOWEVER, and these presents are upon the condition that if the Company, its successors or assigns, shall pay or cause to be paid the principal, of and interest on all said bonds, together with the premium, if any, payable on such of said bonds as may have been called for redemption prior to maturity, or shall provide, as permitted by the Indenture, for the payment thereof by depositing with the Trustee the entire amount due or to become due thereon for principal, interest and premium, if any, and if the Company shall also pay or cause to be paid all other sums payable under the Indenture by it, then the Indenture and the estate and rights thereby granted shall cease, determine and be void, otherwise to be and remain in full force and effect.
IT IS HEREBY FURTHER COVENANTED, DECLARED AND AGREED by and between the Company and the Trustee, for the benefit of those who shall hold said bonds and coupons or any of them, as follows:
ARTICLE I.
DESCRIPTION OF BONDS OF SERIES D.
SECTION 1.1. The fourth series of bonds to be issued under the Indenture and secured thereby is hereby created, which shall be designated, and distinguished from the bonds of all other series, by the title "First Mortgage Bonds, Series D, 3 3/4%", elsewhere herein referred to as the "bonds of Series D".
The aggregate principal amount of the bonds of Series D is not limited except as provided in the Indenture.
The bonds of Series D shall be dated, and shall bear interest from, June 1, 1952, except as provided in Section 2.03 of the Indenture with respect to registered bonds without coupons, and shall be due June 1, 1982, and shall bear interest at the rate of three and three-quarter per centum, (3 3/4%) per annum, payable semi-annually on the first day of June and the first day of December in each year, until maturity. The principal of and the premium (if any) and the interest on the bonds of Series D shall be payable at the office or agency of the Company in the City of New Orleans, Louisiana, in such coin or currency of the United States of America as, at the time of payment, shall be legal tender for public and private debts.
The bonds of Series D shall be redeemable, either at the option of the
Company or pursuant to any provision of the INDENTURE REQUIRing such redemption,
either as a whole or in part from time to time, at any time prior to maturity,
upon notice as provided in Section 8.02 of the Indenture, published in a
newspaper printed in the English language and customarily published on each
business day and of general circulation in the Borough of Manhattan, The City of
New York, New York, and like publication in a similar newspaper of the City of
New Orleans, at least once in each of four (4) successive calendar weeks upon
any business day of each such calendar week, the first publication to be not
less than thirty (30) days and not more than sixty (60) days before such
redemption date (or upon mailing of such notice of redemption as provided in the
first paragraph of Section 8.02 of the Indenture in the event such paragraph
shall be applicable). If redeemed by the application of moneys in the Sinking
Fund for bonds of Series D provided for in Article II of this Second
Supplemental Indenture or moneys in the Depreciation Fund provided for in
Section 5.07 of the Indenture, or by the application of moneys
received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series D are redeemable at the redemption price at the time applicable specified in Column A of the schedule contained in the form of coupon bond of Series D set forth in the recitals hereof, together with interest accrued to the date fixed for redemption. If redeemed otherwise than by the application of such moneys, the bonds of Series D are redeemable at the redemption price at the time applicable specified in Column B of said schedule, together with interest accrued to the date fixed for redemption.
Coupon bonds of Series D shall be issuable in the denomination of $1,000 and shall be registerable as to principal. Registered bonds without coupons of Series D shall be issuable in denominations of $1,000 and any multiple of $1,000. Bonds of Series D shall be interchangeable at the option of the holders thereof, in like aggregate principal amounts, coupon bonds for registered bonds without coupons, registered bonds without coupons for coupon bonds and the several denominations of registered bonds without coupons.
ARTICLE II.
SINKING FUND FOR BONDS OF SERIES D.
SECTION 2.1. The Company covenants and agrees that so long as any of the bonds of Series D shall be outstanding it will pay to the Trustee, as and for a sinking fund for the bonds of Series D, on the first day of June in the year 1953 and on the first day of June in each year thereafter, an amount of cash equal to one per centum (1%) of the greatest principal amount of bonds of Series D at any one time outstanding under the Indenture; provided, however, that the amount of cash payable to the Trustee on any such date pursuant to the provisions of this Section shall be reduced by an amount equal to the aggregate principal amount of bonds of Series D then being delivered by the Company to the Trustee, but no bonds of Series D shall be delivered to the Trustee which have not been sold in a bona fide transaction and reacquired by the Company.
All cash paid to the Trustee pursuant to the provisions of this Section shall, upon request of the Company and to the extent practicable, be applied promptly by the Trustee to the purchase of bonds
of Series D in accordance with- the provisions of Section 8.06 of the Indenture. If the Trustee on August 20 of any year shall hold cash under the provisions of this Section amounting to $15,000 or more (or any amount less than $15,000 if the Company so elects) not applied to the purchase of bonds of Series D as above provided for, the Trustee shall apply all cash, to the extent practicable, then held under the provisions of this Section to the redemption, on the next succeeding October 1 of bonds of Series D, in the manner and subject to the conditions provided in such bonds and in Article VIII of the Indenture; and for such purpose the Trustee may publish notice of redemption in the name of the Company or in its own name as Trustee.
SECTION 2.2. The Company further covenants to pay to the Trustee, on demand, the compensation of the Trustee in administering the sinking fund as provided in this Article II, together with the Trustee's expense% including cost of advertisement of redemption notices and any other advertisements and other lawful charges, if any, and any accrued interest and premium paid or payable with respect to any such bonds of Series D purchased or redeemed as provided for in Section 2.1 it being intended that the aforesaid compensation, expenses, charges, accrued interest and premium shall not be charged against sinking fund moneys.
SECTION 2.3. All bonds of Series D delivered to the Trustee for the purpose of taking a credit pursuant to the provisions of Section 2.1, or purchased or redeemed pursuant to the provisions of Section 2.1, shall be forthwith cancelled by the Trustee, and such bonds shall not be reissued.
ARTICLE III.
ADDITIONAL COVENANTS OF THE COMPANY.
SECTION 3.1. The Company covenants that, so long as any bonds of Series D are outstanding, it will not at any time declare or pay any dividend on its Common Stock or make any distribution to its Common Stockholders (other than dividends or distributions payable solely in its Common Stock) or purchase or otherwise acquire for value any of its Common Stock, except out of (1) earned surplus of the Company accumulated after December 31, 1949, plus (2) $530,000 of earned surplus accumulated prior to January 1, 1950 (such aggregate amount
being hereinafter called "unrestricted earned surplus"), nor unless after the payment of such dividend or the making of such distribution, purchase or acquisition the sum of (a) the provision for property retirements or depreciation made by the Company out of income or earned surplus, during the period from July 1, 1950, to the end of the calendar year next preceding the date of payment of such dividend or the making of such distribution, purchase or acquisition and (b) the unrestricted earned surplus, if any, of the Company shall be not less than the aggregate of the minimum provision for property retirements or depreciation determined as provided in Section 1.05 of the Original Indenture, for the period from July 1, 1950, to the end of the calendar year next preceding the date of payment of such dividend or the making of such distribution, purchase or acquisition. For the purposes of this Section, the earned surplus of the Company accumulated after December 31, 1949, shall be determined in accordance with sound accounting practice, and, so long as and to the extent that there shall remain any earned surplus of the Company accumulated prior to January 1, 1950, other than unrestricted earned surplus, such amount shall be available for all surplus charges other than such dividends or the making of such distribution, purchase or acquisition.
SECTION 3.2. The Company covenants that so long as any bonds are outstanding under the Original Indenture no Indenture or Indentures supplemental to the Original Indenture will be entered into by the Company unless such Supplemental Indenture shall contain provisions which are in compliance with the Trust Indenture Act of 1939 as then in effect; provided, however, that this provision shall not be effective and binding upon the Company if all of the bonds then outstanding and then to be issued under the Original Indenture as supplemented and amended by all other supplemental indentures and by such supplemental indenture then to be entered into, shall either be exempt securities as defined in the Trust Indenture Act of 1939 as then in effect, or are to be issued in a transaction exempt from the provisions of said Act.
ARTICLE IV.
AMENDMENT OF ORIGINAL INDENTURE.
SECTION 4.1. Pursuant to the provisions of sub-section (e) of Section 17.01 of the Indenture and in order to make the Original
Indenture as supplemented and amended by the First Supplemental Indenture and by this Second Supplemental Indenture comply with the requirement of the Trust Indenture Act of 1939, the first paragraph of Section 14.01 of the Indenture is hereby modified and amended by inserting the words ", which shall be a corporation and which shall be" after the word "company' in the second line of said paragraph.
ARTICLE V.
MISCELLANEOUS.
SECTION 5.1. The Company is lawfully seized and possessed of all the real estate, franchises and other property described or referred to in the Indenture as presently mortgaged and pledged thereunder, subject to the exceptions stated therein and except property which has been released from the lien of the Indenture in accordance with its terms, and upon the initial issue of bonds of Series D thereunder such real estate, franchises and other property will be free and clear of any lien prior to or on a parity with the lien of the Indenture except as set forth in the granting clauses of the Indenture and except permitted liens as therein defined, and the Company has good right and lawful authority to mortgage and pledge the same as provided in and by the Indenture.
SECTION 5.2. As supplemented and amended by this Second Supplemental Indenture, the Original Indenture and the First Supplemental Indenture are in all respects ratified and confirmed and said Original Indenture, First Supplemental Indenture and this Second Supplemental Indenture shall be read, taken and construed as one and the same instrument.
SECTION 5.3. The Trustee assumes no duties, responsibilities or liabilities by reason of this Second Supplemental Indenture, other than as set forth in the Original Indenture, and the First Supplemental Indenture and this Second Supplemental Indenture is executed and accepted by the Trustee subject to all the terms and conditions of its acceptance of the trust under the Original Indenture and the First Supplemental Indenture as fully as if said terms and conditions were herein set forth at length.
SECTION 5.4. This Second Supplemental Indenture shall be simultaneously executed in several counterparts and all such counterparts executed and delivered, each as an original, shall constitute but one and the same instrument.
SECTION 5.5. This Second Supplemental Indenture has been dated as of June 1, 1952, solely for convenience. The date of actual execution hereof by each of the parties hereto is the date shown by the acknowledgment of execution hereof by its officers.
IN WITNESS WHEREOF, CENTRAL LOUISIANA ELECTRIC COMPANY, INC., has caused this instrument to be signed in its corporate name by its President or one of its Vice-Presidents and sealed with the corporate seal attested by its Secretary or one of its Assistant Secretaries and The National Bank of Commerce in New Orleans to evidence its acceptance of the trust hereby created has caused this instrument to be signed in its corporate name by one of its Vice-Presidents and sealed by its corporate seal attested by one of its Assistant Cashiers, all as of the day and year first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
J. R. GAUGLER
[SEAL] Vice-President.
Attest:
W. D. RODEMACHER,
Assistant Secretary.
Signed, sealed, acknowledged
and delivered by CENTRAL LOUISIANA
ELECTRIC COMPANY, INC.,
in the presence of:
KENNETH J. LEBLANC
A. J. JOUBERT
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS
By
F. C. DOYLE,
[SEAL] Vice-President.
Attest:
J. W. PARRA,
ASSISTANT CASHIER.
Signed, sealed, acknowledged
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and delivered by THE NATIONAL
BANK OF COMMERCE IN NEW ORLEANS
in the presence of:
KENNETH J. LEBLANC
A. J. JOUBERT
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 25th day of June, 1952, before me the undersigned, a Notary Public in and for said Parish and State, duly qualified and commissioned as such, personally appeared J. R. Gaugler, a Vice-President and W. D. Rodemacher, an Assistant Secretary of Central Louisiana Electric Company, Inc., the grantor in the foregoing instrument, to me personally known and known to me to be such officers, respectively, of such Company, and personally known to me to be the identical persons whose names are subscribed and affixed to the foregoing instrument as such officers, respectively, and who subscribed the name of the Company thereto, and in my presence and in the presence of the undersigned witnesses, of lawful age and domicile, severally acknowledged that the same is their respective, free and voluntary act and deed as such officers and the free, and voluntary act and deed of said Company for the uses and purposes therein expressed; and the said persons being each by me duly and severally sworn as individuals did depose and say that they are such officers, respectively, of said Company; that they know the seal of said Company; that the seal affixed to the foregoing instrument was and is such corporate seal; that said seal was so affixed and said instrument was so signed on behalf of said Company by the order and authority of the Board of Directors of said Company; and that they signed their names thereto as such officers, respectively, of said Company by like authority.
IN TESTIMONY WHEREOF, the said Appearers have hereunto signed their names on the day and date first hereinabove written, in the presence of Kenneth J. Leblanc and A. J. Joubert, witnesses of lawful age and domicile, and of me, said Notary Public.
Witness:
KENNETH J. LEBLANC J. R. GAUGLER,
A. J. JOUBERT VICE-PRESIDENT.
W. D. RODEMACHER,
ASSISTANT SECRETARY.
CARL J. SCHUMACHER. JR.,
[SEAL] NOTARY PUBLIC.
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My Commission expires at death or on removal from Office.
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 25th day of June, 1952, before me the undersigned, a Notary Public in and for said Parish and State duly qualified and commissioned as such, personally appeared F. C. Doyle, a Vice-President, and J. W. Parra an Assistant Cashier of The National Bank of Commerce in New Orleans, a national banking association, duly organized and existing under the laws of the United States of America, Trustee under the foregoing instrument, to me personally known and known to me to be such officers, respectively, of said Bank, and personally known to me to be the identical persons whose names are subscribed and affixed to the foregoing instrument as such officers respectively, and who subscribed the name of the said Bank thereto, and in my presence and in the presence of the undersigned witnesses, of lawful age and domicile, severally acknowledge that the same is their respective, free and voluntary act and deed as such officers and the free and voluntary act and deed of said Bank for the uses and purposes therein expressed; and the said persons being each by me duly and severally sworn as individuals did depose and say that they are such officers, respectively, of said Bank; that they know the seal of said Bank, that the seal affixed to the foregoing instrument was and is such corporate seal; that said seal was so affixed and said instrument was so signed on behalf of said Bank by the order and authority of the Board of Directors of said Bank; and that they signed their names thereto as such officers, respectively, of said Bank by like authority.
IN TESTIMONY WHEREOF, the said Appearers have hereunto signed their names on the day and date first hereinabove written, in the presence of Kenneth J. Leblanc and A. J. Joubert, witnesses of lawful age and domicile, and of me, said Notary Public.
Witness:
KENNETH J. LEBLANC F. C. DOYLE,
A. J. JOUBERT VICE-PRESIDENT.
J. W. PARRA,
ASSISTANT CASHIER.
CARL J. SCHUMACHER, JR.,
[SEAL] NOTARY PUBLIC.
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My Commission expires at death or on removal from, Office.
United States Internal Revenue documentary tax stamps, required in connection with the issuance of $4,000,000 principal amount of Central Louisiana Electric Company, Inc. First Mortgage Bonds, Series D, 3 3/4%, due June 1, 1982, have been affixed to a counterpart of the Indenture of Mortgage dated as of July 1, 1950, which is in our possession, and cancelled.
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, AS TRUSTEE,
By
F. C. DOYLE,
Vice President.
EXHIBIT 4(a)(4)
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
TO
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
as Trustee
Third Supplemental Indenture
DATED AS OF JANUARY 1, 1954
Issue of First Mortgage Bonds, Series E, 4 1/4% Due January 1, 1984
Supplemental to Indenture of Mortgage Dated an of July 1, 1950
THIRD SUPPLEMENTAL INDENTURE, dated as of January 1, 1954, between CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation duly organized and existing under and by virtue of the laws of the State of Louisiana (hereinafter sometimes called the "Company"), party of the first part, and THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, a national banking association duly organized and existing under and by virtue of the laws of the United States of America, as Trustee under the Indenture of Mortgage hereinafter mentioned (hereinafter sometimes called the "Trustee"), party of the second part.
WHEREAS, the Company heretofore executed and delivered its Indenture of Mortgage (hereinafter called "Original Indenture"), dated as of July 1, 1950, to the Trustee, to secure the Company's First Mortgage Bonds, limited to $100,000,000 aggregate principal amount at any one time outstanding and issuable in series, from time to time, in the manner and subject to the conditions set forth in the Original Indenture, and by said Original Indenture granted and conveyed unto the Trustee, upon the trusts, uses and purposes specifically therein set forth, certain real estate, franchises and other property therein described, including property acquired after the date thereof except as therein otherwise provided; and
WHEREAS, the Original Indenture provides for the issuance of bonds thereunder in one or more series, the form of each series of bonds and of the coupons to be attached to the coupon bonds to be substantially in the forms set forth therein with such omissions, variations, and insertions as are authorized or permitted by the Original Indenture and determined and specified by the Board of Directors of the Company; and
WHEREAS, the Company has heretofore issued under the Original Indenture $5,500,000 principal amount of its First Mortgage Bonds, Series A, 3%, of which $5,335,000 principal amount remains outstanding as of the date hereof; and
WHEREAS, the Company heretofore executed and delivered its First Supplemental Indenture (hereinafter called the "First Supplemental Indenture") dated as of October 1, 1951, to the Trustee to supplement
the Original Indenture and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original Indenture as supplemented and amended by the First Supplemental Indenture, $4,844,000 principal amount of its First Mortgage Bonds, Series B, 3 3/4%, and $960,000 principal amount of its First Mortgage Bonds, Series C, 3 3/4%, of which bonds of Series B $4,748,000 principal amount, and of which bonds of Series C $941,000 principal amount, remain outstanding as of the date hereof; and
WHEREAS, the Company heretofore executed and delivered its Second Supplemental Indenture (hereinafter called the "Second Supplemental Indenture") dated as of June 1, 1952, to the Trustee to supplement the Original Indenture and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original Indenture, as supplemented and amended by the First Supplemental Indenture and the Second Supplemental Indenture, $4,000,000 principal amount of its First Mortgage Bonds, Series D, 33/4 %, of which $3,960,000 principal amount remains outstanding as of the date of this Third Supplemental. Indenture (hereinafter called "Third Supplemental Indenture"), the Original Indenture as amended or supplemented by all indentures supplemental thereto, including the First Supplemental Indenture, the Second Supplemental Indenture, and this Third Supplemental Indenture, being hereinafter referred to as the "Indenture"; and
WHEREAS, the Company, by appropriate resolutions adopted by its Board of
Directors pursuant to the terms of the Indenture, has duly determined (a) to
create a fifth series of bonds under the Indenture, to be designated as "First
Mortgage Bonds, Series E, 4 1/4%" (herein sometimes called "bonds of Series E"),
(b) that such bonds shall be coupon bonds registerable as to principal and
registered bonds without coupons, (c) that such coupon bonds shall be
exchangeable for registered bonds without coupons, and (d) that the coupon bonds
of Series E, the coupons appertaining thereto and the registered bonds without
coupons of said series, are to be substantially in the following forms,
respectively:
[FORM OF COUPON BOND OF SERIES E]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series E, 4 1/4%
Due January 1, 1984
No. $1000
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (hereinafter called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to bearer, or, if this bond be registered as to principal, to the registered holder hereof, on January 1, 1984, at the office or agency of the Company in the City of New Orleans, Louisiana, One Thousand Dollars ($1000) in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay interest thereon semi-annually on January 1 and July 1 of each year at the rate of four and one-quarter per centuni (4 1/4%) per annum at such office or agency in like coin or currency, from January 1, 1954, until this bond shall mature, according to its terms or on prior redemption or by declaration or otherwise, and at the rate of six per centum (6%) per annum on any overdue principal and premium (if any) and (to the extent permitted by law) on any overdue installment of interest, but, until the maturity hereof, only upon presentation and surrender of the coupons for such interest installments as are evidenced thereby, hereto appertaining, as they shall severally mature.
This bond is one of an authorized issue of bonds of the Company known as its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000) at any one time outstanding, issued and to be issued, in one or more series, and equally and ratably secured (except insofar as a sinking fund or other similar fund established in accordance with the provisions of the Indenture may afford additional security for the bonds of any specific series) by an indenture (hereinafter called the "Original Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as Trustee (hereinafter called the "Trustee"), as supplemented and amended by a First Supplemental Indenture dated as of October 1, 1951, a Second Supplemental Indenture dated as of June 1, 1952, and a Third Supplemental Indenture dated as of Jan-
uary 1, 1954, executed by the Company to the Trustee, to which Original Indenture, First Supplemental Indenture, Second Supplemental Indenture, Third Supplemental Indenture and all other indentures supplemental thereto (said Original Indenture as so supplemented and amended being herein called the "Indenture") reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Company in respect of such security, the rights, duties and immunities of the Trustee, and the terms and conditions upon which the bonds are, and are to be, secured. As provided in the Indenture, the bonds may be issued in series for various principal sums, may bear different, dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This bond is one of the bonds described in the Indenture and designated therein as "First Mortgage Bonds, Series E, 4 1/4%" (hereinafter referred to as the "bonds of Series E").
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 75% in aggregate principal amount of all the bonds at the time outstanding, determined and evidenced as in the Indenture provided, or in case the rights under the Indenture of the holders of bonds of one or more, but less than all, of the series of bonds outstanding shall be affected, then with the consent of the holders of not less than 75% in aggregate principal amount of the bonds at the time outstanding of the one or more series affected, determined and evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the holders of the bonds and coupons; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any bonds, or reduce the rate or extend the time of payment of interest thereon, or modify the terms of payment of principal at maturity or by redemption, or otherwise modify the terms of payment of any bond, without the consent of the holder of each bond so affected, or (ii) reduce the percentage of bonds, the holders of which are required to consent to any such supplemental indenture, without the consent of the holders of all bonds then outstanding, or (iii) permit the creation of any Hen ranking prior to or equal with the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holders of all bonds then outstanding, or (iv) deprive the holder of any out-
standing bond of the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holder of each bond so affected. Any such consent by the holder of this bond (unless effectively revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders of this bond, irrespective of whether or not any notation of such consent is made upon this bond. No reference herein to the Indenture and no provision of this bond or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay at the stated or accelerated maturity herein and in the Indenture provided, the principal of and interest and premium, if any, on this bond at the time and place and at the rate and in the coin or currency herein prescribed.
The coupon bonds of Series E are issuable in the denomination of $1,000. The registered bonds without coupons of Series E are issuable in denominations of $1,000 and any multiple of $1,000. At the office or agency to be maintained by the Company in said City of New Orleans and in the manner, subject to the limitations, and upon payment of the charges provided in the Indenture, coupon bonds of such series, with all unmatured coupons and any matured coupons in default thereto appertaining, may be exchanged for a like aggregate principal amount of registered bonds without coupons of such series, and registered bonds without coupons of such series may be exchanged for a like aggregate principal amount of coupon bonds of such series bearing all unmatured coupons and any matured coupons in default or for a like aggregate principal amount of registered bonds without coupons of such series of other authorized denominations.
The bonds of Series E are entitled to the benefit of the Sinking Fund provided for in Article II of the Third Supplemental Indenture.
The bonds of Series E may be redeemed, either at the option of the Company or pursuant to certain requirements of the Indenture, on any date prior to maturity, as a whole or from time to time in part, upon publication at least once in each of four successive calendar weeks, upon any business day of each such calendar week, of notice of such redemption in a newspaper printed in the English language and customarily published on each business day and of general circulation in the Borough of Manhattan, The City of New York, New York, and like publication in a similar newspaper of said City of New Orleans, the first publication in each case to be not less than thirty (30) days
and not more than sixty (60) days before such redemption date (provided, however, that if all the bonds of Series E at the time outstanding shall be registered bonds without coupons or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, such notice may be given by mailing the same to each registered holder of a bond so to be redeemed directed to his registered address not less than thirty (30) days and not more than sixty (60) days before the redemption date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds of Series E, provided for in Article II of the Third Supplemental Indenture, or moneys in the depreciation fund provided for in Section 5.07 of the Indenture or by the application of moneys received by, the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series E are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, at the principal amount thereof together with accrued interest to the date fixed for redemption, without premium, and if redeemed otherwise than by the application of such moneys, the bonds of Series E are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in the following schedule, together with, in each case, interest accrued to the date fixed for redemption:
If Redeemed During the Twelve Redemption Price
Months' Period Ending (Percentage of
December 31 in the Year Principal Amount)
------------------------------ -----------------
1954 ........................................... 104.00
1955 ........................................... 103.98
1956 ........................................... 103.86
1957 ........................................... 103.78
1958 ........................................... 103.70
1959 ........................................... 103.62
1960 ........................................... 103.53
1961 ........................................... 103.44
1962 ........................................... 103.34
1963 ........................................... 103.25
1964 ........................................... 103.15
1965 ........................................... 103.05
1966 ........................................... 102.94
1967 ........................................... 102.82
1968 ........................................... 102.70
1969 ........................................... 102.58
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If Redeemed During the Twelve Redemption Price
Months' Period Ending (Percentage of
December 31 in the Year Principal Amount)
------------------------------ -----------------
1970 ........................................... 102.45
1971 ........................................... 102.32
1972 ........................................... 102.18
1973 ........................................... 102.04
1974 ........................................... 101.88
1975 ........................................... 101.73
1976 ........................................... 101.57
1977 ........................................... 101.40
1978 ........................................... 101.22
1979 ........................................... 101.04
1980 ........................................... 100.85
1981 ........................................... 100.55
1982 ........................................... 100.25
1983 ........................................... 100.00
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If this bond is called for redemption and payment hereof is duly provided for as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the Trustee in trust for the purpose funds sufficient to pay the principal of all of the bonds of any series, or such of the bonds of any series as have been or are to be called for redemption, and premium, if any, thereon, and all interest payable on such bonds to the date on which they become due and payable at maturity or upon redemption or otherwise, and shall comply with the other provisions of the Indenture in respect thereof, then from the date of such deposit such bonds shall no longer be entitled to any lien or benefit under the Indenture.
The principal hereof may be declared or may become due prior to the express date of the maturity hereof on the conditions, in the manner and at the time set forth in the Indenture, upon the occurrence of a completed default as in the Indenture provided; subject, however, to the right, under certain circumstances, of the holders of a majority in principal amount of the bonds outstanding to annul such declaration.
This bond is negotiable and shall pass by delivery unless registered as to principal at the office or agency of the Company in said City of New Orleans, and such registration noted hereon, after which no valid transfer hereof can be made, except at such office or agency, until after registered transfer to bearer, but after such registered transfer to bearer this bond shall be again transferable by delivery. Such registration, however, shall not affect the negotiability of the
coupons, which shall always remain payable to bearer, be treated as negotiable and pass by delivery. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the bearer of this bond if it is not registered as to principal, or, if this bond is registered as herein authorized, the person in whose name this bond is registered, as the absolute owner hereof, and the bearer of any coupon hereunto appertaining, as the absolute owner thereof, whether or not this bond or such coupon shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, an such liability of incorporators, subscribers, stockholders, officers and directors, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.
Neither this bond nor the coupons hereto attached shall become valid or obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture, or its successor thereunder, shall have signed the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this bond to be signed in its name by its President or one of its Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed hereto and attested by its Secretary or one of its Assistant Secretaries, and interest coupons bearing the facsimile signature of its Treasurer to be attached hereto, and this bond to be dated January 1, 1954.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
(Form of Coupon for Bonds of Series E)
$21.25
On the first day of , 19 , unless the bond hereinafter mentioned shall have been called for previous redemption and payment of the redemption price thereof shall have been duly provided for, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. will pay to bearer, upon surrender of this coupon, at its office or agency in the City of New Orleans, Louisiana, twenty-one dollars and twenty-five cents in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, being six months' interest then due on its First Mortgage Bond, Series E, 4 1/4%, No.
Treasurer.
[FORM OF REGISTERED BOND OF SERIES E.]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series E, 4 1/4%
Due January 1, 1984
No. $
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (hereinafter called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, on January 1, 1984, at the office or agency of the Company in the City of New Orleans, Louisiana, Dollars ($ ) in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay interest thereon semi-annually on January 1 and July 1 of each year, at the rate of four and one-quarter per centum (4 1/4%) per annum, at such office or agency, in like coin or currency, from the interest payment date next preceding the date of this bond, or if this bond be dated prior to July 1, 1954 then from January 1, 1954, until this bond shall mature, according to its terms or on prior redemption or by declaration or otherwise and at the rate of six per centum (6%) per annum on any overdue principal and premium (if any) and (to the extent permitted by law) on any overdue installment of interest.
This bond is one of an authorized issue of bonds of the Company known as its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000) at any one time outstanding, issued and to be issued, in one or more series, and equally and ratably secured (except insofar as a sinking fund or other similar fund established in accordance with the provisions of the Indenture may afford additional security for the bonds of any specific series) by an indenture (hereinafter called the "Original Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as Trustee (hereinafter called the "Trustee"), as supplemented and amended by a First Supplemental Indenture dated as of October 1, 1951, a Second Supplemental Indenture dated as of June 1, 1952, and a Third Supplemental Indenture dated as of January 1, 1954, executed by the Company to the Trustee, to which Original Indenture, First Supplemental Indenture, Second Supplemental Indenture, Third Supplemental Indenture and all other indentures supplemental thereto (said Original Indenture as so supplemented and amended being herein called the "Indenture") reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Company in respect of such security, the rights, duties and immunities of the Trustee, and the terms and conditions upon which the bonds are, and are to be, secured. As provided in the Indenture, the bonds may be issued in series for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This bond is one of the bonds described in the Indenture and designated therein as "First Mortgage Bonds, Series E, 4 1/4%" (hereinafter referred to as the "bonds of Series E").
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 75% in aggregate principal amount of all the bonds at the time outstanding, determined and evidenced as in the Indenture provided, or in case the rights under the Indenture of the holders of bonds of one or more, but less than all, of the series of bonds outstanding shall be affected, then with the consent of the holders of not less than 75% in aggregate principal amount of the bonds at the time outstanding of the one or more series affected, determined and evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or modifying in any manner the rights of the holders of the
bonds and coupons; provided, however, that no such supplemental indenture shall
(i) extend the fixed maturity of any bonds, or reduce the rate or extend the
time of payment of interest thereon, or modify the terms of payment of principal
at maturity or by redemption, or otherwise modify the terms of payment of any
bond, without the consent of the holder of each bond so affected, or (ii) reduce
the percentage of bonds, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all bonds
then outstanding, or (iii) permit the creation of any lien ranking prior to or
equal with the lien of the Indenture on any of the mortgaged and pledged
property without the consent of the holders of all bonds then outstanding, or
(iv) deprive the holder of any outstanding bond of the lien of the Indenture on
any of the mortgaged and pledged property without the consent of the holder of
each bond so affected. Any such consent by the holder of this bond (unless
effectively revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders of this bond, irrespective
of whether or not any notation of such consent is made upon this bond. No
reference herein to the Indenture and no provision of this bond or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay at the stated or accelerated maturity herein and in
the Indenture provided, the principal of and interest and premium, if any, on
this bond at the time and place and at the rate and in the coin or currency
herein prescribed.
The coupon bonds of Series E are issuable in the denomination of $1,000. The registered bonds without coupons of Series E are issuable in denominations of $1,000 and any multiple of $1,000. At the office or agency to be maintained by the Company in said City of New Orleans and in the manner, subject to the limitations, and upon payment of the charges provided in the Indenture, coupon bonds of such series, with all unmatured coupons and any matured coupons in default thereto appertaining, may be exchanged for a like aggregate principal amount of registered bonds without coupons of such series, and registered bonds without coupons of such series may be exchanged for a like aggregate principal amount of coupon bonds of such series bearing all unmatured coupons and any matured coupons in default or for a like aggregate principal amount of registered bonds without coupons of such series of other authorized denominations.
The bonds of Series E are entitled to the benefit of the Sinking Fund provided for in Article II of the Third Supplemental Indenture.
The bonds of Series E may be redeemed, either at the option of the Company or pursuant to certain requirements of the Indenture, on any date prior to maturity, as a whole or from time to time in part, upon publication at least once in each of four successive caleildar weeks, upon any business day of each such calendar week, of notice of such redemption in a newspaper printed in the English language and customarily published on each business day and of general circulation in the Borough of Manhattan, The City of New York, New York, and like publication in a similar newspaper of said City of New Orleans, the first publication in each case to be not less than thirty (30) days and not more than sixty (60) days before such redemption date (provided, however, that if all the bonds of Series E at the time outstanding shall be registered bonds without coupons or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, such notice may be given by mailing the same to each registered holder of a bond so to be redeemed directed to his registered address not less than thirty (30) days and not more than sixty (60) days before the redemption date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds of Series E, provided for in Article II of the Third Supplemental Indenture, or moneys in the depreciation fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereof by, any municipal corporation or other governmental subdivision or governmental body, or public authority, the bonds of Series E are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, at the principal amount thereof together with accrued interest to the date fixed for redemption, without premium, and if redeemed otherwise than by the application of such moneys, the bonds of Series E are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in the following schedule, together with, in each case, interest accrued to the date fixed for redemption:
(There will be inserted here in all registered bonds without coupons of Series E, the same table of redemption prices and
corresponding dates as are specified for such redemption in the form of coupon bond of Series E hereinbefore set forth.)
If this bond is called for redemption and payment hereof is duly provided for as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the Trustee in trust for the purpose funds sufficient to pay the principal of all of the bonds of any series, or such of the bonds of any series as have been or are to be called for redemption, and premium, if any, thereon, and all interest payable on such bonds to the date on which they become due and payable at maturity or upon redemption or otherwise, and shall comply with the other provisions of the Indenture in respect thereof, then from the date of such deposit such bonds shall no longer be entitled to any lien or benefit under the Indenture.
The principal hereof may be declared or may become due prior to the express date of the maturity hereof on the conditions, in the manner and at the time set forth in the Indenture, upon the occurrence of a completed default as in the Indenture provided; subject, however, to the right, under certain circumstances, of the holders of a majority in principal amount of the bonds outstanding to annul such declaration.
This bond is transferable as prescribed in the Indenture by the registered holder hereof in person, or by his duly authorized attorney, at the office or agency of the Company in said City of New Orleans, upon surrender and cancellation of this bond, and upon payment, if the Company shall require it, of the transfer charges prescribed in the Indenture, and thereupon, a new registered bond or bonds without coupons of authorized denominations of the same series and for the same aggregate principal amount will be issued to the transferee in exchange herefor as provided in the Indenture. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the person in whose name this bond is registered as the absolute owner hereof, whether or not this bond shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.
This bond shall not become valid or obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture, or its successor thereunder, shall have signed the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this bond to be signed in its name by its President or one of its Vice-Presidents and its corporate seal, or a facsimile. thereof, to be affixed hereto and attested by its Secretary or one of its Assistant Secretaries, and this bond to be dated
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
; and
WHEREAS, all acts and things prescribed by law and by the charter and by-laws of the Company necessary to make the bonds of Series E, when executed by the Company and authenticated by the Trustee, as in the Original Indenture provided, valid, binding and legal obligations of the Company, entitled in all respects to the security of the said Original Indenture and indentures supplemental thereto, have been performed; and
WHEREAS, provision is made in Sections 5.10 and 17.01 of the Original Indenture for such further instruments and indentures supplemental to the Original Indenture, as may be necessary or proper to
carry out more effectually the purposes of the Original Indenture, and to subject to the lien of the Indenture any property acquired after the date of the Original Indenture and intended to be covered thereby, with the same force and effect as though included in the granting clause thereof, and to add such further covenants, restrictions or conditions for the protection of the mortgaged and pledged property and the holders of the bonds as the Board of Directors of the Company and the Trustee shall consider to be for the protection of the holders of the bonds, and to set forth the terms and provisions of any series of bonds to be issued under the Indenture and the form of the bonds and coupons of such series; and the Company since the date of the Original Indenture has acquired additional property not heretofore specifically subjected to the lien of the Original Indenture; and it is desired to add certain further covenants, restrictions and conditions for the protection of the mortgaged and pledged property and the holders of the bonds, as provided in this Third Supplemental Indenture, which the Board of Directors of the Company and the Trustee consider to be for the protection of the holders of the bonds; and the Company desires to issue bonds of Series E; and the Company desires, pursuant to sub-section (e) of Section 17.01 to modify the definition of "minimum provision for property retirements or depreciation" contained in Section 1.05 of the Indenture so as to make more certain the computation therein provided for; and the Company therefore deems it advisable to enter into this Third Supplemental Indenture in the form and terms hereof; and
WHEREAS, the execution and delivery of this Third Supplemental Indenture has been duly authorized by the Board of Directors of the Company at a meeting duly called and held according to law, and all conditions and requirements necessary to make this Third Supplemental Indenture a valid, binding and legal instrument in accordance with its terms, for the purposes herein expressed, and the execution and delivery hereof, in the form and terms hereof, have been in all respects duly authorized;
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH: That CENTRAL LOUISIANA ELECTRIC COMPANY, INC., by way of further assurance and in consideration of the premises and of the acceptance by the Trustee of the trusts hereby created 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 order to further secure the payment of the principal of, the premium, if any, and the interest on all bonds at any time issued and outstanding under the Indenture, according to their tenor and effect, and the performance and observance by the Company of all the covenants and conditions herein and therein contained, and of said bonds, has executed and delivered this Third Supplemental Indenture, and has granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set over and confirmed, and by these presents does grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage, hypothecate, affect, pledge, set over and confirm, unto The National Bank of Commerce in New Orleans, as Trustee, and to its successors in the trust, and to its and their assigns forever, all the following described properties of the Company, that is to say:
All properties, real, personal and mixed, tangible and intangible, owned by the Company on the date of the execution hereof or which may be hereafter acquired by it (except such property now owned or hereafter acquired as is expressly excepted from the lien of the Indenture by the terms of the Original Indenture, the First Supplemental Indenture, the Second Supplemental Indenture or this Third Supplemental Indenture).
The property covered by the lien of the Indenture shall include particularly, among other property without prejudice to the general and particular descriptions of property contained in the Original Indenture, in the First Supplemental Indenture, in the Second Supplemental Indenture and in this Third Supplemental Indenture, or to the generality of the language in the Indenture or hereinbefore or hereinafter contained, the following described property:
I.
The following described real estate, together with all improvements thereon, situated in the State of Louisiana:
Parcel 1. A certain lot of ground situated in the Sixth Ward of the Parish of Iberia, State of Louisiana, containing and measuring one hundred sixty-two (162) feet front on the rear line of property of Floyd N. Calhoun, having a depth of one hundred eleven feet three inches (111' 3") on its West line and a depth of eighty-nine feet three
inches (89' 3") on its East line, with a width in the rear or on its North line
of one hundred fifty-three (153) feet, being bounded on the North by property of
R. J. Dugas, or assigns, on South by property of Floyd N. Calhoun, on the East
by property of Albert L. Lemaire, and on the West by property of Floyd N.
Calhoun, said lot of ground is situated North of or in the rear of a larger
parcel of land belonging to Floyd N. Calhoun, and the South line of the property
herein described, which, as aforesaid, has a frontage of one hundred sixty-two
(162) feet along the rear line of the larger parcel of land belonging to Floyd
N. Calhoun, is located three hundred eighty-four (384) feet North of the Twenty
Arpent Road. The property herein described being designated as Lot "D" on a plat
recorded in Miscellaneous Book 8, at folio 173, under Entry No. 2751 of the
records of Iberia Parish, Louisiana.
Being that property acquired by Central Louisiana Electric Company, Inc., from Floyd N. Calhoun by act before Shirley Herpeche, Notary Public for the Parish of Iberia, dated September 11, 1952, recorded in Conveyance Book 211, Entry No. 86059, records of Iberia Parish, Louisiana.
There is located on Parcel 1 above described a water storage tank.
Parcel 2. A certain piece or parcel of ground situated near the Northern corporate limits of the City of Alexandria, Parish of Rapides, State of Louisiana, more particularly described as follows, to-wit: Starting at the point on the Western side of the concrete highway extending from Third Street to the traffic bridge across Red River, generally referred to as Third Street Extension, where line dividing the property purchased by L. G. Hickman from Mrs. Mary Barrett Meigs, et al, by deed dated February 23, 1950, recorded in Conveyance Book 387, page 73, records of Rapides Parish, Louisiana, and the property acquired by Fred A. Smith from Grady C. Robinson, et al, by deed dated January 31, 1951, intersects said Western line of said property, run thence South 42 degrees West for a distance of 237.9 feet to a point, said point being the beginning of the particular property herein described, and from said point of beginning turn to the right at an angle of 90 degrees for a distance of 50 feet; thence turn to the left at an angle of 90 degrees for a distance of 50 feet; thence turn to the left at an angle of 90 degrees for a distance of 50 feet; thence turn to the left at an angle of 90 degrees for a distance of 50 feet to the point
of beginning; said parcel of ground herein described being 50 feet square.
Being that property acquired by Central Louisiana Electric Company, Inc., from Irving Ward-Steinman, Trustee of the bankrupt estate of L. G. Hickman, by act of adjudication dated October 16, 1952, recorded in Conveyance Book 436, page 411, filing No. 369204, records of Rapides Parish, Louisiana.
There is located on Parcel 2 above described an electric substation.
Parcel 3. Two (2) certain lots of ground situated just beyond the corporate limits of the City of New Iberia, within the Sixth Ward of the Parish of Iberia, State of Louisiana, containing and measuring, as a whole, one hundred eight and two-tenths (108.2) feet on Lombard Street, having a depth on the Eastern boundary line of one hundred twelve and five-tenths (112.5) feet, and on the Western boundary line of one hundred twenty-seven and one-tenth (127.1) feet, having a width in the rear of fifty-three and eight-tenths (53.8) feet, bounded, as a whole, on the North by a portion of Lot 5 of Block 4 according to a plat of survey of the Courrege Subdivision by W. K. Frantz, C. E., dated February, 1947, of record in Miscellaneous Book 8, at folio 177, of the records of Iberia Parish, Louisiana, on the South by said Lombard Street, on the East by Lot 10 of said Block 4 (property of Lorena Chandler), on the West by right-of-way of Missouri Pacific Railroad, and being known and designated as Lots 11 and 12 of said Block 4 of said Courrege Subdivision.
Being that property acquired by Central Louisiana Electric Company, Inc., from John C. Daniel and Bernice Compton Daniel by deed dated December 6, 1952, before Segfried B. Christensen, Notary Public for the Parish of Orleans, dated December 6, 1952, recorded in Conveyance Book 213, Entry No. 86477, records of Iberia Parish, Louisiana.
There is located on Parcel 3 above described a water storage tank.
Parcel 4. A certain piece or parcel of ground situated in the Subdivision of Lacombe Park of the Parish of St. Tammany, State of Louisiana, and more fully described and designated as all of those portions of Lots Numbers One (1) and Two (2) of Square or Block Number Fifty-nine (59) of said subdivision, which are situated in Lot Number Nine (9) of the P. N. Judice Survey of Sections 40 and 48, Township 8 South, Range 12 East, Parish of St. Tammany, State of Louisiana.
Being that property acquired by Central Louisiana Electric Company, Inc., from Oaklawn Land and Improvement Company by deed dated February 5, 1953, before Philip E. Pfeffer, Notary Public for St. Tammany Parish, recorded in Conveyance Book 211, page 270, records of St. Tammany Parish, Louisiana.
There is located on Parcel 4 above described an electric substation.
Parcel 5. A certain lot of ground situated within the corporate limits of the City of New Iberia, Parish of Iberia, State of Louisiana, containing and measuring thirty (30) feet front on Fulton Street by a depth between equal and parallel lines of fifty (50) feet; bounded on the North by property of the Iberia and Northern (Missouri Pacific) Railroad, on the South by property of Bertha Viguerie, on the East by property of said Iberia and Northern (Missouri Pacific) Railroad, and on the West by said Fulton Street and being a portion of Lot 10 of Block 147, according to the official map of the City of New Iberia, Louisiana, and the aforedescribed Lot is more fully shown by referring to a plat of survey thereof prepared by G. K. Pratt Munson, C. E., dated March 7, 1953, a copy of which said plat is attached to deed from Bertha Beloney, widow of James Viguerie, to Central Louisiana Electric Company, Inc., dated March 20, 1953.
Being that property acquired by Central Louisiana Electric Company, Inc., from Bertha Beloney Viguerie by deed dated March 20, 1953, passed before Guyton H. Watkins, Notary Public for the Parish of Iberia, recorded in Conveyance Book 218, Entry No. 87321, records of Iberia Parish, Louisiana.
There is located on Parcel 5 above described an electric substation.
Parcel 6. A certain lot of ground situated in the Town of Ville Platte, Evangeline Parish, Louisiana, measuring fifty (50) feet by fifty (50) feet, located in Section 49, Township 4 South, Range 2 East, Louisiana Meridian, of which the Southwest corner is a distance of 37 feet on a bearing North 20 degrees 20 minutes East and a distance of 138 feet on a bearing of North 69 degrees 40 minutes West from an iron stake located at the South side of the intersection of Derouen Street and Eight North Street (now Lincoln Road), from this point on a bearing of North 20 degrees 20 minutes East, a distance of 50 feet to a point which will be the Northwest corner; thence on a bearing of South 69 degrees 40 minutes East a distance of 50 feet to a point, which
will be the Northeast corner; thence on a bearing of South 20 degrees 20 minutes West a distance of 50 feet to a point which will be the Southeast corner; thence on a bearing North 69 degrees 40 minutes West a distance of 50 feet to the point of beginning, as is more particularly shown by plat of survey attached to and made part of deed from Mrs. Lucy Vidrine Dardeau to Central Louisiana Electric Company, Inc., dated April 24, 1953.
Being that property acquired by Central Louisiana Electric Company, Inc., from Mrs. Lucy Vidrine Dardeau by deed dated April 24, 1953, passed before G. H. Vidrine, Notary Public for the Parish of Evangeline, recorded in Conveyance Book Number B-123, page 278, records of Evangeline Parish, Louisiana.
There is located on Parcel 6 above described an electric substation.
Parcel 7. A certain lot of ground situated in Rapides Parish, Louisiana, being Lot Five (5) of Block or Square Fourteen (14) of the Grace Subdivision to the City of Pineville, Rapides Parish, Louisiana, as shown by the official plat of Grace Subdivision made by L. J. Daigre, C. E., dated July 12, 1946, recorded at Plat Book 7, page 112, records of Rapides Parish, Louisiana, to which reference is made for greater certainty of description, said Lot 5 having a frontage of Fifty (50) feet more or less on Barron Street and extending back therefrom between parallel lines 102.50 feet to an unnamed street in the rear; bounded in front by Barron Street, on one side by Lot Six (6), on the other side by Lot 4 of said Block 14 and in the rear by said unnamed street.
Being that property acquired by Central Louisiana Electric Company, Inc., from Rubin M. O'Neal, by deed dated May 7, 1953, passed before John H. McSween, Notary Public for Rapides Parish, Louisiana, recorded in Conveyance Book 446, page 514, records of Rapides Parish, Louisiana, under filing number 373468.
There is located on Parcel 7 above described an electric substation.
Parcel 8. A certain lot of ground situated in the Town of Washington, Parish of St. Landry, State of Louisiana, having a front of thirty (30) feet on Main Street by a depth between parallel lines of forty (40) feet, bounded on North by property of widow and heirs of Ladie Joubert; South and East by property of Mrs. Florence Ortego
Bidstrup; and on the West by Main Street, said property being located in Block Number 44, of the original Town of Washington, Louisiana.
Being that property acquired by Central Louisiana Electric Company, Inc., from Mrs. Florence Ortego Bidstrup and Wilfred J. Bidstrup, her husband, by deed dated June 5, 1953, passed before A. L. Quirk, Notary Public for St. Landry Parish, recorded in Conveyance Book B-10, Filing No. 333293, records of St. Landry Parish, Louisiana.
There is located on Parcel 8 above described an electric substation.
Parcel 9. A certain parcel of land situated in the Northeast Quarter of the Northeast Quarter (NE1/4 of NE1/4) of Section 16, Township 12 North, Range 13 West, in the Parish of De Soto, State of Louisiana, more particularly described as follows, to-wit: Beginning at a point 1270 feet West of the Northeast corner of Section 16, Township 12 North, Range 13 West, De Soto Parish, Louisiana, and running thence South 150 feet, thence West 50 feet to the West line of the Northeast Quarter of the Northeast Quarter of Section 16, Township 12 North, Range 13 West, thence North 150 feet to the Northwest corner of the Northeast Quarter of the Northeast Quarter of Section 16, Township 12 North, Range 13 West, and thence East 50 feet to the point of beginning.
Being that property acquired by Central Louisiana Electric Company, Inc., from Joseph W. DuBois and Annie G. DuBois, by deed dated July 6, 1953, recorded in Conveyance Book 196, page 628, records of De Soto Parish, Louisiana.
There is located on Parcel 9 above described an electric substation.
II.
All real estate or interest therein, now owned or which may be hereafter acquired by the Company for use or which may be used by it in connection with its business as an electric, gas and water company, together with all of the right, title, and interest of the Company, now owned or hereafter acquired in and to any and all works, plants, buildings, structures, erections, and constructions now or hereafter placed upon any of the real estate mentioned, described or referred to as being subject to the lien of the Indenture, with the fixtures, tenements, hereditaments, and appurtenances thereunto appertaining or belonging.
III.
The Following Described Property, IV, herever Situate:
First: The electric generating plants and electric transmission and/or distribution systems now or hereafter owned by the Company, and any electric generating plants and electric transmission and/or distribution systems hereafter constructed or acquired by the Company, and any additions to or extensions of any such existing or future electric generating plants and/or electric transmission and/or distribution systems, together with all engines, dynamos, motors, generators, boilers, turbines, pole lines, poles, wires, crossarms, insulators, transformers, meters, buildings, erections, structures, stations, substations, power houses, power producing and power transmitting equipment, water, water rights, water wheels, headworks, race-ways, hydraulic works, hydro-electric plants, cables, conduits, instruments, apparatus, appliances, machinery, facilities, fixtures and all other property used or provided for use in the construction, repair, maintenance and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also with all the rights, privileges, franchises, easements, licenses, ordinances, rights of way, liberties, immunities and permits of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair and/or operation of said electric generating plants and electric transmission and/or distribution systems, and each of them, and any additions thereto and extensions thereof.
Second: The gas generating plants, gas storage plants and gas gathering and/or transmission and/or distribution systems now owned by the Company, and any gas generating plants, gas storage plants and/or gas transmission and/or distribution systems hereafter constructed or acquired by the Company, and any additions to or extensions of any such existing or future plants and systems, together with the buildings, erections, structures, generating and purifying apparatus, holders, engines, boilers, benches, retorts, tanks, pipe lines, connections, service pipes, meters, conduits, instruments, appliances, apparatus, facilities, machinery, fixtures and all other property used or provided for use in the construction, maintenance, repair and/or operation thereof, both that now owned and that which may be here-
after acquired by the Company, and together also with all rights, privileges, rights of way, franchises, licenses, easements, grants, liberties, immunities, permits and ordinances of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair, and/or operation of said gas generating plants, gas storage plants and gas gathering and/or transmission and/or distribution systems, and each of them, and any additions thereto and extensions thereof.
Third: The waterworks plants and water distribution systems now owned by the Company, and any waterworks plants and/or waterworks distribution systems hereafter constructed or acquired by the Company together with the buildings, structures, erections, pumps, pumping machinery, reservoirs, filters, filter-galleries, chlorinating equipment, tanks, wells, water rights, water supply, water mains, hydrants, pipelines, service pipes, meters, standpipes, engines, boilers, apparatus, appliances, facilities, machinery, equipment, fixtures and all other property used or provided for use in the construction, maintenance, repair and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also with all of the rights, privileges, rights of way, franchises, licenses, easements, permits, liberties, immunities, grants and ordinances of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair and operation of said plants and systems and each of them, and any additions thereto and extensions thereof.
TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Trustee and its successors in the trust hereby created and its and their assigns forever;
SUBJECT, HOWEVER, to existing leases, to easements and other rights of way for pole lines and other similar encumbrances and restrictions which the Company hereby certifies, in its judgment, do not impair the use of said property by the Company in its business, to liens securing indebtedness which has neither been assumed by the Company nor upon which it customarily pays interest charges, exist-
ing solely upon real property, or rights in and relating thereto, which real property or rights have been or may be acquired for right-of-way purposes, to liens of taxes and assessments for the current year and taxes and assessments not yet due, to alleys, streets and highways that may run across or encroach upon said lands, and to liens, if any, incidental to construction; and, with respect to any property which the Company may hereafter acquire, to all terms, conditions, agreements, covenants, exceptions and reservations expressed or provided in such deeds and other instruments, respectively, under and by virtue of which the Company shall hereafter acquire the same and to any and all liens existing thereon at the time of such acquisition within the restrictions contained in the Indenture; and subject also to other liens and encumbrances of the character defined in the Indenture as "permitted liens" insofar as the same may attach to any of the property embraced herein;
SAVING AND EXCEPTING, however, from the properties mortgaged and pledged by the Indenture (whether now owned by the Company or hereafter acquired by it) all bills, notes and accounts receivable, cash on hand and in bank, contracts, merchandise and appliances kept for purposes of sale, and all bonds, obligations, evidences of indebtedness, shares of stock and other securities, and certificates or evidences of interest therein-other than any of the foregoing which may be hereafter specifically transferred or assigned to or pledged or deposited with the Trustee under the Indenture or required by the provisions of the Indenture so to be and all office furniture and equipment, motor vehicles, tools, testing equipment and consumable materials and supplies; provided, however, that, if upon the happening of an event of default as in the Indenture defined, the Trustee or any receiver appointed under the Indenture shall enter upon and take possession of the mortgaged property, the Trustee or such receiver may, to the extent permitted by law, at the same time likewise take possession of any and all of the property described in this paragraph then on hand and use and administer the same to the extent as if such property were part of the mortgaged property, unless and until such event of default shall be remedied or waived and possession of the mortgaged property restored to the Company, its successors or assigns.
ALSO SAVING AND EXCEPTING, however, from the property hereby mortgaged and pledged:
(a) All parcels of land now owned or hereafter acquired by the Company and not used by it or useful in connection with its business as an electric, gas or water company or as an electric, gas or water utility.
(b) All machinery, equipment, fixtures, supplies and materials now used or hereafter acquired for use in connection with the ice and cold storage, ice cream and dairy business of the Company.
(c) All motor vehicles now used or hereafter acquired for use in connection with the. ice and cold storage, ice cream and dairy business of the Company, together with all tires, spare parts, materials and supplies appertaining thereto.
(d) All machinery, equipment, fixtures, supplies and materials, now owned or hereafter acquired, not used by or useful to the Company in its business as an electric, gas or water company or as an electric, gas or water utility, not located on any parcel of real estate now owned or hereafter acquired, referred to as being subject to the lien of the Indenture.
(e) All additions, improvements, betterments, extensions and replacements now or hereafter made to or acquired for or in connection with the property set forth in paragraphs (a), (b), (c) and (d) above.
IN TRUST NEVERTHELESS, upon the terms and trusts herein and in the Original Indenture, the First Supplemental Indenture and the Second Supplemental Indenture set forth;
PROVIDED, HOWEVER, and these presents are upon the condition that if the Company, its successors or assigns, shall pay or cause to be paid the principal of and interest on all said bonds, together with the premium, if any, payable on such of said bonds as may have been called for redemption prior to maturity, or shall provide, as permitted by the Indenture, for the payment thereof by depositing with the Trustee the entire amount due or to become due thereon for principal, interest and premium, if any, and if the Company shall also pay or cause to be paid all other sums payable under the Indenture by it, then the Indenture and the estate and rights thereby granted shall
cease, determine and be void, otherwise to be and remain in full force and effect.
IT IS HEREBY FURTHER CONVENANTED, DECLARED AND AGREED by and between the Company and the Trustee, for the benefit of those who shall hold said bonds and coupons or any of them, as follows:
ARTICLE I.
DESCRIPTION OF BONDS OF SERIES E.
SECTION 1.1. The fifth series of bonds to be issued under the Indenture and secured thereby is hereby created, which shall be designated, and distinguished from the bonds of all other series, by the title "First Mortgage Bonds, Series E, 4 1/4%", elsewhere herein referred to as the "bonds of Series E".
Except as otherwise provided in Section 2.08 of the Indenture with respect to destroyed, lost or stolen bonds, the aggregate principal amount of the bonds of Series E which may be outstanding at any one time shall be $3,000,000.
The bonds of Series E shall be dated, and shall bear interest from, January 1, 1954, except as provided in Section 2.03 of the Indenture with respect to registered bonds without coupons, and shall be due January 1, 1984, and shall bear interest at the rate of four and one-quarter per centum (4 1/4%) per annum, payable semi-annually on the first day of January and the first day of July in each year, until they shall mature, according to their terms or on prior redemption or by declaration or otherwise, and at the rate of six per centum (6%) per annum on any overdue principal and premium (if any) and (to the extent permitted by law) on any overdue installment of interest. The principal of and the premium (if any) and the interest on the bonds of Series E shall be payable at the office or agency of the Company in the City of New Orleans, Louisiana, in such coin or currency of the United States of America as, at the time of payment, shall be legal tender for public and private debts.
The bonds of Series E shall be redeemable, either at the option of the Company or pursuant to any provision of the Indenture requiring such redemption, either as a whole or in part from time to time, at any time prior to maturity, upon notice as provided in Section 8.02 of the Indenture, published in a newspaper printed in the English
language and customarily published on each business day and of general
circulation in the Borough of Manhattan, The City of New York, New York, and
like publication in a similar newspaper of the City of New Orleans, at least
once in each of four (4) successive calendar weeks upon any business day of
each such calendar week, the first publication to be not less than thirty (30)
days and not more than sixty (60) days before such redemption date (or upon
mailing of such notice of redemption as provided in the first paragraph of
Section 8.02 of the Indenture in the event such paragraph shall be applicable).
If redeemed by the application of moneys in the Sinking Fund for bonds of Series
E provided for in Article II of this Third Supplemental Indenture or moneys in
the depreciation fund provided for in Section 5.07 of the Indenture, or by the
application of moneys received by the Trustee in connection with any release of
property upon any acquisition thereof by any municipal corporation or other
governmental subdivision or governmental body or public authority, the bonds of
Series E are redeemable at the principal amount thereof, together with interest
accrued to the date fixed for redemption, without premium. If redeemed otherwise
than by the application of such moneys, the bonds of Series E are redeemable at
the redemption price at the time applicable specified in the schedule contained
in the form of coupon bond of Series E set forth in the recitals hereof,
together with interest accrued to the date fixed for redemption.
Coupon bonds of Series E shall be issuable in the denomination of $1,000 and shall be registerable as to principal. Registered bonds without coupons of Series E shall be issuable in denominations of $1,000 and any multiple of $1,000. Bonds of Series E shall be interchangeable at the option of the holders thereof, in like aggregate principal amounts, coupon bonds for registered bonds without coupons, registered bonds without coupons for coupon bonds and the several denominations of registered bonds without coupons.
ARTICLE II.
SINKING FUND FOR BONDS OF SERIS E.
SECTION 2.1. The Company covenants and agrees that so long as any of the bonds of Series E shall be outstanding it will pay to the Trustee, as and for a sinking fund for the bonds of Series E, on the first day of January in the year 1955 and on the first day of January
in each year thereafter, an amount of cash equal to one per centum (17o) of the greatest principal amount of bonds of Series E outstanding under the Indenture at any one time prior to the next preceding November 15; provided, however, that the amount of cash payable to the Trustee on any such January 1 pursuant to the provisions of this Section shall be reduced by an amount equal to the aggregate principal amount of bonds of Series E then being delivered by the Company to the Trustee, but no bonds of Series E shall be delivered to the Trustee which have not been sold in a bona fide transaction and reacquired by the Company.
Cash paid to the Trustee pursuant to the provisions of this Section shall be applied by it as follows:
(a) Upon the written notice by the Company to the Trustee given on or before November 15 in any year, beginning with the year 1954, specifying the amount of cash which the Company will pay to the Trustee on the next succeeding January 1 pursuant to this Section and requesting that it be used for the redemption of bonds, the Trustee shall, to the extent practicable, apply the cash received by it on the next succeeding January 1, together with any other cash held by it on such November 15 under the provisions of this Section, to the redemption on such January 1 of bonds of Series E, in the manner and subject to the conditions provided in such bonds and in Article VIII of the Indenture; and for such purpose the Trustee may publish notice of redemption in the name of the Company or in its own name as Trustee.
(b) If the Company shall not have given the notice referred to in the foregoing subdivision (a), the cash received by the Trustee on any January 1 pursuant to the provisions of this Section shall, upon request of the Company and to the extent practicable, be applied promptly by the Trustee to the purchase of bonds of Series E in accordance with the provisions of Section 8.06 of the Indenture.
(c) If the Trustee on March 20 of any year shall hold cash under the provisions of this Section amounting to $15,000 or more (or any amount less than $15,000, if the Company so elects), the Trustee shall apply all cash, to the extent practicable, then held under the provisions of this Section to the redemption on the next succeeding May 1 of bonds of Series E, in the manner and
subject to the conditions provided in such bonds and in Article VIII of the Indenture; and for such purpose the Trustee may publish notice of redemption in the name of the Company or in its own name as Trustee.
SECTION 2.2. The Company further covenants to pay to the Trustee, on demand, the compensation of the Trustee in administering the sinking fund as provided in this Article II, together with the Trustee's expenses, including cost of advertisement of redemption notices and any other advertisements and other lawful charges, if any, and any accrued interest and premium paid or payable with respect to any such bonds of Series E purchased or redeemed as provided for in Section 2.1 it being intended that the aforesaid compensation, expenses, charges, accrued interest and premium shall not be charged against sinking fund moneys.
SECTION 2.3. All bonds of Series E delivered to the Trustee for the purpose of taking a credit pursuant to the provisions of Section 2.1, or purchased or redeemed pursuant to the provisions of Section 2.1, shall be forthwith cancelled by the Trustee, and such bonds shall not be reissued.
ARTICLE III.
ADDITIONAL COVENANTS OF THE COMPANY.
SECTION 3.1. The Company covenants that, so long as any bonds of Series E are outstanding, it will not at any time declare or pay any dividend on its Common Stock or make any distribution to its Common Stockholders (other than dividends or distributions payable solely in its Common Stock) or purchase or otherwise acquire for value any of its Common Stock, except out of (1) earned surplus of the Company accumulated after December 31, 1949, plus (2) $530,000 of earned surplus accumulated prior to January 1, 1950 (such aggregate amount being hereinafter called "unrestricted earned surplus"), nor unless after the payment of such dividend or the making of such distribution, purchase or acquisition the sum of (a) the provision for property retirements or depreciation made by the Company out of income or earned surplus, during the period from July 1, 1950, to the end of the calendar year next preceding the date of payment of such dividend or the making of such distribution, purchase or acquisition
and (b) the unrestricted earned surplus, if any, of the Company shall be not less than the aggregate of the minimum provision for property retirements or depreciation determined as provided in Section 1.05 of the Indenture, for the period f rom July 1, 1950, to the end of the calendar year next preceding the date of payment of such dividend or the making of such distribution, purchase or acquisition. For the purposes of this Section, the earned surplus of the Company accumulated after December 31, 1949, shall be determined in accordance with sound accounting practice, and, so long as and to the extent that there shall remain any earned surplus of the Company accumulated prior to January 1, 1930, other than unrestricted earned surplus, such amount shall be available for all surplus charges other than such dividends or the making of such distribution, purchase or acquisition.
SECTION 3.2. The Company covenants that so long as any bonds are outstanding under the Original Indenture no Indenture or Indentures supplemental to the Original Indenture will be entered into by the Company unless such Supplemental Indenture shall contain provisions which are in compliance with the Trust Indenture Act of 1939 as then in effect; provided, however, that this provision shall not be effective and binding upon the Company if all of the bonds then outstanding and then to be issued under the Original Indenture as supplemented and amended by all other supplemental indentures and by such supplemental indenture then to be entered into, shall either be exempt securities as defined in the Trust Indenture Act of 1939 as then in effect, or are to be issued in a transaction exempt from the provisions of said Act.
SECTION 3.3. The Company covenants that, so long as any bonds of Series E are outstanding, it will not convey or transfer any property which is subject to the lien of the Indenture to any affiliate of the Company except in accordance with the provisions of Article XIII of the Indenture or except such property as shall thereupon be released from the lien of the Indenture under the provisions of Article IX thereof.
SECTION 3.4. The Company covenants that, so long as any bonds of Series E are outstanding, it will not at any time purchase or cause to be purchased any bond of any series outstanding under the Indenture at a price (including accrued interest, but not including brokerage charges) which is in excess of the current redemption price of such
bond at the date of purchase if such bond is redeemable before maturity or, if it is not so redeemable, one hundred five per centum (105%) of the principal amount of such bond, plus, in either case, accrued interest.
ARTICLE IV.
AMENDMENTS OF ORIGINAL INDENTURE.
(Pursuant to Sub-Section (e) of Section 17.01 of Original Indenture)
SECTION 4.1. The third paragraph of Section 1.05 of the Original Indenture (relating to the minimum provision for property retirements or depreciation) is amended to read as follows:
"The term 'minimum provision for property retirements or depreciation', when used with reference to any period of time, shall mean an amount equal to (i) fifteen per centurn (15%) of the gross operating revenues of the Company received from electric, gas and water operations during such period, to the extent arising out of the operation of bondable property and leased electric, gas and water facilities, after deducting from such gross operating revenues (a) an amount equal to the aggregate cost to the Company of electric energy, gas and water purchased for resale in connection with the operation of such property or facilities and (b) rentals paid for the lease of electric, gas and water facilities, less (ii an amount equal to the aggregate charges by the Company to operating expenses during such period for current repairs and maintenance to bondable property and leased electric, gas and water facilities."
SECTION 4.2. Section 3.5 of the First Supplemental Indenture is hereby amended to read as follows:
"Section 3.5. Section 5.07 of the Original Indenture is hereby amended by inserting after the words 'property additions', in the third line of the second paragraph of said Section and in the first line of paragraph (4) of said Section, the following:
'(exclusive of (i) property additions, the bondable value of which has been previously made the basis for the authentication and delivery of bonds, for the withdrawal of cash under any provision of this indenture, or for a credit under any sinking or improvement fund or other purchase or similar fund which may be created pursuant to the provision of any indenture supplemental to this indenture, (ii) property additions
acquired by merger, consolidation or dissolution to the extent that the same have not been deducted pursuant to the provisions of clause (i) above, and (iii) any property additions, to the extent that the same have not been deducted pursuant to the provisions of clause (i) or (ii) above, which within six months prior to the date of acquisition thereof by the Company were used or operated by a person or persons other than the Company in a business similar to that in which they have been or are to be used or operated by the Company)'."
ARTICLE V.
MISCELLANEOUS.
SECTION 5.1. The Company is lawfully seized and possessed of all the real estate, franchises and other property described or referred to in the Indenture as presently mortgaged and pledged thereunder, subject to the exceptions stated therein and except property which has been released from the lien of the Indenture in accordance with its terms, and upon the initial issue of bonds of Series E thereunder such real estate, franchises and other property will be free and clear of any lien prior to or on a parity with the lien of the Indenture except as set forth in the granting clauses of the Indenture and except permitted liens as therein defined, and the Company has good right and lawful authority to mortgage and pledge the same as provided in and by the Indenture.
SECTION 5.2. As supplemented and amended by this Third Supplemental Indenture, the Original Indenture, the First Supplemental Indenture and the Second Supplemental Indenture are in all respects ratified and confirmed and said Original Indenture, First Supplemental Indenture, Second Supplemental Indenture and this Third Supplemental Indenture shall be read, taken and construed as one and the same instrument.
SECTION 5.3. The Trustee assumes no duties, responsibilities or liabilities by reason of this Third Supplemental Indenture, other than as set forth in the Original Indenture, the First Supplemental Indenture and the Second Supplemental Indenture and this Third Supplemental Indenture is executed and accepted by the Trustee subject to all the terms and conditions of its acceptance of the trust under the Original Indenture, the First Supplemental Indenture and the Second Supplemental Indenture as fully as if said terms and conditions were herein set forth at length.
SECTION 5.4. This Third Supplemental Indenture shall be simultaneously executed in several counterparts and all such counterparts executed and delivered, each as an original, shall constitute but one and the same instrument.
SECTION 5.5. This Third Supplemental Indenture has been dated as of January 1, 1954, solely for convenience. The date of actual execution hereof by each of the parties hereto is the date shown by the acknowledgment of execution hereof by its officers.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this instrument to be signed in its corporate name by its President or one of its Vice-Presidents and sealed with the corporate seal attested by its Secretary or one of its Assistant Secretaries and The National Bank of Commerce in New Orleans to evidence its acceptance of the trust hereby created has caused this instrument to be signed in its corporate name by one of its Vice-Presidents and sealed by its corporate seal attested by one of its Assistant Cashiers, all as of the day and year first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By T. M. HAUER
Vice-President.
Attest:
T. P. STREET
Secretary.
Signed, sealed, acknowledged and
delivered by CENTRAL LOUISIANA (SEAL)
ELECTRIC COMPANY, INC., in the
presence of:
R. J. Emmer
H. S. FORD
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS
By F. C. DOYLE
Vice-President.
Attest:
R. C. MORSE
|
Assistant Cashier.
Signed, sealed, acknowledged and
delivered by THE NATIONAL BANK OF (SEAL)
COMMERCE IN NEW ORLEANS in the
presence of:
R. J. EMMER
H. S. FORD
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 2nd day of February, 1954, before me the undersigned, a Notary Public in and for said Parish and State, duly qualified and commissioned as such, personally appeared T. M. HAUER, a Vice-President and T. P. STREET, Secretary of CENTRAL LOUISIANA ELECTRIC COMPANY, INC., the grantor in the foregoing instrument, to me personally known and known to me to be such officers, respectively, of such Company, and personally known to me to be the identical persons whose names are subscribed and affixed to the foregoing instrument as such officers, respectively, and who subscribed the name of the Company thereto, and in my presence and in the presence of the undersigned witnesses, of lawful age and domicile, severally acknowledged that the same is their respective, free and voluntary act -and deed as such officers and the free and voluntary act and deed of said Company for the uses and purposes therein expressed; and the said persons being each by me duly and severally sworn as individuals did depose and say that they are such officers, respectively, of said Company; that they know the seal of said Company; that the seal affixed to the foregoing instrument was and is such corporate seal; that said seal was so affixed and said instrument was so signed on behalf of said Company by the order and authority of the Board of Directors of said Company; and that they signed their names thereto as such officers, respectively, of said Company by like authority.
In Testimony Whereof, the said Appearers have hereunto Signed their names on the day and date first hereinabove written, in the presence of R. J. EMMER and H. S. FORD, witnesses of lawful age and domicile, and of me, said Notary Public.
Witness:
T. M. HAUER
Vice-President.
R. J. EMMER
T. P. STREET
Secretary.
H. S. Ford
THOMAS F. JORDAN
Notary Public.
(NOTARIAL SEAL)
My Commission expires at death or on removal from Office.
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 2nd day of February, 1954, before me the undersigned, a Notary Public in and for said Parish and State, duly qualified and commissioned as such, personally appeared FRANCIS C. DOYLE, a Vice-President and RICHARD C. MORSE, an Assistant Cashier of The National Bank of Commerce in New Orleans, a national banking association, duly organized and existing under the laws of the United States of America, Trustee under the foregoing instrument, to me personally known and known to me to be such officers, respectively, of said Bank, and personally known to me to be the identical persons whose names are subscribed and affixed to the foregoing instrument as such officers respectively, and who subscribed the name of the said Bank thereto, and in my presence and in the presence of the undersigned witnesses, of lawful age and domicile, severally acknowledge that the same is their respective, free and voluntary act and deed as such officers and the free and voluntary act and deed of said Bank for the uses and purposes therein expressed; and the said persons being each by me duly and severally sworn as individuals did depose and say that they are such officers, respectively, of said Bank; that they know the seal of said Bank, that the seal affixed to the foregoing instrument was and is such corporate seal; that said seal was so affixed and said instrument was so signed on behalf of said Bank by the order and authority of the Board of Directors of said Bank; and that they signed their names thereto as such officers, respectively, of said Bank by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their names on the day and date first hereinabove written, in the presence of R. J. EMMER and H. S. FORD, witnesses of lawful age and domicile, and of me, said Notary Public.
Witness:
F. C. DOYLE
Vice-President.
R. J. EMMER
R. C. MORSE
Assistant Cashier.
H. S. FORD
THOMAS F. JORDAN
Notary Public.
(NOTARIAL SEAL)
My Commission expires at death or on removal from Office.
RECORDING DATA
As shown by the Recorders' Certificates, the foregoing Third Supplemental Indenture dated as of January 1, 1954, from Central Louisiana Electric Company, Inc., to The National Bank of Commerce in New Orleans, as Trustee, is duly recorded in the following Parishes in the State of Louisiana:
PARISH MORTGAGE BOOK FOLIO REGISTRY NUMBER ------ ------------- ----- --------------- Acadia 119 146 263670 Allen 40 631 116634 Avoyelles 9 614 153467 Beauregard 54 601 114922 Calcasieu 281 1 576951 DeSoto 59 32 233946 Evangeline 68 315 151232 Grant Special-4 435 15788 Iberia A-138 37 50965 Lafayette 0-21 229 298414 Natchitoches 214-A 472 MA-1090 Rapides 358 147 379971 Red River 42 113 83843 Sabine 29 627 149186 St. Landry 168 368 341378 St. Mary 147 541 62475 St. Martin 96 204 51044 St. Tammany 103 519 114100 Vernon 222 41 198920 W ashington 119 381 238 |
EXHIBIT 4(a)(5)
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
TO
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
as Trustee
Fourth Supplemental Indenture
DATED AS OF NOVEMBER 1, 1954
Issue of First Mortgage Bonds, Series F, 3 1/4% Due November 1, 1984
Supplemental to Indenture of Mortgage Dated as of July 1, 1950
FOURTH SUPPLEMENTAL INDENTURE, dated as of November 1, 1954, between CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation duly organized and existing under and by virtue of the laws of the State of Louisiana (hereinafter sometimes called the "Company"), party of the first part, and THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, a national banking association duly organized and existing under and by virtue of the laws of the United States of America, as Trustee under the Indenture of Mortgage hereinafter mentioned (hereinafter sometimes called the "Trustee"), party of the second part.
WHEREAS, the Company heretofore executed and delivered its Indenture of Mortgage (hereinafter called "Original Indenture"), dated as of July 1, 1950, to the Trustee, to secure the Company's First Mortgage Bonds, limited to $100,000,000 aggregate principal amount at any one time outstanding and issuable in series, from time to time, in the manner and subject to the conditions set forth in the Original Indenture, and by said Original Indenture granted and conveyed unto the Trustee, upon the trusts, uses and purposes specifically therein set forth, certain real estate, franchises and other property therein described, including property acquired after the date thereof except as therein otherwise provided; and
WHEREAS, the Original Indenture provides for the issuance of bonds thereunder in one or more series, the form of each series of bonds and of the coupons to be attached to the coupon bonds to be substantially in the forms set forth therein with such omissions, variations, and insertions as are authorized or permitted by the Original Indenture and determined and specified by the Board of Directors of the Company; and
WHEREAS, the Company has heretofore issued under the Original Indenture $5,500,000 principal amount of its First Mortgage Bonds, Series A, 3%, of which $5,280,000 principal amount remains outstanding as of the date hereof ; and
WHEREAS, the Company heretofore executed and delivered its First Supplemental Indenture (hereinafter called the "First Supplemental Indenture") dated as of October 1, 1951, to the Trustee to supplement
the Original Indenture and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original Indenture, as supplemented and amended by the First Supplemental Indenture, $4,844,000 principal amount of its First Mortgage Bonds, Series B, 3 3/4%, and $960,000 principal amount of its First Mortgage Bonds, Series C, 3 3/4%, of which bonds of Series B $4,699,000 principal amount, and of which bonds of Series C $932,000 principal amount, remain outstanding as of the date hereof; and
WHEREAS, the Company heretofore executed and delivered its Second Supplemental Indenture (hereinafter called the "Second Supplemental Indenture") dated as of June 1, 1952, to the Trustee to supplement the Original Indenture and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original Indenture, as supplemented and amended by the First Supplemental Indenture and the Second Supplemental Indenture, $4,000,000 principal amount of its First Mortgage Bonds, Series D, 3 3/4%, of which $3,920,000 principal amount remains outstanding as of the date hereof; and
WHEREAS , the Company heretofore executed and delivered its Third Supplemental Indenture (hereinafter called the "Third Supplemental Indenture") dated as of January 1, 1954, to the Trustee to supplement the Original Indenture and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original Indenture, as supplemented and amended by the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture, $3,000,000 principal amount of its First Mortgage Bonds, Series E, 4 1/4%, all of which remain outstanding as of the date of this Fourth Supplemental Indenture (hereinafter called "Fourth Supplemental Indenture"), the Original Indenture as amended or supplemented by all indentures supplemental thereto, including the First Supplemental Indenture, the Second Supplemental Indenture, the
Third Supplemental Indenture, and this Fourth Supplemental Indenture, being hereinafter referred to as the "Indenture"; and
WHEREAS, the Company by appropriate resolutions adopted by its Board of
Directors pursuant to the terms of the Indenture, has duly determined (a) to
create a sixth series of bonds under the Indenture, to be designated as "First
Mortgage Bonds, Series F, 3 1/4%" (herein sometimes called "bonds of Series F"),
(b) that such bonds shall be coupon bonds registerable as to principal and
registered bonds without coupons, (c) that such coupon bonds shall be
exchangeable for registered bonds without coupons, and (d) that the coupon bonds
of Series F, the coupons appertaining thereto and the registered bonds without
coupons of said series, are to be substantially in the following forms,
respectively:
[FORM OF COUPON BOND OF SERIES F]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series F, 3 1/4%
Due November 1, 1984
No. $1000
CENTRAL LOUISIANA ELECTRIC COMPANY, Inc., a corporation organized and existing under the laws of the State of Louisiana (hereinafter called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to bearer, or, if this bond be registered as to principal, to the registered holder hereof, on November l 1984, at the office or agency of the Company in the City of New Orleans, Louisiana, One Thousand Dollars ($1000) in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay interest thereon semi-annually on May 1 and November 1 of each year at the rate of three and one-quarter per centum (3 1/4%) per annum at such office or agency in like coin or currency, from November 1, 1954, until this bond shall mature, according to its terms or on prior redemption or by declaration or otherwise, and at the rate of six per centum (6%) per annum on any overdue principal and premium (if any) and (to the extent permitted by law) on any overdue installment of interest, but, until the maturity hereof, only upon presentation and surrender of the
coupons for such interest installments as are evidenced thereby, hereto appertaining, as they shall Severally mature
This bond is one of an authorized issue of bonds of the Company known as its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000) at any one time outstanding, issued and to be issued, in one or more series, and equally and ratably secured (except insofar as a sinking fund or other similar fund established in accordance With the provisions of the Indenture may afford additional security for the bonds of any specific series) by an indenture (hereinafter called the "Original Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS as Trustee (hereinafter called the "Trustee"), as supplemented and amended by a First Supplemental Indenture dated as of October 1, 1951, a Second Supplemental Indenture dated as of June 1, 1952, a Third Supplemental Indenture dated as of January 1, 1954, and a Fourth Supplemental Indenture dated as of November 1, 1954, executed by the Company to the Trustee, to Which Original Indenture, First Supplemental Indenture, Second Supplemental Indenture, Third Supplemental Indenture, Fourth Supplemental Indenture and all other indentures supplemental thereto (said Original Indenture as so supplemented and amended being - herein called the "Indenture") reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Company in respect of such security, the rights, duties and immunities of the Trustee, and the terms and conditions upon which the bonds are, and are to be, secured. As provided in the Indenture, the bonds may be issued in series for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This bond is one of the bonds described in the Indenture and designated therein as "First Mortgage Bonds, Series F, 3 1/4%" (hereinafter referred to as the "bonds of Series F").
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 75% in aggregate principal amount of all the bonds at the time outstanding, determined and evidenced as in the Indenture provided, or in case the rights under the Indenture of the holders of bonds of one or more, but less than all, of the series of bonds outstanding shall be affected,
then with the consent of the holders of not less than 75% in aggregate principal amount of the bonds at the time outstanding of the one or more series affected, determined and evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the holders of the bonds and coupons; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any bonds, or reduce the rate or extend the time of payment of interest thereon, or modify the terms of payment of principal at maturity or by redemption, or otherwise modify the terms of payment of any bond, without the consent of the holder of each bond so affected, or (ii) reduce the percentage of bonds, the holders of which are required to consent to any such supplemental indenture, without the consent of the holders of all bonds then outstanding, or (iii) permit the creation of any lien ranking prior to or equal with the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holders of all bonds then outstanding, or (iv) deprive the holder of any outstanding bond of the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holder of each bond so affected. Any such consent by the holder of this bond (unless effectively revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders of this bond, irrespective of whether or not any notation of such consent is made upon this bond. No reference herein to the Indenture and no provision of this bond or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay at the stated or accelerated maturity herein and in the Indenture provided, the principal of and interest and premium, if any, on this bond at the time and place and at the rate and in the coin or currency herein prescribed.
The coupon bonds of Series F are issuable in the denomination of $1,000. The registered bonds without coupons of Series F are issuable in denominations of $1,000 and any multiple of $1,000. At the office or agency to be maintained by the Company in said City of New Orleans and in the manner, subject to the limitations, and upon payment of the charges provided in the Indenture, coupon bonds of such series, with all unmatured coupons and any matured coupons in default thereto appertaining, may be exchanged for a like aggre-
gate principal amount of registered bonds without coupons of such series, and registered bonds without coupons of such series may be exchanged for a like aggregate principal amount of coupon bonds of such series bearing all unmatured coupons and any matured coupons in default or for a like aggregate principal amount of registered bonds without coupons of such series of other authorized denominations.
The bonds of Series F are entitled to the benefit of the Sinking Fund provided for in Article H of the Fourth Supplemental Indenture.
The bonds of Series F may be redeemed, either at the option of the Company or pursuant to certain requirements of the Indenture, on any date prior to maturity, as a whole or from time to time in part, upon publication at least once in each of four successive calendar weeks, upon any business day of each such calendar week, of notice of such redemption in a newspaper printed in the English language and customarily published on each business day and of general circulation in the. Borough of Manhattan, The City of New York, New York, and like publication in a similar newspaper of said City of New Orleans, the first publication in each case to be not less than thirty (30) days and not more than sixty (60) days before such redemption date (provided, however, that if all the bonds of Series F at the time outstanding shall be registered bonds without coupons or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, such notice may be given by mailing the same to each registered holder of a bond so to be redeemed directed to his registered address not less than thirty (30) days and not more than sixty (60) days before the redemption date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds of Series F, provided for in Article II of the Fourth Supplemental Indenture, or moneys in the depreciation fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series F are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, at the principal amount thereof together with accrued interest to the date fixed for redemption, without premium, and if redeemed otherwise than by the application of such
moneys, the bonds of Series F are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in the following schedule, together with, in each case, interest accrued to the date fixed for redemption:
If Redeemed During Twelve Redemption Price
Months' Period Ending (Percentage of
October 31, Principal Amount)
-------------------------- -----------------
1955 .......................................... 103.00
1956 .......................................... 102.90
1957 .......................................... 102.80
1958 .......................................... 102.70
1939 .......................................... 102.60
1960 .......................................... 102.50
1961 .......................................... 102.40
1962........................................... 102.30
1963........................................... 102.20
1964........................................... 102.10
1965 .......................................... 102.00
1966 .......................................... 101.90
1967 .......................................... 101.80
1968 .......................................... 101.70
1969 .......................................... 101.60
1970 .......................................... 101.50
1971 .......................................... 101.40
1972 .......................................... 101.30
1973 .......................................... 101.20
1974 .......................................... 101.10
1975 .......................................... 101.00
1976 .......................................... 100.90
1977 .......................................... 100.80
1978 .......................................... 100.70
1979 .......................................... 100.60
1980 .......................................... 100.50
1981 .......................................... 100.40
1982 .......................................... 100.30
1983 .......................................... 100.20
1984 .......................................... 100.00
|
If this bond is called for redemption and payment hereof is duly provided for as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the Trustee in trust for the purpose funds sufficient to pay the prin-
cipal of all of the bonds of any series, or such of the bonds of any series as have been or are to be called for redemption, and premium, if any, thereon, and all interest payable on such bonds to the date on which they become due and payable at maturity or upon redemption or otherwise, and shall comply with the other provisions of the Indenture in respect thereof, then from the date of such deposit such bonds shall no longer be entitled to any lien or benefit under the Indenture..
The principal hereof may be declared or may become due prior to the express date of the maturity hereof on the conditions, in the manner and at the time set forth in the Indenture, upon the occurrence of a completed default as in the Indenture provided; subject, however, to the right, under certain circumstances, of the holders of a majority in principal amount of the bonds outstanding to annual such declaration.
This bond is negotiable and shall pass by delivery unless registered as to principal at the office or agency of the Company in said City of New Orleans, and such registration noted hereon, after which no valid transfer hereof can be made, except at such office or agency, until after registered transfer to bearer, but after such registered transfer to bearer this bond shall be again transferable by delivery. Such registration, however, shall not affect the negotiability of the coupons, which shall always remain payable to bearer, be treated as negotiable and pass by delivery. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the bearer of this bond if it is not registered as to principal, or, if this bond is registered as herein authorized, the person in whose name this bond is registered, as the absolute owner hereof, and the bearer of any coupon hereunto appertaining, as the absolute owner thereof, whether or not this bond or such coupon shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or con-
stitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.
Neither this bond nor the coupons hereto attached shall become valid or obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture, or its successor thereunder, shall have signed the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this bond to be signed in its name by its President or one of its Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed hereto and attested by its Secretary or one of its Assistant Secretaries, and interest coupons bearing the facsimile signature of its Treasurer to be attached hereto, and this bond to be dated November 1,1954.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
(Form of Coupon for Bonds of Series F)
$16.25
On the first day of 19 , unless the bond hereinafter mentioned shall have been called for previous redemption and payment of the redemption price thereof shall have been duly provided for, CENTRAL LOUISIANA ELECTRIC COMPANY, INC.. will pay to bearer, upon surrender of this coupon, at its office or agency in the City of New Orleans, Louisiana, sixteen dollars and twenty-five cents in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, being six months' interest then due on its First Mortgage Bond, Series F, 3 1/4%, No.
Treasurer.
FORM OF REGISTERED BOND OF SERIES F]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series F, 3 1/4%
Due November 1, 1984
No. $
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (herein after called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, on November 1, 1984, at the office or agency of the Company in the City of New Orleans, Louisiana, Dollars ($ )in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay interest thereon semi-annually on May I and November 1 of each year, at the rate of three and one-quarter per centum (3 1/4%) per annum, at such office or agency, in like coin or currency, from the interest payment date next preceding the date of this bond, or if this bond be dated prior to May 1, 1955, then from November 1, 1954, until this bond shall mature, according to its terms or on prior redemption or by declaration or otherwise and at the rate of six per centum (6%) per annum on any overdue principal and premium (if any) and (to the extent permitted by law) on any overdue installment of interest.
This bond is one of an authorized issue of bonds of the Company known as its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000) at any one time outstanding, issued and to be issued, in one or more series, and equally and ratably secured (except insofar as a sinking fund or other similar fund established in accordance with the provisions of the Indenture may afford additional security for the bonds of any specific series) by an indenture (hereinafter called the "Original Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as Trustee (hereinafter called the "Trustee"), as supplemented and amended by a First Supplemental Indenture dated as of October 1, 1951, a Second Supplemental Indenture dated as of June 1, 1952, a Third Supplemental Indenture dated as of January 1, 1954, and a Fourth Supplemental Indenture dated as of November 1, 1954, exe-
cuted by the Company to the Trustee, to which Original Indenture, First Supplemental Indenture, Second Supplemental Indenture, Third Supplemental Indenture, Fourth Supplemental Indenture and all other indentures supplemental thereto (said Original Indenture as so supplemented and amended being herein called the "Indenture") reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Company in respect of such security, the rights, duties and immunities of the Trustee, and the terms and conditions upon which the bonds are, and are to be, secured. As provided in the Indenture, the bonds may be issued in series for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This bond is one of the bonds described in the Indenture and designated therein as "First Mortgage Bonds, Series F, 3 1/4%" (hereinafter referred to as the "bonds of Series F11).
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 75% in aggregate principal amount of all the bonds at the time outstanding, determined and evidenced as in the Indenture provided, or in case the rights under the Indenture of the holders of bonds of one or more, but less than all, of the series of bonds outstanding shall be affected, then with the consent of the holders of not less than 75% in aggregate principal amount of the bonds at the time outstanding of the one or more series affected, determined and evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the holders of the bonds and coupons; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any bonds, or reduce the rate or extend the time of payment of interest thereon, or modify the terms of payment of principal at maturity or by redemption, or otherwise modify the terms of payment of any bond, without the consent of the holder of each bond so affected, or (ii) reduce the percentage of bonds, the holders of which are required to consent to any such supplemental indenture, without the consent of the holders of all bonds then outstanding, or (iii) permit the creation of any lien ranking prior to or equal with the lien of the Indenture on any of the mortgaged and pledged property without the
consent of the holders of all bonds then outstanding, or (iv) deprive the holder of any outstanding bond of the lien of the Indenture on any of the mortgaged and pledged property without the consent of the holder of each bond so affected. Any such consent by the holder of this bond (unless effectively revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders of this bond, irrespective of whether or not any notation of such consent is made upon this bond. No reference herein to the Indenture and no provision of this bond or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay at the stated or accelerated maturity herein and in the Indenture provided, the principal of and interest and premium, if any, on this bond at the time and place and at the rate and in the coin and currency herein prescribed.
The coupon bonds of Series F are issuable in the denomination of $1,000. The registered bonds without coupons of Series F are issuable in denominations of $1,000 and any multiple of $1,000. At the office or agency to be maintained by the Company in said City of New Orleans and in the manner, subject to the limitations, and upon payment of the charges provided in the Indenture, coupon bonds of such series, with all unmatured coupons and any matured coupons in default thereto appertaining, may be exchanged for a like aggregate principal amount of registered bonds without coupons of such series, and registered bonds without coupons of such series may be exchanged for a like aggregate principal amount of coupon bonds of such series bearing all unmatured coupons and any matured coupons in default or for a like aggregate principal amount of registered bonds without coupons of such series of other authorized denominations.
The bonds of Series F are entitled to the benefit of the Sinking Fund provided for in Article II of the Fourth Supplemental Indenture.
The bonds of Series F may be redeemed, either at the option of the Company or pursuant to certain requirements of the Indenture, on any date prior to maturity, as a whole or from time to time in part, upon publication at least once in each of four successive calendar weeks, upon any business day of each such calendar week, of notice of such redemption in a newspaper printed in the English language and customarily published on each business day and of general circulation in the Borough of Manhattan, The City of New York, New York, and like publication in a similar newspaper of said
City of New Orleans, the first publication in each case to be not less than thirty (30) days and not more than sixty (60) days before such redemption date (provided, however, that if all the bonds of Series F at the time outstanding shall be registered, bonds without coupons or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, such notice may be given by mailing the same to each registered holder of a bond so to be redeemed directed to his registered address not less than thirty (30) days and not more than sixty (60) days before the redemption date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds of Series F, provided for in Article II of the Fourth Supplemental Indenture, or moneys in the depreciation fund provided for in Section 5.07 of the Indenture or by the application of moneys received by the Trustee in connection with any release of property upon any acquisition thereof by any municipal corporation or other governmental subdivision or governmental body or public authority, the bonds of Series F are redeemable in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, at the principal amount thereof together with accrued interest to the date fixed for redemption, without premium, and if redeemed otherwise than by the application of such moneys, the bonds of Series F are redeemable in like coin or currency, at the redemption price at the time applicable, as set forth in the following schedule, together with, in each case, interest accrued to the date fixed for redemption:
(There will be inserted here in all registered bonds without coupons of Series F, the same table of redemption prices and corresponding dates as are specified for such redemption in the form of coupon bond of Series F hereinabove set forth.)
If this bond is called for redemption and payment hereof is duly provided for as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the Trustee in trust for the purpose funds sufficient to pay the principal of all of the bonds of any series, or such of the bonds of any series as have been or are to be called for redemption, and premium, if any, thereon, and all interest payable on such bonds to the date
on which they become due and payable at maturity or upon redemption or otherwise, and shall comply with the other provisions of the Indenture in respect thereof, then from the date of such deposit such bonds shall no longer be entitled to any lien or benefit under the Indenture.
The principal hereof may be declared or may become due prior to the express date of the maturity hereof on the conditions, in the manner and at the time set forth in the Indenture, upon the occurrence of a completed default as in the Indenture provided; subject, however, to the right, under certain circumstances, of the holders of a majority in principal amount of the bonds outstanding to annul such declaration.
This bond is transferable as prescribed in the Indenture by the registered holder hereof in person, or by his duly authorized attorney, at the office or agency of the Company in said City of New Orleans, upon surrender and cancellation of this bond. and upon payment, if the Company shall require it, of the transfer charges prescribed in the Indenture, and thereupon, a new registered bond or bonds without coupons of authorized denominations of the same series and for the same aggregate principal amount will be issued to the transferee in exchange herefor as provided in the Indenture. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the person in whose name this bond is registered as the absolute owner hereof, whether or not this bond shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.
This bond shall not become valid or obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture, or its successor thereunder, shall have signed the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this bond to be signed in its name by its President or one of its Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed hereto and attested by its Secretary or one of its Assistant Secretaries, and this bond to be dated
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
,
Secretary.
;and
WHEREAS, all acts and things prescribed by law and by the charter and by-laws of the Company necessary to make the bonds of Series F, when executed by the Company and authenticated by the Trustee, as in the Original Indenture provided, valid, binding and legal obligations of the Company, entitled in all respects to the security of the said Original Indenture and indentures supplemental thereto, have been performed; and
WHEREAS, provision is made in Sections 5.10 and 17.01 of the Original Indenture for such further instruments and indentures supplemental to the Original Indenture, as may be necessary or proper to carry out more effectually the purposes of the Original Indenture, and to subject to the lien of the Indenture any property acquired after the date of the Original Indenture and intended to be covered thereby, with the same force and effect as though included in the granting clause thereof, and to add such further covenants, restrictions or conditions for the protection of the mortgaged and pledged property and the holders of the bonds as the Board of Directors of the Company and the Trustee shall consider to be for the protection of the
holders of the bonds, and to set forth the terms and provisions of any series of
bonds to be issued under the Indenture and the form of the bonds and coupons of
such series; and the Company since the date of the Original Indenture has
acquired additional property not heretofore specifically subjected to the lien
of the Original Indenture; and it is desired to add certain further covenants,
restrictions and conditions for the protection of the mortgaged and pledged
property and the holders of the bonds, as provided in this Fourth Supplemental
Indenture, which the Board of Directors of the Company and the Trustee consider
to be for the protection of the holders of the bonds; and the Company desires to
issue bonds of Series F; and the Company desires, pursuant to sub-section (e) of
Section 17.01, to modify the provisions of Section 2.02 of the Indenture to
provide for facsimile signatures of the President or a Vice President on bonds
to be issued thereunder; and the Company therefore deems it advisable to enter
into this Fourth Supplemental Indenture in the form and terms hereof; and
WHEREAS, the execution and delivery of this Fourth Supplemental Indenture has been duly authorized by the Board of Directors of the Company at a meeting duly called and held according to law, and all conditions and requirements necessary to make this Fourth Supplemental Indenture a valid, binding and legal instrument in accordance with its terms, for the purposes herein expressed, and the execution and delivery hereof, in the form and terms hereof, have been in all respects duly authorized;
Now, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH: That Central Louisiana Electric Company, Inc., by way of further assurance and in consideration of the premises and of the acceptance by the Trustee of the trusts hereby created 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 order to further secure the payment of the principal of, the premium, if any, and the interest on all bonds at any time issued and outstanding under the Indenture, according to their tenor and effect, and the performance and observance by the Company of all the covenants and conditions herein and therein contained, and of said bonds, has executed and delivered this Fourth Supplemental Indenture, and has granted, bargained, sold, aliened, remised, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected, pledged, set over and confirmed, and by these presents does grant, bargain, sell, alien, remise, release. convey, assign, transfer, mortgage, hypothecate, affect, pledge, set over and confirm, unto The National Bank of Commerce in New Orleans, as Trustee, and to its successors in the trust, and to its and their assigns forever, all the following described properties of the Company, that is to say:
All properties, real, personal and mixed, tangible and intangible, owned by the Company on the date of the execution hereof or which may be hereafter acquired by it (except such property now owned or hereafter acquired as is expressly excepted from the lien of the Indenture by the terms of the Original Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture or this Fourth Supplemental Indenture). The property covered by the lien of the Indenture shall include particularly, among other property without prejudice to the general and particular descriptions of property contained in the Original Indenture, in the First Supplemental Indenture, in the Second Supplemental Indenture, in the Third Supplemental Indenture, and in this Fourth Supplemental Indenture, or to the generality of the language now or hereafter contained in the Indenture, the following described property:
I.
A. The following described real estate, together with all improvements thereon, situated in the State of Louisiana:
Parcel 1. A parcel of land situated in the Southeast corner of the West
half of the Southeast quarter of the Southwest quarter of Section Thirty-Six
(36), Township Two (2) South, Range Nine (9) West, Parish of Beauregard, State
of Louisiana, further described as follows:
Beginning at a 3/4", iron pipe on the Southeast corner of said W1/2 of SE1/4 of SW1/4 of Section 36, Township 2 South, Range 9 West, and running parallel to a road on a bearing North 89 degrees 30 minutes West for a distance of 250 feet to a stake in fence line; thence North 1 degree 15 minutes West for a distance of 250 feet to a stake; thence South 89 degrees 30 minutes East for a distance of 250 feet to a stake in fence line, being the dividing line between this tract and a tract owned by Covington Cooley; thence South 1 degree 15 minutes East
for a distance of 250 feet to the point of beginning. Containing 1.43 acres, more or less.
Being property acquired by Central Louisiana Electric Company, Inc., from Lewis H. Ford and Mable L. Ford by deed dated January 26, 1954, before Allen R. LeCompte, Notary Public, for the Parish of Beauregard, recorded in Conveyance Book 124, Entry No. 178, records of Beauregard Parish, Louisiana.
Parcel 2. A certain tract or parcel of vacant land, containing one (1) acre, situated in the S1/2, of NW1/4 of NE1/4 of Section 46, T3S, R1E, La. Mer., in Evangelize Parish, State of Louisiana, and being more particularly described as beginning at a stake in the S W, corner of the NW1/4 of NE1/4, Section 46, T3S, R1E, and running south for a distance of 229.5 feet to a stake, thence N 87 degrees 00 minutes East for a distance of 863.3 feet to a point of beginning; thence N 3 degrees West for a distance of 208.7 feet, thence N 87 degrees 00 minutes East for a distance of 208.7 feet, thence S 3 degrees East for a distance of 208.7 feet, thence S 87 degrees West for a distance of 208.7 feet to point of beginning; together with all rights of ingress and egress, and more particularly a right-of-way leading from the property herein conveyed to the main highway. Containing 1 acre, more or less; all as shown by plat of survey attached to and made part of deed from Earl Thibodeaux to Central Louisiana Electric Company, Inc., dated March 3, 1954.
Being property acquired by Central Louisiana Electric Company, Inc., from Earl Thibodeaux by deed dated March 3, 1954, before Roland B. Reed, Notary Public for the Parish of Evangelize, recorded in Conveyance Book E-127, page 440, Entry No. 152019, records of Evangelize Parish, Louisiana.
There is located on Parcel 2 above described an electric switching station.
Parcel 3. A certain piece or parcel of real estate, together with all buildings and improvements thereon, and all rights, ways and privileges thereunto belonging, located in Section 16, Township 3, South Range 3 West, Allen Parish, State of Louisiana, and being more particularly described as follows, to-wit:
Begin on the bank of the drainage canal south of the property herein conveyed and from the point of beginning run along the right-of-way
of the gravel road north 26(degree)-30' east, a distance of 24, to establish the southwest corner or point of beginning of the property herein bought and sold. From this point so established, proceed east a distance of 262 feet, thence north a distance of 250 feet, thence west a distance of 150 feet to a point on the right-of-way of Old Highway 24; from this point proceed south along the right-of-way of the highway 26(degree)-30' AV, est, a distance of 279 feet to the point of beginning, the said property sold containing 1.2 acres, more or less; all as shown by plat of survey attached to and made part of deed from Industrial Lumber Company, Inc. to Central Louisiana Electric Co., Inc., dated March 2, 1954.
Being property acquired by Central Louisiana Electric Company, Inc. from Industrial Lumber Company, Inc., by deed dated March 2, 1954, before Gladys Tarver, Notary Public for the Parish of Rapides, recorded in Conveyance Book 96, Page 18, records of Allen Parish, Louisiana.
There is located on Parcel 3 above described an electric substation.
Parcel 4. A certain tract or parcel of land, unimproved, together with all rights, ways, privileges and servitudes thereunto belonging, situated in the sixth Ward of the Parish of Iberia, State of Louisiana, in Section 21, Township 12 South, Range 7 East, containing five (5) acres in superficial area, bounded on the North by the center line of Little Bayou, on the South by remainder of property of vendor, Sidney St. Marie, on the East by property of Ed. LaSalle, and on the West by Big Jim Lane (sometimes referred to as Andre Road), and being more particularly described as follows:
Beginning at a point where the east side of Big Jim Lane (Andre Road) intersects the center of Little Bayou; thence running south 61(degree)39' east a distance of 280 feet along the center line of Little Bayou; thence south 27(degree)35' west a distance of 717.4 feet along the center line of an existing ditch (which line is the boundary line between the properties of Sidney St. Marie and Ed LaSalle); thence in a northwesterly direction a distance of 324.6 feet to the east side of Big Jim Lane (Andre Road); thence north 31(degree)23' east a distance of 717.4 feet to the point of beginning.
Being property acquired by Central Louisiana Electric Company, Inc., from Sidney St. Marie by deed dated March 27, 1954, before Jacob
S. Landry, Notary Public for the Parish of Iberia, recorded in Conveyance Book 237, Entry No. 90804, records of Iberia Parish, Louisiana.
There is located on Parcel 4 above described an electric service center.
Parcel 5. That certain tract or parcel of ground, together with any improvements thereon, situated in Duson's Third Addition to the City of Crowley, Acadia Parish, Louisiana, and known and described as the Eastern Fifty (E. 50') Feet of Lot Eight (8) of Block Twenty(20) of the said addition, as per plat thereof on file and of record in the Office of the Clerk of Court of Acadia Parish, Louisiana; said parcel having a front of Forty (401) Feet on Jacobs Avenue of said City and extending back from said avenue, between parallel lines, a distance of Fifty (50') Feet.
Being property acquired by Central Louisiana Electric Company, Inc., from Mary Yokum. Morris and Willis Morris by deed dated May 21, 1954, before Jos. S. Gueno, Jr., Notary Public for the Parish of Acadia, recorded in Conveyance Book L-13, page 408, Entry No. 266,013, records of Acadia Parish, Louisiana.
There is located on Parcel 5 above described an electric substation.
Parcel 6. A certain plot of ground, containing approximately one (1)
acre, lying and being situated in Section 43, Township 10 South, Range 5 East,
in the Seventh Ward of Lafayette Parish, Louisiana, and bounded as follows:
Commencing at the South corner of the property of Leonce Guillot in Section 43,
Township 10 South, Range 5 East, at the intersection of the Southern Pacific
Railroad spur track leading to Long Plantation and a Public graveled road, run
thence North 43(degree)20' West along said public road a distance of 203.3 feet;
run thence North 46(degree)40' East a distance of 206.7 feet; run thence South
43(degree)20' East a distance of 208.0 feet to the Southern Pacific Railroad
spur track right-of-way; run thence in a southwesterly direction along the
Southern Pacific Railroad spur track right-of-way to the point of beginning; the
above one (1) acre plot being bounded on the Northeast and Northwest by property
of Leonce Guillot, on the Southeast by the Southern Pacific Railroad spur track
leading to Long Plantation, and on the Southwest by a public graveled road; all
as shown by plat attached to
and made part of deed from Leonce Guillot to Central Louisiana Electric Co., Inc., dated July 8, 1954.
Being property acquired by Central Louisiana Electric Company, Inc., from Leonce Guillot by deed dated July 8, 1954, before Warren Gankendorff, Notary Public for Lafayette Parish, recorded in Conveyance Book Z-21, page 9, Entry No. 305,759, records of Lafayette Parish, Louisiana.
There is located on Parcel 6 above described an electric substation.
Parcel 7. That certain tract of land in the Town of Patterson, St. Mary Parish, State of Louisiana, located at or near the southern end of First Street of said town, having a front of seventy-seven (77) feet, more or less, on an unnamed street which crosses the end of First Street, and a depth between parallel lines of fifty (50) feet, being bounded on the north by the unnamed street, south by property of vendor, east by vendee's substation, and west by property of Peter Lipari.
Being property acquired by Central Louisiana Electric Company, Inc., from Volcar J. Roundtree by deed dated June 23, 1954, before Wm.. Robt. Marin, Notary Public for the Parish of St. Mary, recorded in Conveyance Book S-U, Entry No. 90,493, records of St. Mary Parish, Louisiana.
There is located on Parcel 7 above described an electric substation.
Parcel 8. A certain tract of land, together with all buildings and improvements thereon, situated in Pineville, Rapides Parish, State of Louisiana, and being lots one, two, three, four, five and six of the Mary Hunter David Subdivision No. 2, having a combined frontage of 305.8 feet on Greer Street, in accordance with the official plat of said Subdivision made by Pan-American Engineers, dated August 12, 1952, recorded at Plat Book 8, Page 138, records of Rapides Parish, Louisiana. Reference to the aforesaid official plat of said subdivision being made for greater certainty of description.
Being property acquired by Central Louisiana Electric Company, Inc., from Mrs. Mary Hunter David by deed dated September 17, 1954, before John H. McSween, Notary Public for Parish of Rapides, re-
corded in Conveyance Book 468, Page No. 612, records of Rapides Parish, Louisiana.
Parcel 9. A certain tract of land on the southerly side of Greer Street in the Town of Pineville, Parish of Rapides, State of Louisiana, fronting 182 feet, more or less, on said Greer Street, and running back between parallel lines to the toe of the new Pineville levee, bounded on the side nearest Sanders Street by property owned by Mrs. Guy L. Hilborn, and on the other side by property owned by Greer, and being part of Lots Four (4) and Five (5) of the division of the McGimsey Estate, as shown by plat attached to original No. 110644 in the Office of the Clerk and Recorder in and for Rapides Parish, Louisiana; all as is particularly shown by plat of survey by Irion Lafargue, Registered Surveyor, attached to and made part of deed from Mrs. Mattie Burns Schaedel to Central Louisiana Electric Co., Inc., dated September 17, 1954.
Being property acquired by Central Louisiana Electric Company, Inc., from Mrs. Mattie Burns Schaedel by deed dated September 17, 1954, before John H. McSween, Notary Public for Parish of Rapides, recorded in Conveyance Book 468, Page 609, records of Rapides Parish, Louisiana.
Parcel 10. Two certain parcels or lots of ground, together with all buildings and improvements thereon, rights, ways, privileges and appurtenances thereto belonging, situated in the City of Pineville, Parish of Rapides, State of Louisiana, and particularly described as follows:
1. Lot Seven (7) of Mary Hunter David Subdivision No. 2, as per plat of survey of said Subdivision by T. C. David, C. E., dated August 12, 1952, recorded in Plat Book 8, page 138, records of Rapides Parish, Louisiana, to which plat reference is made for greater certainty of description, said Lot 7 having a frontage of 12.5 feet on Greer Street and extending back therefrom between parallel lines to the toe of the new Pineville levee; being that property acquired by Mrs. Hattie Burns Greer from Mrs. Mary Hunter David by deed dated August 21, 1952, recorded in Conveyance Book 437, page 476, records of Rapides Parish, Louisiana.
2. Begin at the point on the Southwestern line of Greer Street where the Western line of Lot Seven (7) of the Mary 7 Hunter David Subdivision intersects said Southwestern line of Greer Street and run thence North 52 degrees 34 minutes West along Greer Street and toward Sanders Street the distance of 88 feet, thus establishing the frontage of said property on Greer Street, and from the frontage so established run back between parallel lines to the toe of the new Pineville levee; all as is more particularly shown by plat of survey by Irion Lafargue, Registered Surveyor, dated September 14, 1954, blueprint of which said survey is hereto at tached and made part hereof and paraphed "Ne Varietur" for identification herewith, said property being that designated "W. E. Greer" on said plat; being that property acquired by Mrs. Hattie Burns Greer from Mrs. Alattie Burns Schaedel by deed dated March 21, 1944, recorded in Conveyance Book 289, page 4, records of Rapides Parish, Louisiana.
Being property acquired by Central Louisiana Electric Company, Inc., from Mrs. Hattie Burns Greer and William E. Greer by deed dated September 17,1954, before John H. McSween, Notary Public for Parish of Rapides, recorded in Conveyance Book 468, page No. 610, records of Rapides Parish, Louisiana.
Parcel 11. A certain lot or parcel of ground, together with all rights, ways and privileges thereto belonging, situated in the City of Pineville, Parish of Rapides, State of Louisiana, more particularly described as follows:
Lot Two (2) of Block One (1) of the Holmes Subdivision, in Section 21, Township 4 North, Range 1 West, in said City of Pineville, Louisiana, as shown by plat of survey, of said Holmes Subdivision by Irion Lafargue, R. S., dated July 16, 1948, said lot having a frontage of 50 feet on LeBlanc Street, a depth on the side next to Lot One (1) of said Block One (1) of 155 feet, a depth on the side next to Lot Three (3) of said Block One (1) of 155.2 feet, and a width in the rear of 50 feet.
Being property acquired by Central Louisiana Electric Company, Inc., from William E. Holmes et al by deed dated September 20, 1954, before John H. McSween, Notary Public, recorded in Conveyance Book 470, Page 75, records of Rapides Parish, Louisiana.
Parcel 12. A certain piece, parcel or lot of ground, together with all buildings and improvements thereon, rights, ways, privileges and appurtenances thereto belonging, situated in the City of Pineville, Parish of Rapides, State of Louisiana, particularly described as follows:
Start at the point in the Southwestern line of Greer Street where the Western line of Lot Seven (7) of the Mary Hunter David Subdivision No. 2 intersects said Southwestern line of Greer Street, and run thence North 52 degrees 34 minutes West along Greer Street and toward Sanders Street the distance of 270 feet to the point of beginning of the property herein described and conveyed; from said point of beginning continue North 52 degrees 34 minutes and est along Greer Street towards Sanders Street the distance of 83.2 feet; thence turn to the left with an interior angle of 94 degrees 35 minutes and run the distance of 64.7 feet to the toe of the new Pineville levee; thence turn to the left and run South 39 degrees 33 minutes East along the toe of the new levee the distance of 90.2 feet; thence turn to the left and run along the line dividing the property herein described and the property of Mrs. Mattie Burns Schaedel the distance of 82.8 feet to the point of beginning on the Southwestern line of Greer Street; said property being bounded in front by Greer Street, on the side towards Sanders Street by property of Ruby Bennett and the Levee Board, in the rear by the toe of the new Pineville levee, and on the other side by property of Mrs. Mattie Burns Schaedel, all as is more particularly shown by plat of survey by Irion Lafargue, R. S., dated September 14, 1954, said property being a portion of the property acquired by the said Mrs. Guy L. Hilborn as surviving widow in community and universal legatee of Richard O'Shee, as shown by judgment dated July 6,1920, recorded in Conveyance Book 197, Page 409, records of Rapides Parish, Louisiana.
Being property acquired by Central Louisiana Electric Company, Inc., from Mrs. Guy L. Hilborn by deed dated September 17, 1954, before John H. McSween, Notary Public for Rapides Parish, recorded in Conveyance Book 468, page No. 611, records of Rapides Parish, Louisiana.
Parcel 13. A certain lot of ground, with all buildings and improvements thereon, together with all rights, ways, privileges, servitudes and appurtenances thereunto appertaining, situated at the intersection
of Corinne and Armentor Streets in the City of New Iberia, Parish of Iberia,
State of Louisiana, containing and measuring fifty-four and 16 /100 (54.16) feet
front on Corinne Street by a depth, between diverging lines, of one hundred
thirty-four (134) feet, having a width across the rear of fifty-five (55) feet,
bounded on the North by said Armentor Street, on the South by Lot 2 of Block F
according to a plat of survey of the Armentor Subdivision by W. K. Frantz, C.
E., dated December, 1935, of record in Miscellaneous Book 7, at folio 329 of the
records of Iberia Parish, Louisiana, on the East by a portion of Lot 14 of said
Block F, on the West by said Corinne Street, and being Lot 1 of said Block F of
said Armentor Subdivision.
Being the same property acquired by Ella Stansbury Delcambre and Michel Delcambre from Leon Meyers by act dated February 3rd, 1941, of record in Conveyance Book 141, at folio 51, under Entry No. 39210 of the records of Iberia Parish, Louisiana, the interest of Ella Stansbury Delcambre therein having been acquired by Michel Delcambre by act dated November 26th, 1947, of record in Conveyance Book 176, at folio 446, under Entry No. 73038 of the records of Iberia Parish, Louisiana.
Being the same property acquired by George Gerlach from Michel Delcambre by deed dated November 2, 1954, before Jack J. Cousin, Notary Public for Parish of Iberia, recorded in Conveyance Book 250, Entry No. 93271, records of Iberia Parish, Louisiana.
Being the same property transferred to Central Louisiana Electric Company, Inc., by George Gerlach, acting as agent of and purchasing for Central Louisiana Electric Company, Inc., by deed dated November 9. 1954, before Jack J. Cousin, Notary Public for Parish of Iberia, recorded in Conveyance Book 250, Entry No. 93272, records of Iberia Parish, Louisiana.
B. The following described lease and easement, together with all buildings and improvements on the land subject thereto, and all machinery and equipment of every nature, kind and description presently located on or hereafter placed on the property subject to said lease and easement, to-wit:
1. That certain lease granted by Mabry Chandler Lumber Company, Inc. to Central Louisiana Electric Company, Inc. dated June 28,
1954 by act before Bea Erwin, Notary Public for St. Tammany Parish, Louisiana,
for the term of twenty-five years, recorded in Con. Book 222, page 96, records
of St. Tammany Parish, Louisiana, the land subject to said lease being
particularly described as follows: A thirty foot square of ground, located in
Section 35, T. 6 S., R. 11 E., Greensburg District, St. Tammany Parish,
Louisiana, starting at the NW corner of said Section 35, being adjacent to
Section 26 and 42, and run S. 0(degree)15' E, 2,672.6 feet, thence N
86(degree)30' E, 1,366.3 feet, thence S 3(degree)30' W 10' to the NW corner of
the leased property, the point of beginning. From said point of beginning so
established, run S 2(degree)30' W 30 feet to an iron stake, thence S
86(degree)30' E 30 feet to an iron stake, thence N 3(degree) 30'E 30 feet to an
iron stake, thence N 86(degree)30' W 30 feet to the point of beginning.
There is located on the above described leased property, an electric substation.
2. That certain right, privilege, easement or servitude granted by the Louisiana Board of Institutions to Central Louisiana Electric Company, Inc., by act dated September 20th, 1954, recorded in Conveyance Book 469, page 283, Records of Rapides Parish, Louisiana, under Filing No. 387323, to construct, operate, maintain, repair, replace or remove an electric substation on the following described property owned by Central Louisiana State Hospital situated in Rapides Parish, Louisiana, to-wit:
A certain parcel of ground in Section 17, T. 4 N., R. 1 W., in the
Parish of Rapides, State of Louisiana, particularly described as follows: Start
at the point on the South line of Section 17, T. 4 N., R. 1 W., where the West
line of the Huey P. Long Hospital property intersects said South line of said
Section 17, and run thence toward Red River on said Section line the distance of
503.651, more or less, on said South line of said Section 17, the point of
beginning of the property herein described; thence continue along said South
line of said Section 17 toward Red River the distance of 208.71 feet; thence
turn at an angle of 900 to the right and run Northwesterly the distance of
208.71 feet; thence turn at an angle of 901 to the right and run Easterly the
distance of 208.71 feet; thence turn at an angle of 900 to the right and run
Southeasterly the distance of 208.71 feet to the point of beginning on the South
line of said Section 17, T. 4 N., R. 1 IV., containing one (1) acre, more or
less; all as more fully shown by plat attached to said act and
made part thereof. Said servitude or easement being for such period of time as said property is used by the grantee, its successors or assigns, for the purposes set forth in said act.
C. The following described gas pipe line:
1. That certain gas pipe line consisting of approximately 20.4572 miles
of 8-inch pipe in place, beginning at a point near The Texas Pipe Line Company's
Station 8470+47 located in Section 13, Township 14 South, Range 9 East and
ending at a point near The Texas Pipe Line Company's Station 9550+07 located in
Section 26, Township 16 South, Range 12 East, together with all fittings on said
line and bulkhead crossing permits and the right to use the rights of way over
which said pipe line is laid, and the right to use, enjoy and operate under such
franchises and permits as have been granted by public bodies and governmental
authorities with respect to said pipe line. All in the Parish of St. Mary, State
of Louisiana. Acquired by Central Louisiana Electric Company, Inc. from The
Texas Pipe Line Company by deed dated December 14, 1953, recorded in Conveyance
Book 8-X, Entry No. 91,193, records of St. Mary Parish, State of Louisiana. Also
2.361 miles of 6-inch pipe line constructed by Central Louisiana Electric
Company, Inc., beginning at Station 0+00 of The Texas Pipe Line Company's
recycling plant at Bateman Lake in Section 16, Township 16 South, Range 12 East,
and extending to a connection with the above described 8-inch pipe line at
Station 124+66, and 1500 feet of 6-inch pipe line constructed by Central
Louisiana Electric Company Inc., beginning at The Texas Pipe Line Company's
Station 8470+47 in Section 13, Township 14 South, Range 9 East, and extending to
the Teche generating station of said Central Louisiana Electric Company, Inc.,
in said Section 13, Township 14 South, Range 9 East, all in the Parish of St.
Mary, State of Louisiana, together with all rights of way owned and held by
Central Louisiana Electric Company, Inc. in, on or through which said pipe lines
are laid, which grants of rights-of-way are duly recorded in the Conveyance
Records of St.
Mary Parish, Louisiana.
D. The following described franchises, grants, immunities, privileges and rights of the Company granted by the governing authorities of the cities, towns and parishes enumerated in the schedule
below and all renewals, extensions and modifications of said franchises, grants, immunities, privileges and rights or any of them:
1. Those certain franchises granted by the governing bodies of the following named towns and villages in the State of Louisiana, to-wit:
(a) Electric franchise granted by the Village of Dry Prong to Central Louisiana Electric Company, Inc., by ordinance enacted August 4, 1952, for a term of 23 years.
(b) Electric franchise granted by the Town of Glenmora to Central Louisiana Electric Company, Inc., by ordinance enacted August 10, 1954, for a term of 25 years.
(c) Electric franchise granted by the Village of Rosepine to Central Louisiana Electric Company, Inc., by ordinance enacted July 3, 1952, for a term of 25 years.
2. Those certain franchises granted by the governing bodies of the following named parishes in the State of Louisiana, to-wit:
(a) Gas franchise granted by the Parish of Assumption to Central Louisiana Electric Company, Inc., by ordinance enacted October 13, 1953, for a term of 50 years.
(b) Water franchise granted by the Parish of Calcasieu to Central Louisiana Electric Company, Inc., by ordinance enacted October 7, 1952, for a term of 25 years.
(c) Electric franchise granted by the Parish of DeSoto to Central Louisiana Electric Company, Inc., by ordinance enacted August 14, 1952, for a term of 25 years.
(d) Gas franchise granted by the Parish of Iberia to Central Louisiana Electric Company, Inc., by ordinance enacted November 12, 1953, for a term of 50 years.
(e) Electric franchise granted by the Parish of Lafayette to Central Louisiana Electric Company, Inc., by ordinance enacted September 11, 1952, for a term of 99 years.
(f) Gas franchise granted by the Parish of St. Mary to Central Louisiana Electric Company, Inc., by ordinance enacted November 12, 1953, for a term of 50 years.
(g) Electric franchise granted by the Parish of St. 'Mary to Central Louisiana Electric Company, Inc., by ordinance enacted .May 14, 1954, for a term of 50 years.
(h) Electric franchise granted to the Parish of St. Tammany to Central Louisiana Electric Company, Inc., by ordinance enacted August 21, 1932, for a term of 25 years.
(i) Gas franchise granted by the Parish of Terrebonne to Central Louisiana Electric Company, Inc., by ordinance enacted November 14, 1933, for a term of 50 years.
(j) Electric franchise granted by the Parish of Vermilion to Central Louisiana Electric Company, Inc., by ordinance enacted September 16, 1952, for a term of 25 years.
E. The following described electric transmission lines:
1. A 138 K`V transmission line commencing at Coughlin Generating Plant at St. Landry, Parish of Evangelize, State of Louisiana, and extending a distance of approximately fifty (50) miles, through the Parishes of Evangelize, St. Landry and Acadia, to the City of Crowley, Parish of Acadia, State of Louisiana.
2. A 138 KV transmission line commencing at Shady Oaks, in the Parish of Rapides, State of Louisiana, and extending a distance of approximately ten (10) miles to Beaver Creek, in the Parish of Rapides, State of Louisiana, a connecting point with Louisiana Power & Light Company.
3. A 138 KV transmission line commencing at Crowley, in the Parish of Acadia, State of Louisiana, and extending a distance of approximately forty-eight (48) miles, through the Parishes of Acadia, Vermilion and Iberia, State of Louisiana, to the City of Jeanerette, in the Parish of Iberia, State of Louisiana.
4. A 138 KV transmission line commencing at Teche Generating Plant at Baldwin, in the Parish of St. Mary, State of Louisiana, extending a distance of approximately ten (10) miles, through the Parishes of St.'Mary and Iberia, State of Louisiana, to the City of Jeanerette, in the Parish of Iberia, State of Louisiana.
5. A 138 KV transmission line commencing at a point on existing 138 K-V transmission line near Miller's Lake, in the Parish of Evangelize, State of Louisiana, and extending a distance of approximately fifty-two (52) miles, through the Parishes of Evangelize, Allen and Beauregard, to the Town of DeRidder, in the Parish of Beauregard, State of Louisiana.
II.
All real estate or interest therein, now owned or which may be hereafter acquired by the Company for use or which may be used by it in connection with its business as an electric, gas and water company, together with all of the right, title, and interest of the Company, now owned or hereafter acquired in and to any and all works, plants, buildings, structures, erections, and constructions now or hereafter placed upon any of the real estate mentioned, described or referred to as being subject to the lien of the Indenture, with the fixtures, tenements, hereditaments, and appurtenances thereunto appertaining or belonging.
III
The Following Described Property, Wherever Situate:
First: The electric generating plants and electric transmission and/or distribution systems now or hereafter owned by the Company, and any electric generating plants and electric transmission and/or distribution systems hereafter constructed or acquired by the Company, and any additions to or extensions of any such existing or future electric generating plants and/or electric transmission and/or distribution systems, together with all engines, dynamos, motors, generators, boilers, turbines, pole lines, poles, wires, crossarms, insulators, transformers, meters, buildings, erections, structures, stations, substations, power houses, power producing and power transmitting equipment, water, water rights, water wheels, headworks, race-ways, hydraulics works, hydro-electric plants, cables, conduits, instruments, apparatus, appliances, machinery, facilities, fixtures and all other property used or provided for use in the construction, repair, maintenance and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also
with all the rights, privileges, franchises, easements, licenses, ordinances, rights of way, liberties, immunities and permits of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair and/or operation of said electric generating plants and electric transmission and/or distribution systems, and each of them, and any additions thereto and extensions thereof.
Second: The gas generating plants, gas storage plants and gas gathering and/or transmission and/or distribution systems now owned by the Company, and any gas generating plants, gas storage plants and/or gas transmission and/or distribution systems hereafter constructed or acquired by the Company, and any additions to or extensions of any such existing or future plants and systems, together with the buildings, erections, structures, generating and purifying apparatus, holders, engines, boilers, benches, retorts, tanks, pipe lines, connections, service pipes, meters, conduits, instruments, appliances, apparatus, facilities, machinery, fixtures and all other property used or provided for use in the construction, maintenance, repair and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together also with all rights, privileges, rights of way, franchises, licenses, easements, grants, liberties, immunities, permits and ordinances of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair, and/or operation of said gas generating plants, gas storage plants and gas gathering and/or transmission and/or distribution systems, and each of them, and any additions thereto and extensions thereof.
Third: The waterworks plants and water distribution systems now owned by the Company, and any waterworks plants and/or waterworks distribution systems hereafter constructed or acquired by the Company together with the buildings, structures, erections, pumps, pumping machinery, reservoirs, filters, filter-galleries, chlorinating equipment, tanks, wells, water rights, water supply, water mains, hydrants, pipelines, service pipes, meters, standpipes, engine, boilers, apparatus, appliances, facilities, machinery, equipment, fixtures and all other property used or provided for use in the construction, maintenance, repair and/or operation thereof, both that now owned and that which may be hereafter acquired by the Company, and together
also with all of the rights, privileges, rights of way, franchises, licenses, easements, permits, liberties, immunities, grants and ordinances of the Company, howsoever conferred or acquired, and whether now owned or hereafter to be acquired, with respect to the construction, maintenance, repair and operation of said plants and systems and each of them, and any additions thereto and extensions thereof.
TO HAVE AND To HOLD all such properties, real, personal and mixed, granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Trustee and its successors in the trust hereby created and its and their assigns forever;
SUBJECT, HOWEVER, to existing leases, to easements and other rights of way for pole lines and other similar encumbrances and restrictions which the Company hereby certifies, in its judgment, do not impair the use of said property by the Company in its business, to liens securing indebtedness which has neither been assumed by the Company nor upon which it customarily pays interest charges, existing solely upon real property, or rights in and relating thereto, which real property or rights have been or may be acquired for right-of-way purposes, to liens of taxes and assessments for the current year and taxes and assessments not yet due, to alleys, streets and highways that may run across or encroach upon said lands, and to liens, if any, incidental to construction; and, with respect to any property which the Company may hereafter acquire, to all terms, conditions, agreements, covenants, exceptions and reservations expressed or provided in such deeds and other instruments, respectively, under and by virtue of which the Company shall hereafter acquire the same and to any and all liens existing thereon at the time of such acquisition within the restrictions contained in the Indenture; and subject also to other liens and encumbrances of the character defined in the Indenture as "permitted liens" insofar as the same may attach to any of the property embraced herein:
SAVING AND EXCEPTING, however, from the properties mortgaged and pledged by the Indenture (whether now owned by the Company or hereafter acquired by it) all bills, notes and accounts receivable,
cash on hand and in bank, contracts, merchandise and appliances kept for purposes of sale, and all bonds, obligations, evidences of indebtedness, shares of stock and other securities, and certificates or evidences of interest therein-other than any of the foregoing which may be hereafter specifically transferred or assigned to or pledged or deposited with the Trustee under the Indenture or required by the provisions of the Indenture so to be-and all office furniture and equipment, motor vehicles, tools, testing equipment and consumable materials and supplies; provided, however, that, if upon the happening of an event of default as in the Indenture defined, the Trustee or any receiver appointed under the Indenture shall enter upon and take possession of the mortgaged property, the Trustee or such receiver may, to the extent permitted by law, at the same time likewise take possession of any and all of the property described in this paragraph then on hand and use and administer the same to the extent as if such property were part of the mortgaged property, unless and until such event of default shall be remedied or waived and possession of the mortgaged property restored to the Company, its successors or assigns.
ALSO, SAVING AND EXCEPTING, however, from the property hereby mortgaged and pledged:
(a) All parcels of land now owned or hereafter acquired by the Company and not used by it or useful in connection with its business as an electric, gas or water company or as an electric, gas or water utility.
(b) All machinery, equipment, fixtures, supplies and materials now used or hereafter acquired for use in connection with the ice and cold storage, ice cream and dairy business of the Company.
(c) All motor vehicles now used or hereafter acquired for use in connection with the ice and cold storage, ice cream and dairy business of the Company, together with all tires, spare parts, materials and supplies appertaining thereto.
(d) All machinery, equipment, fixtures, supplies and materials, now owned or hereafter acquired, not used by or useful to the Company in its business as an electric, gas or water company or as an electric, gas or water utility, not located on any parcel of real estate
now owned or hereafter acquired, referred to as being subject to the lien of the Indenture.
(e) All additions, improvements, betterments, extensions and replacements now or hereafter made to or acquired for or in connection with the property set forth in paragraphs (a), (b), (c) and (d) above.
IN TRUST NEVERTHELESS, upon the terms and trusts herein and in the Original Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture set forth;
PROVIDED, HOWEVER, and these presents are upon the condition that if the Company, its successors or assigns, shall pay or cause to be paid the principal of and interest on all said bonds, together with the premium, if any, payable on such of said bonds as may have been called for redemption prior to maturity, or shall provide, as permitted by the Indenture, for the payment thereof by depositing with the Trustee the entire amount due or to become due thereon for principal, interest and premium, if any, and if the Company shall also pay or cause to be paid all other sums payable under the Indenture by it, then the Indenture and the estate and rights thereby granted shall cease, determine and be void, otherwise to be and remain in full force and effect.
IT IS HEREBY FURTHER COVENANTED, DECLARED AND AGREED by and between the Company and the Trustee, for the benefit of those who shall hold said bonds and coupons or any of them, as follows:
ARTICLE I.
DESCRIPTION OF BONDS OF SERIES F.
SECTION 1.1. The sixth series of bonds to be issued under the Indenture and secured thereby is hereby created, which shall be designated, and distinguished from the bonds of all other series, by the title "First Mortgage Bonds, Series F, 3 1/4%", elsewhere herein referred to as the "bonds of Series F".
Except as otherwise provided in Section 2.08 of the Indenture with respect to destroyed, lost or stolen bonds, the aggregate principal amount of the bonds of Series F which may be outstanding at any one time shall be $3,000,000.
The bonds of Series F shall be dated, and shall bear interest from November 1, 1934, except as provided in Section 2.03 of the Indenture with respect to registered bonds without coupons, and shall be due November 1, 1984, and shall bear interest at the rate of three and one-quarter per centum (3 1/4%) per annum, payable semi-annually on the first day of Kay and the first day of November in each year, until they shall mature, according to their terms or on prior redemption or by declaration or otherwise, and at the rate of six per centum (6%) per annum on any overdue principal and premium (if any) and (to the extent permitted by law) on any overdue installment of interest. The principal of and the premium (if any) and the interest on the bonds of Series F shall be payable at the office or agency of the Company in the City of New Orleans, Louisiana, in such coin or currency of the United States of America as, at the time of payment, shall be legal tender for public and private debts.
The bonds of Series F shall be redeemable, either at the option of the
Company or pursuant to any provision of the Indenture requiring such redemption,
either as a whole or in part from time to time, at any time prior to maturity,
upon notice as provided in Section 8.02 of the Indenture, published in a
newspaper printed in the English language and customarily published on each
business day and of general circulation in the Borough of Manhattan, The City of
New York, New York, and like publication in a similar newspaper of the City of
New Orleans, at least once in each of four (4) successive calendar weeks upon
any business day of each such calendar week, the first publication to be not
less than thirty (30) days and not more than sixty (60) days before such
redemption date (or upon mailing of such notice of redemption as provided in the
first paragraph of Section 8.02 of the Indenture in the event such paragraph
shall be applicable). If redeemed by the application of moneys in the Sinking
Fund for bonds of Series F provided for in Article II of this Fourth
Supplemental Indenture or moneys in the depreciation fund provided for in
Section 5.07 of the Indenture, or by the application of moneys received by the
Trustee in connection with any release of property upon any acquisition thereof
by any municipal corporation or other governmental subdivision or governmental
body or public authority, the bonds of Series F are redeemable at the principal
amount thereof, together with interest accrued to the date fixed for redemption,
without premium. If redeemed otherwise than by the application of such
moneys, the bonds of Series F are redeemable at the redemption price at the time applicable specified in the schedule contained in the form of coupon bond of Series F set forth in the recitals hereof, to-ether with interest accrued to the date fixed for redemption.
Coupon bonds of Series F shall be issuable in the denomination of $1,000 and shall be registerable as to principal. Registered bonds without coupons of Series F shall be issuable in denominations of $1,000 and any multiple of $1,000. Bonds of Series F shall be interchangeable at the option of the holders thereof, in like aggregate principal amounts, coupon bonds for registered bonds without coupons, registered bonds without coupons for coupon bonds and the several denominations of registered bonds without coupons.
ARTICLE II.
SINKING FUND FOR BONDS OF SERIES F.
SECTION 2.1. The Company covenants and agrees that so long as any of the bonds of Series F shall be outstanding it will pay to the Trustee, as and for a sinking fund for the bonds of Series F, on the first clay of November in the year 1955 and on the first day of November in each year thereafter, an amount of cash equal to one per centum. (1%) of the greatest principal amount of bonds of Series F outstanding under the Indenture at any one time prior to the next preceding September 15; provided, however, that the amount of cash payable to the Trustee on any such November 1 pursuant to the provisions of this Section shall be reduced by an amount equal to the aggregate principal amount of bonds of Series F then being delivered by the Company to the Trustee, but no bonds of Series F shall be delivered to the Trustee which have not been sold in a bona fide transaction and reacquired by the Company.
Cash paid to the Trustee pursuant to the provisions of this Section shall be applied by it as follows:
(a) Upon the written notice by the Company to the Trustee given on or before September 15 in any year, beginning with the year 1955, specifying the amount of cash which the Company will pay to the Trustee on the next succeeding November 1 pursuant to this Section and requesting that it be used for the redemption
of bonds, the Trustee shall, to the extent practicable, apply the cash received by it on the next succeeding November 1, to-ether with any other cash held by it on such September 15 under the provisions of this Section, to the redemption on such November I of bonds of Series F, in the manner and subject to the conditions provided in such bonds, in Article VIII of the Indenture and in Section 2.4 of this Fourth Supplemental Indenture; and for such purpose the Trustee may publish notice of redemption in the name of the Company or in its own name as Trustee.
(b) If the Company shall not have given the notice referred to in the foregoing subdivision (a), the cash received by the Trustee on any November 1 pursuant to the provisions of this Section shall, upon request of the Company and to the extent practicable, be applied promptly by the Trustee to the purchase of bonds of Series F in accordance with the provisions of Section 8.06 of the Indenture.
(c) If the Trustee on January 20 of any year shall hold cash under the provisions of this Section amounting to $15,000 or more (or any amount less than $15,000, if the Company so elects), the Trustee shall apply all cash, to the extent practicable. then held under the provisions of this Section to the redemption on the next succeeding March 1 of bonds of Series F, in the manner and subject to the conditions provided in such bonds, in Article VII of the Indenture and in Section 2.4 of this Fourth Supplemental Indenture; and for such purpose the Trustee may publish notice of redemption in the name of the Company or in its own name as Trustee.
SECTION 2.2. The Company further covenants to pay to the Trustee, on demand, the compensation of the Trustee in administering the sinking fund as provided in this Article II, together with the Trustee's expenses, including cost of advertisement of redemption notices and any other advertisements and other lawful charges, if any, and any accrued interest and premium paid or payable with respect to any such bonds of Series F purchased or redeemed as provided for in Section 2.1 it being intended that the aforesaid compensation, expenses, charges, accrued interest and premium shall not be charged against sinking fund moneys.
SECTION 2.3. All bonds of Series F delivered to the Trustee for the purpose of holding a credit pursuant to the provisions of Section 2.1, or purchased or redeemed pursuant to the provisions of Section 2.1, shall be forthwith cancelled by the Trustee, and such bonds shall not be reissued.
SECTION 2.4. Notwithstanding any other provision of the Indenture, if less than all of the bonds of Series F outstanding are to be called for redemption, whether for the holding fund for bonds of Series F or otherwise, the Trustee shall select out of such bonds of Series F the particular coupon bonds and/or registered bonds without coupons and/or portions ($1,000 or any multiple thereof) of registered bonds without coupons so to be redeemed, in the following manner:
(a) The Trustee shall first allocate the total principal amount of such bonds of Series F to be redeemed between
(i) coupon bonds of Series F not registered as to principal at the time outstanding, and
(ii) coupon bonds of Series F registered as to principal and registered bonds of Series F without coupons at the time outstanding,
in proportion (to the nearest multiples of $1,000) to the respective aggregate principal amounts thereof at the time outstanding.
(b) The Trustee shall then select, by lot according to such method as the Trustee in its discretion shall consider proper, in the principal amount determined as provided in paragraph (a) above, the particular coupon bonds of Series F not registered as to principal to be redeemed.
(c) At the same time the Trustee shall select, in the principal amount determined as provided in paragraph (a) above, the coupon bonds of Series F registered as to principal and the registered bonds of Series F without coupons (or portions thereof) to be redeemed by allocating such principal amount so determined among the various registered owners of bonds of Series F in proportion to the respective aggregate principal amounts of bonds of Series F registered in their respective names, provided that
(i) the Trustee may in its discretion allocate an additional or lesser amount not exceeding $1,000 to any one or more
of such registered owners to the end that the principal amount of bonds of Series F registered in the name of each such registered owner to be redeemed shall be $1,000 or a multiple thereof;
(ii) in making such allocation, if the aggregate principal amount of bonds of Series F registered in the name of any registered owner of bonds of Series F shall be $1,000, the Trustee shall not be required to allocate any portion of such principal amount to such registered owner;
(iii) the particular bonds and portions of particular bonds of Series F registered in the name of any registered owner to be redeemed shall be selected by the Trustee according to such method (which need not be by lot) as it in its discretion shall consider proper, avoiding, where proper and practicable to do so, the selection of portions of particular bonds of Series F rather than entire bonds of Series F for redemption; and
(iv) if any registered owner of more than one bond of Series F shall state in writing to the Trustee that it holds such bonds as nominee for more than one beneficial owner and shall have so requested by written notice to the Trustee, the respective bonds of Series F registered in the name of such owner shall be treated, for purposes of this Section 2.4, as owned by separate registered owners.
In any selection of bonds of Series F by lot under this Section 2.4 which involves registered bonds of Series F, each registered bond without coupons shall be represented by a separate number for each $1,000 of its principal amount.
The Trustee forthwith upon any selection of bonds of Series F for redemption as aforesaid shall give written notice to the Company describing the bonds of Series F (including any portion of registered bonds of Series F without coupons) selected for redemption as aforesaid.
ARTICLE III.
ADDITIONAL COVENANTS OF THE COMPANY.
SECTION 3.1. The Company covenants that, so long as any bonds of Series F are outstanding, it will not at any time declare or pay any dividend on its Common Stock or make any distribution to its Common Stockholders (other than dividends or distributions payable solely in its Common Stock) or purchase or otherwise acquire for value any of its Common Stock, except out of (1) earned surplus of the Company accumulated after December 31, 1949, plus (2) $530,000 of earned surplus accumulated prior to January 1, 1950 (such aggregate amount being hereinafter called "unrestricted earned surplus"), nor unless after the payment of such dividend or the making of such distribution, purchase or acquisition the sum of (a) the provision for property retirements or depreciation made by the company out of income or earned surplus, during the period from July 1, 1950, to the end of the calendar year next preceding the date of payment of such dividend or the making of such distribution, purchase or acquisition and (b) the unrestricted earned surplus, if any, of the Company shall be not less than the aggregate of the minimum provision for property retirements or depredation determined as provided in Section 1.05 of the Indenture, for the period from July 1, 1950, to the end of the calendar year next preceding the date of payment of such dividend or the making of such distribution, purchase or acquisition. For the purposes of this Section, the earned surplus of the Company accumulated after December 31, 1949, shall be determined in accordance with sound accounting practice, and, so long as and to the extent that there shall remain any earned surplus of the Company accumulated prior to January 1, 1950, other than unrestricted earned surplus, such amount shall be available for all surplus charges other than such dividends or the making of such distribution, purchase or acquisition.
SECTION 3.2. The Company covenants that so long as any bonds are outstanding under the Original Indenture no Indenture or Indentures supplemental to the Original Indenture will be entered into by the Company unless such Supplemental Indenture shall contain provisions which are in compliance with the Trust Indenture Act of 1939 as then in effect; provided, however, that this provision shall not be
effective and binding upon the Company if all of the bonds then outstanding and then to be issued under the Original Indenture as supplemented and amended by all other supplemental indentures and by such supplemental indenture then to be entered into, shall either be exempt securities as defined in the Trust Indenture Act of 1939 as then in effect, or are to be issued in a transaction exempt from the provisions of said Act.
SECTION 3.3. The Company covenants that, so long as any bonds of Series F are outstanding, it will not convey or transfer any property which is subject to the lien of the Indenture to any affiliate of the Company except in accordance with the provisions of Article XIII of the Indenture or except such property as shall thereupon be released from the lien of the Indenture under the provisions of Article IX thereof.
SECTION 3.4. The Company covenants that, so long as any bonds of Series F are outstanding, it will not at any time purchase or cause to be purchased any bond of any series outstanding under the Indenture at a price (including accrued interest, but not including brokerage charges) which is in excess of the current redemption price of such bond at the date of purchase if such bond is redeemable before maturity or, if it is not so redeemable, one hundred five per centum. (105%) of the principal amount of such bond, plus, in either case, accrued interest.
ARTICLE IV.
AMENDMENT OF ORIGINAL INDENTURE.
(Pursuant to Sub-Section (e) of Section 17.01 of Original Indenture)
SECTION 4.1. Section 2.02 of the Original Indenture is hereby amended to read as follows:
"SECTION 2.02. The bonds issued hereunder shall, from time to time, be executed on behalf of the Company by its President, or one of its Vice-Presidents, whose signature, except on bonds of Series A, bonds of Series B, bonds of Series C, bonds of Series D and bonds of Series E, may be facsimile, and its corporate seal shall be thereunto affixed or a facsimile thereof shall be printed or engraved thereon and attested by its Secretary or one of its Assistant Secretaries. Only such bonds as shall bear
thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee, shall be secured by this Indenture, or be entitled to any right or benefit hereunder. No bond and no coupon thereunto appertaining shall be or become valid or obligatory for any purpose until such certificate shall have been duly, executed on such bond. Such certificate by the Trustee upon any bond executed by the Company shall be conclusive evidence and the only competent evidence that the bond so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the security and benefit of this Indenture. The Trustee shall not authenticate or deliver any coupon bond until all matured coupons thereunto appertaining shall have been detached and canceled, except as otherwise provided in Section 2.03 hereof or permitted in Section 2.08 hereof. The coupons attached to coupon bonds shall bear the facsimile signature of the present Treasurer or of any future Treasurer of the Company, and for that purpose the Company may adopt and use the facsimile signature of any person who shall have been such Treasurer, notwithstanding the fact that at the time when such coupon bonds shall be authenticated and delivered or disposed of he shall have ceased to be the Treasurer of the Company.
"In case any officer of the Company who shall have signed any of the bonds or attested the seal thereon or whose facsimile signature appears on any bonds or coupons shall cease to be such officer before the bonds so signed or sealed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such bonds, nevertheless, may be authenticated and delivered or disposed of as though the person who signed such bonds or attested the seal thereon or whose facsimile signature appears on any bonds or coupons had not ceased to be such officer; and any bond may be signed on behalf of the Company and the seal of the Company may be attested by such persons, or the Company may adopt and use the facsimile signature or signatures of such persons, as, at the actual date of the execution of the bond, shall be the proper officer's of the Company, although at the date of such bond any such person was not such officer."
ARTICLE V.
MISCELLANEOUS.
SECTION 5.1. The Company is lawfully seized and possessed of all the real estate, franchises and other property described or referred to in the Indenture as presently mortgaged and pledged thereunder, subject to the exceptions stated therein and except property which has been released from the lien of the Indenture in accordance with its terms, and upon the initial issue of bonds of Series F thereunder such real estate, franchises and other property will be free and clear of any lien prior to or on a parity with the lien of the Indenture except as set forth in the granting clauses of the Indenture and except permitted liens as therein defined, and the Company has good right and lawful authority to mortgage and pledge the same as provided in and by the Indenture.
SECTION 5.2. As supplemented and amended by this Fourth Supplemental Indenture, the Original Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, and the Third Supplemental Indenture are in all respects ratified and confirmed and said Original Indenture, First Supplemental Indenture, Second Supplemental Indenture, Third Supplemental Indenture and this Fourth Supplemental Indenture shall be read, taken and construed as one and the same instrument.
SECTION 5.3. The Trustee assumes no duties, responsibilities or liabilities by reason of this Fourth Supplemental Indenture, other than as set forth in the Original Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture and this Fourth Supplemental Indenture is executed and accepted by the Trustee subject to all the terms and conditions of its acceptance of the trust under the Original Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture as fully as if said terms and conditions were herein set forth at length.
SECTION 5.4. This Fourth Supplemental Indenture shall be simultaneously executed in several counterparts and all such counterparts executed and delivered, each as an original, shall constitute but one and the same instrument.
SECTION 5.5. This Fourth Supplemental Indenture has been dated as of November 1, 1954, solely for convenience. The date of actual
execution hereof by each of the parties hereto is the date shown by the acknowledgment of execution hereof by its officers.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused this instrument to be signed in its corporate name by its President or one of its Vice-Presidents and sealed with the corporate seal attested by its Secretary or one of its Assistant Secretaries, and The National Bank of Commerce in New Orleans to evidence its acceptance of the trust hereby created as caused this instrument to be signed in its corporate name by one of its Vice-Presidents and sealed by its corporate seal attested by one of its Assistant Cashiers, all as of the day and year first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
[SEAL]
By T. M. HAUER
Attest: Vice-President.
T. P. STREET
Secretary.
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Signed, sealed, acknowledged and
delivered by CENTRAL LOUISIANA
ELECTRIC COMPANY, INC., in the
presence of:
R. J. Emmer
H. S. FORD
THE NATIONAL BANK OF COMMERCE IN NEW
ORLEANS
[SEAL]
By F. C. DOYLE
Attest: Vice-President.
R. C. MORSE
Assistant Cashier.
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Signed, sealed, acknowledged and
delivered by THE NATIONAL BANK OF
COMMERCE IN NEW ORLEANS in the
presence of:
R. J. EMMER
H. S.. FORD
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 9th day of December, 1954, before me the undersigned, a Notary Public in and for said Parish and State, duly qualified and commissioned as such, personally appeared T. M. HAUER, a Vice-President and T. P. STREET, Secretary of Central Louisiana Electric Company, Inc., the grantor in the foregoing instrument, to me personally known and known to me to be such officers, respectively, of such Company, and personally known to me to be the identical persons whose names are subscribed and affixed to the foregoing instrument as such officers, respectively, and who subscribed the name of the Company thereto, and in my presence and in the presence of the undersigned witnesses, of lawful age and domicile, severally acknowledged that the same is their respective, free and voluntary act and deed as such officers and the free and voluntary act and deed of said Company for the uses and purposes therein expressed; and the said persons being each by me duly and severally sworn as individuals did depose and say that they are such officers, respectively, of said Company; that they know the seal of said Company; that the seal affixed to the foregoing instrument was and is such corporate seal; that said seal was so affixed and said instrument was so signed on behalf of said Company by the order and authority of the Board of Directors of said Company; and that they signed their names thereto as such officers, respectively, of said Company by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their names on the day and date first hereinabove written, in the presence of R. J. EMMER and H. S. FORD, witnesses of lawful age and domicile, and of me, said Notary Public.
Witness: T. M. HAUER
Vice-President.
R. J. EMMER
T. P. STREET
H. S. FORD Secretary.
THOMAS F. JORDAN
[SEAL] Notary Public.
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My Commission expires at death or on removal from Office.
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 9th day of December, 1954, before me the undersigned, a Notary Public in and for said Parish and State, duly qualified and commissioned as such, personally appeared FRANCIS C. DOYLE, a Vice-President and RICHARD C. MORSE, an Assistant Cashier of The National Bank of Commerce in New Orleans, a national banking association, duly organized and existing under the laws of the United States of America, Trustee under the foregoing instrument, to me personally known and known to me to be such officers, respectively, of said Bank, and personally known to me to be the identical persons whose names are subscribed and affixed to the foregoing instrument as such officers respectively, and who subscribed the name of the said Bank thereto, and in my presence and in the presence of the undersigned witnesses, of lawful age and domicile. severally acknowledge that the same is their respective, free and voluntary act and deed as such officers and the free and voluntary act and deed of said Bank for the uses and purposes therein expressed; and the said persons being each by me duly and severally sworn as individuals did depose and say that they are such officers, respectively, of said Bank; that they know the seal of said Bank, that the seal affixed to the foregoing instrument was and is such corporate seal; that said seal was so affixed and said instrument was so signed on behalf of said Bank by the order and authority of the Board of Directors of said Bank; and that they signed their names thereto as such officers, respectively, of said Bank by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their names on the day and date first hereinabove written, in the presence of R. J. EMMER and H. S. FORD, witnesses of lawful age and domicile, and of me, said Notary Public.
Witness: F. C. DOYLE
Vice-President.
R. J. EMMER
R. C. MORSE
H. S. FORD Assistant Cashier.
THOMAS F. JORDAN
[SEAL] Notary Public.
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My Commission expires at death or on removal from Office.
EXHIBIT 10(i)
REIMBURSEMENT AGREEMENT
AMONG
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.,
VARIOUS FINANCIAL INSTITUTIONS,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
AS ISSUER OF THE LETTER OF CREDIT,
AND
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH
AS AGENT
Dated as of October 15, 1997
The Industrial Development Board of The Parish of Rapides, Inc. Series 1991 Bonds
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS............................................................... 2
Section 1.01. Certain Defined Terms..................................................... 2
ARTICLE II LETTER OF CREDIT; FEES.................................................... 11
Section 2.01. Agreement to Issue Letter of Credit....................................... 11
Section 2.02. Adjustment to LC Commitments.............................................. 11
Section 2.03. Request to Extend the Letter of Credit.................................... 11
Section 2.04. Letter of Credit Fee...................................................... 12
Section 2.05. Fronting Fee.............................................................. 12
Section 2.06. Transfer Fees............................................................. 12
Section 2.07. Drawing Fees.............................................................. 12
Section 2.08. Additional Fees........................................................... 12
Section 2.09. Taxes..................................................................... 12
Section 2.10. Increased Costs........................................................... 13
ARTICLE III REPAYMENT OF DRAWINGS..................................................... 14
Section 3.01. Repayment of Drawings; Advances........................................... 14
Section 3.02. Repayment of Advances..................................................... 14
Section 3.03. Overdue Interest.......................................................... 15
Section 3.04. Payments; Computations.................................................... 15
Section 3.05. Payments to Banks......................................................... 15
Section 3.06. Sharing Provision......................................................... 16
Section 3.07. Obligations Absolute...................................................... 16
ARTICLE IV PREPAYMENTS; ESCROW BONDS................................................. 17
Section 4.01. Prepayments............................................................... 17
Section 4.02. Release of Escrow Bonds................................................... 17
ARTICLE V CONDITIONS PRECEDENT...................................................... 17
Section 5.01. Delivery of Bonds and Operative Documents................................. 17
Section 5.02. Intentionally Omitted..................................................... 17
Section 5.03. Receipt of Documents...................................................... 18
Section 5.04. Representations and Warranties; Defaults.................................. 19
Section 5.05. Certain Other Matters..................................................... 19
Section 5.06. Proceedings............................................................... 20
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Page
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ARTICLE VI REPRESENTATIONS AND WARRANTIES............................................ 20
Section 6.01. Due Organization, Etc..................................................... 21
Section 6.02. No Conflicts.............................................................. 21
Section 6.03. Due Authorization......................................................... 21
Section 6.04. Enforceability............................................................ 21
Section 6.05. Litigation................................................................ 22
Section 6.06. Compliance with ERISA..................................................... 22
Section 6.07. No Defaults............................................................... 23
Section 6.08. Financial Statements...................................................... 23
Section 6.09. Taxes..................................................................... 23
Section 6.10. Disclosure................................................................ 23
Section 6.11. Title to Property......................................................... 24
Section 6.12. Environmental and Other Matters........................................... 24
Section 6.13. Operative Documents....................................................... 24
Section 6.14. Margin Stock.............................................................. 24
Section 6.15. Investment Company........................................................ 24
ARTICLE VII AFFIRMATIVE COVENANTS..................................................... 24
Section 7.01. Preservation of Corporate Existence....................................... 24
Section 7.02. Compliance with Law; Environmental and Other Matters...................... 25
Section 7.03. Performance of Agreements................................................. 25
Section 7.04. Maintenance of Insurance.................................................. 25
Section 7.05. Furnishing of Information................................................. 25
Section 7.06. ERISA..................................................................... 26
Section 7.07. Financial Statements...................................................... 26
Section 7.08. Inspection................................................................ 25
Section 7.09. Payment of Taxes, Etc..................................................... 25
Section 7.10. Maintenance of Property................................................... 28
Section 7.11. Certain Notices........................................................... 28
ARTICLE VIII NEGATIVE COVENANTS........................................................ 28
Section 8.01. Consolidation, Merger, Sale of Assets, Etc................................ 28
Section 8.02. Redemption or Purchase of Bonds; Adjustment
of Interest Rate Periods.................................................. 29
Section 8.03. Amendment of Operative Document........................................... 29
Section 8.04. Liens..................................................................... 29
Section 8.05. Interest Coverage Ratio................................................... 32
Section 8.06. Tangible Net Worth Ratio.................................................. 32
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Page
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ARTICLE IX EVENTS OF DEFAULT......................................................... 32
Section 9.01. Events of Default......................................................... 32
Section 9.02. No Remedy Exclusive....................................................... 34
ARTICLE X THE AGENT................................................................. 35
Section 10.01. The Agent................................................................. 35
Section 10.02. Duties.................................................................... 35
Section 10.03. Investigation by Banks.................................................... 36
Section 10.04. Instructions.............................................................. 36
Section 10.05. Reliance by the Agent..................................................... 36
Section 10.06. Indemnification........................................................... 36
Section 10.07. Agent as a Bank........................................................... 37
Section 10.08. Resignation by the Agent.................................................. 37
ARTICLE XI MISCELLANEOUS............................................................. 38
Section 11.01. Amendments, Etc........................................................... 38
Section 11.02. Addresses for Notices..................................................... 38
Section 11.03. Set-off................................................................... 39
Section 11.04. Indemnification........................................................... 39
Section 11.05. Benefit of Agreement...................................................... 39
Section 11.06. Liability of Parties...................................................... 41
Section 11.07. Expenses, Etc............................................................. 42
Section 11.08. Counterparts.............................................................. 42
Section 11.09. Consent to Jurisdiction................................................... 42
Section 11.10. Governing Law............................................................. 43
Section 11.11. Headings, Etc............................................................. 43
Section 11.12. Survival of Representations and Warranties................................ 43
Section 11.13. Survival of Indemnities................................................... 43
Section 11.14. Satisfaction Requirement.................................................. 43
Section 11.15. Accounting Terms.......................................................... 44
Section 11.16. Calculations.............................................................. 44
Schedule I List of Banks/LC Commitments/LC Percentages
Schedule II Existing Liens
Exhibit A Form of Irrevocable Letter of Credit
Exhibit B-1 Form of Opinion of Baker & Botts, L.L.P.
Exhibit B-2 Form of Opinion of William O. Bonin
Exhibit C Form of Officer's Certificate
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REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT dated as of October 15, 1997, among CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (the "Company"), the financial institutions listed on Schedule I attached hereto (each a "Bank", and collectively the "Banks"), and WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH, as agent (in such capacity, together with any successor in such capacity, the "Agent") and as issuer of the below-referenced Letter of Credit (in such capacity, "WestLB").
W I T N E S S E T H :
WHEREAS, The Industrial Development Board of the Parish of Rapides, Inc. (the "Issuer"), pursuant to the Act (as defined in the Indenture hereinafter referred to), has issued and sold its Adjustable Tender Pollution Control Revenue Refunding Bonds (Central Louisiana Electric Company, Inc. Project) Series 1991 in the aggregate principal amount of $11,150,000 (the "Bonds") pursuant to a Trust Indenture dated as of May 1, 1991, as amended and supplemented by a First Supplemental Trust Indenture dated as of May 1, 1993 (as further amended and supplemented from time to time in accordance with the terms thereof, the "Indenture") from the Issuer to First National Bank of Commerce, as trustee (together with its successors in trust and their assigns, the "Trustee"), and has used the proceeds thereof, together with other available funds, to refund and redeem in full the Prior Bonds (as hereinafter defined) pursuant to that certain Refunding Agreement dated as of May 1, 1991 between the Issuer and the Company (as amended from time to time in accordance with the terms thereof, the "Refunding Agreement"), which Prior Bonds were issued by the Issuer to finance the cost of acquiring, constructing, improving and equipping the Company's undivided interest in certain air and water pollution control facilities, as more specifically described in Exhibit B to the Refunding Agreement (the "Project"); and
WHEREAS, the Company has requested WestLB to issue its irrevocable letter of credit in the form of Exhibit A attached hereto (the "Letter of Credit", which term shall include any substitute therefor or replacement thereof issued in accordance with the terms of the Letter of Credit) to replace the irrevocable letter of credit issued by Swiss Bank Corporation in connection with the Bonds; and
WHEREAS, subject to and on the terms and conditions herein set forth, WestLB is willing to issue the Letter of Credit on the date hereof; and
WHEREAS, subject to and upon the terms and conditions herein set forth, the Company, the Agent, WestLB and the Banks are willing to enter into this Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises contained herein and in order to induce WestLB to issue the Letter of Credit, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the respective meanings set forth below (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"A Drawing" shall have the meaning given to such term in the Letter of Credit, which shall be a drawing in respect of the payment of the portion of the Purchase Price corresponding to principal of the Bonds.
"Advance" and "Advances" shall have the respective meanings given to such terms in Section 3.01 hereof.
"Affiliate" shall mean, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. The term "control" and "controlled" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or partnership or other ownership interests, by contract or otherwise.
"Agent" shall have the meaning given to such term in the first paragraph of this Agreement.
"Agreement" shall mean this Reimbursement Agreement, as the same may be amended, supplemented or otherwise modified from time to time.
"Bank" and "Banks" shall have the respective meanings given to such terms in the first paragraph of this Agreement.
"Bankruptcy Law" shall mean title 11 of the United States Code or any similar federal, state or foreign law for the relief of debtors.
"Base Rate" on any date shall mean the higher of (i) the rate which the Agent announces from time to time as its prime lending rate, the Base Rate to change when and as the prime lending rate changes or (ii) 1/2 of 1% above the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York or if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Agent, WestLB and any Bank may make commercial loans or other loans at rates of interest at, above or below the Base Rate.
"B Drawing" shall have the meaning given to such term in the Letter of Credit, which shall be a drawing in respect of the payment of principal of the Bonds.
"Bond Purchase Agreements" shall mean the two separate Bond Purchase Agreements, each dated May 29, 1991, among the Company, Smith Barney, Harris Upham & Co. Incorporated and the Issuer and The Industrial Development Board of the Parish of Rapides, Inc., respectively.
"Bonds" shall have the meaning given to such term in the first recital of this Agreement.
"Business Day" shall mean a day of the year other than a Saturday, Sunday or other day on which commercial banks located in the City of New York, New York are required or authorized by law to close or on which The New York Stock Exchange is not open.
"Capitalized Lease Obligations" shall mean all rental obligations under a lease that are required to be accounted for and classified as capitalized leases on the balance sheet of the Company or any of its Subsidiaries under generally accepted accounting principles.
"C Drawing" shall have the meaning given to such term in the Letter of Credit, which shall be a drawing in respect of the payment of interest, or the portion of Purchase Price corresponding to interest, on the Bonds.
"CLECO Mortgage" shall mean the Indenture of Mortgage, dated as of July 1, 1950, as supplemented and amended from time to time in accordance with its terms, by the Company to First National Bank of Commerce (formerly The National Bank of Commerce in New Orleans), as trustee thereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect on the date of this Agreement, and to any subsequent provisions of the Code amendatory thereof, supplemental thereto or substituted therefor.
"Company" shall have the meaning given to such term in the first paragraph of this Agreement.
"Consolidated Interest Expense" shall mean, for any period, all amounts accounted for (without duplication) during such period as interest on Indebtedness, including, without limitation, (i) interest payable in respect of all Indebtedness under this Agreement, (ii) the portion of any Capitalized Lease Obligation attributable to interest, (iii) commissions and other fees and charges payable in respect of all letters of credit and (iv) the net amount due, if any, in connection with any interest rate hedging arrangements.
"Consolidated Net Earnings" shall mean consolidated revenues of the Company and its Subsidiaries less all operating and nonoperating expenses of the Company and its Subsidiaries including, without limitation, all charges of a proper character (including current and deferred taxes on income and current additions to reserves), but not including in net revenues any gains (net of expenses and taxes applicable thereto) in excess of losses resulting from the sale, conversion or other disposition of capital assets (i.e., assets other than current assets), any gains resulting from the write-up of assets, any equity of the Company or any Subsidiary in the unremitted earnings of any Person acquired by the Company or any Subsidiary through purchase, merger or consolidation or otherwise for any year prior to the year of acquisition or any deferred credit representing the excess of equity in any Subsidiary at the date of acquisition over the cost of the investment in such Subsidiary.
"Consolidated Net Tangible Assets" shall mean the total amount of assets appearing on a consolidated balance sheet of the Company and its Subsidiaries less, without duplication, the following: (i) all reserves for depreciation and other asset valuation reserves but excluding any reserves for deferred U.S. federal income taxes arising from accelerated amortization or otherwise; (ii) all intangible assets such as goodwill, trademarks, trade names, patents and unamortized debt discount and expense carried as an asset on such balance sheet; and (iii) all appropriate adjustments on account of minority interests of other Persons holding Voting Stock in any Subsidiary of the Company; all determined in accordance with generally accepted accounting principles.
"Consolidated Tangible Net Worth" shall mean consolidated total shareholders' equity in the Company and its Subsidiaries, determined in accordance with generally accepted accounting principles, less the aggregate net amount of the following items to the extent, if any, such items were included in consolidated assets or deducted from consolidated liabilities in connection with the computation of such shareholders' equity: (i) all licenses, patents, copyrights, trade names, trademarks, goodwill, experimental or organizational expense, unamortized debt discount and expense and all other assets which under generally accepted accounting principles are deemed to be intangibles; (ii) all investments other than Permitted Investments; (iii) any write-up of assets (other than current assets) after December 31, 1996; (iv) all assets located outside the United States of America and Canada and all Indebtedness from any Person to the extent the primary portion of such Person's assets or
business operations are located outside the United States of America and Canada; and (v) the book value of net tangible assets of each Subsidiary acquired in so-called "pooling of interests" accounting treatment transactions, to the extent such book value at the time of such acquisition exceeds the fair value of the consideration paid for such acquisition.
"Contingent Obligation" shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, lease, dividend or other obligation ("Primary Obligations") of any other Person (the "Primary Obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person whether or not contingent, (i) to purchase any such Primary Obligation or any property constituting direct or indirect security therefor; (ii) to advance or supply funds (a) for the purchase or payment of any such Primary Obligation or (b) to maintain working capital or equity capital of the Primary Obligor or otherwise to maintain the net worth or solvency of the Primary Obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the holder of any such Primary Obligation of the ability of the Primary Obligor to make payment of any such Primary Obligation; or (iv) otherwise to assure or hold harmless the holder of such Primary Obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Primary Obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
"Cooke Commission Guidelines" shall mean risk-based capital guidelines in accordance with the Basle Committee on Banking Regulations and Supervisory Practices set forth in a paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988.
"Custodian" shall mean any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
"Date of Issuance" shall mean the date on which the Letter of Credit shall be issued by WestLB to the Trustee pursuant to the terms of this Agreement.
"Default" shall mean any event which with notice or lapse or time, or both, or the happening of any further condition, event or act, would become an Event of Default.
"EBITDA" shall mean, for any period, Consolidated Net Earnings for such period before Consolidated Interest Expense, income taxes, depreciation and amortization for such period.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect on the date of this Agreement, and to any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of ERISA) which together with the Company or any Subsidiary of the Company would be deemed to be a member of the same "controlled group" within the meaning of Section 414(b), (c), (m) and (o) of the Code.
"Escrow Bond" shall have the meaning given to such term in the Indenture.
"Event of Default" shall have the meaning given to such term in Section 9.01 hereof.
"Existing Directors" shall mean those individuals who on the date of this Agreement constitute the Board of Directors of the Company.
"Extension Request" shall have the meaning given to such term in Section 2.03 hereof.
"Government Acts" shall have the meaning given to such term in Section 11.04 hereof.
"Indebtedness" shall mean, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services, excluding trade accounts payable in the ordinary course of business; (ii) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder; (iii) all liabilities secured by any Lien on any property owned by such Person, whether or not such liabilities have been assumed by such Person; (iv) the aggregate amount required, under generally accepted accounting principles, to be capitalized under leases under which such Person is the lessee; and (v) all Contingent Obligations of such Person.
"Indenture" shall have the meaning given to such term in the first recital of this Agreement.
"Issuer" shall have the meaning given to such term in the first recital of this Agreement.
"Interest Increase Date" shall have the meaning given to such term in
Section 3.01 hereof.
"LC Commitment" shall have the meaning given to such term in Section 2.02 hereof.
"LC Percentage" shall have the meaning given to such term in Section 2.02 hereof.
"Letter of Credit" shall have the meaning given to such term in the second recital of this Agreement.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of or agreement to give any financial statement under the Uniform Commercial Code of any jurisdiction).
"Moody's" shall mean Moody's Investors Service, Inc., a corporation organized and existing under the laws of the State of Delaware, and its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall no longer be performing the functions of a securities rating agency, "Moody's" shall be deemed to refer to any other nationally recognized securities rating agency approved by the Required Banks.
"Obligations" shall mean any and all amounts owing to the Agent,WestLB or any Bank pursuant to the terms of this Agreement.
"Officer's Certificate" shall mean a certificate signed by the President, any Vice President, Secretary-Treasurer or the chief financial officer of the Company.
"Official Statement" shall mean the Official Statement, dated May 29, 1991, prepared in connection with the issuance and remarketing of the Bonds, together with all amendments, modifications and supplements thereto.
"Operative Documents" shall mean and include this Agreement, the Indenture, the Refunding Agreement, the Remarketing Agreement, the Tender Agreement and the Bond Purchase Agreements.
"Other Bonds" shall mean the Adjustable Tender Pollution Control Revenue Refunding Bonds (Central Louisiana Electric Company, Inc. Project) Series l991A and Series 1991B issued by the Parish of DeSoto.
"Other Letters of Credit" shall mean the letters of credit issued by Westdeutsche Landesbank Girozentrale, New York Branch, pursuant to the Other Reimbursement Agreements.
"Other Reimbursement Agreements" shall mean the two Reimbursement Agreements dated as of October 15, 1997 among the Company, the financial institutions party thereto and Westdeutsche Landesbank Girozentrale, New York Branch, as agent and as issuer of the Other Letters of Credit, relating to the Other Bonds.
"Participant" shall mean any entity that purchases a participation interest from any Bank in the Letter of Credit and this Agreement in accordance with the provisions of Section 11.05 hereof.
"Payment Date" shall have the meaning given to such term in Section 2.04 hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Investments" shall mean: (i) direct obligations of the United States of America, or any agency thereof, or obligations guaranteed as to principal and interest by the United States of America, or any agency thereof, in either case maturing not more than one year from the date of acquisition thereof; (ii) certificates of deposit issued by any bank or trust company organized under the laws of the United States of America or any state thereof and having capital, surplus and undivided profits of at least $100,000,000 maturing not more than one year from the date of acquisition thereof; and (iii) other debt obligations which have been given an investment grade rating by S&P, Moody's or any other nationally recognized rating agency, provided such obligations mature not more than one year from the date of acquisition thereof.
"Person" shall mean and include any of an individual, a partnership, a joint venture, a corporation, a trust, an unincorporated organization or a government or any department or agency thereof.
"Plan" shall mean any multiemployer plan or any single employer plan, subject to Title IV of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute of), or at any time during the five calendar years preceding the date of this Agreement was maintained or contributed to by (or to which there was an obligation to contribute of), the Company or any of its Subsidiaries or an ERISA Affiliate.
"Preliminary Official Statement" shall mean the Preliminary Official Statement, dated May 16, 1991, prepared in connection with the initial issuance of the Bonds, together with all amendments, modifications and supplements thereto.
"Prior Bonds" shall mean the Annual Tender Pollution Control Revenue Bonds (Central Louisiana Electric Company, Inc. Project) Series 1983 previously issued by the Issuer for and on behalf of the Company.
"Process Agent" shall have the meaning given to such term in Section 11.09 hereof.
"Project" shall have the meaning given to such term in the first recital of this Agreement.
"Purchase Price" shall have the meaning given to such term in the Letter of Credit.
"Refunding Agreement" shall have the meaning given to such term in the first recital of this Agreement.
"Remarketing Agreement" shall have the meaning given to such term in the Indenture.
"Reoffering Supplement" shall mean the Reoffering Supplement dated October 15, 1997 to the Official Statement dated May 29, 1991, which has, as an attachment thereto, the Offical Statement.
"Reportable Event" shall mean an event described in Section 4043(b) of ERISA with respect to a Plan as to which the 30-day notice requirement has not been waived by the PBGC.
"Required Banks" shall mean (i) at such time as the Letter of Credit shall be outstanding, (a) WestLB (to the extent the relevant action will affect the Letter of Credit or WestLB's obligations with respect thereto in any way) and (b) Banks whose then outstanding LC Commitments and the then outstanding Advances (if any) equal or exceed 66-2/3% of the sum of the then Total LC Commitment and then total outstanding Advances (if any) and (ii) at such times as the Letter of Credit shall no longer be outstanding, Banks whose then outstanding Advances equal or exceed 66-2/3% of the then total outstanding Advances.
"S&P" shall mean Standard & Poor's Rating Services, a division of the McGraw Hill Companies, and its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall no longer be performing the functions of a securities rating agency, "S&P" shall be deemed to refer to any other nationally recognized securities rating agency approved by the Required Banks.
"Stated Amount" shall have the meaning given to such term in the Letter of Credit.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time
owned by such Person and/or one or more Subsidiaries of such Person and
(ii) any partnership, association, joint venture or other entity in
which such Person and/or one or more Subsidiaries of such Person has
more than a 50% equity interest at the time.
"Taxes" shall have the meaning given to such term in Section 2.09 hereof.
"Tender Agent" shall have the meaning given to such term in the Indenture.
"Tender Agreement" shall have the meaning given to such term in the Indenture.
"Term Repayment Date" shall have the meaning given to such term in
Section 3.01 hereof.
"Termination Date" shall mean the date on which the Letter of Credit terminates or expires in accordance with its terms (as such expiration date may be extended pursuant to Section 2.03 hereof).
"Total Capitalization" shall mean (i) the sum of (a) the principal amount of all Indebtedness of the Company or any of its Subsidiaries which, at the time of the incurrence thereof, had a stated maturity in excess of one year, exclusive of any intercompany Indebtedness owed by the Company or any of its Subsidiaries but, in any event, including all Indebtedness of the Company incurred hereunder (regardless of the stated maturity thereof) (b) the par or stated value of all outstanding capital stock (including premiums on capital stock) of all classes of the Company, exclusive of all such stock held in the Company's treasury or owned beneficially or of record by any Affiliate of the Company, and (c) the retained earnings of the Company and its Subsidiaries, less (ii) unamortized capital stock expense.
"Total LC Commitment" shall have the meaning given to such term in
Section 2.01 hereof.
"Trustee" shall have the meaning given to such term in the first recital of this Agreement.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by which the present value of the accrued benefits under the Plan as of the close of its most recent plan year, determined in accordance with Statement of Financial Accounting Standards No. 35, based upon the actuarial assumptions used by the Plan's actuary in the most recent annual valuation of the Plan, exceeds the fair market value of the assets allocated thereto, determined in accordance with Section 412 of the Code.
"Voting Stock" shall mean stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of the relevant corporation, provided, however, that, for purposes of this Agreement, stock that carries only the right to vote conditionally on the happening of an event shall not be considered voting stock whether or not such event shall have happened.
"WestLB" shall have the meaning given to such term in the first paragraph of this Agreement.
ARTICLE II
LETTER OF CREDIT; FEES
Section 2.01. Agreement to Issue Letter of Credit. WestLB agrees with the Company, on the terms and subject to the conditions herein set forth (including, without limitation, the conditions specified in Article V hereof), to issue the Letter of Credit to the Trustee on October 15, 1997. The initial face amount of the Letter of Credit shall be $11,336,953.42 (such amount, as reduced or reinstated from time to time in accordance with the terms of the Letter of Credit, the "Total LC Commitment"); provided, that no more than $186,953.42 may be drawn thereunder with respect to the payment of interest on the Bonds; and, provided further, that in no event shall any amount be drawn under the Letter of Credit for the payment of any premium on the Bonds. The Letter of Credit shall expire on October 15, 2000, unless otherwise terminated or extended. WestLB agrees that it will pay all drawings under the Letter of Credit with its own funds.
Section 2.02. Adjustment to LC Commitments. Upon any reduction or reinstatement of the Stated Amount of the Letter of Credit in accordance with the terms thereof, the LC Commitment (as defined below) of each Bank shall be reduced or increased, respectively, based on the LC Percentage (as defined below) of such Bank, to reflect the new Stated Amount of the Letter of Credit (it being understood that the aggregate LC Commitments of the Banks with respect to the Letter of Credit shall at all times equal the Stated Amount of the Letter of Credit, and that in no event shall the LC Commitment of any Bank be increased to an amount in excess of the original LC Commitment of such Bank, except in accordance with the provisions of Section 11.01 hereof). As used herein, the terms (i) "LC Percentage" shall mean, for each Bank, that percentage set forth opposite such Bank's name on Schedule I attached hereto (as Schedule I may be amended from time to time to reflect adjustments thereto pursuant to Section 11.05 hereof) and (ii) "LC Commitment" shall mean, for each Bank, at any time, an amount equal to such Bank's LC Percentage at such time multiplied by the Stated Amount of the Letter of Credit at such time.
Section 2.03. Request to Extend the Letter of Credit. On any date which is at least ninety (90) days prior to the date which is not more than two years preceding the Termination Date of the Letter of Credit, if no Default or Event of Default shall have occurred and be continuing, the Company may request in writing to WestLB and the Banks, with a copy to the Agent (such request being irrevocable), that WestLB extend the Termination Date of the Letter of Credit for one (1) year (such request being referred to herein as the "Extension Request"). If the Company shall have made the Extension Request, the Agent shall, on or prior to the date which is forty-five (45) days after the date of receipt by the Agent, WestLB and the Banks of such Extension Request, notify the Company in writing whether or not WestLB and the Banks consent to such Extension Request and, if WestLB and the Banks do so consent, the terms and conditions of such consent, it being understood and agreed that (i) no such extension shall be granted unless WestLB and all of the Banks shall have
consented in writing to such extension, (ii) if the Agent shall fail to give such notice within such forty-five (45) day period, WestLB and the Banks shall be deemed not to have consented to such extension and (iii) neither WestLB nor any Bank shall have any obligation whatsoever to extend the Letter of Credit pursuant to this Section 2.03 (or any liability whatsoever in the event such Extension Request is denied for whatever reason), any such extension being in the sole and absolute discretion of WestLB and each of the Banks. If WestLB and the Banks shall agree to extend for one year the Termination Date of the Letter of Credit, and provided all of the conditions to such extension specified in the Agent's reply to the Extension Request shall have been met, WestLB shall issue an amendment to such Letter of Credit (or a new Letter of Credit, as WestLB may elect) extending the Termination Date of the Letter of Credit by one year.
Section 2.04. Letter of Credit Fee. The Company hereby agrees to
pay to the Agent, for distribution to each Bank, a letter of credit fee as
agreed with each Bank and specified in a letter agreement between the Company
and the Agent for the period from and including the later of the Date of
Issuance or the date of such letter agreement. Amounts payable under this
Section 2.04 shall be payable quarterly in arrears on the first Business Day of
each March, June, September and December occurring prior to the Termination Date
(each such date, a "Payment Date"), commencing December 31, 1997, and on the
Termination Date.
Section 2.05. Fronting Fee. The Company hereby agrees to pay to the Agent, for distribution to WestLB, a letter of credit fronting fee as agreed with WestLB and specified in a letter agreement between the Company and the Agent. Such fee shall be payable quarterly on each Payment Date commencing with December 31, 1997 and on the Termination Date.
Section 2.06. Transfer Fees. The Company hereby agrees to pay to WestLB, for its own account, upon each transfer of the Letter of Credit in accordance with its terms, $1,000 or such other amount as shall at the time of such transfer be the charge which WestLB is making generally for transfers of similar letters of credit. Amounts payable under this Section 2.06 shall be payable at the time of such transfer of the Letter of Credit.
Section 2.07. Drawing Fees. The Company hereby agrees to pay to WestLB, for its own account, upon each drawing by the Trustee under the Letter of Credit, the sum of $200 or such other amount as shall at the time of such drawing be the charge which WestLB is making generally for drawings on similar letters of credit. Amounts payable under this Section 2.07 shall be payable quarterly in arrears on each Payment Date, commencing on December 31, 1997, and on the Termination Date.
Section 2.08. Additional Fees. The Company hereby agrees to pay to the Agent for its own account upfront and administrative fees specified in a letter agreement between the Company and the Agent.
Section 2.09. Taxes. All payments made by the Company hereunder shall be made without set off, counterclaim or other defense.
All such payments shall be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein (but excluding any tax imposed on or measured by the net income of WestLB, any Bank or any Participant, as applicable, pursuant to the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the principal office or applicable lending office of such Person is located) and all interest, penalties or similar liabilities with respect thereto (collectively, "Taxes"). If any Taxes are so levied or imposed, the Company agrees to pay the full amount of such Taxes and such additional amounts as may be necessary so that every payment of all amounts due hereunder, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein. The Company will furnish to the Agent, within 45 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company. The Company shall indemnify and hold harmless WestLB, each Bank and each Participant, as applicable, and reimburse each such Person upon its written request, for the amount of any Taxes so levied or imposed and paid by such Person.
Section 2.10. Increased Costs. If any change in or enactment of any law or governmental rule, regulation or order (whether or not having the force of law) or in the interpretation thereof by any court or administrative or governmental authority or central bank or comparable agency charged with the administration thereof (including implementation of the Cooke Commission Guidelines), or compliance by WestLB, any Bank or any Participant with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency, or any change in generally accepted accounting principles at any time in effect in the United States or in the Federal Republic of Germany, shall either (i) impose, modify or deem applicable any reserve, capital adequacy, special deposit or similar requirement against letters of credit issued by, or assets held by, or deposits in or for the account of, WestLB, any Bank or any Participant in connection with, or against participation in, the Letter of Credit or (ii) impose on WestLB, any Bank or any Participant any other condition relating, directly or indirectly, to this Agreement, the Letter of Credit or participation in the Letter of Credit, and the result of any event referred to in the preceding clause (i) or (ii) shall be to increase the cost to such Person of issuing, maintaining or participating in the Letter of Credit (which increase in cost shall be determined by such Person using reasonable allocation methods), then such Person shall so notify the Agent and, upon demand by the Agent on behalf of such Person, the Company shall immediately pay to the Agent, for distribution to such Person, from time to time as specified by the Agent, such additional amounts as shall be sufficient to compensate such Person for such increased costs from the date of such change, enactment or compliance, together with interest on each such amount from the date of demand therefor until payment in full thereof at the Base Rate plus 2% per annum. A certificate setting forth in reasonable detail such increased cost incurred by such Person, submitted by such Person to the Agent and from the Agent to the Company, shall be conclusive, absent manifest error, as the amount thereof. Any Person seeking payment from the Company pursuant to this Section 2.10 shall so inform the Company promptly upon learning
of the occurrence of the event or action upon which such recovery will be based.
ARTICLE III
REPAYMENT OF DRAWINGS
Section 3.01. Repayment of Drawings, Advances. The Company
hereby agrees to pay to WestLB (i) immediately after any payment is made under
the Letter of Credit pursuant to any "B Drawing" or any "C Drawing" to pay
principal of or interest (or the portion of Purchase Price corresponding to
interest) on the Bonds, an amount equal to such amount so paid under the Letter
of Credit and (ii) on the earlier to occur of the Termination Date and the day
next succeeding the first anniversary of the date that any payment is made under
the Letter of Credit pursuant to any "A Drawing" to pay the portion of Purchase
Price corresponding to principal on the Bonds (such earlier date, the "Term
Repayment Date"), an amount equal to such amount paid under the Letter of Credit
together with interest thereon (a) from and including the date of such drawing
to but excluding the earlier to occur of the Termination Date and the fifteenth
(15th) day following the date of such drawing (such earlier date, the "Interest
Increase Date"), at a rate per annum equal to the Base Rate and (b) from and
including the Interest Increase Date to but excluding the due date thereof, at a
rate per annum equal to the Base Rate plus 2%. In the event that the Company
shall fail to reimburse WestLB when due following any drawing specified in
clause (i) above, or WestLB shall make any payment under the Letter of Credit
specified in clause (ii) above and the Company shall not reimburse WestLB for
such payment on the date such payment was made, then, (1) WestLB shall promptly
advise the Agent thereof, (2) the Agent shall promptly advise each of the Banks
thereof and of each such Bank's LC Percentage of such unreimbursed drawing
(expressed both as a percentage and in U.S. dollars), and (3) each Bank (other
than WestLB) shall make available to WestLB in the lawful currency of the United
States by wire transfer of immediately available funds an amount equal to its LC
Percentage of such unreimbursed drawing by transferring the same, at or before
12:00 noon (New York time) on the date designated in such advice, which date
shall be no less than one Business Day after the date of such advice, to WestLB
at its office specified in Section 3.04 hereof. If any payment required to be
made by a Bank to WestLB is not made as provided above, WestLB shall be entitled
to recover such amount from such Bank on demand, together with interest thereon
at a rate per annum equal to (A) the cost to WestLB of acquiring overnight
Federal funds for the initial two (2) days such amount remains unpaid and (B)
the Base Rate per annum thereafter. WestLB (upon the honoring of any drawing),
and each other Bank (upon the payment to WestLB of its LC Percentage of such
drawing as provided above), shall each be deemed to have made a loan (each an
"Advance", and collectively, the "Advances") to the Company. Each such Advance
shall be applied (to the extent of such Advance) in satisfaction of the
Company's reimbursement obligation set forth in the first sentence of this
Section 3.01, and each Advance shall be repayable pursuant to, and shall
otherwise be subject to, the terms and conditions set forth herein.
Section 3.02. Repayment of Advances. The Company hereby agrees to pay to the Agent (i) immediately after any Advance is deemed
made pursuant to Section 3.01 above in respect of drawings under the Letter of Credit specified in Section 3.01(i) above, an amount equal to such Advance so made and (ii) on the Term Repayment Date, an amount equal to the Advances deemed made pursuant to Section 3.01 above in respect of drawings under the Letter of Credit specified in Section 3.01(ii) above together with interest thereon (a) from and including the date of such Advance to but excluding the Interest Increase Date, at a rate per annum equal to the Base Rate and (b) from and including the Interest Increase Date to but excluding the due date thereof, at a rate per annum equal to the Base Rate plus 2%. All payments of interest and principal on Advances shall be made to the Agent for distribution to the Banks pro rata on the basis of the amounts of their respective Advances.
Section 3.03. Overdue Interest. The Company hereby agrees to pay to WestLB or the Agent, as applicable, for the account of WestLB, the Agent or the Banks, as applicable, interest on any and all amounts required to be paid to WestLB, the Agent or the Banks under this Agreement (including, without limitation, under Article II hereof and under Sections 3.01(i) and 3.02(i) hereof but excluding amounts payable under Sections 3.01(ii) and 3.02(ii) hereof) from and after the due date thereof until payment in full, payable on demand, at a rate per annum equal to the Base Rate plus 2%; provided that notwithstanding the foregoing, with respect to the amounts payable pursuant to Sections 3.01(i) and 3.02(i) hereof, for the fifteen (15) day period immediately succeeding the due date in respect of such amounts, so long as no Default or Event of Default shall have occurred and be continuing during such period, the interest rate payable by the Company pursuant to this Section 3.03 shall be the Base Rate (it being understood that if any Default or Event of Default shall occur and be continuing at any time during such fifteen (15) day period, the interest rate payable by the Company during such fifteen (15) day period shall be the rate per annum equal to the Base Rate plus 2% per annum). In addition, the Company hereby agrees to pay to WestLB or the Agent, as applicable, for the account of WestLB or the Banks, as applicable, interest on any and all amounts required to be paid to WestLB or the Banks under Sections 3.01(ii) and 3.02(ii) hereof from and after the due date thereof until payment in full, payable on demand, at a rate per annum equal to 2% in excess of the interest rate payable with respect to such amounts immediately prior to such due date.
Section 3.04. Payments; Computations. All payments by the Company to WestLB or the Agent required to be made under this Agreement shall be made in lawful currency of the United States by wire transfer of immediately available funds to the offices of The Chase Manhattan Bank, located at One Chase Manhattan Plaza, New York, New York, for the account of Westdeutsche Landesbank Girozentrale, no. 920-1-060663 unless WestLB or the Agent, as the case may be, shall otherwise notify the Company in writing. All computations of amounts payable under this Agreement shall be computed, in the case of fees and commissions, on the basis of a year of 360 days and, in the case of interest, on the basis of a year of 365 (or 366, as the case may be) days, in each case for the actual number of days occurring in the period for which such fees, commissions or interest is payable. If any payment required to be made under this Agreement other than those payments required under Sections 2.04, 2.05 and 2.07 becomes due and payable on a day other than a Business Day, the same shall be payable on the next succeeding Business Day, and interest shall be
payable at the rate otherwise applicable thereto on any such payment to the Business Day on which such payment is made.
Section 3.05. Payments to Banks. The Agent agrees that promptly after its receipt of each payment from or on behalf of the Company in respect of any Obligations of the Company hereunder, it shall distribute such payment to the Banks pro rata based upon their respective shares, if any, of the Obligations with respect to which such payment was received.
Section 3.06. Sharing Provision. Each of the Banks agrees that if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right or set off or banker's lien, by counterclaim or cross action, by the enforcement of any right hereunder or under any other Operative Document, or otherwise), which is applicable to the payment of the principal of, or interest on, the Advances or any other amount otherwise payable under this Agreement, and which is of a sum which, with respect to the related sum or sums received by the other Banks, is in a greater proportion than that which the total amount of such Obligation then owed and due to such Bank bears to the total amount of such Obligation then owed and due to all of the Banks immediately prior to such receipt, then such Bank receiving such excess payment shall purchase for cash without recourse or warranty from the other Banks an interest in the Obligations of the Company to such Banks in such amount as shall result in a proportional participation by all the Banks in such amount; provided, however, that if all or any portion of such excess amount is thereafter recovered from such Bank, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
Section 3.07. Obligations Absolute. The obligations of the Company under this Agreement shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances whatsoever, notwithstanding, without limitation, the following:
(i) any lack of validity or enforceability of the Letter of Credit, the Bonds, any Operative Document or any other instrument or agreement related thereto;
(ii) any amendment or waiver of or any consent to departure from all or any of the Operative Documents, the Letter of Credit or the Bonds;
(iii) the existence of any claim, set off, defense or other rights which the Company may have at any time against the Issuer, the holders of the Bonds, any beneficiary or transferee of the Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), the Agent, WestLB, the Banks (other than the defense of indefeasible payment to the Agent, WestLB or the Banks, as applicable, in accordance with the terms of this Agreement) or any other Person, whether in connection with the Bonds, the Letter of Credit, any Operative Document or any other related or unrelated document or transaction;
(iv) any statement or any document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement or information therein being untrue or inaccurate in any respect whatsoever;
(v) payment by WestLB under the Letter of Credit against presentation of a sight draft or certificate which does not comply with the terms of the Letter of Credit, provided that such payment shall not have constituted gross negligence or willful misconduct of WestLB; and
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, provided that such other circumstance or happening shall not have been the result of gross negligence or willful misconduct of the Agent, WestLB or the Banks.
ARTICLE IV
PREPAYMENTS; ESCROW BONDS
Section 4.01. Prepayments. Any amounts from time to time owing to the Banks pursuant to Section 3.02(ii) hereof may be prepaid (i) at any time by the Company on one Business Day's notice stating the amount to be prepaid (which shall be $100,000 or any integral multiple of $5,000 in excess thereof) and (ii) at any time in connection with a remarketing of Bonds pursuant to Section 13.06 of the Indenture.
Section 4.02. Release of Escrow Bonds. Upon payment to the Agent of the amount to be prepaid pursuant to clause (i) or (ii) of Section 4.01 (the "Prepayment Amount"), together with accrued interest, as set forth in Section 3.02(ii), to the date of such prepayment on the amount to be prepaid, the outstanding obligations of the Company under Section 3.02(ii) shall be reduced by the amount of such prepayment and interest shall cease to accrue on the amount prepaid. In addition, upon payment to the Agent of the Prepayment Amount and the amount owing, if any, in respect of the "C Drawing" made in conjunction with the "A Drawing" to which such Prepayment Amount relates, the Agent shall direct the Tender Agent to release Escrow Bonds in an aggregate principal amount equal to the Prepayment Amount, all in accordance with the provisions of Section 7(b) of the Tender Agreement.
ARTICLE V
CONDITIONS PRECEDENT
The obligation of WestLB to issue the Letter of Credit is subject to the following conditions:
Section 5.01. Delivery of Bonds and Operative Documents. The Operative Documents and the Bonds shall each have been
executed and delivered by the respective parties thereto, shall each be in full force and effect, and shall each be in form and substance satisfactory to the Agent, WestLB and each Bank. The Agent shall have received (with sufficient copies for WestLB and each Bank) an executed or conformed copy of each Operative Document and a specimen copy of the Bonds.
Section 5.02. Intentionally Omitted.
Section 5.03. Receipt of Documents. The Agent shall have received (with sufficient copies for WestLB and each Bank), on or before the Date of Issuance, the following, in form and substance satisfactory to the Agent, WestLB and each Bank:
(i) copies of the resolutions of the Board of Directors of the Company or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Agreement, certified by the President, any Vice President, the chief financial officer, the Secretary-Treasurer or an Assistant Secretary of the Company;
(ii) an Officer's Certificate, certifying the names and true signatures of the officers of the Company authorized to sign this Agreement, and the other documents to be delivered hereunder;
(iii) an opinion of (a) Baker & Botts, L.L.P. special counsel to the Company, substantially in the form of Exhibit B-1 attached hereto, and (b) William O. Bonin, special Louisiana counsel to the Company, substantially in the form of Exhibit B-2 attached hereto, in each case dated the Date of Issuance, addressed to WestLB, the Agent and the Banks;
(iv) a copy of the Reoffering Supplement which includes, as an attachment thereto, the Official Statement;
(v) a copy of the restated articles of incorporation of the Company, certified as of a recent date by the Secretary of State of the State of Louisiana, together with a certificate of good standing for the Company, dated as of a recent date.
(vi) a letter from the Process Agent, in a form reasonably satisfactory to the Agent, indicating the consent by the Process Agent to its appointment by the Company as its agent to receive service of process as specified in Section 11.09 hereof;
(vii) copies of the by-laws of the Company, certified as of the Date of Issuance by the President, any Vice President, the chief financial officer, the Secretary-Treasurer or an Assistant Secretary of the Company;
(viii) an opinion (or a signed copy of such opinion together with a satisfactory reliance letter) of Foley & Judell L.L.P.,
Bond Counsel, dated the Date of Issuance, addressed to WestLB, the Agent and the Banks and in form and substance satisfactory to WestLB, the Agent and the Banks, to the effect that the delivery of the Letter of Credit does not conflict with the laws of the State of Louisiana, is permitted by the Indenture and the Refunding Agreement, complies with the terms of the Indenture and the Refunding Agreement and will not adversely affect any exclusion from gross income for federal income tax purposes of interest on the Bonds;
(ix) an Officer's Certificate, dated the Date of Issuance, substantially in the form of Exhibit C attached hereto; and
(x) copies of written evidence from Moody's and S&P pursuant to
Section 3.01(a) of the Indenture; and
(xi) such other information, documents, instruments, approvals and opinions as WestLB, the Agent or any Bank or any of their respective counsel may reasonably request.
Section 5.04. Representations and Warranties; Defaults. The following statements shall be true and correct on the Date of Issuance and the Agent shall have received (with sufficient copies for WestLB and each Bank) an Officer's Certificate, dated the Date of Issuance, stating that:
(i) on the Date of Issuance, both before and after giving effect to the execution and delivery of this Agreement and the issuance of the Letter of Credit, all representations and warranties made by the Company in Article VI of this Agreement and in each other Operative Document to which it is a party, and all representations and warranties otherwise made by the Company in writing in connection herewith or with any other Operative Document to which it is a party, are true and correct on and as of the Date of Issuance as though made on and as of such date; and
(ii) on the Date of Issuance, both before and after giving effect to the execution and delivery of this Agreement and the issuance of the Letter of Credit, there exists no Default or Event of Default.
Section 5.05. Certain Other Matters. On and as of the Date of Issuance:
(i) there shall be no order or other restrictions in effect issued by any court, governmental or regulatory agency or arbitrator against or directly involving any party to any Operative Document or the Bonds which prevents such party from performing any of its obligations under such Operative Document or the Bonds;
(ii) each Person party to an Operative Document or the Bonds shall have received all necessary governmental,
regulatory and third party consents and approvals required to be obtained by such Person in order to consummate the transactions contemplated by the Operative Documents and the Bonds, including, in the case of the Company and without limitation, the approval of the Louisiana Public Service Commission in respect of the transactions contemplated in connection with the issuance of the Bonds and the consummation of the transactions contemplated by this Agreement.
(iii) simultaneously with the issuance of the Letter of Credit, all of the conditions specified in the Other Reimbursement Agreements for the issuance of the Other Letters of Credit shall have been satisfied (or waived by the Required Banks (as defined therein)), and the Other Letters of Credit shall have been issued simultaneously with the issuance of the Letter of Credit to the beneficiary thereof pursuant to the terms of the Other Reimbursement Agreements;
(iv) there shall have been no material adverse change in the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole since December 31, 1996; and
(v) the Agent, WestLB and the Banks shall have received all fees set forth or referred to in Article II hereof that shall be due and payable on or before the Date of Issuance.
Section 5.06. Proceedings. All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement and the other Operative Documents shall be satisfactory in form and substance to the Agent, WestLB, the Banks and their respective counsel, and each of the Agent, WestLB and the Banks shall have received all information and copies of all documents, including records of corporate proceedings, governmental approvals, incumbency certificates, and opinions which any of them may have reasonably requested in connection with the transactions contemplated by this Agreement and the other Operative Documents, such documents where appropriate to be certified by proper officers.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, WestLB and each of the Banks to enter into this Agreement, and in order to induce WestLB to issue the Letter of Credit, the Company makes the following representations and warranties to the Agent, WestLB and each of the Banks, which representations and warranties shall survive the execution and delivery of this Agreement and the Letter of Credit, regardless of any investigation made by or on behalf of the Agent, WestLB or any of the Banks:
Section 6.01. Due Organization, Etc. Each of the Company and its Subsidiaries (i) is a duly organized and validly existing corporation in good standing under the laws of the jurisdiction of its incorporation and (ii) has all requisite corporate power and authority to own its property and assets and to transact its business as presently conducted.
Section 6.02. No Conflicts. The execution, delivery and
performance by the Company of this Agreement and each of the other Operative
Documents to which it is a party (i) are within the Company's corporate power,
(ii) have been duly authorized by all necessary corporate action on the part of
the Company, (iii) do not and will not require any consent or approval of any
class of stockholders of the Company, (iv) do not and will not (a) contravene
the charter or by-laws of the Company or (b) contravene any applicable law,
rule, regulation (including, without limitation, Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System or any rules or regulations of
the Louisiana Public Service Commission), order, writ, judgment, injunction or
decree presently in effect having applicability to the Company or any of its
Subsidiaries, (v) except as required by the provisions of the Refunding
Agreement, do not and will not result in or require the creation of any Lien
upon or with respect to any of the properties of the Company or any of its
Subsidiaries and (vi) do not and will not result in the violation of or be in
conflict with or result in a default under or breach or termination of any term
or provision of any mortgage, lease, agreement, indenture, contract, instrument
or other document to or by which the Company or any of its Subsidiaries is a
party or otherwise bound or to which any of the assets or properties of the
Company or any of its Subsidiaries are subject, except any such violation,
conflict, default, breach or termination referred to in this clause (vi) which,
individually or in the aggregate, (a) would not affect the legality, validity,
enforceability or binding effect of the Bonds, this Agreement or any of the
other Operative Documents and (b) would not have a material adverse effect on
the business, operations, condition (financial or otherwise) or prospects of
the Company or of the Company and its Subsidiaries taken as a whole.
Section 6.03. Due Authorization. No order, authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Company of this Agreement or any of the other Operative Documents to which it is a party, other than any of the foregoing which shall have been previously obtained or made by the Company and which are currently in full force and effect. The Louisiana Public Service Commission has duly issued its order authorizing the Company to enter into this Agreement and the other Operative Documents to which it is a party and to take all action contemplated hereby and thereby or in connection herewith or therewith, and such orders remain in full force and effect in the forms originally issued.
Section 6.04. Enforceability. This Agreement and each of the other Operative Documents to which the Company is a party constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
Section 6.05. Litigation. There are no actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries or any of their respective properties or
rights, or involving any of the Operative Documents, before any court,
administrative, governmental or regulatory agency or arbitrator, and there is no
pending or, to the knowledge of the Company, proposed legislative, regulatory,
rule-making, rate-setting or investigatory proceeding before any federal, state,
county or municipal government, department, commission, board or agency or any
other instrumentality of any of them involving or affecting the Company, any of
its Subsidiaries or the Issuer, in any case which (i) alone or together with
others would, if adversely determined, have a material adverse effect on the
business, operations, condition (financial or otherwise) or prospects of the
Company or of the Company and its Subsidiaries taken as a whole (except that for
the purposes of this clause (I) an earnings review or the commencement by the
Company of rate increase proceedings with the Louisiana Public Service
Commission or the Federal Energy Regulatory Commission shall not constitute such
a pending or threatened action or proceeding unless and until such commission's
determination is made thereunder that has such a material adverse effect) or
(ii) questions the legality, validity, enforceability or binding effect of the
Bonds, this Agreement or any other Operative Document or would impair materially
the Company's ability to perform its obligations under this Agreement or any of
the other Operative Documents to which it is a party.
Section 6.06. Compliance with ERISA. With respect to each Plan,
other than a multiemployer plan as defined in Section 4001(a)(3) of ERISA, (i)
each such Plan is in substantial compliance with ERISA and the Code; (ii) no
Reportable Event has occurred; (iii) no such Plan has an Unfunded Current
Liability which could have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of the Company or of
the Company and its Subsidiaries taken as a whole; (iv) no such Plan has an
accumulated or waived funding deficiency; (v) no such Plan has applied for an
extension of any amortization period under Section 412(a) of the Code; (vi) no
proceedings have been instituted to terminate any such Plan nor, to the
knowledge of the Company, does there exist reason for the PBGC to attempt to
take possession of or terminate any such Plan under Section 4042 of ERISA; and
(vii) there has been no withdrawal from any such Plan so as to result in
liability for the Company or any ERISA Affiliate under any of Sections 4062(e)
or 4063 of ERISA. With respect to Plans that are multi employer plans within the
meaning of Section 4001(a)(3) of ERISA, (a) no such Plan is insolvent or in
reorganization; (b) neither the Company nor any ERISA Affiliate has any
liability under Section 515 with respect to such Plan except for good faith
disputes concerning the amount of such liability; and (c) neither the Company
nor any ERISA Affiliate has withdrawn or partially withdrawn from any such Plan
and as a result thereof incurred any liability under Sections 4201 or 4204 of
ERISA. Neither the Company nor any of its Subsidiaries nor any ERISA Affiliate
expects to incur any material liability to or on account of a Plan pursuant to
Section 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA. No lien imposed under the
Code or ERISA on the assets of the Company or any of its Subsidiaries or any
ERISA Affiliate exists. Neither the Company nor any of its Subsidiaries nor any
ERISA Affiliate maintains or contributes to any employee welfare benefit plan as
defined in Section 3(1) of ERISA which provides benefits to retired employees
(other than as required by Section 601 of
ERISA) the obligations with respect to which could have a material adverse effect on the ability of the Company to perform any of its obligations under this Agreement.
Section 6.07. No Defaults. Neither the Company nor any of its Subsidiaries is in default under or breach of (nor does any circumstance or occurrence exist which, with the passage of time or the giving of notice or both, would constitute a default under or breach of) any mortgage, lease, agreement, indenture, contract, instrument or other document to which it is a party or to which it or any of its properties may be bound, other than any such breach or default which would not, individually or in the aggregate, have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 6.08. Financial Statements. The Company has furnished, or caused to be furnished, to the Agent, with sufficient copies for WestLB and each Bank, the following financial statements: (i) the consolidated balance sheets of the Company and its Subsidiaries as at December 31, 1995 and December 31, 1996, and the related consolidated statements of income and changes in shareholders' equity and of cash flows for the fiscal years ended as of such dates, which, in each case, have been certified by Coopers & Lybrand L.L.P., independent certified public accountants for the Company; and (ii) the consolidated balance sheets of the Company and its Subsidiaries as at June 30, 1995 and June 30, 1996, and the related consolidated statements of income and of cash flows for the six months ended as of such dates, which, in each case, have been prepared by the Company. Such financial statements (including any related schedules and/or notes thereto) have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as otherwise set forth in the notes to said financial statements) and reflect all liabilities, direct and contingent, of the Company and its Subsidiaries required to be shown in accordance with such principles. Such financial statements fairly present the consolidated financial condition of the Company as at the dates thereof and the consolidated results of operations and cash flows for the periods indicated (subject, as to any interim statements, to normal year end adjustments). There has been no material adverse change in the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole since December 31, 1996.
Section 6.09. Taxes. Each of the Company and its Subsidiaries has filed all federal and state income tax returns which are required to be filed by it, and each has paid all taxes as shown on such returns and on all assessments received by it except to the extent that such taxes have not become due and other than taxes the amount or validity of which are currently being contested in good faith by appropriate proceedings with respect to which reserves in accordance with general accepted accounting principles have been provided.
Section 6.10. Disclosure. Intentionally Omitted.
Section 6.11. Title to Property. Each of the Company and its
Subsidiaries has good and marketable title to all of its material real
properties and good title to all of its other material properties and assets,
free and clear of all Liens, other than those permitted to exist pursuant to
Section 8.04.
Section 6.12. Environmental and Other Matters. Each of the Company and its Subsidiaries is in compliance with all applicable statutes, rules and regulations governing pollution and environmental control, equal employment opportunity and employee safety in all jurisdictions in which it is doing business, other than such noncompliances which, individually or in the aggregate, would not have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole. No Lien in favor of any governmental authority has been asserted or recorded under any statute, rule or regulation, governing pollution and environmental control with respect to any of the assets or properties of the Company or any of its Subsidiaries.
Section 6.13. Operative Documents. The Company makes to WestLB, the Agent and each of the Banks each of the representations and warranties made by it in each of the other Operative Documents to which it is a party to the same extent as if the same were set forth at length herein. There is no default by the Company or, to the knowledge of the Company, by any other Person under any of the other Operative Documents.
Section 6.14. Margin Stock. The Company is not principally engaged in, nor does it have as one of its principal activities, the business of extending credit for the purpose of purchasing or carrying any "margin stock" (as such term is defined in Regulation U of the Board of Governors of the Federal Reserve System). None of the proceeds of the Bonds or of any drawing under the Letter of Credit will be used, directly or indirectly, to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock.
Section 6.15. Investment Company. The Company is not an "investment company", as defined in the Investment Company Act of 1940, as amended.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Company covenants that, from and after the Date of Issuance until such time as the Letter of Credit is no longer outstanding and all Obligations are paid in full:
Section 7.01. Preservation of Corporate Existence. Subject to
Section 8.01 hereof, the Company will, and will cause each of its Subsidiaries
to, (i) preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation and (ii) qualify and remain
qualified as a foreign
corporation in good standing in each jurisdiction where the operation of its businesses or the ownership of its assets requires such qualification; provided, however, that the Company and its Subsidiaries will not be required to preserve any such right, franchise, privilege or qualification if the Company or any such Subsidiary determines that the preservation thereof is no longer desirable or, in the case of qualification, required, and determines that the loss of such rights, franchises, privileges or qualifications will not have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 7.02. Compliance with Law; Environmental and Other Matters. The Company will, and will cause each of its Subsidiaries to, comply with the requirements of all applicable laws, rules, regulations and orders of any governmental authority having jurisdiction over it (including, without limitation, ERISA and the statutes, rules and regulations thereunder and all statutes, rules and regulations governing pollution and environmental control, equal employment opportunity and employee safety), except for such noncompliances which, individually or in the aggregate, would not have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 7.03. Performance of Agreements. The Company will, and will cause each of its Subsidiaries to, observe and perform (i) with respect to the Company, all of its obligations under this Agreement and the other Operative Documents to which it is a party and (ii) with respect to the Company and its Subsidiaries, all of their respective obligations under each mortgage, lease, agreement, indenture, contract, instrument or other document to which it is or may become a party or by which it is or may become bound, except such non-observance or non-performance which would not, individually or in the aggregate, have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 7.04. Maintenance of Insurance. The Company will, and will cause each of its Subsidiaries to, maintain insurance with responsible and reputable insurance companies in such amounts, with such deductibles and covering such risks as is usually maintained by companies conducting similar businesses and owning similar properties.
Section 7.05. Furnishing of Information. The Company will, for
itself and on behalf of each of its Subsidiaries, furnish to the Agent, WestLB
and each Bank the following: (i) immediately following the occurrence of any
Default or Event of Default, an Officer's Certificate setting forth details of
such Default or Event of Default, the period of existence thereof and the action
proposed to be taken by the Company or such Subsidiary with respect thereto and
(ii) such other information respecting the business, operations, condition
(financial or otherwise) or prospects of the Company or any of its Subsidiaries
as WestLB, the Agent or any Bank may from time to time reasonably request.
Section 7.06. ERISA. The Company will, and will cause each of its
Subsidiaries and ERISA Affiliates to, as soon as possible and in any event
within ten days after the Company or any of its Subsidiaries or ERISA Affiliates
knows of the occurrence of any of the following, deliver to the Agent, with
sufficient copies for WestLB and each Bank, a certificate of the chief financial
officer of the Company, setting forth details as to such occurrence and the
action, if any, which the Company, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by the Company, such Subsidiary, such ERISA
Affiliate, the PBGC, a Plan participant or the Plan Administrator with respect
thereto: (i) the occurrence of a Reportable Event; (ii) the existence of an
accumulated funding deficiency; (iii) the making of an application to the
Secretary of the Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or extension of any
amortization period under Section 412 of the Code with respect to a Plan; (iv)
the termination, reorganization, partition or declaration of insolvency under
Title IV of ERISA of a Plan; (v) the existence of an Unfunded Current Liability
with respect to a Plan which has resulted in a lien being imposed under ERISA or
the Code with respect to the Company or any of its Subsidiaries or ERISA
Affiliates; (vi) the institution of proceedings to terminate a Plan; (vii) the
institution of a proceeding pursuant to Section 515 of ERISA to collect
delinquent contributions from the Company or any of its Subsidiaries or ERISA
Affiliates; or (viii) the incurrence of any liability (including any contingent
or secondary liability) by the Company or any of its Subsidiaries or ERISA
Affiliates to or on account of the termination or withdrawal from a Plan under
Sections 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA; provided, however, that,
with respect to any person (as defined in Section 3(9) of ERISA) that is an
ERISA Affiliate only within the meaning of Section 414(m) or 414(o) of the Code,
the Company need only use its best efforts to cause such person to deliver such
certificate and notices. The Company will deliver and, with respect to any
person (as defined in Section 3(9) of ERISA) that is an ERISA Affiliate only
within the meaning of Section 414(m) or 414(o), will use its best efforts to
obtain and deliver, to the Agent, with sufficient copies for WestLB and each
Bank, a complete copy of the annual report (Form 5500) of each Plan required to
be filed with the Internal Revenue Service. Copies of annual reports and any
notices received by the Company, any of its Subsidiaries or any ERISA Affiliates
with respect to any Plan shall be delivered to the Agent no later than ten days
after the later of the date such report or notice has been filed with the
Internal Revenue Service or received by the Company, such Subsidiary or such
ERISA Affiliate; provided, however, that, with respect to any person (as defined
in Section 3(9) of ERISA) that is an ERISA Affiliate only within the meaning of
Section 414(m) or Section 414(o) of the Code, the Company need only use its best
efforts to obtain such report or notice.
Section 7.07. Financial Statements. The Company will deliver, or cause to be delivered, to the Agent, with sufficient copies for WestLB and each Bank, in each case in duplicate: (i) as soon as available and in any event within 60 days after the end of each fiscal quarterly period in each fiscal year of the Company, a consolidated balance sheet of the Company and the related consolidated statements of income and cash flows of the Company for such period and for the period from the beginning of the then current fiscal year to the end of such fiscal quarterly period, setting forth in each case
in comparative form the figures for the corresponding periods for the previous
fiscal year, in each case certified by the chief financial officer or chief
accounting officer of the Company as fairly presenting the consolidated
financial condition of the Company as at such date and the consolidated results
of operations and cash flows of the Company for the period ended on such date,
all in accordance with generally accepted accounting principles consistently
applied, subject to normal year-end audit adjustments, (ii) as soon as available
and in any event within 120 days after the end of each fiscal year of the
Company, a consolidated balance sheet of the Company and the related
consolidated statements of income and changes in shareholders' equity and cash
flows of the Company for such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year, in each case
certified by Coopers & Lybrand L.L.P. or such other nationally recognized
independent certified public accountants acceptable to the Required Banks whose
certificate shall be reasonably satisfactory to WestLB and the Required Banks,
(iii) promptly after receipt thereof, copies of the material portion of any
detailed reports submitted to the Company or any of its Subsidiaries by its
independent accountants in connection with each annual or interim audit of the
accounts of the Company or its Subsidiaries relating to the business,
operations, condition (financial or otherwise) or prospects of the Company or
its Subsidiaries, (iv) promptly, and in any event within ten (10) days after an
officer of the Company obtains knowledge thereof, notice of any litigation or
governmental or regulatory proceedings pending against the Company or any of its
Subsidiaries which, individually or in the aggregate, would have a material
adverse effect on the business, operations, condition (financial or otherwise)
or prospects of the Company or of the Company and its Subsidiaries taken as a
whole, or otherwise pending with respect to the Bonds or any Operative Document,
(v) promptly, and in any event within ten (10) days after an officer of the
Company obtains knowledge thereof, notice of any event not otherwise specified
in clause (iv) above which, individually or in the aggregate, would have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole, (vi) promptly after the sending or filing thereof, copies of
all reports and registration statements (including without limitation Forms 10-K
and 10Q) which the Company sends to any of its security holders or which the
Company or any of its Subsidiaries files with Securities and Exchange Commission
or any national securities exchange, (vii) promptly upon the written request of
the Agent, WestLB or any Bank, copies of any report, application, petition or
other similar document which the Company or any of its Subsidiaries sends to or
files with the Federal Energy Regulatory Commission or the Louisiana Public
Service Commission, and (viii) such other financial information as the Agent,
WestLB or any Bank may reasonably request. Together with each delivery of
financial statements required by clauses (i) and (ii) above, the Company shall
deliver to the Agent, with sufficient copies for WestLB and each Bank, (a) an
Officer's Certificate stating that there exists no Default or Event of Default
or, if any such Default or Event of Default exists, stating the nature thereof,
the period of existence thereof and what action the Company proposes to take
with respect thereto and (b) a certificate prepared and certified by the chief
financial officer of chief accounting officer of the Company setting forth the
calculations required to establish whether the Company is in compliance with the
provisions of Sections 8.05 and 8.06 hereof at the end of such fiscal quarter or
fiscal year, as the case may be. The Agent, WestLB and the Banks are hereby
authorized to
deliver a copy of any financial statement or other document delivered to them pursuant to this Section 7.07 to any regulatory body having jurisdiction over them and to any prospective Participant in their interest herein or in the Letter of Credit.
Section 7.08. Inspection. The Company will, and will cause each of its Subsidiaries to, permit officers and designated representatives of the Agent, WestLB or any Bank to visit and inspect, at such Person's own expense, any of the properties of the Company or any of its Subsidiaries, to examine the corporate books and financial records of such entities and make copies thereof or extracts therefrom, and to discuss the affairs, finances and accounts of any of such entities with the principal officers and the internal and independent accountants of such entities, all upon reasonable prior notice and during regular business hours and as often as the Agent, WestLB or such Bank may reasonably request.
Section 7.09. Payment of Taxes, Etc. The Company will, and will cause each of its Subsidiaries to, pay and discharge all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, and all lawful claims which, if unpaid, would become a Lien upon any of its properties, in each case at such time as such taxes, assessments, governmental charges, levies or claims shall become due and payable; provided, however, that neither the Company nor any of its Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by appropriate proceedings and as to which appropriate reserves are being maintained in accordance with generally accepted accounting principles.
Section 7.10. Maintenance of Property. The Company will, and will cause each of its Subsidiaries to, keep all property that is useful and necessary in its business in good working order and condition, ordinary wear and tear excepted.
Section 7.11. Certain Notices. The Company will furnish to the Agent, with sufficient copies for WestLB and each Bank, a copy of any notice, certification, demand or other writing or communication given or received by the Company under or in connection with the Bonds or any of the other Operative Documents, in each case promptly after the receipt or giving of the same.
ARTICLE VIII
NEGATIVE COVENANTS
The Company covenants that, from and after the Date of Issuance and until such time as the Letter of Credit is no longer outstanding and all Obligations are paid in full:
Section 8.01. Consolidation, Merger, Sale of Assets, Etc. The Company will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of, whether in a single transaction or a series of related transactions, more than 5% of the consolidated total assets of the Company and its Subsidiaries as of the date of any such conveyance, sale, lease or other disposition, to any Person, or agree to do any of the foregoing at any future time; provided, however, that nothing contained in this Section 8.01 shall prohibit (i) a consolidation or merger of two or more Subsidiaries, (ii) a consolidation or merger of one or more Subsidiaries with or into the Company, if the Company is the surviving corporation, (iii) a consolidation or merger of another Person into the Company or a Subsidiary if the Company or a Subsidiary is the surviving Person, (iv) the conveyance, sale, lease or other disposition of assets of a Subsidiary to the Company or another Subsidiary, (v) the sale or other disposition of any Subsidiary in which the Company has made no capital investment (either by cash contribution, contribution of assets or otherwise), (vi) sales by the Company or a Subsidiary of its accounts receivable or other receivables or sales of undivided interests in such accounts receivable and other receivables or (vii) the sale or other disposition of pollution control facilities in connection with the issuance by a governmental entity of pollution control bonds substantially all of the proceeds of the sale of which are received by the Company.
Section 8.02. Redemption or Purchase of Bonds; Adjustment of Interest Rate Periods. The Company will not, without the prior consent of the Required Banks, such consent not to be unreasonably withheld, (i) take any action to cause a redemption of any of the Bonds, (ii) take any action to cause the Interest Rate Period (as defined in the Indenture) in respect of the Bonds to be adjusted or otherwise changed to a Short Term Interest Rate Period or a Long-Term Interest Rate Period (as defined in the Indenture) or (iii) take any affirmative action to purchase, or to permit any of its Subsidiaries to purchase, any of the Bonds.
Section 8.03. Amendment of Operative Document. The Company will not, without the prior written consent of the Required Banks, terminate or amend or consent to the termination or amendment of any of the terms or provisions of the Bonds or any Operative Document.
Section 8.04. Liens. The Company will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or personal, tangible or intangible) of the Company or any of its Subsidiaries, whether now owned or hereafter acquired, provided, however, that the provisions of this Section 8.04 shall not prevent the creation, incurrence, assumption or existence of:
(i) Liens to secure the CLECO Mortgage;
(ii) the following "permitted liens" pursuant to Section 1.04 of the CLECO Mortgage as presently in effect: (a) liens for taxes, assessments or governmental charges not then delinquent; (b) the lien of taxes, assessments or governmental charges due, or to become due, the validity of which is being contested at the time by the Company in good faith and, if necessary, by appropriate legal proceedings, provided that the Company shall have made such provision as may be
required by the trustee under the CLECO Mortgage for the payment of any
amount or the giving of such security as shall be required to prevent
the loss or forfeiture of any of the mortgaged and pledged property, and
for the payment of the amount of any such taxes, assessments or
governmental charges as shall ultimately be determined to be due and
payable; (c) any liens, the Indebtedness secured by which has not been
assumed by the Company and on which it does not customarily pay interest
charges, existing upon real estate or rights in or relating to real
estate acquired by the Company for substation, transmission lines,
distribution lines, pipelines, water mains, or right-of-way purposes or
for storeroom or service buildings incidental to any of the foregoing;
(d) rights reserved to or vested in any municipality or public authority
by the terms of any right, power, franchise, grant, license, permit or
by any provision of law to terminate such right, power, franchise,
grant, license or permit or to purchase, condemn or recapture or to
designate a purchaser of any of the property of the Company; (e) leases,
easements, restrictions, exceptions or reservations in any property of
the Company created at or before the acquisition thereof by the Company
for the purpose of roads, water mains, pipe lines, transmission lines,
distribution lines or for the joint or common use of real property and
equipment and other like purposes, and other minor defects and
irregularities of title in any property, in any case which do not
materially impair the use of such property in the operation of the
business of the Company or which the Company itself has power to cure by
appropriate legal proceedings; (f) rights reserved to or vested in any
municipality or public authority to use or control or regulate any
property of the Company; (g) any obligations or duties affecting the
property of the Company to any municipality or public authority with
respect to any franchise, grant, license or permit; (h) undetermined
liens and charges incidental to construction, except such as may result
from any delinquent obligation of the Company for the payment of money
on account of such construction; (i) funded liens; or (j) obligations
arising under agreements or otherwise relating to the ownership by the
Company of an undivided interest in real or personal property;
(iii) Liens on any property acquired, constructed or improved by the Company or any of its Subsidiaries after the date of this Agreement which are created or assumed contemporaneously with, or within 120 days after, such acquisition or completion of such construction or improvement, or within six months thereafter pursuant to a firm commitment for financing arranged with a lender or investor within such 120-day period, to secure or provide for the payment of all or any part of the purchase price of such property or the cost of such construction or improvement incurred after the date of this Agreement, or, in addition to Liens contemplated by clauses (iv) and (v) below, Liens on any property existing at the time of acquisition thereof, provided that the Liens shall not apply to any property theretofore owned by the Company or any of its Subsidiaries other than, in the case of any such construction or improvement, any theretofore unimproved real property on which the property so constructed or the improvement is located;
(iv) existing Liens on any property or indebtedness of a corporation which is merged with or into or consolidated
with the Company or any of its Subsidiaries;
(v) Liens on property or indebtedness of a corporation existing at the time such corporation becomes a Subsidiary of the Company;
(vi) Liens to secure Indebtedness of a Subsidiary to the Company or to another of its Subsidiaries;
(vii) Liens in favor of the United States of America, any state, any foreign country or any department, agency or instrumentality or political subdivision of any such jurisdiction, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any Indebtedness incurred for the purpose of financing all or any part of the purchase price of the cost of constructing or improving the property subject to such Liens, including, without limitation, Liens to secure pollution control or industrial revenue bond type Indebtedness;
(viii) Liens to secure sales by the Company or any of its Subsidiaries of accounts receivable or other receivables or sales of undivided interests in such accounts receivable and other receivables provided that such liens apply only to the accounts receivable sold and related security;
(ix) Liens on any property (including any natural gas, oil or other mineral property) to secure all or part of the cost of exploration, drilling or development thereof or to secure Indebtedness incurred to provide funds for any such purpose;
(x) Liens existing on the date of this Agreement and set forth on Schedule II attached hereto;
(xi) Liens consisting of (a) pledges or deposits in the ordinary
course of business to secure obligations under worker's compensation
laws or similar legislation, including liens of judgments thereunder
which are not currently dischargeable, (b) deposits in the ordinary
course of business to secure, or in lieu of, surety, appeal, or customs
bonds to which the Company is a party, (c) Liens created by or resulting
from any litigation or legal proceeding which is currently being
contested in good faith by appropriate proceedings diligently conducted,
(d) pledges or deposits in the ordinary course of business to secure
performance in connection with bids, tenders or contracts (other than
contracts for the payment of money) or (e) materialmen's, mechanics',
carriers', worker's, repairmen's or other like liens incurred in the
ordinary course of business for sums not yet due or currently being
contested in good faith by appropriate proceedings diligently conducted,
or deposits to obtain the release of such liens;
(xii) Liens for the sole purposes of extending, renewing or replacing in whole or in part Indebtedness secured by any
Lien referred to in the foregoing clauses (i) to (xi), inclusive, or this clause (xii); provided, however, that the principal amount of Indebtedness secured thereby shall not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacement plus the amount of any redemption or repurchase premiums incurred in retiring such Indebtedness, and that such extension, renewal or replacement shall be limited to all or a part of the property or indebtedness which secured the Lien so extended, renewed or replaced (plus improvements on such property); and
(xiii) Liens not otherwise permitted by foregoing clauses (i) to
(xii), inclusive, to the extent such Liens encumber, in the aggregate,
no more than 5% of Consolidated Net Tangible Assets.
Section 8.05. Interest Coverage Ratio. The Company will not permit the ratio of EBITDA to Consolidated Interest Expense at any time (determined in each instance using the most recently completed 12-month period for which the relevant financial information is available) to be less than 2.00 to 1.00.
Section 8.06. Tangible Net Worth Ratio. The Company will not, at any time, permit Consolidated Tangible Net Worth to be less than 35% of Total Capitalization.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01. Events of Default. If any of the following events (each an "Event of Default") shall occur and be continuing:
(i) any representation or warranty made by the Company in this Agreement or in any of the other Operative Documents or in any writing furnished in connection with or pursuant to this Agreement or any other Operative Document shall be false or incomplete in any material respect when made or deemed made; or
(ii) the Company shall fail to make any payment required to be made by it when due hereunder (including, without limitation, pursuant to Article II or Article III hereof) or under any or the Operative Documents; or
(iii) the occurrence of an "event of default" as described and defined in the Indenture or the Refunding Agreement; or
(iv) the occurrence of an "event of default" as described and defined in either of the Other Reimbursement Agreements; or
(v) the Company shall fail to perform or observe any of the terms of Article VIII hereof; or
(vi) the Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the Operative Documents on its part to be performed or observed and (a) with respect to any such term, covenant or agreement contained herein, any such failure remains unremedied for 30 days, and (b) with respect to any such term, covenant or agreement contained in any of the other Operative Documents, any such failure remains unremedied after any applicable grace period specified in such Operative Document; or
(vii) any material provision of the Bonds, this Agreement or any other Operative Document shall at any time for any reason cease to be valid and binding on any party hereto or thereto (other than the Agent, WestLB or any Bank), or shall be declared to be null and void, or any such party (other than the Agent, WestLB or any Bank) shall contest the validity or enforceability thereof, or the Company shall deny that it has any further liability or obligation with respect to the Bonds, this Agreement or any other Operative Document to which it is a party; or
(viii) the Company or any of its Subsidiaries shall default in any payment of principal of or premium, if any, or interest on any Indebtedness of the Company or such Subsidiary (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) having an original aggregate principal amount in excess of $5,000,000, and such default shall continue beyond any period of grace provided with respect thereto, or the Company or any of its Subsidiaries shall default in the performance or observance of any other agreement, term or condition contained in any agreement under which any such Indebtedness is created (or if any other event of default thereunder or under such agreement shall occur and be continuing) and the effect of any such default is to cause, or as a result thereof the holder or holders of such obligation (or a trustee on behalf of such holder or holders) shall have caused or shall be entitled to cause, such obligation to become due prior to the stated maturity thereof; or
(ix) the Company or any of its Subsidiaries pursuant to or within the meaning of any Bankruptcy Law commences a voluntary case, admits in writing its inability to pay its debts generally as they become due, consents to the appointment of a Custodian of it or for all or substantially all of its property or makes a general assignment for the benefit of its creditors; or has an involuntary case filed against it, or a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that is for relief against the Company or any of its Subsidiaries in an involuntary case, appoints a Custodian of the Company or any of its Subsidiaries for all or substantially all of its property or orders the liquidation of the Company or any of its Subsidiaries, and such involuntary case, order or decree remains unstayed and in effect for more than 60 days; or
(x) with respect to any Plan, other than a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA, (a) such Plan shall fail to satisfy the minimum funding standard or a waiver of such standard or extension of any amortization period is sought under Section 412 of the Code; (b) such Plan is or is proposed to be terminated and as a result thereof liability in excess of $5,000,000 can be asserted under Title IV of ERISA as against the Company or any Subsidiary; (c) such Plan shall have an Unfunded Current Liability in excess of $5,000,000; or (d) there has been a withdrawal from any such Plan and as a result liability in excess of $5,000,000 can be asserted under Section 4062(e) or 4063 of ERISA against the Company or any Subsidiary; or, with respect to any Plan that is a multiemployer plan under Section 4001(a)(3) of ERISA, such Plan is insolvent or in reorganization or the Company or any ERISA Affiliate has withdrawn, or proposes to withdraw, either totally or partially, from such Plan and, in any case, in the opinion of the Required Banks, the Company or any Subsidiary might reasonably be anticipated to incur a liability which would have a material adverse effect on the business, operations, conditions (financial or otherwise) or prospects of the Company or the Company and Subsidiaries taken as a whole; or
(xi) one or more judgments or decrees shall be entered against the Company or any of its Subsidiaries involving in the aggregate a liability (not covered by insurance) of $10,000,000 or more, and all such judgments or decrees shall not have been vacated, satisfied, discharged or stayed or bonded pending appeal within 30 days from the entry thereof;
then, and in any such event, the Agent may and, upon the written request of the
Required Banks, shall, without prejudice to the rights of the Agent, WestLB or
any Bank, (i) by notice to the Company, declare all amounts payable by the
Company hereunder (including, without limitation, all amounts payable pursuant
to Article II and Article III hereof) to be forthwith due and payable, and the
same shall thereupon become due and payable without demand, presentment, protest
or further notice of any kind, all of which are hereby expressly waived, and/or
(2) with respect to any undrawn amount under the Letter of Credit, require that
the Company place with the Agent a collateral deposit which shall be, in the
opinion of Bond counsel chosen by the Company and acceptable to the Agent,
invested by the Agent in a manner which does not violate Section 148 of the
Code, to secure repayment to the Banks by the Company of any drawings under the
Letter of Credit and/or (3) exercise any or all of its rights and remedies under
the Operative Documents and/or (4) by notice to the Trustee, require the Trustee
to accelerate payment of all of the Bonds and interest accrued thereon as
provided in Section 9.01 of the Indenture; provided that if an Event of Default
described in clause (ix) of this Section 9.01 shall occur and be continuing, all
amounts payable by the Company hereunder shall become immediately due and
payable, without written notice and with out presentment, protest or any other
notice of any kind, all of which are hereby expressly waived.
Section 9.02. No Remedy Exclusive. No remedy herein conferred or reserved is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or under any of the other Operative Documents, whether now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default, omission or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to exercise any remedy reserved to the Agent, WestLB or any Bank in this Agreement, it shall not be necessary to give any notice, other than such notice as may be herein expressly required or required by applicable law. In the event any provision contained in this Agreement should be breached by any party and thereafter duly waived by the other party or parties so empowered to act, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver, amendment, release or modification or this Agreement shall be established by conduct, custom or course of dealing, but solely by an instrument in writing duly executed by the party or parties "thereto duly authorized by this Agreement.
ARTICLE X
THE AGENT
Section 10.01. The Agent. The Banks hereby designate Westdeutsche Landesbank Girozentrale, New York Branch, as agent to act as specified herein and in the other Operative Documents. Each Bank hereby irrevocably authorizes the Agent to take such action on its behalf under the provisions of this Agreement, the other Operative Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Agent by the terms hereof and thereof and such other powers as are-reasonably incidental thereto. The Agent may perform any of its duties hereunder by or through its officers, directors, agents or employees.
Section 10.02. Duties. The Agent shall have no duties or responsibilities except those expressly set forth in this Agreement. Neither the Agent nor any of its officers, directors, agents or employees shall be liable for any action taken or omitted by it or them hereunder or under any other Operative Document or in connection herewith or therewith, unless caused by its or their gross negligence or willful misconduct as determined by a final, non-appealable order of a court of competent jurisdiction. The duties of the Agent shall be mechanical and administrative in nature, and the Agent shall not have by reason of this Agreement or any other Operative Document a fiduciary relationship in respect of any Bank. Nothing in this Agreement or any other Operative Document, expressed or implied, is intended to or shall be so construed as to impose upon the Agent any obligations in respect of this Agreement or any other Operative Document except as expressly set forth herein.
Section 10.03. Investigation by Banks. Independently and without reliance upon the Agent, each Bank, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of the Company and the transactions contemplated herein, in each case in connection with the making and the continuance of the LC Commitments and the Advances and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of the Company and the transactions referred to in clause (i) above and, except as expressly provided in this Agreement, the Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Bank with any credit or other information with respect thereto, whether coming into its possession before the effectiveness of this Agreement or at any time or times thereafter. The Agent shall not be responsible to any Bank for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement or any other Operative Document or the financial condition of the Company or any other Person or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Operative Document, or the financial condition of the Company or any other Person or the existence or possible existence of any Default or Event of Default.
Section 10.04. Instructions. If the Agent shall request instructions from WestLB, the Banks or the Required Banks, as applicable, with respect to any act or action (including failure to act) in connection with the Letter of Credit, this Agreement or any other Operative Document, the Agent shall be entitled to refrain from such act or taking such action unless and until the Agent shall have received instructions from WestLB, the Banks or the Required Banks, as applicable, and the Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Bank shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder or under any other Operative Document in accordance with the instructions of WestLB, the Banks or the Required Banks, as applicable.
Section 10.05. Reliance by the Agent. The Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Operative Document and its duties hereunder and thereunder, upon advice of counsel selected by it.
Section 10.06. Indemnification. To the extent the Agent is not reimbursed and indemnified by the Company, the Banks will reimburse and indemnify the Agent, in proportion to their respective LC Commitments (or, if the Letter of Credit is no longer outstanding, in proportion to their respective LC Commitments
immediately prior to the expiration or other termination of the Letter of Credit), for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Agent in performing its duties hereunder or under any other Operative Document, or in any way relating to or arising out of this Agreement or any other Operative Document; provided that no Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent's gross negligence or willful misconduct.
Section 10.07. Agent as a Bank. The Agent shall have the rights and powers specified herein for a "Bank" and may exercise the same rights and powers as though it were not performing the duties specified herein, and the term "Banks", "Required Banks" or any similar terms shall, unless the context clearly otherwise indicates, include the Agent in its individual capacity. The Agent may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with the Company or any Subsidiary or Affiliate of the Company to the same extent as if it were not performing the duties specified herein, and may accept fees and other consideration from the Company or any such Subsidiary or Affiliate for services in connection with this Agreement and otherwise without having to account for the same to any of the Banks.
Section 10.08. Resignation by the Agent. (i) The Agent may resign from the performance of all its functions and duties hereunder and/or under the other Operative Documents at any time by giving 15 Business Days' prior written notice to the Company and the Banks. Such resignation shall take effect upon the appointment of a successor Agent pursuant to clauses (ii) and (iii) below or as otherwise provided below.
(ii) Upon any such notice of resignation, the Required Banks shall appoint a successor Agent hereunder or thereunder which shall be a commercial bank or trust company reasonably acceptable to the Company.
(iii) If a successor Agent shall not have been so appointed within such 15 Business Day period, the Agent may then appoint a successor Agent who shall serve as Agent hereunder or thereunder until such time, if any, as the Required Banks appoint a successor Agent as provided above.
(iv) If no successor Agent has been appointed pursuant to clause
(ii) or (iii) above by the 20th Business Day after the date such notice of
resignation was given by the Agent, the Agent's resignation shall become
effective and the Banks shall thereafter perform all the duties of the Agent
hereunder and/or under any other Operative Document until such time, if any, as
the Required Banks appoint a successor Agent as provided above.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Amendments, Etc. This Agreement may be amended, and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall obtain the written consent of the Required Banks, provided that without the consent of each Bank no such action or omission shall (i) extend the Termination Date of the Letter of Credit or the final maturity of any Advance, or reduce the rate or extend the time of payment of interest on any Advance, or reduce the principal amount of any Advance, or reduce the rate or extend the time of payment of any fees payable for the benefit of the Banks, or increase the LC Commitment of any Bank (it being understood that a waiver of any Event of Default shall not constitute a change in the terms of any LC Commitment of any Bank, and it being further understood that the LC Commitment of each Bank may be automatically adjusted pursuant to Section 2.02 hereof), (ii) amend, modify or waive any provision of this Section 11.01 or Sections 3.05, 3.06, 10.06, 11.03, 11.05, 11.07 or 11.16, (iii) reduce the percentage specified in the definition of Required Banks, or (iv) consent to the assignment or transfer by the Company of any of its rights and obligations under this Agreement or any other Operative Document to which it is a party; provided that no amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Banks required above to take such action, affect the rights or duties of the Agent under this Agreement; and provided, further, that no amendment, waiver or consent shall, unless in writing and signed by WestLB in addition to the Banks required above to take such action, affect the rights or duties of WestLB under this Agreement or the Letter of Credit.
Section 11.02. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including facsimile
communication, receipt of which is confirmed in writing) and shall be sent by
mail (postage prepaid return receipt requested), hand delivery or fax (i) if to
the Company, to it at P.O. Box 5000, Pineville, Louisiana 71361, Attention:
Treasurer, telecopy no. (318) 484-7465; (ii) if to the Agent, to it at the
offices of Westdeutsche Landesbank Girozentrale, New York Branch, 1211 Avenue of
the Americas, New York, New York 10036, Attention: Loan Operations, telecopy
number (212) 302-7946; (iii)if to WestLB, as issuer of the Letter of Credit, or
to Westdeutsche Landesbank Girozentrale, New York Branch, as a Bank hereunder,
to it at the offices of Westdeutsche Landesbank Girozentrale, New York Branch,
1211 Avenue of the Americas, New York, New York 10036, Attention: Trade
Services, telecopy number (212) 768-4659; and (iv) if to any Bank (other than
Westdeutsche Landesbank Girozentrale, New York Branch), to it at its address and
telecopy number set forth opposite its signature below; or as to any party at
such other address or telecopy number as shall be designated by such party in a
written notice to all other parties hereto; provided that any such communication
to the Company may also, at the option of the Person delivering such
communication, be either delivered to the Company at its address set forth above
or to any officer of the Company. All such notices and other communications
shall be effective when received.
Section 11.03. Set-off. In addition to any rights now or hereafter granted under applicable law (including, but not limited to, Section 151 of the New York Debtor and Creditor Law) and not by way of limitation of any such rights, during the continuance of any Event of Default hereunder each Bank is hereby authorized at any time and from time to time, without notice to the Company or to any other Person, any such notice being hereby expressly waived, to set-off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing by WestLB or such Bank to or for the credit or the account of the Company against and on account of any Obligation or liability of the Company owing to SBC or the Banks under this Agreement and/or the Letter of Credit at the time, including, without limitation, all claims of any nature or description arising out of or in connection with this Agreement and/or the Letter of Credit, irrespective of whether or not the Agent, WestLB or any Bank shall have made any demand hereunder.
Section 11.04. Indemnification. The Company hereby agrees to protect, indemnify, pay and save the Agent, WestLB and each Bank harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including without limitation reasonable attorneys' fees) which such indemnified Person may incur or be subject to as a consequence, direct or indirect, of (i) the execution and delivery of this Agreement or the issuance of the Letter of Credit, other than as a result of the gross negligence or willful misconduct of such indemnified Person, (ii) the failure of WestLB to honor a drawing under the Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority (all such acts or omission herein called "Government Acts"), (iii) any breach by the Company, the Issuer, the Tender Agent, the Remarketing Agent or any other Person of any warranty, covenant, term or condition in, or the occurrence of any default under, this Agreement, any other Operative Document or the Bonds, together with all reasonable expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (iv) any inaccuracy or alleged inaccuracy, or any untrue statement or alleged untrue statement, contained in the Preliminary Official Statement or the Reoffering Supplement, which includes, as an attachment thereto, the Official Statement, or by reason of the omission or alleged omission to state therein any fact necessary to make such statements, in light of the circumstances under which they were made, not misleading (provided that this Section 11.04 shall not apply to any information contained in the Reoffering Supplement under the caption "WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH" or in the Preliminary Official Statement or the Official Statement under the caption "SWISS BANK CORPORATION, NEW YORK BRANCH") and (v) the defense against any legal action challenging the validity of any of the above referenced agreements or instruments. Nothing in this Section 11.04 is intended to limit the reimbursement or other obligations hereunder of the Company. The obligations of the Company under this Section 11.04 shall survive the payment of the Bonds and the termination of this Agreement.
Section 11.05. Benefit of Agreement. This Agreement is a continuing obligation and shall (i) be binding upon the Company and
its successors and assigns and (ii) inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns; provided, however, that the Company may not assign or transfer any of its rights or obligations hereunder without the prior written consent of WestLB and all of the Banks, and, provided further, that, although any Bank may grant participations in its rights hereunder and under the Letter of Credit, such Bank shall remain a "Bank" for all purposes hereunder, the Participant shall not constitute a "Bank" hereunder, the Company shall continue to deal solely with the Agent and such Bank (and not with any Participant) hereunder and with respect to this Agreement and the Letter of Credit and no such participation shall relieve WestLB of its obligations under the Letter of Credit.
In the case of any such participation, the Participant shall not have any rights under this Agreement or any of the other Operative Documents (the Participant's rights against such transferring Bank to be those set forth in the agreement executed by such Bank in favor of the Participant relating thereto) and all amounts payable by the Company hereunder shall be determined as if such Bank had not sold such participation, except that the Participant shall be entitled to the benefits of Sections 2.09 and 2.10 hereof as set forth therein. In connection with any such participation, the Bank proposing to transfer or grant such participation may disclose to the proposed Participant any information that the Company is required to deliver to such Bank pursuant to this Agreement or otherwise delivers to such Bank in connection with such Bank's credit review or continuing review of the Company and this Agreement, provided, however, that, prior to any such disclosure, each such Participant shall agree in writing to preserve the confidentiality of any confidential information relating to the Company or any of its Subsidiaries received from such Bank.
Notwithstanding the foregoing, any Bank may transfer the LC Commitment or any Advance of such Bank to another Bank or to another branch or lending office or, with the written consent of WestLB and the Agent (such consent not to be unreasonably withheld), an Affiliate of such Bank; provided that each such Bank agrees that it will use its reasonable efforts (subject to overall policy considerations of such Bank) to avoid the occurrence of any event giving rise to the operation of Sections 2.09 and 2.10 hereof as a result of any such transfer.
Neither WestLB nor any Bank may assign all or any portion of its rights and obligations hereunder to one or more banks or other financial institutions, unless (i) WestLB and the Company each shall have given its prior written consent to such assignment (such consent not to be unreasonably withheld) and (ii) such assignment shall be consummated pursuant to an assignment and acceptance agreement reasonably satisfactory to the Agent (such agreement to state, among other things, that upon the effectiveness of such assignment, the transferee entity shall become a "Bank" hereunder for all purposes of this Agreement). Upon the effectiveness of any such assignment, the transferee entity shall become a "Bank" hereunder for all purposes of this Agreement and Schedule I attached hereto shall be amended by the Agent to reflect the new LC Percentage of each Bank after giving effect to such assignment (which amended Schedule I shall be promptly delivered by the Agent to the Company, WestLB and each Bank, provided that the failure to deliver or prepare such amended
Schedule I shall in no event affect the validity of such assignment or the respective LC Percentages resulting therefrom).
Section 11.06. Liability of Parties. The Company assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit. Neither the Agent, WestLB nor Bank, nor any of their respective officers or directors, shall be liable or responsible for: (i) the use which may be made of the Letter of Credit or for any acts or omissions of the Trustee or any transferee of the Letter of Credit in connection therewith; (ii) the form, validity, sufficiency or genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of the Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (iii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iv) failure of the Trustee to comply fully with the conditions required in order to draw upon the Letter of Credit; (v) errors, omission, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegram, telex or otherwise, whether or not they be in cipher; (vi) errors in interpretation of technical terms; (vii) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under the Letter of Credit or of the proceeds thereof; (viii) any misapplication by the Trustee of the proceeds of any drawing under the Letter of Credit; or (ix) any consequences arising from causes beyond the control of the Agent, WestLB or any Bank, including, without limitation, any Government Acts. None of the above shall affect, impair, or prevent the vesting of any of the Agent's, WestLB's or any Bank's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Agent, WestLB or any Bank under or in connection with this Agreement or the Letter of Credit or the related certificates attached thereto, if taken or omitted in good faith, shall not put the Agent, WestLB or any Bank under any resulting liability to the Company, and the Agent, WestLB and each Bank may accept any documents or instruments that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or any information to the contrary.
The obligations of the Company under this Section 11.06 shall survive the payment of the Bonds and the termination of this Agreement.
Notwithstanding anything to the contrary contained in this
Section 11.06, the Company shall have no obligation to indemnify the Agent,
WestLB or any Bank in respect of any liability incurred by such Person arising
solely out of the gross negligence or willful misconduct of such Person or the
wrongful dishonor by WestLB of a proper demand made under the Letter of Credit.
Section 11.07. Expenses, Etc. The Company agrees to pay on demand
(i) all costs and out-of-pocket expenses incurred by WestLB or the Agent in
connection with the preparation, execution, issuance, delivery and
administration of this Agreement, the Letter of Credit and the other Operative
Documents, including, without limitation, the reasonable fees and disbursements
of outside counsel and the allocated time charges and disbursements of internal
counsel for the Agent and WestLB, and of counsel for the Banks with respect
thereto, and (ii) all costs and out-of-pocket expenses, including, without
limitation, the reasonable fees and disbursements of outside counsel and the
allocated time charges and disbursements of internal counsel to the Agent,
WestLB and the Banks with respect thereto, in connection with the enforcement or
preservation of any rights under this Agreement, the Letter of Credit or any
other Operative Document or any modifications, amendments, consents or waivers
or similar occurrences relating to or in respect of this Agreement, the Letter
of Credit or any other Operative Document. In addition, the Company shall pay
any and all stamp and other taxes (other than any franchise or income taxes) and
fees payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement, the Letter of Credit or any
other Operative Document and agrees to save the Agent, WestLB and the Banks
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes, fees and expenses
referred to in this sentence and in the immediately preceding sentence. The
Company also agrees to indemnify, defend and hold the Agent, WestLB and each
Bank harmless from and against all liability "including, without limitation,
interest, penalties and all reasonable fees and disbursements of counsel) to
which any such Person may become subject insofar as such liability arises out of
or is based upon any action, suit, proceeding or investigation or governmental
action brought or taken in connection with the Project or the use (or the
proposed or potential use) of the proceeds of any drawing under the Letter of
Credit. A request for payment under this Section 11.07 shall be accompanied by
supporting documentation thereof, identifying with reasonable specificity the
basis for and the amount of such costs and expenses.
Section 11.08. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.
Section 11.09. Consent to Jurisdiction. The Company irrevocably
(i) agrees that any suit, action or other legal proceeding arising out of or
relating to this Agreement or the Letter of Credit may be brought by or on
behalf of the Agent, WestLB or any Bank in a court of record in the State of New
York or in the Courts of the United States of America located in such State,
(ii) consents to the jurisdiction of each such court in any such suit, action or
proceeding and (iii) waives any objection which it may have to the laying of
venue of any such suit, action or proceeding in any of such courts and any claim
that any such suit, action or proceeding has been brought in an inconvenient
forum. The Company hereby irrevocably appoints CT Corporation System (the
"Process Agent") with an office on the date hereof at 1633 Broadway, New York,
New York 10019 as its agent to receive on behalf of the Company and its property
service of copies of the summons and complaint and any
other process which may be served in any such suit, action or proceeding. Such
service may be made by mailing or delivering a copy of such process to the
Company, in care of the Process Agent at the Process Agent's above address, and
the Company hereby irrevocably authorizes and directs the Process Agent to
accept such service on its behalf. The Agent agrees to mail to the Company at
its address provided in Section 11.02 hereof a copy of any summons, complaint or
other process mailed or delivered by it to the Company in care of the Process
Agent. As an alternate method of service, the Company also irrevocably consents
to the service of any and all process in any such suit, action or proceeding by
mailing of copies of such process to the Company at its address provided in
Section 11.02 hereof. The Company agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
All mailings under this Section shall be by certified mail, return receipt
requested. Nothing in this Section 11.09 shall affect the right of the Agent,
WestLB or any Bank to serve legal process in any other manner permitted by law
or affect the right of the Agent, WestLB or any Bank to bring any suit, action
or proceeding against the Company or its property in the courts of any other
jurisdiction.
SECTION 11.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN SAID STATE.
SECTION 11.11. Headings, Etc. Section headings, the table of contents and the cover page of this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
Section 11.12. Survival of Representations and Warranties. All representations and warranties contained herein or in any other Operative Document or made in writing by the Company in connection herewith or therewith shall survive the execution and delivery of this Agreement.
Section 11.13. Survival of Indemnities. All indemnities set forth herein including, without limitation, in Sections 2.09, 2.10, 10.06, 11.04 and 11.07 shall survive the execution and delivery of this Agreement and the repayment in full of all Obligations.
Section 11.14. Satisfaction Requirement. (i) If any agreement, certificate or other writing, or any action taken or to be taken, is by the terms of this Agreement required to be satisfactory to the Agent, WestLB or any Bank, the determination of such satisfaction shall be made by the Agent, WestLB or such Bank in its sole and exclusive judgment exercised in good faith.
(ii) For purposes of determining compliance with the conditions specified in Article V hereof, each of the Banks shall be deemed to have consented to, approved or accepted or to be satisfied with all matters required
there under to be consented to or acceptable or satisfactory to the Banks unless an officer of the Agent responsible for the transactions contemplated by this Agreement and holding the position of Vice President or a more senior position shall have received notice from any such Bank prior to the issuance of the Letter of Credit specifying such Bank's objections thereto and such objections shall not have been with drawn by notice to the Agent to that effect.
Section 11.15. Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States in conformity with those used in the preparation of the financial statements of the Company referred to in Section 7.07 hereof.
Section 11.16. Calculations. The financial statements to be furnished to the Agent, WestLB and the Banks pursuant hereto shall be made and prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes thereto). All calculations and computations required to determine compliance with Sections 8.05 and 8.06 hereof shall utilize accounting principals and policies in conformity with those used to prepare the financial statements referred to in Section 6.08(i) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers "hereunto duly authorized as of the date first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By /s/ THOMAS J. HOWLIN --------------------------------- Name: Thomas J. Howlin Title: Sr. V.P. - Finance and CFO |
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
individually, as Agent and as issuer of the Letter of Credit
By /s/ CYNTHIA M. NIESEN --------------------------------- Name: Cynthia M. Niesen Title: Managing Director By /s/ KAREN E. GAREIS --------------------------------- Name: Karen E. Gareis Title: Vice President |
WACHOVIA BANK
By /s/ DAVID K. ALEXANDER --------------------------------- Name: David K. Alexander Title: Senior Vice President |
EXHIBIT 10(j)
REIMBURSEMENT AGREEMENT
AMONG
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.,
VARIOUS FINANCIAL INSTITUTIONS,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
AS ISSUER OF THE LETTER OF CREDIT,
AND
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH
AS AGENT
Dated as of October 15, 1997
Parish of DeSoto, Series 1991A Bonds
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II LETTER OF CREDIT; FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.01. Agreement to Issue Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.02. Adjustment to LC Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.03. Request to Extend the Letter of Credit . . . . . . . . . . . . . . . . . . . . . 11
Section 2.04. Letter of Credit Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.05. Fronting Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.06. Transfer Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.07. Drawing Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.08. Additional Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.10. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III REPAYMENT OF DRAWINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.01. Repayment of Drawings; Advances . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.02. Repayment of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.03. Overdue Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.04. Payments; Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.05. Payments to Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.06. Sharing Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.07. Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IV PREPAYMENTS; ESCROW BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.01. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.02. Release of Escrow Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE V CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.01. Delivery of Bonds and Operative Documents . . . . . . . . . . . . . . . . . . . . 17
Section 5.02. Sale of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.03. Receipt of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.04. Representations and Warranties; Defaults . . . . . . . . . . . . . . . . . . . . 19
Section 5.05. Certain Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.06. Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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ARTICLE VI REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.01. Due Organization, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.02. No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.03. Due Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.04. Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.05. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.06. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.07. No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.08. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.10. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.11. Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.12. Environmental and Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.13. Operative Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.14. Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.15. Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.01. Preservation of Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.02. Compliance with Law; Environmental and Other Matters . . . . . . . . . . . . . . 25
Section 7.03. Performance of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.04. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.05. Furnishing of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.06. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.07. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.08. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.09. Payment of Taxes, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.10. Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.11. Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VIII NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.01. Consolidation, Merger, Sale of Assets, Etc. . . . . . . . . . . . . . . . . . . . 28
Section 8.02. Redemption or Purchase of Bonds; Adjustment
of Interest Rate Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.03. Amendment of Operative Document . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.04. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.05. Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.06. Tangible Net Worth Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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ARTICLE IX EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Section 9.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Section 9.02. No Remedy Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 10.01. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 10.02. Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 10.03. Investigation by Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 10.04. Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 10.05. Reliance by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 10.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 10.07. Agent as a Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Section 10.08. Resignation by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Section 11.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Section 11.02. Addresses for Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Section 11.03. Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 11.04. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 11.05. Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 11.06. Liability of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Section 11.07. Expenses, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Section 11.08. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Section 11.09. Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Section 11.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section 11.11. Headings, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section 11.12. Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . 43 Section 11.13. Survival of Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section 11.14. Satisfaction Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section 11.15. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Section 11.16. Calculations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 |
Schedule I List of Banks/LC Commitments/LC Percentages Schedule II Existing Liens Exhibit A Form of Irrevocable Letter of Credit Exhibit B-1 Form of Opinion of Baker & Botts, L.L.P. Exhibit B-2 Form of Opinion of William O. Bonin Exhibit C Form of Officer's Certificate |
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT dated as of October 15, 1997, among CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under the laws of the State of Louisiana (the "Company"), the financial institutions listed on Schedule I attached hereto (each a "Bank", and collectively the "Banks"), and WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH, as agent (in such capacity, together with any successor in such capacity, the "Agent") and as issuer of the below-referenced Letter of Credit (in such capacity, "WestLB").
W I T N E S S E T H :
WHEREAS, the Parish of DeSoto, State of Louisiana (the "Issuer"), pursuant to the Act (as defined in the Indenture hereinafter referred to), has issued and sold its Adjustable Tender Pollution Control Revenue Refunding Bonds (Central Louisiana Electric Company, Inc. Project) Series 1991A in the aggregate principal amount of $25,110,000 (the "Bonds") pursuant to a Trust Indenture dated as of May 1, 1991 ,as amended and supplemented by a First Supplemental Trust Indenture dated as of May 1, 1993 (as further amended and supplemented from time to time in accordance with the terms thereof, the "Indenture") from the Issuer to First National Bank of Commerce, as trustee (together with its successors in trust and their assigns, the "Trustee"), and has used the proceeds thereof, together with other available funds, to refund and redeem in full the Prior Bonds (as hereinafter defined) pursuant to that certain Refunding Agreement dated as of May 1, 1991 between the Issuer and the Company (as amended from time to time in accordance with the terms thereof, the "Refunding Agreement"), which Prior Bonds were issued by the Issuer to finance the cost of acquiring, constructing, improving and equipping the Company's undivided interest in certain air and water pollution control facilities, as more specifically described in Exhibit B to the Refunding Agreement (the "Project"); and
WHEREAS, the Company has requested WestLB to issue its irrevocable letter of credit in the form of Exhibit A attached hereto (the "Letter of Credit", which term shall include any substitute therefor or replacement thereof issued in accordance with the terms of the Letter of Credit) to replace the irrevocable letter of credit issued by Swiss Bank Corporation in connection with the Bonds; and
WHEREAS, subject to and on the terms and conditions herein set forth, WestLB is willing to issue the Letter of Credit on the date hereof; and
WHEREAS, subject to and upon the terms and conditions herein set forth, the Company, the Agent,WestLB and the Banks are willing to enter into this Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises contained herein and in order to induce WestLB to issue the Letter of
Credit, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the respective meanings set forth below (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"A Drawing" shall have the meaning given to such term in the Letter of Credit, which shall be a drawing in respect of the payment of the portion of the Purchase Price corresponding to principal of the Bonds.
"Advance" and "Advances" shall have the respective meanings given to such terms in Section 3.01 hereof.
"Affiliate" shall mean, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. The term "control" and "controlled" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or partnership or other ownership interests, by contract or otherwise.
"Agent" shall have the meaning given to such term in the first paragraph of this Agreement.
"Agreement" shall mean this Reimbursement Agreement, as the same may be amended, supplemented or otherwise modified from time to time.
"Bank" and "Banks" shall have the respective meanings given to such terms in the first paragraph of this Agreement.
"Bankruptcy Law" shall mean title 11 of the United States Code or any similar federal, state or foreign law for the relief of debtors.
"Base Rate" on any date shall mean the higher of (i) the rate which the Agent announces from time to time as its prime lending rate, the Base Rate to change when and as the prime lending rate changes or (ii) 1/2 of 1% above the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York or if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Agent, WestLB and any Bank may make commercial loans or other loans at rates of interest at, above or below the Base Rate.
"B Drawing" shall have the meaning given to such term in the Letter of Credit, which shall be a drawing in respect of the payment of principal of the Bonds.
"Bond Purchase Agreements" shall mean the two separate Bond Purchase Agreements, each dated May 29, 1991, among the Company, Smith Barney, Harris Upham & Co. Incorporated and the Issuer and The Industrial Development Board of the Parish of Rapides, Inc., respectively.
"Bonds" shall have the meaning given to such term in the first recital of this Agreement.
"Business Day" shall mean a day of the year other than a Saturday, Sunday or other day on which commercial banks located in the City of New York, New York are required or authorized by law to close or on which The New York Stock Exchange is not open.
"Capitalized Lease Obligations" shall mean all rental obligations under a lease that are required to be accounted for and classified as capitalized leases on the balance sheet of the Company or any of its Subsidiaries under generally accepted accounting principles.
"C Drawing" shall have the meaning given to such term in the Letter of Credit, which shall be a drawing in respect of the payment of interest, or the portion of Purchase Price corresponding to interest, on the Bonds.
"CLECO Mortgage" shall mean the Indenture of Mortgage, dated as of July 1, 1950, as supplemented and amended from time to time in accordance with its terms, by the Company to First National Bank of Commerce (formerly The National Bank of Commerce in New Orleans), as trustee thereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect on the date of this Agreement, and to any subsequent provisions of the Code amendatory thereof, supplemental thereto or substituted therefor.
"Company" shall have the meaning given to such term in the first paragraph of this Agreement.
"Consolidated Interest Expense" shall mean, for any period, all
amounts accounted for (without duplication) during such period as
interest on Indebtedness, including, without limitation, (i) interest
payable in respect of all Indebtedness under this Agreement, (ii) the
portion of any Capitalized Lease Obligation attributable to interest,
(iii) commissions and other fees and charges payable in respect of all
letters of credit and (iv) the net amount due, if any, in connection
with any interest rate hedging arrangements.
"Consolidated Net Earnings" shall mean consolidated revenues of the Company and its Subsidiaries less all operating and nonoperating expenses of the Company and its Subsidiaries including, without limitation, all charges of a proper character (including current and deferred taxes on income and current additions to reserves), but not including in net revenues any gains (net of expenses and taxes applicable thereto) in excess of losses resulting from the sale, conversion or other disposition of capital assets (i.e., assets other than current assets), any gains resulting from the write-up of assets, any equity of the Company or any Subsidiary in the unremitted earnings of any Person acquired by the Company or any Subsidiary through purchase, merger or consolidation or otherwise for any year prior to the year of acquisition or any deferred credit representing the excess of equity in any Subsidiary at the date of acquisition over the cost of the investment in such Subsidiary.
"Consolidated Net Tangible Assets" shall mean the total amount of assets appearing on a consolidated balance sheet of the Company and its Subsidiaries less, without duplication, the following: (i) all reserves for depreciation and other asset valuation reserves but excluding any reserves for deferred U.S. federal income taxes arising from accelerated amortization or otherwise; (ii) all intangible assets such as goodwill, trademarks, trade names, patents and unamortized debt discount and expense carried as an asset on such balance sheet; and (iii) all appropriate adjustments on account of minority interests of other Persons holding Voting Stock in any Subsidiary of the Company; all determined in accordance with generally accepted accounting principles.
"Consolidated Tangible Net Worth" shall mean consolidated total
shareholders' equity in the Company and its Subsidiaries, determined
in accordance with generally accepted accounting principles, less the
aggregate net amount of the following items to the extent, if any,
such items were included in consolidated assets or deducted from
consolidated liabilities in connection with the computation of such
shareholders' equity: (i) all licenses, patents, copyrights, trade
names, trademarks, goodwill, experimental or organizational expense,
unamortized debt discount and expense and all other assets which under
generally accepted accounting principles are deemed to be intangibles;
(ii) all investments other than Permitted Investments; (iii) any
write-up of assets (other than current assets) after December 31,
1996; (iv) all assets located outside the United States of America and
Canada and all Indebtedness from any Person to the extent the primary
portion of such Person's assets or business operations are located
outside the United States of America and Canada; and (v)
the book value of net tangible assets of each Subsidiary acquired in so-called "pooling of interests" accounting treatment transactions, to the extent such book value at the time of such acquisition exceeds the fair value of the consideration paid for such acquisition.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness,
lease, dividend or other obligation ("Primary Obligations") of any
other Person (the "Primary Obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of such
Person whether or not contingent, (i) to purchase any such Primary
Obligation or any property constituting direct or indirect security
therefor; (ii) to advance or supply funds (a) for the purchase or
payment of any such Primary Obligation or (b) to maintain working
capital or equity capital of the Primary Obligor or otherwise to
maintain the net worth or solvency of the Primary Obligor; (iii) to
purchase property, securities or services primarily for the purpose of
assuring the holder of any such Primary Obligation of the ability of
the Primary Obligor to make payment of any such Primary Obligation; or
(iv) otherwise to assure or hold harmless the holder of such Primary
Obligation against loss in respect thereof; provided, however, that
the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to
be an amount equal to the stated or determinable amount of the Primary
Obligation in respect of which such Contingent Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
"Cooke Commission Guidelines" shall mean risk-based capital guidelines in accordance with the Basle Committee on Banking Regulations and Supervisory Practices set forth in a paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988.
"Custodian" shall mean any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
"Date of Issuance" shall mean the date on which the Letter of Credit shall be issued by WestLB to the Trustee pursuant to the terms of this Agreement.
"Default" shall mean any event which with notice or lapse or time, or both, or the happening of any further condition, event or act, would become an Event of Default.
"EBITDA" shall mean, for any period, Consolidated Net Earnings for such period before Consolidated Interest Expense, income taxes, depreciation and amortization for such period.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect on the date of this Agreement, and to any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of ERISA) which together with the Company or any Subsidiary of the Company would be deemed to be a member of the same "controlled group" within the meaning of Section 414(b), (c), (m) and (o) of the Code.
"Escrow Bond" shall have the meaning given to such term in the Indenture.
"Event of Default" shall have the meaning given to such term in
Section 9.01 hereof.
"Existing Directors" shall mean those individuals who on the date of this Agreement constitute the Board of Directors of the Company.
"Extension Request" shall have the meaning given to such term in
Section 2.03 hereof.
"Government Acts" shall have the meaning given to such term in Section 11.04 hereof.
"Indebtedness" shall mean, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services, excluding trade accounts payable in the ordinary course of business; (ii) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder; (iii) all liabilities secured by any Lien on any property owned by such Person, whether or not such liabilities have been assumed by such Person; (iv) the aggregate amount required, under generally accepted accounting principles, to be capitalized under leases under which such Person is the lessee; and (v) all Contingent Obligations of such Person.
"Indenture" shall have the meaning given to such term in the first recital of this Agreement.
"Issuer" shall have the meaning given to such term in the first recital of this Agreement.
"Interest Increase Date" shall have the meaning given to such term in
Section 3.01 hereof.
"LC Commitment" shall have the meaning given to such term in Section 2.02 hereof.
"LC Percentage" shall have the meaning given to such term in Section 2.02 hereof.
"Letter of Credit" shall have the meaning given to such term in the second recital of this Agreement.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of or agreement to give any financial statement under the Uniform Commercial Code of any jurisdiction).
"Moody's" shall mean Moody's Investors Service, Inc., a corporation organized and existing under the laws of the State of Delaware, and its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall no longer be performing the functions of a securities rating agency, "Moody's" shall be deemed to refer to any other nationally recognized securities rating agency approved by the Required Banks.
"Obligations" shall mean any and all amounts owing to the Agent,WestLB or any Bank pursuant to the terms of this Agreement.
"Officer's Certificate" shall mean a certificate signed by the President, any Vice President, Secretary- Treasurer or the chief financial officer of the Company.
"Official Statement" shall mean the Official Statement, dated May 29, 1991, prepared in connection with the issuance and remarketing of the Bonds, together with all amendments, modifications and supplements thereto.
"Operative Documents" shall mean and include this Agreement, the Indenture, the Refunding Agreement, the Remarketing Agreement, the Tender Agreement and the Bond Purchase Agreements.
"Other Bonds" shall mean (i) the Adjustable Tender Pollution Control Revenue Refunding Bonds (Central Louisiana Electric Company, Inc. Project) Series l991B issued by the Issuer and (ii) the Adjustable Tender Pollution Control Revenue Refunding Bonds (Central Louisiana Electric Company, Inc. Project) Series 1991 issued by The Industrial Development Board of the Parish of Rapides, Inc.
"Other Letters of Credit" shall mean the letters of credit issued by Westdeutsche Landesbank Girozentrale, New York Branch, pursuant to the Other Reimbursement Agreements.
"Other Reimbursement Agreements" shall mean the two Reimbursement Agreements dated as of October 15, 1997 among the Company, the financial institutions party thereto and Westdeutsche Landesbank Girozentrale, New York Branch, as agent and as issuer of
the Other Letters of Credit, relating to the Other Bonds.
"Participant" shall mean any entity that purchases a participation interest from any Bank in the Letter of Credit and this Agreement in accordance with the provisions of Section 11.05 hereof.
"Payment Date" shall have the meaning given to such term in Section 2.04 hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Investments" shall mean: (i) direct obligations of the United States of America, or any agency thereof, or obligations guaranteed as to principal and interest by the United States of America, or any agency thereof, in either case maturing not more than one year from the date of acquisition thereof; (ii) certificates of deposit issued by any bank or trust company organized under the laws of the United States of America or any state thereof and having capital, surplus and undivided profits of at least $100,000,000 maturing not more than one year from the date of acquisition thereof; and (iii) other debt obligations which have been given an investment grade rating by S&P, Moody's or any other nationally recognized rating agency, provided such obligations mature not more than one year from the date of acquisition thereof.
"Person" shall mean and include any of an individual, a partnership, a joint venture, a corporation, a trust, an unincorporated organization or a government or any department or agency thereof.
"Plan" shall mean any multiemployer plan or any single employer plan, subject to Title IV of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute of), or at any time during the five calendar years preceding the date of this Agreement was maintained or contributed to by (or to which there was an obligation to contribute of), the Company or any of its Subsidiaries or an ERISA Affiliate.
"Preliminary Official Statement" shall mean the Preliminary Official Statement, dated May 16, 1991, prepared in connection with the initial issuance of the Bonds, together with all amendments, modifications and supplements thereto.
"Prior Bonds" shall mean the Annual Tender Pollution Control Revenue Bonds (Central Louisiana Electric Company, Inc. Project) Series 1983 previously issued by the Issuer for and on behalf of the Company.
"Process Agent" shall have the meaning given to such term in Section 11.09 hereof.
"Project" shall have the meaning given to such term in the first recital of this Agreement.
"Purchase Price" shall have the meaning given to such term in the Letter of Credit.
"Refunding Agreement" shall have the meaning given to such term in the first recital of this Agreement.
"Remarketing Agreement" shall have the meaning given to such term in the Indenture.
"Reoffering Supplement" shall mean the Reoffering Supplement dated October 15, 1997 to the Official Statement dated May 29, 1991, which has, as an attachment thereto, the Offical Statement.
"Reportable Event" shall mean an event described in Section 4043(b) of ERISA with respect to a Plan as to which the 30-day notice requirement has not been waived by the PBGC.
"Required Banks" shall mean (i) at such time as the Letter of Credit shall be outstanding, (a) WestLB (to the extent the relevant action will affect the Letter of Credit or WestLB's obligations with respect thereto in any way) and (b) Banks whose then outstanding LC Commitments and the then outstanding Advances (if any) equal or exceed 66-2/3% of the sum of the then Total LC Commitment and then total outstanding Advances (if any) and (ii) at such times as the Letter of Credit shall no longer be outstanding, Banks whose then outstanding Advances equal or exceed 66-2/3% of the then total outstanding Advances.
"S&P" shall mean Standard & Poor's Rating Services, a division of the McGraw Hill Companies, and its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall no longer be performing the functions of a securities rating agency, "S&P" shall be deemed to refer to any other nationally recognized securities rating agency approved by the Required Banks.
"Stated Amount" shall have the meaning given to such term in the Letter of Credit.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50% equity interest at the time.
"Taxes" shall have the meaning given to such term in Section 2.09 hereof.
"Tender Agent" shall have the meaning given to such term in the Indenture.
"Tender Agreement" shall have the meaning given to such term in the Indenture.
"Term Repayment Date" shall have the meaning given to such term in
Section 3.01 hereof.
"Termination Date" shall mean the date on which the Letter of Credit terminates or expires in accordance with its terms (as such expiration date may be extended pursuant to Section 2.03 hereof).
"Total Capitalization" shall mean (i) the sum of (a) the principal amount of all Indebtedness of the Company or any of its Subsidiaries which, at the time of the incurrence thereof, had a stated maturity in excess of one year, exclusive of any intercompany Indebtedness owed by the Company or any of its Subsidiaries but, in any event, including all Indebtedness of the Company incurred hereunder (regardless of the stated maturity thereof) (b) the par or stated value of all outstanding capital stock (including premiums on capital stock) of all classes of the Company, exclusive of all such stock held in the Company's treasury or owned beneficially or of record by any Affiliate of the Company, and (c) the retained earnings of the Company and its Subsidiaries, less (ii) unamortized capital stock expense.
"Total LC Commitment" shall have the meaning given to such term in
Section 2.01 hereof.
"Trustee" shall have the meaning given to such term in the first recital of this Agreement.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by which the present value of the accrued benefits under the Plan as of the close of its most recent plan year, determined in accordance with Statement of Financial Accounting Standards No. 35, based upon the actuarial assumptions used by the Plan's actuary in the most recent annual valuation of the Plan, exceeds the fair market value of the assets allocated thereto, determined in accordance with Section 412 of the Code.
"Voting Stock" shall mean stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of the relevant corporation, provided, however, that, for purposes of this Agreement, stock that carries only the right to vote conditionally on the happening of an event shall not be considered voting stock whether or not such event shall have happened.
"WestLB" shall have the meaning given to such term in the first paragraph of this Agreement.
ARTICLE II
LETTER OF CREDIT; FEES
Section 2.01. Agreement to Issue Letter of Credit. WestLB agrees with the Company, on the terms and subject to the conditions herein set forth (including, without limitation, the conditions specified in Article V hereof), to issue the Letter of Credit to the Trustee on October 15, 1997. The initial face amount of the Letter of Credit shall be $25,531,022.47 (such amount, as reduced or reinstated from time to time in accordance with the terms of the Letter of Credit, the "Total LC Commitment"); provided, that no more than $421,022.47 may be drawn thereunder with respect to the payment of interest on the Bonds; and, provided further, that in no event shall any amount be drawn under the Letter of Credit for the payment of any premium on the Bonds. The Letter of Credit shall expire on October 15, 2000, unless otherwise terminated or extended. WestLB agrees that it will pay all drawings under the Letter of Credit with its own funds.
Section 2.02. Adjustment to LC Commitments. Upon any reduction or reinstatement of the Stated Amount of the Letter of Credit in accordance with the terms thereof, the LC Commitment (as defined below) of each Bank shall be reduced or increased, respectively, based on the LC Percentage (as defined below) of such Bank, to reflect the new Stated Amount of the Letter of Credit (it being understood that the aggregate LC Commitments of the Banks with respect to the Letter of Credit shall at all times equal the Stated Amount of the Letter of Credit, and that in no event shall the LC Commitment of any Bank be increased to an amount in excess of the original LC Commitment of such Bank, except in accordance with the provisions of Section 11.01 hereof). As used herein, the terms (i) "LC Percentage" shall mean, for each Bank, that percentage set forth opposite such Bank's name on Schedule I attached hereto (as Schedule I may be amended from time to time to reflect adjustments thereto pursuant to Section 11.05 hereof) and (ii) "LC Commitment" shall mean, for each Bank, at any time, an amount equal to such Bank's LC Percentage at such time multiplied by the Stated Amount of the Letter of Credit at such time.
Section 2.03. Request to Extend the Letter of Credit. On any date which is at least ninety (90) days prior to the date which is not more than two years preceding the Termination Date of the Letter of Credit, if no Default or Event of Default shall have occurred and be continuing, the Company may request in writing to WestLB and the Banks, with a copy to the Agent (such request being irrevocable), that WestLB extend the Termination Date of the Letter of Credit for one (1) year (such request being referred to herein as the "Extension Request"). If the Company shall have made the Extension Request, the Agent shall, on or prior to the date which is forty-five (45) days after the date of receipt by the Agent, WestLB and the Banks of such Extension Request, notify the Company in writing whether or not WestLB and the Banks consent to such Extension Request and, if WestLB and the
Banks do so consent, the terms and conditions of such consent, it being understood and agreed that (i) no such extension shall be granted unless WestLB and all of the Banks shall have consented in writing to such extension, (ii) if the Agent shall fail to give such notice within such forty-five (45) day period, WestLB and the Banks shall be deemed not to have consented to such extension and (iii) neither WestLB nor any Bank shall have any obligation whatsoever to extend the Letter of Credit pursuant to this Section 2.03 (or any liability whatsoever in the event such Extension Request is denied for whatever reason), any such extension being in the sole and absolute discretion of WestLB and each of the Banks. If WestLB and the Banks shall agree to extend for one year the Termination Date of the Letter of Credit, and provided all of the conditions to such extension specified in the Agent's reply to the Extension Request shall have been met, WestLB shall issue an amendment to such Letter of Credit (or a new Letter of Credit, as WestLB may elect) extending the Termination Date of the Letter of Credit by one year.
Section 2.04. Letter of Credit Fee. The Company hereby agrees to
pay to the Agent, for distribution to each Bank, a letter of credit fee as
agreed with each Bank and specified in a letter agreement between the Company
and the Agent for the period from and including the later of the Date of
Issuance or the date of such letter agreement. Amounts payable under this
Section 2.04 shall be payable quarterly in arrears on the first Business Day of
each March, June, September and December occurring prior to the Termination Date
(each such date, a "Payment Date"), commencing December 31, 1997, and on the
Termination Date.
Section 2.05. Fronting Fee. The Company hereby agrees to pay to the Agent, for distribution to WestLB, a letter of credit fronting fee as agreed with WestLB and specified in a letter agreement between the Company and the Agent. Such fee shall be payable quarterly on each Payment Date commencing with December 31, 1997 and on the Termination Date.
Section 2.06. Transfer Fees. The Company hereby agrees to pay to WestLB, for its own account, upon each transfer of the Letter of Credit in accordance with its terms, $1,000 or such other amount as shall at the time of such transfer be the charge which WestLB is making generally for transfers of similar letters of credit. Amounts payable under this Section 2.06 shall be payable at the time of such transfer of the Letter of Credit.
Section 2.07. Drawing Fees. The Company hereby agrees to pay to WestLB, for its own account, upon each drawing by the Trustee under the Letter of Credit, the sum of $200 or such other amount as shall at the time of such drawing be the charge which WestLB is making generally for drawings on similar letters of credit. Amounts payable under this Section 2.07 shall be payable quarterly in arrears on each Payment Date, commencing on December 31, 1997, and on the Termination Date.
Section 2.08. Additional Fees. The Company hereby agrees to pay to the Agent for its own account upfront and administrative fees specified in a letter agreement between the Company and the Agent.
Section 2.09. Taxes. All payments made by the Company hereunder shall be made without set off, counterclaim or other defense. All such payments shall be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein (but excluding any tax imposed on or measured by the net income of WestLB, any Bank or any Participant, as applicable, pursuant to the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the principal office or applicable lending office of such Person is located) and all interest, penalties or similar liabilities with respect thereto (collectively, "Taxes"). If any Taxes are so levied or imposed, the Company agrees to pay the full amount of such Taxes and such additional amounts as may be necessary so that every payment of all amounts due hereunder, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein. The Company will furnish to the Agent, within 45 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company. The Company shall indemnify and hold harmless WestLB, each Bank and each Participant, as applicable, and reimburse each such Person upon its written request, for the amount of any Taxes so levied or imposed and paid by such Person.
Section 2.10. Increased Costs. If any change in or enactment of any law or governmental rule, regulation or order (whether or not having the force of law) or in the interpretation thereof by any court or administrative or governmental authority or central bank or comparable agency charged with the administration thereof (including implementation of the Cooke Commission Guidelines), or compliance by WestLB, any Bank or any Participant with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency, or any change in generally accepted accounting principles at any time in effect in the United States or in the Federal Republic of Germany, shall either (i) impose, modify or deem applicable any reserve, capital adequacy, special deposit or similar requirement against letters of credit issued by, or assets held by, or deposits in or for the account of, WestLB, any Bank or any Participant in connection with, or against participation in, the Letter of Credit or (ii) impose on WestLB, any Bank or any Participant any other condition relating, directly or indirectly, to this Agreement, the Letter of Credit or participation in the Letter of Credit, and the result of any event referred to in the preceding clause (i) or (ii) shall be to increase the cost to such Person of issuing, maintaining or participating in the Letter of Credit (which increase in cost shall be determined by such Person using reasonable allocation methods), then such Person shall so notify the Agent and, upon demand by the Agent on behalf of such Person, the Company shall immediately pay to the Agent, for distribution to such Person, from time to time as specified by the Agent, such additional amounts as shall be sufficient to compensate such Person for such increased costs from the date of such change, enactment or compliance, together with interest on each such amount from the date of demand therefor until payment in full thereof at the Base Rate plus 2% per annum. A certificate setting forth in reasonable detail such increased cost incurred by such Person, submitted by such Person to the Agent and from the Agent to the Company, shall be conclusive, absent manifest error, as the
amount thereof. Any Person seeking payment from the Company pursuant to this
Section 2.10 shall so inform the Company promptly upon learning of the
occurrence of the event or action upon which such recovery will be based.
ARTICLE III
REPAYMENT OF DRAWINGS
Section 3.01. Repayment of Drawings, Advances. The Company hereby
agrees to pay to WestLB (i) immediately after any payment is made under the
Letter of Credit pursuant to any "B Drawing" or any "C Drawing" to pay principal
of or interest (or the portion of Purchase Price corresponding to interest) on
the Bonds, an amount equal to such amount so paid under the Letter of Credit and
(ii) on the earlier to occur of the Termination Date and the day next succeeding
the first anniversary of the date that any payment is made under the Letter of
Credit pursuant to any "A Drawing" to pay the portion of Purchase Price
corresponding to principal on the Bonds (such earlier date, the "Term Repayment
Date"), an amount equal to such amount paid under the Letter of Credit together
with interest thereon (a) from and including the date of such drawing to but
excluding the earlier to occur of the Termination Date and the fifteenth (15th)
day following the date of such drawing (such earlier date, the "Interest
Increase Date"), at a rate per annum equal to the Base Rate and (b) from and
including the Interest Increase Date to but excluding the due date thereof, at a
rate per annum equal to the Base Rate plus 2%. In the event that the Company
shall fail to reimburse WestLB when due following any drawing specified in
clause (i) above, or WestLB shall make any payment under the Letter of Credit
specified in clause (ii) above and the Company shall not reimburse WestLB for
such payment on the date such payment was made, then, (1) WestLB shall promptly
advise the Agent thereof, (2) the Agent shall promptly advise each of the Banks
thereof and of each such Bank's LC Percentage of such unreimbursed drawing
(expressed both as a percentage and in U.S. dollars), and (3) each Bank (other
than WestLB) shall make available to WestLB in the lawful currency of the United
States by wire transfer of immediately available funds an amount equal to its LC
Percentage of such unreimbursed drawing by transferring the same, at or before
12:00 noon (New York time) on the date designated in such advice, which date
shall be no less than one Business Day after the date of such advice, to WestLB
at its office specified in Section 3.04 hereof. If any payment required to be
made by a Bank to WestLB is not made as provided above, WestLB shall be entitled
to recover such amount from such Bank on demand, together with interest thereon
at a rate per annum equal to (A) the cost to WestLB of acquiring overnight
Federal funds for the initial two (2) days such amount remains unpaid and (B)
the Base Rate per annum thereafter. WestLB (upon the honoring of any drawing),
and each other Bank (upon the payment to WestLB of its LC Percentage of such
drawing as provided above), shall each be deemed to have made a loan (each an
"Advance", and collectively, the "Advances") to the Company. Each such Advance
shall be applied (to the extent of such Advance) in satisfaction of the
Company's reimbursement obligation set forth in the first sentence of this
Section 3.01, and each Advance shall be repayable pursuant to, and shall
otherwise be subject to, the terms and conditions set forth herein.
Section 3.02. Repayment of Advances. The Company hereby agrees to
pay to the Agent (i) immediately after any Advance is deemed made pursuant to
Section 3.01 above in respect of drawings under the Letter of Credit specified
in Section 3.01(i) above, an amount equal to such Advance so made and (ii) on
the Term Repayment Date, an amount equal to the Advances deemed made pursuant to
Section 3.01 above in respect of drawings under the Letter of Credit specified
in Section 3.01(ii) above together with interest thereon (a) from and including
the date of such Advance to but excluding the Interest Increase Date, at a rate
per annum equal to the Base Rate and (b) from and including the Interest
Increase Date to but excluding the due date thereof, at a rate per annum equal
to the Base Rate plus 2%. All payments of interest and principal on Advances
shall be made to the Agent for distribution to the Banks pro rata on the basis
of the amounts of their respective Advances.
Section 3.03. Overdue Interest. The Company hereby agrees to pay to WestLB or the Agent, as applicable, for the account of WestLB, the Agent or the Banks, as applicable, interest on any and all amounts required to be paid to WestLB, the Agent or the Banks under this Agreement (including, without limitation, under Article II hereof and under Sections 3.01(i) and 3.02(i) hereof but excluding amounts payable under Sections 3.01(ii) and 3.02(ii) hereof) from and after the due date thereof until payment in full, payable on demand, at a rate per annum equal to the Base Rate plus 2%; provided that notwithstanding the foregoing, with respect to the amounts payable pursuant to Sections 3.01(i) and 3.02(i) hereof, for the fifteen (15) day period immediately succeeding the due date in respect of such amounts, so long as no Default or Event of Default shall have occurred and be continuing during such period, the interest rate payable by the Company pursuant to this Section 3.03 shall be the Base Rate (it being understood that if any Default or Event of Default shall occur and be continuing at any time during such fifteen (15) day period, the interest rate payable by the Company during such fifteen (15) day period shall be the rate per annum equal to the Base Rate plus 2% per annum). In addition, the Company hereby agrees to pay to WestLB or the Agent, as applicable, for the account of WestLB or the Banks, as applicable, interest on any and all amounts required to be paid to WestLB or the Banks under Sections 3.01(ii) and 3.02(ii) hereof from and after the due date thereof until payment in full, payable on demand, at a rate per annum equal to 2% in excess of the interest rate payable with respect to such amounts immediately prior to such due date.
Section 3.04. Payments; Computations. All payments by the Company to WestLB or the Agent required to be made under this Agreement shall be made in lawful currency of the United States by wire transfer of immediately available funds to the offices of The Chase Manhattan Bank, located at One Chase Manhattan Plaza, New York, New York, for the account of Westdeutsche Landesbank Girozentrale, no. 920-1-060663 unless WestLB or the Agent, as the case may be, shall otherwise notify the Company in writing. All computations of amounts payable under this Agreement shall be computed, in the case of fees and commissions, on the basis of a year of 360 days and, in the case of interest, on the basis of a year of 365 (or 366, as the case may be) days, in each case for the actual number of days occurring in the period for which such fees, commissions or interest is payable. If any payment required to be made under this Agreement other than those payments required
under Sections 2.04, 2.05 and 2.07 becomes due and payable on a day other than a Business Day, the same shall be payable on the next succeeding Business Day, and interest shall be payable at the rate otherwise applicable thereto on any such payment to the Business Day on which such payment is made.
Section 3.05. Payments to Banks. The Agent agrees that promptly after its receipt of each payment from or on behalf of the Company in respect of any Obligations of the Company hereunder, it shall distribute such payment to the Banks pro rata based upon their respective shares, if any, of the Obligations with respect to which such payment was received.
Section 3.06. Sharing Provision. Each of the Banks agrees that if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right or set off or banker's lien, by counterclaim or cross action, by the enforcement of any right hereunder or under any other Operative Document, or otherwise), which is applicable to the payment of the principal of, or interest on, the Advances or any other amount otherwise payable under this Agreement, and which is of a sum which, with respect to the related sum or sums received by the other Banks, is in a greater proportion than that which the total amount of such Obligation then owed and due to such Bank bears to the total amount of such Obligation then owed and due to all of the Banks immediately prior to such receipt, then such Bank receiving such excess payment shall purchase for cash without recourse or warranty from the other Banks an interest in the Obligations of the Company to such Banks in such amount as shall result in a proportional participation by all the Banks in such amount; provided, however, that if all or any portion of such excess amount is thereafter recovered from such Bank, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
Section 3.07. Obligations Absolute. The obligations of the Company under this Agreement shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances whatsoever, notwithstanding, without limitation, the following:
(i) any lack of validity or enforceability of the Letter of Credit, the Bonds, any Operative Document or any other instrument or agreement related thereto;
(ii) any amendment or waiver of or any consent to departure from all or any of the Operative Documents, the Letter of Credit or the Bonds;
(iii) the existence of any claim, set off, defense or other rights which the Company may have at any time against the Issuer, the holders of the Bonds, any beneficiary or transferee of the Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), the Agent, WestLB, the Banks (other than the defense of indefeasible payment to the Agent, WestLB or the Banks, as applicable, in accordance with the terms of this Agreement) or any other Person, whether in connection with the Bonds, the Letter of Credit, any
Operative Document or any other related or unrelated document or transaction;
(iv) any statement or any document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement or information therein being untrue or inaccurate in any respect whatsoever;
(v) payment by WestLB under the Letter of Credit against presentation of a sight draft or certificate which does not comply with the terms of the Letter of Credit, provided that such payment shall not have constituted gross negligence or willful misconduct of WestLB; and
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, provided that such other circumstance or happening shall not have been the result of gross negligence or willful misconduct of the Agent, WestLB or the Banks.
ARTICLE IV
PREPAYMENTS; ESCROW BONDS
Section 4.01. Prepayments. Any amounts from time to time owing to the Banks pursuant to Section 3.02(ii) hereof may be prepaid (i) at any time by the Company on one Business Day's notice stating the amount to be prepaid (which shall be $100,000 or any integral multiple of $5,000 in excess thereof) and (ii) at any time in connection with a remarketing of Bonds pursuant to Section 13.06 of the Indenture.
Section 4.02. Release of Escrow Bonds. Upon payment to the
Agent of the amount to be prepaid pursuant to clause (i) or (ii) of Section
4.01 (the "Prepayment Amount"), together with accrued interest, as set forth in
Section 3.02(ii), to the date of such prepayment on the amount to be prepaid,
the outstanding obligations of the Company under Section 3.02(ii) shall be
reduced by the amount of such prepayment and interest shall cease to accrue on
the amount prepaid. In addition, upon payment to the Agent of the Prepayment
Amount and the amount owing, if any, in respect of the "C Drawing" made in
conjunction with the "A Drawing" to which such Prepayment Amount relates, the
Agent shall direct the Tender Agent to release Escrow Bonds in an aggregate
principal amount equal to the Prepayment Amount, all in accordance with the
provisions of Section 7(b) of the Tender Agreement.
ARTICLE V
CONDITIONS PRECEDENT
The obligation of WestLB to issue the Letter of Credit is subject to the following conditions:
Section 5.01. Delivery of Bonds and Operative Documents. The Operative Documents and the Bonds shall each have been executed and delivered by the respective parties thereto, shall each be in full force and effect, and shall each be in form and substance satisfactory to the Agent, WestLB and each Bank. The Agent shall have received (with sufficient copies for WestLB and each Bank) an executed or conformed copy of each Operative Document and a specimen copy of the Bonds.
Section 5.02. Intentionally Omitted.
Section 5.03. Receipt of Documents. The Agent shall have received (with sufficient copies for WestLB and each Bank), on or before the Date of Issuance, the following, in form and substance satisfactory to the Agent, WestLB and each Bank:
(i) copies of the resolutions of the Board of Directors of the Company or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Agreement, certified by the President, any Vice President, the chief financial officer, the Secretary-Treasurer or an Assistant Secretary of the Company;
(ii) an Officer's Certificate, certifying the names and true signatures of the officers of the Company authorized to sign this Agreement, and the other documents to be delivered hereunder;
(iii) an opinion of (a) Baker & Botts, L.L.P. special counsel to the Company, substantially in the form of Exhibit B-1 attached hereto, and (b) William O. Bonin, special Louisiana counsel to the Company, substantially in the form of Exhibit B-2 attached hereto, in each case dated the Date of Issuance, addressed to WestLB, the Agent and the Banks;
(iv) a copy of the Reoffering Supplement which includes, as an attachment thereto, the Official Statement;
(v) a copy of the restated articles of incorporation of the Company, certified as of a recent date by the Secretary of State of the State of Louisiana, together with a certificate of good standing for the Company, dated as of a recent date.
(vi) a letter from the Process Agent, in a form reasonably satisfactory to the Agent, indicating the consent by the Process Agent to its appointment by the Company as its agent to receive service of process as specified in Section 11.09 hereof;
(vii) copies of the by-laws of the Company, certified as of the Date of Issuance by the President, any Vice President, the chief financial officer, the Secretary-Treasurer or an Assistant Secretary of the Company;
(viii) an opinion (or a signed copy of such opinion together with a satisfactory reliance letter) of Foley & Judell L.L.P., Bond Counsel, dated the Date of Issuance, addressed to WestLB, the Agent and the Banks and in form and substance satisfactory to WestLB, the Agent and the Banks, to the effect that the delivery of the Letter of Credit does not conflict with the laws of the State of Louisiana, is permitted by the Indenture and the Refunding Agreement, complies with the terms of the Indenture and the Refunding Agreement and will not adversely affect any exclusion from gross income for federal income tax purposes of interest on the Bonds;
(ix) an Officer's Certificate, dated the Date of Issuance, substantially in the form of Exhibit C attached hereto; and
(x) copies of written evidence from Moody's and S&P pursuant to Section 3.01(a) of the Indenture; and
(xi) such other information, documents, instruments, approvals and opinions as WestLB, the Agent or any Bank or any of their respective counsel may reasonably request.
Section 5.04. Representations and Warranties; Defaults. The following statements shall be true and correct on the Date of Issuance and the Agent shall have received (with sufficient copies for WestLB and each Bank) an Officer's Certificate, dated the Date of Issuance, stating that:
(i) on the Date of Issuance, both before and after giving effect to the execution and delivery of this Agreement and the issuance of the Letter of Credit, all representations and warranties made by the Company in Article VI of this Agreement and in each other Operative Document to which it is a party, and all representations and warranties otherwise made by the Company in writing in connection herewith or with any other Operative Document to which it is a party, are true and correct on and as of the Date of Issuance as though made on and as of such date; and
(ii) on the Date of Issuance, both before and after giving effect to the execution and delivery of this Agreement and the issuance of the Letter of Credit, there exists no Default or Event of Default.
Section 5.05. Certain Other Matters. On and as of the Date of Issuance:
(i) there shall be no order or other restrictions in effect issued by any court, governmental or regulatory agency or arbitrator against or directly involving any party to any Operative Document or the Bonds which prevents such party from performing any of its obligations under such Operative Document or the Bonds;
(ii) each Person party to an Operative Document or the Bonds shall have received all necessary governmental, regulatory and third party consents and approvals required to be obtained by such Person in order to consummate the transactions contemplated by the Operative Documents and the Bonds, including, in the case of the Company and without limitation, the approval of the Louisiana Public Service Commission in respect of the transactions contemplated in connection with the issuance of the Bonds and the consummation of the transactions contemplated by this Agreement.
(iii) simultaneously with the issuance of the Letter of Credit, all of the conditions specified in the Other Reimbursement Agreements for the issuance of the Other Letters of Credit shall have been satisfied (or waived by the Required Banks (as defined therein)), and the Other Letters of Credit shall have been issued simultaneously with the issuance of the Letter of Credit to the beneficiary thereof pursuant to the terms of the Other Reimbursement Agreements;
(iv) there shall have been no material adverse change in the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole since December 31, 1996; and
(v) the Agent, WestLB and the Banks shall have received all fees set forth or referred to in Article II hereof that shall be due and payable on or before the Date of Issuance.
Section 5.06. Proceedings. All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement and the other Operative Documents shall be satisfactory in form and substance to the Agent, WestLB, the Banks and their respective counsel, and each of the Agent, WestLB and the Banks shall have received all information and copies of all documents, including records of corporate proceedings, governmental approvals, incumbency certificates, and opinions which any of them may have reasonably requested in connection with the transactions contemplated by this Agreement and the other Operative Documents, such documents where appropriate to be certified by proper officers.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, WestLB and each of the Banks to enter into this Agreement, and in order to induce WestLB to issue the Letter of Credit, the Company makes the following representations and warranties to the Agent, WestLB and each of the Banks, which representations and warranties shall survive the execution and delivery of this Agreement and the Letter of Credit, regardless of any investigation made by or on behalf of the Agent, WestLB or any of the Banks:
Section 6.01. Due Organization, Etc. Each of the Company and its Subsidiaries (i) is a duly organized and validly existing corporation in good standing under the laws of the jurisdiction of its incorporation and (ii) has all requisite corporate power and authority to own its property and assets and to transact its business as presently conducted.
Section 6.02. No Conflicts. The execution, delivery and
performance by the Company of this Agreement and each of the other Operative
Documents to which it is a party (i) are within the Company's corporate power,
(ii) have been duly authorized by all necessary corporate action on the part of
the Company, (iii) do not and will not require any consent or approval of any
class of stockholders of the Company, (iv) do not and will not (a) contravene
the charter or by-laws of the Company or (b) contravene any applicable law,
rule, regulation (including, without limitation, Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System or any rules or
regulations of the Louisiana Public Service Commission), order, writ, judgment,
injunction or decree presently in effect having applicability to the Company or
any of its Subsidiaries, (v) except as required by the provisions of the
Refunding Agreement, do not and will not result in or require the creation of
any Lien upon or with respect to any of the properties of the Company or any of
its Subsidiaries and (vi) do not and will not result in the violation of or be
in conflict with or result in a default under or breach or termination of any
term or provision of any mortgage, lease, agreement, indenture, contract,
instrument or other document to or by which the Company or any of its
Subsidiaries is a party or otherwise bound or to which any of the assets or
properties of the Company or any of its Subsidiaries are subject, except any
such violation, conflict, default, breach or termination referred to in this
clause (vi) which, individually or in the aggregate, (a) would not affect the
legality, validity, enforceability or binding effect of the Bonds, this
Agreement or any of the other Operative Documents and (b) would not have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole.
Section 6.03. Due Authorization. No order, authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Company of this Agreement or any of the other Operative Documents to which it is a party, other than any of the foregoing which shall have been previously obtained or made by the Company and which are currently in full force and effect. The Louisiana Public Service Commission has duly issued its order authorizing the Company to enter into this Agreement and the other Operative Documents to which it is a party and to take all action contemplated hereby and thereby or in connection herewith or therewith, and such orders remain in full force and effect in the forms originally issued.
Section 6.04. Enforceability. This Agreement and each of the other Operative Documents to which the Company is a party constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
Section 6.05. Litigation. There are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries or any of their respective properties or rights, or involving any of the Operative Documents, before any court, administrative, governmental or regulatory agency or arbitrator, and there is no pending or, to the knowledge of the Company, proposed legislative, regulatory, rule-making, rate-setting or investigatory proceeding before any federal, state, county or municipal government, department, commission, board or agency or any other instrumentality of any of them involving or affecting the Company, any of its Subsidiaries or the Issuer, in any case which (i) alone or together with others would, if adversely determined, have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole (except that for the purposes of this clause (I) an earnings review or the commencement by the Company of rate increase proceedings with the Louisiana Public Service Commission or the Federal Energy Regulatory Commission shall not constitute such a pending or threatened action or proceeding unless and until such commission's determination is made thereunder that has such a material adverse effect) or (ii) questions the legality, validity, enforceability or binding effect of the Bonds, this Agreement or any other Operative Document or would impair materially the Company's ability to perform its obligations under this Agreement or any of the other Operative Documents to which it is a party.
Section 6.06. Compliance with ERISA. With respect to each
Plan, other than a multiemployer plan as defined in Section 4001(a)(3) of
ERISA, (i) each such Plan is in substantial compliance with ERISA and the Code;
(ii) no Reportable Event has occurred; (iii) no such Plan has an Unfunded
Current Liability which could have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of the Company or
of the Company and its Subsidiaries taken as a whole; (iv) no such Plan has an
accumulated or waived funding deficiency; (v) no such Plan has applied for an
extension of any amortization period under Section 412(a) of the Code; (vi) no
proceedings have been instituted to terminate any such Plan nor, to the
knowledge of the Company, does there exist reason for the PBGC to attempt to
take possession of or terminate any such Plan under Section 4042 of ERISA; and
(vii) there has been no withdrawal from any such Plan so as to result in
liability for the Company or any ERISA Affiliate under any of Sections 4062(e)
or 4063 of ERISA. With respect to Plans that are multi employer plans within
the meaning of Section 4001(a)(3) of ERISA, (a) no such Plan is insolvent or in
reorganization; (b) neither the Company nor any ERISA Affiliate has any
liability under Section 515 with respect to such Plan except for good faith
disputes concerning the amount of such liability; and (c) neither the Company
nor any ERISA Affiliate has withdrawn or partially withdrawn from any such Plan
and as a result thereof incurred any liability under Sections 4201 or 4204 of
ERISA. Neither the Company nor any of its Subsidiaries nor any ERISA Affiliate
expects to incur any material liability to or on account of a Plan pursuant to
Section 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA. No lien imposed under
the Code or ERISA on the assets of the Company or any of its Subsidiaries or
any ERISA Affiliate exists. Neither the Company nor any of its Subsidiaries
nor any ERISA Affiliate maintains or contributes to any employee welfare
benefit plan as defined in Section 3(1) of ERISA which provides benefits to
retired employees (other than as required by Section 601 of
ERISA) the obligations with respect to which could have a material adverse effect on the ability of the Company to perform any of its obligations under this Agreement.
Section 6.07. No Defaults. Neither the Company nor any of its Subsidiaries is in default under or breach of (nor does any circumstance or occurrence exist which, with the passage of time or the giving of notice or both, would constitute a default under or breach of) any mortgage, lease, agreement, indenture, contract, instrument or other document to which it is a party or to which it or any of its properties may be bound, other than any such breach or default which would not, individually or in the aggregate, have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 6.08. Financial Statements. The Company has furnished, or caused to be furnished, to the Agent, with sufficient copies for WestLB and each Bank, the following financial statements: (i) the consolidated balance sheets of the Company and its Subsidiaries as at December 31, 1995 and December 31, 1996, and the related consolidated statements of income and changes in shareholders' equity and of cash flows for the fiscal years ended as of such dates, which, in each case, have been certified by Coopers & Lybrand L.L.P., independent certified public accountants for the Company; and (ii) the consolidated balance sheets of the Company and its Subsidiaries as at June 30, 1995 and June 30, 1996, and the related consolidated statements of income and of cash flows for the six months ended as of such dates, which, in each case, have been prepared by the Company. Such financial statements (including any related schedules and/or notes thereto) have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as otherwise set forth in the notes to said financial statements) and reflect all liabilities, direct and contingent, of the Company and its Subsidiaries required to be shown in accordance with such principles. Such financial statements fairly present the consolidated financial condition of the Company as at the dates thereof and the consolidated results of operations and cash flows for the periods indicated (subject, as to any interim statements, to normal year end adjustments). There has been no material adverse change in the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole since December 31, 1996.
Section 6.09. Taxes. Each of the Company and its Subsidiaries has filed all federal and state income tax returns which are required to be filed by it, and each has paid all taxes as shown on such returns and on all assessments received by it except to the extent that such taxes have not become due and other than taxes the amount or validity of which are currently being contested in good faith by appropriate proceedings with respect to which reserves in accordance with general accepted accounting principles have been provided.
Section 6.10. Disclosure. Intentionally Omitted.
Section 6.11. Title to Property. Each of the Company and its
Subsidiaries has good and marketable title to all of its material real
properties and good title to all of its other material properties and assets,
free and clear of all Liens, other than those permitted to exist pursuant to
Section 8.04.
Section 6.12. Environmental and Other Matters. Each of the Company and its Subsidiaries is in compliance with all applicable statutes, rules and regulations governing pollution and environmental control, equal employment opportunity and employee safety in all jurisdictions in which it is doing business, other than such noncompliances which, individually or in the aggregate, would not have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole. No Lien in favor of any governmental authority has been asserted or recorded under any statute, rule or regulation, governing pollution and environmental control with respect to any of the assets or properties of the Company or any of its Subsidiaries.
Section 6.13. Operative Documents. The Company makes to WestLB, the Agent and each of the Banks each of the representations and warranties made by it in each of the other Operative Documents to which it is a party to the same extent as if the same were set forth at length herein. There is no default by the Company or, to the knowledge of the Company, by any other Person under any of the other Operative Documents.
Section 6.14. Margin Stock. The Company is not principally engaged in, nor does it have as one of its principal activities, the business of extending credit for the purpose of purchasing or carrying any "margin stock" (as such term is defined in Regulation U of the Board of Governors of the Federal Reserve System). None of the proceeds of the Bonds or of any drawing under the Letter of Credit will be used, directly or indirectly, to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock.
Section 6.15. Investment Company. The Company is not an "investment company", as defined in the Investment Company Act of 1940, as amended.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Company covenants that, from and after the Date of Issuance until such time as the Letter of Credit is no longer outstanding and all Obligations are paid in full:
Section 7.01. Preservation of Corporate Existence. Subject to Section 8.01 hereof, the Company will, and will cause each of its Subsidiaries to, (i) preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation and (ii) qualify and remain qualified as a foreign
corporation in good standing in each jurisdiction where the operation of its businesses or the ownership of its assets requires such qualification; provided, however, that the Company and its Subsidiaries will not be required to preserve any such right, franchise, privilege or qualification if the Company or any such Subsidiary determines that the preservation thereof is no longer desirable or, in the case of qualification, required, and determines that the loss of such rights, franchises, privileges or qualifications will not have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 7.02. Compliance with Law; Environmental and Other Matters. The Company will, and will cause each of its Subsidiaries to, comply with the requirements of all applicable laws, rules, regulations and orders of any governmental authority having jurisdiction over it (including, without limitation, ERISA and the statutes, rules and regulations thereunder and all statutes, rules and regulations governing pollution and environmental control, equal employment opportunity and employee safety), except for such noncompliances which, individually or in the aggregate, would not have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 7.03. Performance of Agreements. The Company will, and will cause each of its Subsidiaries to, observe and perform (i) with respect to the Company, all of its obligations under this Agreement and the other Operative Documents to which it is a party and (ii) with respect to the Company and its Subsidiaries, all of their respective obligations under each mortgage, lease, agreement, indenture, contract, instrument or other document to which it is or may become a party or by which it is or may become bound, except such non-observance or non-performance which would not, individually or in the aggregate, have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 7.04. Maintenance of Insurance. The Company will, and will cause each of its Subsidiaries to, maintain insurance with responsible and reputable insurance companies in such amounts, with such deductibles and covering such risks as is usually maintained by companies conducting similar businesses and owning similar properties.
Section 7.05. Furnishing of Information. The Company will, for itself and on behalf of each of its Subsidiaries, furnish to the Agent, WestLB and each Bank the following: (i) immediately following the occurrence of any Default or Event of Default, an Officer's Certificate setting forth details of such Default or Event of Default, the period of existence thereof and the action proposed to be taken by the Company or such Subsidiary with respect thereto and (ii) such other information respecting the business, operations, condition (financial or otherwise) or prospects of the Company or any of its Subsidiaries as WestLB, the Agent or any Bank may from time to time reasonably request.
Section 7.06. ERISA. The Company will, and will cause each
of its Subsidiaries and ERISA Affiliates to, as soon as possible and in any
event within ten days after the Company or any of its Subsidiaries or ERISA
Affiliates knows of the occurrence of any of the following, deliver to the
Agent, with sufficient copies for WestLB and each Bank, a certificate of the
chief financial officer of the Company, setting forth details as to such
occurrence and the action, if any, which the Company, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Company, such
Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant or the Plan
Administrator with respect thereto: (i) the occurrence of a Reportable Event;
(ii) the existence of an accumulated funding deficiency; (iii) the making of an
application to the Secretary of the Treasury for a waiver or modification of
the minimum funding standard (including any required installment payments) or
extension of any amortization period under Section 412 of the Code with respect
to a Plan; (iv) the termination, reorganization, partition or declaration of
insolvency under Title IV of ERISA of a Plan; (v) the existence of an Unfunded
Current Liability with respect to a Plan which has resulted in a lien being
imposed under ERISA or the Code with respect to the Company or any of its
Subsidiaries or ERISA Affiliates; (vi) the institution of proceedings to
terminate a Plan; (vii) the institution of a proceeding pursuant to Section 515
of ERISA to collect delinquent contributions from the Company or any of its
Subsidiaries or ERISA Affiliates; or (viii) the incurrence of any liability
(including any contingent or secondary liability) by the Company or any of its
Subsidiaries or ERISA Affiliates to or on account of the termination or
withdrawal from a Plan under Sections 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA; provided, however, that, with respect to any person (as defined in
Section 3(9) of ERISA) that is an ERISA Affiliate only within the meaning of
Section 414(m) or 414(o) of the Code, the Company need only use its best
efforts to cause such person to deliver such certificate and notices. The
Company will deliver and, with respect to any person (as defined in Section
3(9) of ERISA) that is an ERISA Affiliate only within the meaning of Section
414(m) or 414(o), will use its best efforts to obtain and deliver, to the
Agent, with sufficient copies for WestLB and each Bank, a complete copy of the
annual report (Form 5500) of each Plan required to be filed with the Internal
Revenue Service. Copies of annual reports and any notices received by the
Company, any of its Subsidiaries or any ERISA Affiliates with respect to any
Plan shall be delivered to the Agent no later than ten days after the later of
the date such report or notice has been filed with the Internal Revenue Service
or received by the Company, such Subsidiary or such ERISA Affiliate; provided,
however, that, with respect to any person (as defined in Section 3(9) of ERISA)
that is an ERISA Affiliate only within the meaning of Section 414(m) or Section
414(o) of the Code, the Company need only use its best efforts to obtain such
report or notice.
Section 7.07. Financial Statements. The Company will deliver, or cause to be delivered, to the Agent, with sufficient copies for WestLB and each Bank, in each case in duplicate: (i) as soon as available and in any event within 60 days after the end of each fiscal quarterly period in each fiscal year of the Company, a consolidated balance sheet of the Company and the related consolidated statements of income and cash flows of the Company for such period and for the period from the beginning of the then current fiscal year to the end of such fiscal quarterly period, setting forth in each case
in comparative form the figures for the corresponding periods for the previous
fiscal year, in each case certified by the chief financial officer or chief
accounting officer of the Company as fairly presenting the consolidated
financial condition of the Company as at such date and the consolidated results
of operations and cash flows of the Company for the period ended on such date,
all in accordance with generally accepted accounting principles consistently
applied, subject to normal year-end audit adjustments, (ii) as soon as
available and in any event within 120 days after the end of each fiscal year of
the Company, a consolidated balance sheet of the Company and the related
consolidated statements of income and changes in shareholders' equity and cash
flows of the Company for such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year, in each case
certified by Coopers & Lybrand L.L.P. or such other nationally recognized
independent certified public accountants acceptable to the Required Banks whose
certificate shall be reasonably satisfactory to WestLB and the Required Banks,
(iii) promptly after receipt thereof, copies of the material portion of any
detailed reports submitted to the Company or any of its Subsidiaries by its
independent accountants in connection with each annual or interim audit of the
accounts of the Company or its Subsidiaries relating to the business,
operations, condition (financial or otherwise) or prospects of the Company or
its Subsidiaries, (iv) promptly, and in any event within ten (10) days after an
officer of the Company obtains knowledge thereof, notice of any litigation or
governmental or regulatory proceedings pending against the Company or any of
its Subsidiaries which, individually or in the aggregate, would have a material
adverse effect on the business, operations, condition (financial or otherwise)
or prospects of the Company or of the Company and its Subsidiaries taken as a
whole, or otherwise pending with respect to the Bonds or any Operative
Document, (v) promptly, and in any event within ten (10) days after an officer
of the Company obtains knowledge thereof, notice of any event not otherwise
specified in clause (iv) above which, individually or in the aggregate, would
have a material adverse effect on the business, operations, condition
(financial or otherwise) or prospects of the Company or of the Company and its
Subsidiaries taken as a whole, (vi) promptly after the sending or filing
thereof, copies of all reports and registration statements (including without
limitation Forms 10-K and 10Q) which the Company sends to any of its security
holders or which the Company or any of its Subsidiaries files with Securities
and Exchange Commission or any national securities exchange, (vii) promptly
upon the written request of the Agent, WestLB or any Bank, copies of any
report, application, petition or other similar document which the Company or
any of its Subsidiaries sends to or files with the Federal Energy Regulatory
Commission or the Louisiana Public Service Commission, and (viii) such other
financial information as the Agent, WestLB or any Bank may reasonably request.
Together with each delivery of financial statements required by clauses (i) and
(ii) above, the Company shall deliver to the Agent, with sufficient copies for
WestLB and each Bank, (a) an Officer's Certificate stating that there exists no
Default or Event of Default or, if any such Default or Event of Default exists,
stating the nature thereof, the period of existence thereof and what action the
Company proposes to take with respect thereto and (b) a certificate prepared
and certified by the chief financial officer of chief accounting officer of the
Company setting forth the calculations required to establish whether the
Company is in compliance with the provisions of Sections 8.05 and 8.06 hereof
at the end of such fiscal quarter or fiscal year, as the case may be. The
Agent, WestLB and the Banks are hereby authorized to
deliver a copy of any financial statement or other document delivered to them pursuant to this Section 7.07 to any regulatory body having jurisdiction over them and to any prospective Participant in their interest herein or in the Letter of Credit.
Section 7.08. Inspection. The Company will, and will cause each of its Subsidiaries to, permit officers and designated representatives of the Agent, WestLB or any Bank to visit and inspect, at such Person's own expense, any of the properties of the Company or any of its Subsidiaries, to examine the corporate books and financial records of such entities and make copies thereof or extracts therefrom, and to discuss the affairs, finances and accounts of any of such entities with the principal officers and the internal and independent accountants of such entities, all upon reasonable prior notice and during regular business hours and as often as the Agent, WestLB or such Bank may reasonably request.
Section 7.09. Payment of Taxes, Etc. The Company will, and will cause each of its Subsidiaries to, pay and discharge all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, and all lawful claims which, if unpaid, would become a Lien upon any of its properties, in each case at such time as such taxes, assessments, governmental charges, levies or claims shall become due and payable; provided, however, that neither the Company nor any of its Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by appropriate proceedings and as to which appropriate reserves are being maintained in accordance with generally accepted accounting principles.
Section 7.10. Maintenance of Property. The Company will, and will cause each of its Subsidiaries to, keep all property that is useful and necessary in its business in good working order and condition, ordinary wear and tear excepted.
Section 7.11. Certain Notices. The Company will furnish to the Agent, with sufficient copies for WestLB and each Bank, a copy of any notice, certification, demand or other writing or communication given or received by the Company under or in connection with the Bonds or any of the other Operative Documents, in each case promptly after the receipt or giving of the same.
ARTICLE VIII
NEGATIVE COVENANTS
The Company covenants that, from and after the Date of Issuance and until such time as the Letter of Credit is no longer outstanding and all Obligations are paid in full:
Section 8.01. Consolidation, Merger, Sale of Assets, Etc. The Company will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of, whether in a single transaction or a series of related transactions, more than 5% of the consolidated total assets of the Company and its Subsidiaries as of the date of any such conveyance, sale, lease or other disposition, to any Person, or agree to do any of the foregoing at any future time; provided, however, that nothing contained in this Section 8.01 shall prohibit (i) a consolidation or merger of two or more Subsidiaries, (ii) a consolidation or merger of one or more Subsidiaries with or into the Company, if the Company is the surviving corporation, (iii) a consolidation or merger of another Person into the Company or a Subsidiary if the Company or a Subsidiary is the surviving Person, (iv) the conveyance, sale, lease or other disposition of assets of a Subsidiary to the Company or another Subsidiary, (v) the sale or other disposition of any Subsidiary in which the Company has made no capital investment (either by cash contribution, contribution of assets or otherwise), (vi) sales by the Company or a Subsidiary of its accounts receivable or other receivables or sales of undivided interests in such accounts receivable and other receivables or (vii) the sale or other disposition of pollution control facilities in connection with the issuance by a governmental entity of pollution control bonds substantially all of the proceeds of the sale of which are received by the Company.
Section 8.02. Redemption or Purchase of Bonds; Adjustment of Interest Rate Periods. The Company will not, without the prior consent of the Required Banks, such consent not to be unreasonably withheld, (i) take any action to cause a redemption of any of the Bonds, (ii) take any action to cause the Interest Rate Period (as defined in the Indenture) in respect of the Bonds to be adjusted or otherwise changed to a Short Term Interest Rate Period or a Long-Term Interest Rate Period (as defined in the Indenture) or (iii) take any affirmative action to purchase, or to permit any of its Subsidiaries to purchase, any of the Bonds.
Section 8.03. Amendment of Operative Document. The Company will not, without the prior written consent of the Required Banks, terminate or amend or consent to the termination or amendment of any of the terms or provisions of the Bonds or any Operative Document.
Section 8.04. Liens. The Company will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or personal, tangible or intangible) of the Company or any of its Subsidiaries, whether now owned or hereafter acquired, provided, however, that the provisions of this Section 8.04 shall not prevent the creation, incurrence, assumption or existence of:
(i) Liens to secure the CLECO Mortgage;
(ii) the following "permitted liens" pursuant to Section 1.04 of the CLECO Mortgage as presently in effect: (a) liens for taxes, assessments or governmental charges not then delinquent; (b) the lien of taxes, assessments or governmental charges due, or to become due, the validity of which is being contested at the time by the Company in good faith and, if necessary, by appropriate legal proceedings, provided that the Company shall have made such provision as may be
required by the trustee under the CLECO Mortgage for the payment of any amount or the giving of such security as shall be required to prevent the loss or forfeiture of any of the mortgaged and pledged property, and for the payment of the amount of any such taxes, assessments or governmental charges as shall ultimately be determined to be due and payable; (c) any liens, the Indebtedness secured by which has not been assumed by the Company and on which it does not customarily pay interest charges, existing upon real estate or rights in or relating to real estate acquired by the Company for substation, transmission lines, distribution lines, pipelines, water mains, or right-of-way purposes or for storeroom or service buildings incidental to any of the foregoing; (d) rights reserved to or vested in any municipality or public authority by the terms of any right, power, franchise, grant, license, permit or by any provision of law to terminate such right, power, franchise, grant, license or permit or to purchase, condemn or recapture or to designate a purchaser of any of the property of the Company; (e) leases, easements, restrictions, exceptions or reservations in any property of the Company created at or before the acquisition thereof by the Company for the purpose of roads, water mains, pipe lines, transmission lines, distribution lines or for the joint or common use of real property and equipment and other like purposes, and other minor defects and irregularities of title in any property, in any case which do not materially impair the use of such property in the operation of the business of the Company or which the Company itself has power to cure by appropriate legal proceedings; (f) rights reserved to or vested in any municipality or public authority to use or control or regulate any property of the Company; (g) any obligations or duties affecting the property of the Company to any municipality or public authority with respect to any franchise, grant, license or permit; (h) undetermined liens and charges incidental to construction, except such as may result from any delinquent obligation of the Company for the payment of money on account of such construction; (i) funded liens; or (j) obligations arising under agreements or otherwise relating to the ownership by the Company of an undivided interest in real or personal property;
(iii) Liens on any property acquired, constructed or improved by the Company or any of its Subsidiaries after the date of this Agreement which are created or assumed contemporaneously with, or within 120 days after, such acquisition or completion of such construction or improvement, or within six months thereafter pursuant to a firm commitment for financing arranged with a lender or investor within such 120-day period, to secure or provide for the payment of all or any part of the purchase price of such property or the cost of such construction or improvement incurred after the date of this Agreement, or, in addition to Liens contemplated by clauses (iv) and (v) below, Liens on any property existing at the time of acquisition thereof, provided that the Liens shall not apply to any property theretofore owned by the Company or any of its Subsidiaries other than, in the case of any such construction or improvement, any theretofore unimproved real property on which the property so constructed or the improvement is located;
(iv) existing Liens on any property or indebtedness of a corporation which is merged with or into or consolidated
with the Company or any of its Subsidiaries;
(v) Liens on property or indebtedness of a corporation existing at the time such corporation becomes a Subsidiary of the Company;
(vi) Liens to secure Indebtedness of a Subsidiary to the Company or to another of its Subsidiaries;
(vii) Liens in favor of the United States of America, any state, any foreign country or any department, agency or instrumentality or political subdivision of any such jurisdiction, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any Indebtedness incurred for the purpose of financing all or any part of the purchase price of the cost of constructing or improving the property subject to such Liens, including, without limitation, Liens to secure pollution control or industrial revenue bond type Indebtedness;
(viii) Liens to secure sales by the Company or any of its Subsidiaries of accounts receivable or other receivables or sales of undivided interests in such accounts receivable and other receivables provided that such liens apply only to the accounts receivable sold and related security;
(ix) Liens on any property (including any natural gas, oil or other mineral property) to secure all or part of the cost of exploration, drilling or development thereof or to secure Indebtedness incurred to provide funds for any such purpose;
(x) Liens existing on the date of this Agreement and set forth on Schedule II attached hereto;
(xi) Liens consisting of (a) pledges or deposits in the
ordinary course of business to secure obligations under worker's
compensation laws or similar legislation, including liens of judgments
thereunder which are not currently dischargeable, (b) deposits in the
ordinary course of business to secure, or in lieu of, surety, appeal, or
customs bonds to which the Company is a party, (c) Liens created by or
resulting from any litigation or legal proceeding which is currently being
contested in good faith by appropriate proceedings diligently conducted,
(d) pledges or deposits in the ordinary course of business to secure
performance in connection with bids, tenders or contracts (other than
contracts for the payment of money) or (e) materialmen's, mechanics',
carriers', worker's, repairmen's or other like liens incurred in the
ordinary course of business for sums not yet due or currently being
contested in good faith by appropriate proceedings diligently conducted,
or deposits to obtain the release of such liens;
(xii) Liens for the sole purposes of extending, renewing or replacing in whole or in part Indebtedness secured by any
Lien referred to in the foregoing clauses (i) to (xi), inclusive, or this clause (xii); provided, however, that the principal amount of Indebtedness secured thereby shall not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacement plus the amount of any redemption or repurchase premiums incurred in retiring such Indebtedness, and that such extension, renewal or replacement shall be limited to all or a part of the property or indebtedness which secured the Lien so extended, renewed or replaced (plus improvements on such property); and
(xiii) Liens not otherwise permitted by foregoing clauses
(i) to (xii), inclusive, to the extent such Liens encumber, in the
aggregate, no more than 5% of Consolidated Net Tangible Assets.
Section 8.05. Interest Coverage Ratio. The Company will not permit the ratio of EBITDA to Consolidated Interest Expense at any time (determined in each instance using the most recently completed 12-month period for which the relevant financial information is available) to be less than 2.00 to 1.00.
Section 8.06. Tangible Net Worth Ratio. The Company will not, at any time, permit Consolidated Tangible Net Worth to be less than 35% of Total Capitalization.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01. Events of Default. If any of the following events (each an "Event of Default") shall occur and be continuing:
(i) any representation or warranty made by the Company in this Agreement or in any of the other Operative Documents or in any writing furnished in connection with or pursuant to this Agreement or any other Operative Document shall be false or incomplete in any material respect when made or deemed made; or
(ii) the Company shall fail to make any payment required to be made by it when due hereunder (including, without limitation, pursuant to Article II or Article III hereof) or under any or the Operative Documents; or
(iii) the occurrence of an "event of default" as described and defined in the Indenture or the Refunding Agreement; or
(iv) the occurrence of an "event of default" as described and defined in either of the Other Reimbursement Agreements; or
(v) the Company shall fail to perform or observe any of the terms of Article VIII hereof; or
(vi) the Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the Operative Documents on its part to be performed or observed and (a) with respect to any such term, covenant or agreement contained herein, any such failure remains unremedied for 30 days, and (b) with respect to any such term, covenant or agreement contained in any of the other Operative Documents, any such failure remains unremedied after any applicable grace period specified in such Operative Document; or
(vii) any material provision of the Bonds, this Agreement or any other Operative Document shall at any time for any reason cease to be valid and binding on any party hereto or thereto (other than the Agent, WestLB or any Bank), or shall be declared to be null and void, or any such party (other than the Agent, WestLB or any Bank) shall contest the validity or enforceability thereof, or the Company shall deny that it has any further liability or obligation with respect to the Bonds, this Agreement or any other Operative Document to which it is a party; or
(viii) the Company or any of its Subsidiaries shall default in any payment of principal of or premium, if any, or interest on any Indebtedness of the Company or such Subsidiary (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) having an original aggregate principal amount in excess of $5,000,000, and such default shall continue beyond any period of grace provided with respect thereto, or the Company or any of its Subsidiaries shall default in the performance or observance of any other agreement, term or condition contained in any agreement under which any such Indebtedness is created (or if any other event of default thereunder or under such agreement shall occur and be continuing) and the effect of any such default is to cause, or as a result thereof the holder or holders of such obligation (or a trustee on behalf of such holder or holders) shall have caused or shall be entitled to cause, such obligation to become due prior to the stated maturity thereof; or
(ix) the Company or any of its Subsidiaries pursuant to or within the meaning of any Bankruptcy Law commences a voluntary case, admits in writing its inability to pay its debts generally as they become due, consents to the appointment of a Custodian of it or for all or substantially all of its property or makes a general assignment for the benefit of its creditors; or has an involuntary case filed against it, or a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that is for relief against the Company or any of its Subsidiaries in an involuntary case, appoints a Custodian of the Company or any of its Subsidiaries for all or substantially all of its property or orders the liquidation of the Company or any of its Subsidiaries, and such involuntary case, order or decree remains unstayed and in effect for more than 60 days; or
(x) with respect to any Plan, other than a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA, (a) such Plan shall fail to satisfy the minimum funding standard or a waiver of such standard or extension of any amortization period is sought under Section 412 of the Code; (b) such Plan is or is proposed to be terminated and as a result thereof liability in excess of $5,000,000 can be asserted under Title IV of ERISA as against the Company or any Subsidiary; (c) such Plan shall have an Unfunded Current Liability in excess of $5,000,000; or (d) there has been a withdrawal from any such Plan and as a result liability in excess of $5,000,000 can be asserted under Section 4062(e) or 4063 of ERISA against the Company or any Subsidiary; or, with respect to any Plan that is a multiemployer plan under Section 4001(a)(3) of ERISA, such Plan is insolvent or in reorganization or the Company or any ERISA Affiliate has withdrawn, or proposes to withdraw, either totally or partially, from such Plan and, in any case, in the opinion of the Required Banks, the Company or any Subsidiary might reasonably be anticipated to incur a liability which would have a material adverse effect on the business, operations, conditions (financial or otherwise) or prospects of the Company or the Company and Subsidiaries taken as a whole; or
(xi) one or more judgments or decrees shall be entered against the Company or any of its Subsidiaries involving in the aggregate a liability (not covered by insurance) of $10,000,000 or more, and all such judgments or decrees shall not have been vacated, satisfied, discharged or stayed or bonded pending appeal within 30 days from the entry thereof;
then, and in any such event, the Agent may and, upon the written request of the Required Banks, shall, without prejudice to the rights of the Agent, WestLB or any Bank, (i) by notice to the Company, declare all amounts payable by the Company hereunder (including, without limitation, all amounts payable pursuant to Article II and Article III hereof) to be forthwith due and payable, and the same shall thereupon become due and payable without demand, presentment, protest or further notice of any kind, all of which are hereby expressly waived, and/or (2) with respect to any undrawn amount under the Letter of Credit, require that the Company place with the Agent a collateral deposit which shall be, in the opinion of Bond counsel chosen by the Company and acceptable to the Agent, invested by the Agent in a manner which does not violate Section 148 of the Code, to secure repayment to the Banks by the Company of any drawings under the Letter of Credit and/or (3) exercise any or all of its rights and remedies under the Operative Documents and/or (4) by notice to the Trustee, require the Trustee to accelerate payment of all of the Bonds and interest accrued thereon as provided in Section 9.01 of the Indenture; provided that if an Event of Default described in clause (ix) of this Section 9.01 shall occur and be continuing, all amounts payable by the Company hereunder shall become immediately due and payable, without written notice and without presentment, protest or any other notice of any kind, all of which are hereby expressly waived.
Section 9.02. No Remedy Exclusive. No remedy herein conferred or reserved is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or under any of the other Operative Documents, whether now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default, omission or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to exercise any remedy reserved to the Agent, WestLB or any Bank in this Agreement, it shall not be necessary to give any notice, other than such notice as may be herein expressly required or required by applicable law. In the event any provision contained in this Agreement should be breached by any party and thereafter duly waived by the other party or parties so empowered to act, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver, amendment, release or modification or this Agreement shall be established by conduct, custom or course of dealing, but solely by an instrument in writing duly executed by the party or parties thereto duly authorized by this Agreement.
ARTICLE X
THE AGENT
Section 10.01. The Agent. The Banks hereby designate Westdeutsche Landesbank Girozentrale, New York Branch, as agent to act as specified herein and in the other Operative Documents. Each Bank hereby irrevocably authorizes the Agent to take such action on its behalf under the provisions of this Agreement, the other Operative Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto. The Agent may perform any of its duties hereunder by or through its officers, directors, agents or employees.
Section 10.02. Duties. The Agent shall have no duties or responsibilities except those expressly set forth in this Agreement. Neither the Agent nor any of its officers, directors, agents or employees shall be liable for any action taken or omitted by it or them hereunder or under any other Operative Document or in connection herewith or therewith, unless caused by its or their gross negligence or willful misconduct as determined by a final, non-appealable order of a court of competent jurisdiction. The duties of the Agent shall be mechanical and administrative in nature, and the Agent shall not have by reason of this Agreement or any other Operative Document a fiduciary relationship in respect of any Bank. Nothing in this Agreement or any other Operative Document, expressed or implied, is intended to or shall be so construed as to impose upon the Agent any obligations in respect of this Agreement or any other Operative Document except as expressly set forth herein.
Section 10.03. Investigation by Banks. Independently and without reliance upon the Agent, each Bank, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of the Company and the transactions contemplated herein, in each case in connection with the making and the continuance of the LC Commitments and the Advances and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of the Company and the transactions referred to in clause (i) above and, except as expressly provided in this Agreement, the Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Bank with any credit or other information with respect thereto, whether coming into its possession before the effectiveness of this Agreement or at any time or times thereafter. The Agent shall not be responsible to any Bank for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement or any other Operative Document or the financial condition of the Company or any other Person or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Operative Document, or the financial condition of the Company or any other Person or the existence or possible existence of any Default or Event of Default.
Section 10.04. Instructions. If the Agent shall request instructions from WestLB, the Banks or the Required Banks, as applicable, with respect to any act or action (including failure to act) in connection with the Letter of Credit, this Agreement or any other Operative Document, the Agent shall be entitled to refrain from such act or taking such action unless and until the Agent shall have received instructions from WestLB, the Banks or the Required Banks, as applicable, and the Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Bank shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder or under any other Operative Document in accordance with the instructions of WestLB, the Banks or the Required Banks, as applicable.
Section 10.05. Reliance by the Agent. The Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Operative Document and its duties hereunder and thereunder, upon advice of counsel selected by it.
Section 10.06. Indemnification. To the extent the Agent is not reimbursed and indemnified by the Company, the Banks will reimburse and indemnify the Agent, in proportion to their respective LC Commitments (or, if the Letter of Credit is no longer outstanding, in proportion to their respective LC Commitments
immediately prior to the expiration or other termination of the Letter of Credit), for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Agent in performing its duties hereunder or under any other Operative Document, or in any way relating to or arising out of this Agreement or any other Operative Document; provided that no Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent's gross negligence or willful misconduct.
Section 10.07. Agent as a Bank. The Agent shall have the rights and powers specified herein for a "Bank" and may exercise the same rights and powers as though it were not performing the duties specified herein, and the term "Banks", "Required Banks" or any similar terms shall, unless the context clearly otherwise indicates, include the Agent in its individual capacity. The Agent may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with the Company or any Subsidiary or Affiliate of the Company to the same extent as if it were not performing the duties specified herein, and may accept fees and other consideration from the Company or any such Subsidiary or Affiliate for services in connection with this Agreement and otherwise without having to account for the same to any of the Banks.
Section 10.08. Resignation by the Agent. (i) The Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Operative Documents at any time by giving 15 Business Days'
prior written notice to the Company and the Banks. Such resignation shall take
effect upon the appointment of a successor Agent pursuant to clauses (ii) and
(iii) below or as otherwise provided below.
(ii) Upon any such notice of resignation, the Required Banks shall appoint a successor Agent hereunder or thereunder which shall be a commercial bank or trust company reasonably acceptable to the Company.
(iii) If a successor Agent shall not have been so appointed within such 15 Business Day period, the Agent may then appoint a successor Agent who shall serve as Agent hereunder or thereunder until such time, if any, as the Required Banks appoint a successor Agent as provided above.
(iv) If no successor Agent has been appointed pursuant to clause (ii) or (iii) above by the 20th Business Day after the date such notice of resignation was given by the Agent, the Agent's resignation shall become effective and the Banks shall thereafter perform all the duties of the Agent hereunder and/or under any other Operative Document until such time, if any, as the Required Banks appoint a successor Agent as provided above.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Amendments, Etc. This Agreement may be amended, and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall obtain the written consent of the Required Banks, provided that without the consent of each Bank no such action or omission shall (i) extend the Termination Date of the Letter of Credit or the final maturity of any Advance, or reduce the rate or extend the time of payment of interest on any Advance, or reduce the principal amount of any Advance, or reduce the rate or extend the time of payment of any fees payable for the benefit of the Banks, or increase the LC Commitment of any Bank (it being understood that a waiver of any Event of Default shall not constitute a change in the terms of any LC Commitment of any Bank, and it being further understood that the LC Commitment of each Bank may be automatically adjusted pursuant to Section 2.02 hereof), (ii) amend, modify or waive any provision of this Section 11.01 or Sections 3.05, 3.06, 10.06, 11.03, 11.05, 11.07 or 11.16, (iii) reduce the percentage specified in the definition of Required Banks, or (iv) consent to the assignment or transfer by the Company of any of its rights and obligations under this Agreement or any other Operative Document to which it is a party; provided that no amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Banks required above to take such action, affect the rights or duties of the Agent under this Agreement; and provided, further, that no amendment, waiver or consent shall, unless in writing and signed by WestLB in addition to the Banks required above to take such action, affect the rights or duties of WestLB under this Agreement or the Letter of Credit.
Section 11.02. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including facsimile
communication, receipt of which is confirmed in writing) and shall be sent by
mail (postage prepaid return receipt requested), hand delivery or fax (i) if to
the Company, to it at P.O. Box 5000, Pineville, Louisiana 71361, Attention:
Treasurer, telecopy no. (318) 484-7465; (ii) if to the Agent, to it at the
offices of Westdeutsche Landesbank Girozentrale, New York Branch, 1211 Avenue
of the Americas, New York, New York 10036, Attention: Loan Operations,
telecopy number (212) 302-7946; (iii)if to WestLB, as issuer of the Letter of
Credit, or to Westdeutsche Landesbank Girozentrale, New York Branch, as a Bank
hereunder, to it at the offices of Westdeutsche Landesbank Girozentrale, New
York Branch, 1211 Avenue of the Americas, New York, New York 10036, Attention:
Trade Services, telecopy number (212) 768-4659; and (iv) if to any Bank (other
than Westdeutsche Landesbank Girozentrale, New York Branch), to it at its
address and telecopy number set forth opposite its signature below; or as to
any party at such other address or telecopy number as shall be designated by
such party in a written notice to all other parties hereto; provided that any
such communication to the Company may also, at the option of the Person
delivering such communication, be either delivered to the Company at its
address set forth above or to any officer of the Company. All such notices and
other communications shall be effective when received.
Section 11.03. Set-off. In addition to any rights now or hereafter granted under applicable law (including, but not limited to, Section 151 of the New York Debtor and Creditor Law) and not by way of limitation of any such rights, during the continuance of any Event of Default hereunder each Bank is hereby authorized at any time and from time to time, without notice to the Company or to any other Person, any such notice being hereby expressly waived, to set-off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing by WestLB or such Bank to or for the credit or the account of the Company against and on account of any Obligation or liability of the Company owing to SBC or the Banks under this Agreement and/or the Letter of Credit at the time, including, without limitation, all claims of any nature or description arising out of or in connection with this Agreement and/or the Letter of Credit, irrespective of whether or not the Agent, WestLB or any Bank shall have made any demand hereunder.
Section 11.04. Indemnification. The Company hereby agrees to protect, indemnify, pay and save the Agent, WestLB and each Bank harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including without limitation reasonable attorneys' fees) which such indemnified Person may incur or be subject to as a consequence, direct or indirect, of (i) the execution and delivery of this Agreement or the issuance of the Letter of Credit, other than as a result of the gross negligence or willful misconduct of such indemnified Person, (ii) the failure of WestLB to honor a drawing under the Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority (all such acts or omission herein called "Government Acts"), (iii) any breach by the Company, the Issuer, the Tender Agent, the Remarketing Agent or any other Person of any warranty, covenant, term or condition in, or the occurrence of any default under, this Agreement, any other Operative Document or the Bonds, together with all reasonable expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (iv) any inaccuracy or alleged inaccuracy, or any untrue statement or alleged untrue statement, contained in the Preliminary Official Statement or the Reoffering Supplement, which includes, as an attachment thereto, the Official Statement, or by reason of the omission or alleged omission to state therein any fact necessary to make such statements, in light of the circumstances under which they were made, not misleading (provided that this Section 11.04 shall not apply to any information contained in the Reoffering Supplement under the caption "WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH" or in the Preliminary Official Statement or the Official Statement under the caption "SWISS BANK CORPORATION, NEW YORK BRANCH") and (v) the defense against any legal action challenging the validity of any of the above referenced agreements or instruments. Nothing in this Section 11.04 is intended to limit the reimbursement or other obligations hereunder of the Company. The obligations of the Company under this Section 11.04 shall survive the payment of the Bonds and the termination of this Agreement.
Section 11.05. Benefit of Agreement. This Agreement is a continuing obligation and shall (i) be binding upon the Company and
its successors and assigns and (ii) inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns; provided, however, that the Company may not assign or transfer any of its rights or obligations hereunder without the prior written consent of WestLB and all of the Banks, and, provided further, that, although any Bank may grant participations in its rights hereunder and under the Letter of Credit, such Bank shall remain a "Bank" for all purposes hereunder, the Participant shall not constitute a "Bank" hereunder, the Company shall continue to deal solely with the Agent and such Bank (and not with any Participant) hereunder and with respect to this Agreement and the Letter of Credit and no such participation shall relieve WestLB of its obligations under the Letter of Credit.
In the case of any such participation, the Participant shall not have any rights under this Agreement or any of the other Operative Documents (the Participant's rights against such transferring Bank to be those set forth in the agreement executed by such Bank in favor of the Participant relating thereto) and all amounts payable by the Company hereunder shall be determined as if such Bank had not sold such participation, except that the Participant shall be entitled to the benefits of Sections 2.09 and 2.10 hereof as set forth therein. In connection with any such participation, the Bank proposing to transfer or grant such participation may disclose to the proposed Participant any information that the Company is required to deliver to such Bank pursuant to this Agreement or otherwise delivers to such Bank in connection with such Bank's credit review or continuing review of the Company and this Agreement, provided, however, that, prior to any such disclosure, each such Participant shall agree in writing to preserve the confidentiality of any confidential information relating to the Company or any of its Subsidiaries received from such Bank.
Notwithstanding the foregoing, any Bank may transfer the LC Commitment or any Advance of such Bank to another Bank or to another branch or lending office or, with the written consent of WestLB and the Agent (such consent not to be unreasonably withheld), an Affiliate of such Bank; provided that each such Bank agrees that it will use its reasonable efforts (subject to overall policy considerations of such Bank) to avoid the occurrence of any event giving rise to the operation of Sections 2.09 and 2.10 hereof as a result of any such transfer.
Neither WestLB nor any Bank may assign all or any portion of its rights and obligations hereunder to one or more banks or other financial institutions, unless (i) WestLB and the Company each shall have given its prior written consent to such assignment (such consent not to be unreasonably withheld) and (ii) such assignment shall be consummated pursuant to an assignment and acceptance agreement reasonably satisfactory to the Agent (such agreement to state, among other things, that upon the effectiveness of such assignment, the transferee entity shall become a "Bank" hereunder for all purposes of this Agreement). Upon the effectiveness of any such assignment, the transferee entity shall become a "Bank" hereunder for all purposes of this Agreement and Schedule I attached hereto shall be amended by the Agent to reflect the new LC Percentage of each Bank after giving effect to such assignment (which amended Schedule I shall be promptly delivered by the Agent to the Company, WestLB and each Bank, provided that the failure to deliver or prepare such amended
Schedule I shall in no event affect the validity of such assignment or the respective LC Percentages resulting therefrom).
Section 11.06. Liability of Parties. The Company assumes all
risks of the acts or omissions of the Trustee and any transferee of the Letter
of Credit with respect to its use of the Letter of Credit. Neither the Agent,
WestLB nor Bank, nor any of their respective officers or directors, shall be
liable or responsible for: (i) the use which may be made of the Letter of
Credit or for any acts or omissions of the Trustee or any transferee of the
Letter of Credit in connection therewith; (ii) the form, validity, sufficiency
or genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letter of Credit, even
if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (iii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign the
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iv) failure of the Trustee to comply fully with the conditions required in
order to draw upon the Letter of Credit; (v) errors, omission, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegram,
telex or otherwise, whether or not they be in cipher; (vi) errors in
interpretation of technical terms; (vii) any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under the
Letter of Credit or of the proceeds thereof; (viii) any misapplication by the
Trustee of the proceeds of any drawing under the Letter of Credit; or (ix) any
consequences arising from causes beyond the control of the Agent, WestLB or any
Bank, including, without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of any of the Agent's, WestLB's or
any Bank's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Agent, WestLB or any Bank under or in connection with this Agreement or the Letter of Credit or the related certificates attached thereto, if taken or omitted in good faith, shall not put the Agent, WestLB or any Bank under any resulting liability to the Company, and the Agent, WestLB and each Bank may accept any documents or instruments that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or any information to the contrary.
The obligations of the Company under this Section 11.06 shall survive the payment of the Bonds and the termination of this Agreement.
Notwithstanding anything to the contrary contained in this
Section 11.06, the Company shall have no obligation to indemnify the Agent,
WestLB or any Bank in respect of any liability incurred by such Person arising
solely out of the gross negligence or willful misconduct of such Person or the
wrongful dishonor by WestLB of a proper demand made under the Letter of Credit.
Section 11.07. Expenses, Etc. The Company agrees to pay on demand (i) all costs and out-of-pocket expenses incurred by WestLB or the Agent in connection with the preparation, execution, issuance, delivery and administration of this Agreement, the Letter of Credit and the other Operative Documents, including, without limitation, the reasonable fees and disbursements of outside counsel and the allocated time charges and disbursements of internal counsel for the Agent and WestLB, and of counsel for the Banks with respect thereto, and (ii) all costs and out-of-pocket expenses, including, without limitation, the reasonable fees and disbursements of outside counsel and the allocated time charges and disbursements of internal counsel to the Agent, WestLB and the Banks with respect thereto, in connection with the enforcement or preservation of any rights under this Agreement, the Letter of Credit or any other Operative Document or any modifications, amendments, consents or waivers or similar occurrences relating to or in respect of this Agreement, the Letter of Credit or any other Operative Document. In addition, the Company shall pay any and all stamp and other taxes (other than any franchise or income taxes) and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Agreement, the Letter of Credit or any other Operative Document and agrees to save the Agent, WestLB and the Banks harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes, fees and expenses referred to in this sentence and in the immediately preceding sentence. The Company also agrees to indemnify, defend and hold the Agent, WestLB and each Bank harmless from and against all liability "including, without limitation, interest, penalties and all reasonable fees and disbursements of counsel) to which any such Person may become subject insofar as such liability arises out of or is based upon any action, suit, proceeding or investigation or governmental action brought or taken in connection with the Project or the use (or the proposed or potential use) of the proceeds of any drawing under the Letter of Credit. A request for payment under this Section 11.07 shall be accompanied by supporting documentation thereof, identifying with reasonable specificity the basis for and the amount of such costs and expenses.
Section 11.08. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.
Section 11.09. Consent to Jurisdiction. The Company irrevocably (i) agrees that any suit, action or other legal proceeding arising out of or relating to this Agreement or the Letter of Credit may be brought by or on behalf of the Agent, WestLB or any Bank in a court of record in the State of New York or in the Courts of the United States of America located in such State, (ii) consents to the jurisdiction of each such court in any such suit, action or proceeding and (iii) waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. The Company hereby irrevocably appoints CT Corporation System (the "Process Agent") with an office on the date hereof at 1633 Broadway, New York, New York 10019 as its agent to receive on behalf of the Company and its property service of copies of the summons and complaint and any
other process which may be served in any such suit, action or proceeding. Such service may be made by mailing or delivering a copy of such process to the Company, in care of the Process Agent at the Process Agent's above address, and the Company hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. The Agent agrees to mail to the Company at its address provided in Section 11.02 hereof a copy of any summons, complaint or other process mailed or delivered by it to the Company in care of the Process Agent. As an alternate method of service, the Company also irrevocably consents to the service of any and all process in any such suit, action or proceeding by mailing of copies of such process to the Company at its address provided in Section 11.02 hereof. The Company agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. All mailings under this Section shall be by certified mail, return receipt requested. Nothing in this Section 11.09 shall affect the right of the Agent, WestLB or any Bank to serve legal process in any other manner permitted by law or affect the right of the Agent, WestLB or any Bank to bring any suit, action or proceeding against the Company or its property in the courts of any other jurisdiction.
SECTION 11.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN SAID STATE.
SECTION 11.11. Headings, Etc. Section headings, the table of contents and the cover page of this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
Section 11.12. Survival of Representations and Warranties. All representations and warranties contained herein or in any other Operative Document or made in writing by the Company in connection herewith or therewith shall survive the execution and delivery of this Agreement.
Section 11.13. Survival of Indemnities. All indemnities set forth herein including, without limitation, in Sections 2.09, 2.10, 10.06, 11.04 and 11.07 shall survive the execution and delivery of this Agreement and the repayment in full of all Obligations.
Section 11.14. Satisfaction Requirement. (i) If any agreement, certificate or other writing, or any action taken or to be taken, is by the terms of this Agreement required to be satisfactory to the Agent, WestLB or any Bank, the determination of such satisfaction shall be made by the Agent, WestLB or such Bank in its sole and exclusive judgment exercised in good faith.
(ii) For purposes of determining compliance with the conditions specified in Article V hereof, each of the Banks shall be deemed to have consented to, approved or accepted or to be satisfied with all matters required
there under to be consented to or acceptable or satisfactory to the Banks unless an officer of the Agent responsible for the transactions contemplated by this Agreement and holding the position of Vice President or a more senior position shall have received notice from any such Bank prior to the issuance of the Letter of Credit specifying such Bank's objections thereto and such objections shall not have been withdrawn by notice to the Agent to that effect.
Section 11.15. Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States in conformity with those used in the preparation of the financial statements of the Company referred to in Section 7.07 hereof.
Section 11.16. Calculations. The financial statements to be furnished to the Agent, WestLB and the Banks pursuant hereto shall be made and prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes thereto). All calculations and computations required to determine compliance with Sections 8.05 and 8.06 hereof shall utilize accounting principals and policies in conformity with those used to prepare the financial statements referred to in Section 6.08(i) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers "hereunto duly authorized as of the date first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By /s/ THOMAS J. HOWLIN ---------------------------- Name: Thomas J. Howlin Title: Sr. V.P. - Finance and CFO |
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
individually, as Agent and as issuer of the Letter of Credit
By /s/ CYNTHIA M. NIESEN ---------------------------- Name: Cynthia M. Niesen Title: Managing Director By /s/ KAREN E. GAREIS ---------------------------- Name: Karen E. Gareis Title: Vice President |
WACHOVIA BANK N.A.
By /s/ DAVID K. ALEXANDER ---------------------------- Name: David K. Alexander Title: Senior Vice President |
EXHIBIT 10(k)
REIMBURSEMENT AGREEMENT
AMONG
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.,
VARIOUS FINANCIAL INSTITUTIONS,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
AS ISSUER OF THE LETTER OF CREDIT,
AND
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH
AS AGENT
Dated as of October 15, 1997
Parish of DeSoto, Series 1991B Bonds
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II LETTER OF CREDIT; FEES . . . . . . . . . . . . . . . . . . . . 11
Section 2.01. Agreement to Issue Letter of Credit . . . . . . . . . . . . . 11
Section 2.02. Adjustment to LC Commitments . . . . . . . . . . . . . . . . . 11
Section 2.03. Request to Extend the Letter of Credit . . . . . . . . . . . . 11
Section 2.04. Letter of Credit Fee . . . . . . . . . . . . . . . . . . . . . 12
Section 2.05. Fronting Fee . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.06. Transfer Fees . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.07. Drawing Fees . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.08. Additional Fees . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.10. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III REPAYMENT OF DRAWINGS . . . . . . . . . . . . . . . . . . . . 14
Section 3.01. Repayment of Drawings; Advances . . . . . . . . . . . . . . . 14
Section 3.02. Repayment of Advances . . . . . . . . . . . . . . . . . . . . 14
Section 3.03. Overdue Interest . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.04. Payments; Computations . . . . . . . . . . . . . . . . . . . . 15
Section 3.05. Payments to Banks . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.06. Sharing Provision . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.07. Obligations Absolute . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IV PREPAYMENTS; ESCROW BONDS . . . . . . . . . . . . . . . . . . 17
Section 4.01. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.02. Release of Escrow Bonds . . . . . . . . . . . . . . . . . . . 17
ARTICLE V CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . 17
Section 5.01. Delivery of Bonds and Operative Documents . . . . . . . . . . 17
Section 5.02. Intentionally Omitted . . . . . . . . . . . . . . . . . . . . 18
Section 5.03. Receipt of Documents . . . . . . . . . . . . . . . . . . . . . 18
Section 5.04. Representations and Warranties; Defaults . . . . . . . . . . . 19
Section 5.05. Certain Other Matters . . . . . . . . . . . . . . . . . . . . 19
Section 5.06. Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 20
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ARTICLE VI REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 20
Section 6.01. Due Organization, Etc . . . . . . . . . . . . . . . . . . . . 21
Section 6.02. No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.03. Due Authorization . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.04. Enforceability . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.05. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.06. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . 22
Section 6.07. No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.08. Financial Statements . . . . . . . . . . . . . . . . . . . . . 23
Section 6.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.10. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.11. Title to Property . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.12. Environmental and Other Matters . . . . . . . . . . . . . . . 24
Section 6.13. Operative Documents . . . . . . . . . . . . . . . . . . . . . 24
Section 6.14. Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.15. Investment Company . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . 24
Section 7.01. Preservation of Corporate Existence . . . . . . . . . . . . . 24
Section 7.02. Compliance with Law; Environmental and Other Matters . . . . . 25
Section 7.03. Performance of Agreements . . . . . . . . . . . . . . . . . . 25
Section 7.04. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . 25
Section 7.05. Furnishing of Information . . . . . . . . . . . . . . . . . . 25
Section 7.06. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.07. Financial Statements . . . . . . . . . . . . . . . . . . . . . 26
Section 7.08. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.09. Payment of Taxes, Etc . . . . . . . . . . . . . . . . . . . . 28
Section 7.10. Maintenance of Property . . . . . . . . . . . . . . . . . . . 28
Section 7.11. Certain Notices . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VIII NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.01. Consolidation, Merger, Sale of Assets, Etc. . . . . . . . . . 28
Section 8.02. Redemption or Purchase of Bonds; Adjustment
of Interest Rate Periods . . . . . . . . . . . . . . . . . . . 29
Section 8.03. Amendment of Operative Document . . . . . . . . . . . . . . . 29
Section 8.04. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.05. Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . 32
Section 8.06. Tangible Net Worth Ratio . . . . . . . . . . . . . . . . . . . 32
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ARTICLE IX EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.02. No Remedy Exclusive . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.01. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.02. Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.03. Investigation by Banks . . . . . . . . . . . . . . . . . . . . 36
Section 10.04. Instructions . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.05. Reliance by the Agent . . . . . . . . . . . . . . . . . . . . 36
Section 10.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.07. Agent as a Bank . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.08. Resignation by the Agent . . . . . . . . . . . . . . . . . . . 37
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 11.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . 38
Section 11.02. Addresses for Notices . . . . . . . . . . . . . . . . . . . . 38
Section 11.03. Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.04. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.05. Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . 39
Section 11.06. Liability of Parties . . . . . . . . . . . . . . . . . . . . . 41
Section 11.07. Expenses, Etc . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.08. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.09. Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . 42
Section 11.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.11. Headings, Etc . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.12. Survival of Representations and Warranties . . . . . . . . . . 43
Section 11.13. Survival of Indemnities . . . . . . . . . . . . . . . . . . . 43
Section 11.14. Satisfaction Requirement . . . . . . . . . . . . . . . . . . . 43
Section 11.15. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.16. Calculations . . . . . . . . . . . . . . . . . . . . . . . . . 44
Schedule I List of Banks/LC Commitments/LC Percentages
Schedule II Existing Liens
Exhibit A Form of Irrevocable Letter of Credit
Exhibit B-1 Form of Opinion of Baker & Botts, L.L.P.
Exhibit B-2 Form of Opinion of William O. Bonin
Exhibit C Form of Officer's Certificate
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REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT dated as of October 15, 1997, among CENTRAL
LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under
the laws of the State of Louisiana (the "Company"), the financial institutions
listed on Schedule I attached hereto (each a "Bank", and collectively the
"Banks"), and WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH, as agent
(in such capacity, together with any successor in such capacity, the "Agent")
and as issuer of the below-referenced Letter of Credit (in such capacity,
"WestLB").
W I T N E S S E T H :
WHEREAS, the Parish of DeSoto, State of Louisiana (the "Issuer"), pursuant to the Act (as defined in the Indenture hereinafter referred to), has issued and sold its Adjustable Tender Pollution Control Revenue Refunding Bonds (Central Louisiana Electric Company, Inc. Project) Series 1991B in the aggregate principal amount of $25,000,000 (the "Bonds") pursuant to a Trust Indenture dated as of May 1, 1991 ,as amended and supplemented by a First Supplemental Trust Indenture dated as of May 1, 1993 (as further amended and supplemented from time to time in accordance with the terms thereof, the "Indenture") from the Issuer to First National Bank of Commerce, as trustee (together with its successors in trust and their assigns, the "Trustee"), and has used the proceeds thereof, together with other available funds, to refund and redeem in full the Prior Bonds (as hereinafter defined) pursuant to that certain Refunding Agreement dated as of May 1, 1991 between the Issuer and the Company (as amended from time to time in accordance with the terms thereof, the "Refunding Agreement"), which Prior Bonds were issued by the Issuer to finance the cost of acquiring, constructing, improving and equipping the Company's undivided interest in certain air and water pollution control facilities, as more specifically described in Exhibit B to the Refunding Agreement (the "Project"); and
WHEREAS, the Company has requested WestLB to issue its irrevocable letter of credit in the form of Exhibit A attached hereto (the "Letter of Credit", which term shall include any substitute therefor or replacement thereof issued in accordance with the terms of the Letter of Credit) to replace the irrevocable letter of credit issued by Swiss Bank Corporation in connection with the Bonds; and
WHEREAS, subject to and on the terms and conditions herein set forth, WestLB is willing to issue the Letter of Credit on the date hereof; and
WHEREAS, subject to and upon the terms and conditions herein set forth, the Company, the Agent,WestLB and the Banks are willing to enter into this Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises contained herein and in order to induce WestLB to issue the Letter of Credit, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the respective meanings set forth below (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"A Drawing" shall have the meaning given to such term in the Letter of Credit, which shall be a drawing in respect of the payment of the portion of the Purchase Price corresponding to principal of the Bonds.
"Advance" and "Advances" shall have the respective meanings given to such terms in Section 3.01 hereof.
"Affiliate" shall mean, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. The term "control" and "controlled" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or partnership or other ownership interests, by contract or otherwise.
"Agent" shall have the meaning given to such term in the first paragraph of this Agreement.
"Agreement" shall mean this Reimbursement Agreement, as the same may be amended, supplemented or otherwise modified from time to time.
"Bank" and "Banks" shall have the respective meanings given to such terms in the first paragraph of this Agreement.
"Bankruptcy Law" shall mean title 11 of the United States Code or any similar federal, state or foreign law for the relief of debtors.
"Base Rate" on any date shall mean the higher of (i) the rate which the Agent announces from time to time as its prime lending rate, the Base Rate to change when and as the prime lending rate changes or (ii) 1/2 of 1% above the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York or if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Agent, WestLB and any Bank may make commercial loans or other loans at rates of interest at, above or below the Base Rate.
"B Drawing" shall have the meaning given to such term in the Letter of Credit, which shall be a drawing in respect of the payment of principal of the Bonds.
"Bond Purchase Agreements" shall mean the two separate Bond Purchase Agreements, each dated May 29, 1991, among the Company, Smith Barney, Harris Upham & Co. Incorporated and the Issuer and The Industrial Development Board of the Parish of Rapides, Inc., respectively.
"Bonds" shall have the meaning given to such term in the first recital of this Agreement.
"Business Day" shall mean a day of the year other than a Saturday, Sunday or other day on which commercial banks located in the City of New York, New York are required or authorized by law to close or on which The New York Stock Exchange is not open.
"Capitalized Lease Obligations" shall mean all rental obligations under a lease that are required to be accounted for and classified as capitalized leases on the balance sheet of the Company or any of its Subsidiaries under generally accepted accounting principles.
"C Drawing" shall have the meaning given to such term in the Letter of Credit, which shall be a drawing in respect of the payment of interest, or the portion of Purchase Price corresponding to interest, on the Bonds.
"CLECO Mortgage" shall mean the Indenture of Mortgage, dated as of July 1, 1950, as supplemented and amended from time to time in accordance with its terms, by the Company to First National Bank of Commerce (formerly The National Bank of Commerce in New Orleans), as trustee thereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect on the date of this Agreement, and to any subsequent provisions of the Code amendatory thereof, supplemental thereto or substituted therefor.
"Company" shall have the meaning given to such term in the first paragraph of this Agreement.
"Consolidated Interest Expense" shall mean, for any period, all amounts accounted for (without duplication) during such period as interest on Indebtedness, including, without limitation, (i) interest payable in respect of all Indebtedness under this Agreement, (ii) the portion of any Capitalized Lease Obligation attributable to interest, (iii) commissions and other fees and charges payable in respect of all letters of credit and (iv) the net amount due, if any, in connection with any interest rate hedging arrangements.
"Consolidated Net Earnings" shall mean consolidated revenues of the Company and its Subsidiaries less all operating and nonoperating expenses of the Company and its Subsidiaries including, without limitation, all charges of a proper character (including current and deferred taxes on income and current additions to reserves), but not including in net revenues any gains (net of expenses and taxes applicable thereto) in excess of losses resulting from the sale, conversion or other disposition of capital assets (i.e., assets other than current assets), any gains resulting from the write-up of assets, any equity of the Company or any Subsidiary in the unremitted earnings of any Person acquired by the Company or any Subsidiary through purchase, merger or consolidation or otherwise for any year prior to the year of acquisition or any deferred credit representing the excess of equity in any Subsidiary at the date of acquisition over the cost of the investment in such Subsidiary.
"Consolidated Net Tangible Assets" shall mean the total amount of assets appearing on a consolidated balance sheet of the Company and its Subsidiaries less, without duplication, the following: (i) all reserves for depreciation and other asset valuation reserves but excluding any reserves for deferred U.S. federal income taxes arising from accelerated amortization or otherwise; (ii) all intangible assets such as goodwill, trademarks, trade names, patents and unamortized debt discount and expense carried as an asset on such balance sheet; and (iii) all appropriate adjustments on account of minority interests of other Persons holding Voting Stock in any Subsidiary of the Company; all determined in accordance with generally accepted accounting principles.
"Consolidated Tangible Net Worth" shall mean consolidated total shareholders' equity in the Company and its Subsidiaries, determined in accordance with generally accepted accounting principles, less the aggregate net amount of the following items to the extent, if any, such items were included in consolidated assets or deducted from consolidated liabilities in connection with the computation of such shareholders' equity: (i) all licenses, patents, copyrights, trade names, trademarks, goodwill, experimental or organizational expense, unamortized debt discount and expense and all other assets which under generally accepted accounting principles are deemed to be intangibles; (ii) all investments other than Permitted Investments; (iii) any write-up of assets (other than current assets) after December 31, 1996; (iv) all assets located outside the United States of America and Canada and all Indebtedness from any Person to the extent the primary portion of such Person's assets or business operations are located outside the United States of America and Canada; and (v)
the book value of net tangible assets of each Subsidiary acquired in so-called "pooling of interests" accounting treatment transactions, to the extent such book value at the time of such acquisition exceeds the fair value of the consideration paid for such acquisition.
"Contingent Obligation" shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, lease, dividend or other obligation ("Primary Obligations") of any other Person (the "Primary Obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person whether or not contingent, (i) to purchase any such Primary Obligation or any property constituting direct or indirect security therefor; (ii) to advance or supply funds (a) for the purchase or payment of any such Primary Obligation or (b) to maintain working capital or equity capital of the Primary Obligor or otherwise to maintain the net worth or solvency of the Primary Obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the holder of any such Primary Obligation of the ability of the Primary Obligor to make payment of any such Primary Obligation; or (iv) otherwise to assure or hold harmless the holder of such Primary Obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Primary Obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
"Cooke Commission Guidelines" shall mean risk-based capital guidelines in accordance with the Basle Committee on Banking Regulations and Supervisory Practices set forth in a paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988.
"Custodian" shall mean any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
"Date of Issuance" shall mean the date on which the Letter of Credit shall be issued by WestLB to the Trustee pursuant to the terms of this Agreement.
"Default" shall mean any event which with notice or lapse or time, or both, or the happening of any further condition, event or act, would become an Event of Default.
"EBITDA" shall mean, for any period, Consolidated Net Earnings for such period before Consolidated Interest Expense, income taxes, depreciation and amortization for such period.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect on the date of this Agreement, and to any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of ERISA) which together with the Company or any Subsidiary of the Company would be deemed to be a member of the same "controlled group" within the meaning of Section 414(b), (c), (m) and (o) of the Code.
"Escrow Bond" shall have the meaning given to such term in the Indenture.
"Event of Default" shall have the meaning given to such term in Section 9.01 hereof.
"Existing Directors" shall mean those individuals who on the date of this Agreement constitute the Board of Directors of the Company.
"Extension Request" shall have the meaning given to such term in Section 2.03 hereof.
"Government Acts" shall have the meaning given to such term in Section 11.04 hereof.
"Indebtedness" shall mean, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services, excluding trade accounts payable in the ordinary course of business; (ii) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder; (iii) all liabilities secured by any Lien on any property owned by such Person, whether or not such liabilities have been assumed by such Person; (iv) the aggregate amount required, under generally accepted accounting principles, to be capitalized under leases under which such Person is the lessee; and (v) all Contingent Obligations of such Person.
"Indenture" shall have the meaning given to such term in the first recital of this Agreement.
"Issuer" shall have the meaning given to such term in the first recital of this Agreement.
"Interest Increase Date" shall have the meaning given to such term in
Section 3.01 hereof.
"LC Commitment" shall have the meaning given to such term in Section 2.02 hereof.
"LC Percentage" shall have the meaning given to such term in Section 2.02 hereof.
"Letter of Credit" shall have the meaning given to such term in the second recital of this Agreement.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of or agreement to give any financial statement under the Uniform Commercial Code of any jurisdiction).
"Moody's" shall mean Moody's Investors Service, Inc., a corporation organized and existing under the laws of the State of Delaware, and its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall no longer be performing the functions of a securities rating agency, "Moody's" shall be deemed to refer to any other nationally recognized securities rating agency approved by the Required Banks.
"Obligations" shall mean any and all amounts owing to the Agent,WestLB or any Bank pursuant to the terms of this Agreement.
"Officer's Certificate" shall mean a certificate signed by the President, any Vice President, Secretary-Treasurer or the chief financial officer of the Company.
"Official Statement" shall mean the Official Statement, dated May 29, 1991, prepared in connection with the issuance and remarketing of the Bonds, together with all amendments, modifications and supplements thereto.
"Operative Documents" shall mean and include this Agreement, the Indenture, the Refunding Agreement, the Remarketing Agreement, the Tender Agreement and the Bond Purchase Agreements.
"Other Bonds" shall mean (i) the Adjustable Tender Pollution Control Revenue Refunding Bonds (Central Louisiana Electric Company, Inc. Project) Series l991B issued by the Issuer and (ii) the Adjustable Tender Pollution Control Revenue Refunding Bonds (Central Louisiana Electric Company, Inc. Project) Series 1991 issued by The Industrial Development Board of the Parish of Rapides, Inc.
"Other Letters of Credit" shall mean the letters of credit issued by Westdeutsche Landesbank Girozentrale, New York Branch, pursuant to the Other Reimbursement Agreements.
"Other Reimbursement Agreements" shall mean the two Reimbursement Agreements dated as of October 15, 1997 among the Company, the financial institutions party thereto and Westdeutsche Landesbank Girozentrale, New York Branch, as agent and as issuer of
the Other Letters of Credit, relating to the Other Bonds.
"Participant" shall mean any entity that purchases a participation interest from any Bank in the Letter of Credit and this Agreement in accordance with the provisions of Section 11.05 hereof.
"Payment Date" shall have the meaning given to such term in Section 2.04 hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Investments" shall mean: (i) direct obligations of the United States of America, or any agency thereof, or obligations guaranteed as to principal and interest by the United States of America, or any agency thereof, in either case maturing not more than one year from the date of acquisition thereof; (ii) certificates of deposit issued by any bank or trust company organized under the laws of the United States of America or any state thereof and having capital, surplus and undivided profits of at least $100,000,000 maturing not more than one year from the date of acquisition thereof; and (iii) other debt obligations which have been given an investment grade rating by S&P, Moody's or any other nationally recognized rating agency, provided such obligations mature not more than one year from the date of acquisition thereof.
"Person" shall mean and include any of an individual, a partnership, a joint venture, a corporation, a trust, an unincorporated organization or a government or any department or agency thereof.
"Plan" shall mean any multiemployer plan or any single employer plan, subject to Title IV of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute of), or at any time during the five calendar years preceding the date of this Agreement was maintained or contributed to by (or to which there was an obligation to contribute of), the Company or any of its Subsidiaries or an ERISA Affiliate.
"Preliminary Official Statement" shall mean the Preliminary Official Statement, dated May 16, 1991, prepared in connection with the initial issuance of the Bonds, together with all amendments, modifications and supplements thereto.
"Prior Bonds" shall mean the Annual Tender Pollution Control Revenue Bonds (Central Louisiana Electric Company, Inc. Project) Series 1983 previously issued by the Issuer for and on behalf of the Company.
"Process Agent" shall have the meaning given to such term in Section 11.09 hereof.
"Project" shall have the meaning given to such term in the first recital of this Agreement.
"Purchase Price" shall have the meaning given to such term in the Letter of Credit.
"Refunding Agreement" shall have the meaning given to such term in the first recital of this Agreement.
"Remarketing Agreement" shall have the meaning given to such term in the Indenture.
"Reoffering Supplement" shall mean the Reoffering Supplement dated October 15, 1997 to the Official Statement dated May 29, 1991, which has, as an attachment thereto, the Offical Statement.
"Reportable Event" shall mean an event described in Section 4043(b) of ERISA with respect to a Plan as to which the 30-day notice requirement has not been waived by the PBGC.
"Required Banks" shall mean (i) at such time as the Letter of Credit shall be outstanding, (a) WestLB (to the extent the relevant action will affect the Letter of Credit or WestLB's obligations with respect thereto in any way) and (b) Banks whose then outstanding LC Commitments and the then outstanding Advances (if any) equal or exceed 66-2/3% of the sum of the then Total LC Commitment and then total outstanding Advances (if any) and (ii) at such times as the Letter of Credit shall no longer be outstanding, Banks whose then outstanding Advances equal or exceed 66-2/3% of the then total outstanding Advances.
"S&P" shall mean Standard & Poor's Rating Services, a division of the McGraw Hill Companies, and its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall no longer be performing the functions of a securities rating agency, "S&P" shall be deemed to refer to any other nationally recognized securities rating agency approved by the Required Banks.
"Stated Amount" shall have the meaning given to such term in the Letter of Credit.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time
owned by such Person and/or one or more Subsidiaries of such Person and
(ii) any partnership, association, joint venture or other entity in
which such Person and/or one or more Subsidiaries of such Person has
more than a 50% equity interest at the time.
"Taxes" shall have the meaning given to such term in Section 2.09 hereof.
"Tender Agent" shall have the meaning given to such term in the Indenture.
"Tender Agreement" shall have the meaning given to such term in the Indenture.
"Term Repayment Date" shall have the meaning given to such term in
Section 3.01 hereof.
"Termination Date" shall mean the date on which the Letter of Credit terminates or expires in accordance with its terms (as such expiration date may be extended pursuant to Section 2.03 hereof).
"Total Capitalization" shall mean (i) the sum of (a) the principal amount of all Indebtedness of the Company or any of its Subsidiaries which, at the time of the incurrence thereof, had a stated maturity in excess of one year, exclusive of any intercompany Indebtedness owed by the Company or any of its Subsidiaries but, in any event, including all Indebtedness of the Company incurred hereunder (regardless of the stated maturity thereof) (b) the par or stated value of all outstanding capital stock (including premiums on capital stock) of all classes of the Company, exclusive of all such stock held in the Company's treasury or owned beneficially or of record by any Affiliate of the Company, and (c) the retained earnings of the Company and its Subsidiaries, less (ii) unamortized capital stock expense.
"Total LC Commitment" shall have the meaning given to such term in
Section 2.01 hereof.
"Trustee" shall have the meaning given to such term in the first recital of this Agreement.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by which the present value of the accrued benefits under the Plan as of the close of its most recent plan year, determined in accordance with Statement of Financial Accounting Standards No. 35, based upon the actuarial assumptions used by the Plan's actuary in the most recent annual valuation of the Plan, exceeds the fair market value of the assets allocated thereto, determined in accordance with Section 412 of the Code.
"Voting Stock" shall mean stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of the relevant corporation, provided, however, that, for purposes of this Agreement, stock that carries only the right to vote conditionally on the happening of an event shall not be considered voting stock whether or not such event shall have happened.
"WestLB" shall have the meaning given to such term in the first paragraph of this Agreement.
ARTICLE II
LETTER OF CREDIT; FEES
Section 2.01. Agreement to Issue Letter of Credit. WestLB agrees with the Company, on the terms and subject to the conditions herein set forth (including, without limitation, the conditions specified in Article V hereof), to issue the Letter of Credit to the Trustee on October 15, 1997. The initial face amount of the Letter of Credit shall be $25,419,178.08 (such amount, as reduced or reinstated from time to time in accordance with the terms of the Letter of Credit, the "Total LC Commitment"); provided, that no more than $419,178.08 may be drawn thereunder with respect to the payment of interest on the Bonds; and, provided further, that in no event shall any amount be drawn under the Letter of Credit for the payment of any premium on the Bonds. The Letter of Credit shall expire on October 15, 2000, unless otherwise terminated or extended. WestLB agrees that it will pay all drawings under the Letter of Credit with its own funds.
Section 2.02. Adjustment to LC Commitments. Upon any reduction or reinstatement of the Stated Amount of the Letter of Credit in accordance with the terms thereof, the LC Commitment (as defined below) of each Bank shall be reduced or increased, respectively, based on the LC Percentage (as defined below) of such Bank, to reflect the new Stated Amount of the Letter of Credit (it being understood that the aggregate LC Commitments of the Banks with respect to the Letter of Credit shall at all times equal the Stated Amount of the Letter of Credit, and that in no event shall the LC Commitment of any Bank be increased to an amount in excess of the original LC Commitment of such Bank, except in accordance with the provisions of Section 11.01 hereof). As used herein, the terms (i) "LC Percentage" shall mean, for each Bank, that percentage set forth opposite such Bank's name on Schedule I attached hereto (as Schedule I may be amended from time to time to reflect adjustments thereto pursuant to Section 11.05 hereof) and (ii) "LC Commitment" shall mean, for each Bank, at any time, an amount equal to such Bank's LC Percentage at such time multiplied by the Stated Amount of the Letter of Credit at such time.
Section 2.03. Request to Extend the Letter of Credit. On any
date which is at least ninety (90) days prior to the date which is not more
than two years preceding the Termination Date of the Letter of Credit, if no
Default or Event of Default shall have occurred and be continuing, the Company
may request in writing to WestLB and the Banks, with a copy to the Agent (such
request being irrevocable), that WestLB extend the Termination Date of the
Letter of Credit for one (1) year (such request being referred to herein as the
"Extension Request"). If the Company shall have made the Extension Request,
the Agent shall, on or prior to the date which is forty-five (45) days after
the date of receipt by the Agent, WestLB and the Banks of such Extension
Request, notify the Company in writing whether or not WestLB and the Banks
consent to such Extension Request and, if WestLB and the Banks do so consent,
the terms and conditions of such consent, it being understood and agreed that
(i) no such extension shall be granted unless WestLB and all of the Banks shall
have consented in writing to such extension, (ii) if the Agent shall fail to
give such notice within such forty-five (45) day period, WestLB and the
Banks shall be deemed not to have consented to such extension and (iii) neither WestLB nor any Bank shall have any obligation whatsoever to extend the Letter of Credit pursuant to this Section 2.03 (or any liability whatsoever in the event such Extension Request is denied for whatever reason), any such extension being in the sole and absolute discretion of WestLB and each of the Banks. If WestLB and the Banks shall agree to extend for one year the Termination Date of the Letter of Credit, and provided all of the conditions to such extension specified in the Agent's reply to the Extension Request shall have been met, WestLB shall issue an amendment to such Letter of Credit (or a new Letter of Credit, as WestLB may elect) extending the Termination Date of the Letter of Credit by one year.
Section 2.04. Letter of Credit Fee. The Company hereby agrees
to pay to the Agent, for distribution to each Bank, a letter of credit fee as
agreed with each Bank and specified in a letter agreement between the Company
and the Agent for the period from and including the later of the Date of
Issuance or the date of such letter agreement. Amounts payable under this
Section 2.04 shall be payable quarterly in arrears on the last Business Day of
each March, June, September and December occurring prior to the Termination
Date (each such date, a "Payment Date"), commencing December 31, 1997, and on
the Termination Date.
Section 2.05. Fronting Fee. The Company hereby agrees to pay to the Agent, for distribution to WestLB, a letter of credit fronting fee as agreed with WestLB and specified in a letter agreement between the Company and the Agent. Such fee shall be payable quarterly on each Payment Date commencing with December 31, 1997 and on the Termination Date.
Section 2.06. Transfer Fees. The Company hereby agrees to pay to WestLB, for its own account, upon each transfer of the Letter of Credit in accordance with its terms, $1,000 or such other amount as shall at the time of such transfer be the charge which WestLB is making generally for transfers of similar letters of credit. Amounts payable under this Section 2.06 shall be payable at the time of such transfer of the Letter of Credit.
Section 2.07. Drawing Fees. The Company hereby agrees to pay to WestLB, for its own account, upon each drawing by the Trustee under the Letter of Credit, the sum of $200 or such other amount as shall at the time of such drawing be the charge which WestLB is making generally for drawings on similar letters of credit. Amounts payable under this Section 2.07 shall be payable quarterly in arrears on each Payment Date, commencing on December 31, 1997, and on the Termination Date.
Section 2.08. Additional Fees. The Company hereby agrees to pay to the Agent for its own account upfront and administrative fees specified in a letter agreement between the Company and the Agent.
Section 2.09. Taxes. All payments made by the Company hereunder shall be made without set off, counterclaim or other defense. All such payments shall be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein (but excluding any tax imposed on or measured by the net income of WestLB, any Bank or any Participant, as applicable, pursuant to the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the principal office or applicable lending office of such Person is located) and all interest, penalties or similar liabilities with respect thereto (collectively, "Taxes"). If any Taxes are so levied or imposed, the Company agrees to pay the full amount of such Taxes and such additional amounts as may be necessary so that every payment of all amounts due hereunder, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein. The Company will furnish to the Agent, within 45 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company. The Company shall indemnify and hold harmless WestLB, each Bank and each Participant, as applicable, and reimburse each such Person upon its written request, for the amount of any Taxes so levied or imposed and paid by such Person.
Section 2.10. Increased Costs. If any change in or enactment of any law or governmental rule, regulation or order (whether or not having the force of law) or in the interpretation thereof by any court or administrative or governmental authority or central bank or comparable agency charged with the administration thereof (including implementation of the Cooke Commission Guidelines), or compliance by WestLB, any Bank or any Participant with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency, or any change in generally accepted accounting principles at any time in effect in the United States or in the Federal Republic of Germany, shall either (i) impose, modify or deem applicable any reserve, capital adequacy, special deposit or similar requirement against letters of credit issued by, or assets held by, or deposits in or for the account of, WestLB, any Bank or any Participant in connection with, or against participation in, the Letter of Credit or (ii) impose on WestLB, any Bank or any Participant any other condition relating, directly or indirectly, to this Agreement, the Letter of Credit or participation in the Letter of Credit, and the result of any event referred to in the preceding clause (i) or (ii) shall be to increase the cost to such Person of issuing, maintaining or participating in the Letter of Credit (which increase in cost shall be determined by such Person using reasonable allocation methods), then such Person shall so notify the Agent and, upon demand by the Agent on behalf of such Person, the Company shall immediately pay to the Agent, for distribution to such Person, from time to time as specified by the Agent, such additional amounts as shall be sufficient to compensate such Person for such increased costs from the date of such change, enactment or compliance, together with interest on each such amount from the date of demand therefor until payment in full thereof at the Base Rate plus 2% per annum. A certificate setting forth in reasonable detail such increased cost incurred by such Person, submitted by such Person to the Agent and from the Agent to the Company, shall be conclusive, absent manifest error, as the
amount thereof. Any Person seeking payment from the Company pursuant to this
Section 2.10 shall so inform the Company promptly upon learning of the
occurrence of the event or action upon which such recovery will be based.
ARTICLE III
REPAYMENT OF DRAWINGS
Section 3.01. Repayment of Drawings, Advances. The Company
hereby agrees to pay to WestLB (i) immediately after any payment is made under
the Letter of Credit pursuant to any "B Drawing" or any "C Drawing" to pay
principal of or interest (or the portion of Purchase Price corresponding to
interest) on the Bonds, an amount equal to such amount so paid under the Letter
of Credit and (ii) on the earlier to occur of the Termination Date and the day
next succeeding the first anniversary of the date that any payment is made
under the Letter of Credit pursuant to any "A Drawing" to pay the portion of
Purchase Price corresponding to principal on the Bonds (such earlier date, the
"Term Repayment Date"), an amount equal to such amount paid under the Letter of
Credit together with interest thereon (a) from and including the date of such
drawing to but excluding the earlier to occur of the Termination Date and the
fifteenth (15th) day following the date of such drawing (such earlier date, the
"Interest Increase Date"), at a rate per annum equal to the Base Rate and (b)
from and including the Interest Increase Date to but excluding the due date
thereof, at a rate per annum equal to the Base Rate plus 2%. In the event that
the Company shall fail to reimburse WestLB when due following any drawing
specified in clause (i) above, or WestLB shall make any payment under the
Letter of Credit specified in clause (ii) above and the Company shall not
reimburse WestLB for such payment on the date such payment was made, then, (1)
WestLB shall promptly advise the Agent thereof, (2) the Agent shall promptly
advise each of the Banks thereof and of each such Bank's LC Percentage of such
unreimbursed drawing (expressed both as a percentage and in U.S. dollars), and
(3) each Bank (other than WestLB) shall make available to WestLB in the lawful
currency of the United States by wire transfer of immediately available funds
an amount equal to its LC Percentage of such unreimbursed drawing by
transferring the same, at or before 12:00 noon (New York time) on the date
designated in such advice, such date to be no less than one Business Day after
receipt by such Bank of such advice, to WestLB at its office specified in
Section 3.04 hereof. If any payment required to be made by a Bank to WestLB is
not made as provided above, WestLB shall be entitled to recover such amount
from such Bank on demand, together with interest thereon at a rate per annum
equal to (A) the cost to WestLB of acquiring overnight Federal funds for the
initial two (2) days such amount remains unpaid and (B) the Base Rate per annum
thereafter. WestLB (upon the honoring of any drawing), and each other Bank
(upon the payment to WestLB of its LC Percentage of such drawing as provided
above), shall each be deemed to have made a loan (each an "Advance", and
collectively, the "Advances") to the Company. Each such Advance shall be
applied (to the extent of such Advance) in satisfaction of the Company's
reimbursement obligation set forth in the first sentence of this Section 3.01,
and each Advance shall be repayable pursuant to, and shall otherwise be subject
to, the terms and conditions set forth herein.
Section 3.02. Repayment of Advances. The Company hereby agrees
to pay to the Agent (i) immediately after any Advance is deemed made pursuant
to Section 3.01 above in respect of drawings under the Letter of Credit
specified in Section 3.01(i) above, an amount equal to such Advance so made and
(ii) on the Term Repayment Date, an amount equal to the Advances deemed made
pursuant to Section 3.01 above in respect of drawings under the Letter of
Credit specified in Section 3.01(ii) above together with interest thereon (a)
from and including the date of such Advance to but excluding the Interest
Increase Date, at a rate per annum equal to the Base Rate and (b) from and
including the Interest Increase Date to but excluding the due date thereof, at
a rate per annum equal to the Base Rate plus 2%. All payments of interest and
principal on Advances shall be made to the Agent for distribution to the Banks
pro rata on the basis of the amounts of their respective Advances.
Section 3.03. Overdue Interest. The Company hereby agrees to pay to WestLB or the Agent, as applicable, for the account of WestLB, the Agent or the Banks, as applicable, interest on any and all amounts required to be paid to WestLB, the Agent or the Banks under this Agreement (including, without limitation, under Article II hereof and under Sections 3.01(i) and 3.02(i) hereof but excluding amounts payable under Sections 3.01(ii) and 3.02(ii) hereof) from and after the due date thereof until payment in full, payable on demand, at a rate per annum equal to the Base Rate plus 2%; provided that notwithstanding the foregoing, with respect to the amounts payable pursuant to Sections 3.01(i) and 3.02(i) hereof, for the fifteen (15) day period immediately succeeding the due date in respect of such amounts, so long as no Default or Event of Default shall have occurred and be continuing during such period, the interest rate payable by the Company pursuant to this Section 3.03 shall be the Base Rate (it being understood that if any Default or Event of Default shall occur and be continuing at any time during such fifteen (15) day period, the interest rate payable by the Company during such fifteen (15) day period shall be the rate per annum equal to the Base Rate plus 2% per annum). In addition, the Company hereby agrees to pay to WestLB or the Agent, as applicable, for the account of WestLB or the Banks, as applicable, interest on any and all amounts required to be paid to WestLB or the Banks under Sections 3.01(ii) and 3.02(ii) hereof from and after the due date thereof until payment in full, payable on demand, at a rate per annum equal to 2% in excess of the interest rate payable with respect to such amounts immediately prior to such due date.
Section 3.04. Payments; Computations. All payments by the Company to WestLB or the Agent required to be made under this Agreement shall be made in lawful currency of the United States by wire transfer of immediately available funds to the offices of The Chase Manhattan Bank, located at One Chase Manhattan Plaza, New York, New York, for the account of Westdeutsche Landesbank Girozentrale, no. 920-1-060663 unless WestLB or the Agent, as the case may be, shall otherwise notify the Company in writing. All computations of amounts payable under this Agreement shall be computed, in the case of fees and commissions, on the basis of a year of 360 days and, in the case of interest, on the basis of a year of 365 (or 366, as the case may be) days, in each case for the actual number of days occurring in the period for which such fees, commissions or interest is payable. If any payment required to be made under this Agreement other than those payments required
under Sections 2.04, 2.05 and 2.07 becomes due and payable on a day other than a Business Day, the same shall be payable on the next succeeding Business Day, and interest shall be payable at the rate otherwise applicable thereto on any such payment to the Business Day on which such payment is made.
Section 3.05. Payments to Banks. The Agent agrees that promptly after its receipt of each payment from or on behalf of the Company in respect of any Obligations of the Company hereunder, it shall distribute such payment to the Banks pro rata based upon their respective shares, if any, of the Obligations with respect to which such payment was received.
Section 3.06. Sharing Provision. Each of the Banks agrees that if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right or set off or banker's lien, by counterclaim or cross action, by the enforcement of any right hereunder or under any other Operative Document, or otherwise), which is applicable to the payment of the principal of, or interest on, the Advances or any other amount otherwise payable under this Agreement, and which is of a sum which, with respect to the related sum or sums received by the other Banks, is in a greater proportion than that which the total amount of such Obligation then owed and due to such Bank bears to the total amount of such Obligation then owed and due to all of the Banks immediately prior to such receipt, then such Bank receiving such excess payment shall purchase for cash without recourse or warranty from the other Banks an interest in the Obligations of the Company to such Banks in such amount as shall result in a proportional participation by all the Banks in such amount; provided, however, that if all or any portion of such excess amount is thereafter recovered from such Bank, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
Section 3.07. Obligations Absolute. The obligations of the Company under this Agreement shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances whatsoever, notwithstanding, without limitation, the following:
(i) any lack of validity or enforceability of the Letter of Credit, the Bonds, any Operative Document or any other instrument or agreement related thereto;
(ii) any amendment or waiver of or any consent to departure from all or any of the Operative Documents, the Letter of Credit or the Bonds;
(iii) the existence of any claim, set off, defense or other rights which the Company may have at any time against the Issuer, the holders of the Bonds, any beneficiary or transferee of the Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), the Agent, WestLB, the Banks (other than the defense of indefeasible payment to the Agent, WestLB or the Banks, as applicable, in accordance with the terms of this Agreement) or any other Person, whether in connection with the Bonds, the Letter of Credit, any
Operative Document or any other related or unrelated document or transaction;
(iv) any statement or any document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement or information therein being untrue or inaccurate in any respect whatsoever;
(v) payment by WestLB under the Letter of Credit against presentation of a sight draft or certificate which does not comply with the terms of the Letter of Credit, provided that such payment shall not have constituted gross negligence or willful misconduct of WestLB; and
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, provided that such other circumstance or happening shall not have been the result of gross negligence or willful misconduct of the Agent, WestLB or the Banks.
ARTICLE IV
PREPAYMENTS; ESCROW BONDS
Section 4.01. Prepayments. Any amounts from time to time owing
to the Banks pursuant to Section 3.02(ii) hereof may be prepaid (i) at any time
by the Company on one Business Day's notice stating the amount to be prepaid
(which shall be $100,000 or any integral multiple of $5,000 in excess thereof)
and (ii) at any time in connection with a remarketing of Bonds pursuant to
Section 13.06 of the Indenture.
Section 4.02. Release of Escrow Bonds. Upon payment to the
Agent of the amount to be prepaid pursuant to clause (i) or (ii) of Section
4.01 (the "Prepayment Amount"), together with accrued interest, as set forth in
Section 3.02(ii), to the date of such prepayment on the amount to be prepaid,
the outstanding obligations of the Company under Section 3.02(ii) shall be
reduced by the amount of such prepayment and interest shall cease to accrue on
the amount prepaid. In addition, upon payment to the Agent of the Prepayment
Amount and the amount owing, if any, in respect of the "C Drawing" made in
conjunction with the "A Drawing" to which such Prepayment Amount relates, the
Agent shall direct the Tender Agent to release Escrow Bonds in an aggregate
principal amount equal to the Prepayment Amount, all in accordance with the
provisions of Section 7(b) of the Tender Agreement.
ARTICLE V
CONDITIONS PRECEDENT
The obligation of WestLB to issue the Letter of Credit is subject to the following conditions:
Section 5.01. Delivery of Bonds and Operative Documents. The Operative Documents and the Bonds shall each have been executed and delivered by the respective parties thereto, shall each be in full force and effect, and shall each be in form and substance satisfactory to the Agent, WestLB and each Bank. The Agent shall have received (with sufficient copies for WestLB and each Bank) an executed or conformed copy of each Operative Document and a specimen copy of the Bonds.
Section 5.02. Intentionally Omitted.
Section 5.03. Receipt of Documents. The Agent shall have received (with sufficient copies for WestLB and each Bank), on or before the Date of Issuance, the following, in form and substance satisfactory to the Agent, WestLB and each Bank:
(i) copies of the resolutions of the Board of Directors of the Company or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Agreement, certified by the President, any Vice President, the chief financial officer, the Secretary-Treasurer or an Assistant Secretary of the Company;
(ii) an Officer's Certificate, certifying the names and true signatures of the officers of the Company authorized to sign this Agreement, and the other documents to be delivered hereunder;
(iii) an opinion of (a) Baker & Botts, L.L.P. special counsel to the Company, substantially in the form of Exhibit B-1 attached hereto, and (b) William O. Bonin, special Louisiana counsel to the Company, substantially in the form of Exhibit B-2 attached hereto, in each case dated the Date of Issuance, addressed to WestLB, the Agent and the Banks;
(iv) a copy of the Reoffering Supplement which includes, as an attachment thereto, the Official Statement;
(v) a copy of the restated articles of incorporation of the Company, certified as of a recent date by the Secretary of State of the State of Louisiana, together with a certificate of good standing for the Company, dated as of a recent date.
(vi) a letter from the Process Agent, in a form reasonably satisfactory to the Agent, indicating the consent by the Process Agent to its appointment by the Company as its agent to receive service of process as specified in Section 11.09 hereof;
(vii) copies of the by-laws of the Company, certified as of the Date of Issuance by the President, any Vice President, the chief financial officer, the Secretary-Treasurer or an Assistant Secretary of the Company;
(viii) an opinion (or a signed copy of such opinion together with a satisfactory reliance letter) of Foley & Judell L.L.P., Bond Counsel, dated the Date of Issuance, addressed to WestLB, the Agent and the Banks and in form and substance satisfactory to WestLB, the Agent and the Banks, to the effect that the delivery of the Letter of Credit does not conflict with the laws of the State of Louisiana, is permitted by the Indenture and the Refunding Agreement, complies with the terms of the Indenture and the Refunding Agreement and will not adversely affect any exclusion from gross income for federal income tax purposes of interest on the Bonds;
(ix) an Officer's Certificate, dated the Date of Issuance, substantially in the form of Exhibit C attached hereto; and
(x) copies of written evidence from Moody's and S&P pursuant to Section 3.01(a) of the Indenture; and
(xi) such other information, documents, instruments, approvals and opinions as WestLB, the Agent or any Bank or any of their respective counsel may reasonably request.
Section 5.04. Representations and Warranties; Defaults. The following statements shall be true and correct on the Date of Issuance and the Agent shall have received (with sufficient copies for WestLB and each Bank) an Officer's Certificate, dated the Date of Issuance, stating that:
(i) on the Date of Issuance, both before and after giving effect to the execution and delivery of this Agreement and the issuance of the Letter of Credit, all representations and warranties made by the Company in Article VI of this Agreement and in each other Operative Document to which it is a party, and all representations and warranties otherwise made by the Company in writing in connection herewith or with any other Operative Document to which it is a party, are true and correct on and as of the Date of Issuance as though made on and as of such date; and
(ii) on the Date of Issuance, both before and after giving effect to the execution and delivery of this Agreement and the issuance of the Letter of Credit, there exists no Default or Event of Default.
Section 5.05. Certain Other Matters. On and as of the Date of Issuance:
(i) there shall be no order or other restrictions in effect issued by any court, governmental or regulatory agency or arbitrator against or directly involving any party to any Operative Document or the Bonds which prevents such party from performing any of its obligations under such Operative Document or the Bonds;
(ii) each Person party to an Operative Document or the Bonds shall have received all necessary governmental, regulatory and third party consents and approvals required to be obtained by such Person in order to consummate the transactions contemplated by the Operative Documents and the Bonds, including, in the case of the Company and without limitation, the approval of the Louisiana Public Service Commission in respect of the transactions contemplated in connection with the issuance of the Bonds and the consummation of the transactions contemplated by this Agreement.
(iii) simultaneously with the issuance of the Letter of Credit, all of the conditions specified in the Other Reimbursement Agreements for the issuance of the Other Letters of Credit shall have been satisfied (or waived by the Required Banks (as defined therein)), and the Other Letters of Credit shall have been issued simultaneously with the issuance of the Letter of Credit to the beneficiary thereof pursuant to the terms of the Other Reimbursement Agreements;
(iv) there shall have been no material adverse change in the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole since December 31, 1996; and
(v) the Agent, WestLB and the Banks shall have received all fees set forth or referred to in Article II hereof that shall be due and payable on or before the Date of Issuance.
Section 5.06. Proceedings. All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement and the other Operative Documents shall be satisfactory in form and substance to the Agent, WestLB, the Banks and their respective counsel, and each of the Agent, WestLB and the Banks shall have received all information and copies of all documents, including records of corporate proceedings, governmental approvals, incumbency certificates, and opinions which any of them may have reasonably requested in connection with the transactions contemplated by this Agreement and the other Operative Documents, such documents where appropriate to be certified by proper officers.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, WestLB and each of the Banks to enter into this Agreement, and in order to induce WestLB to issue the Letter of Credit, the Company makes the following representations and warranties to the Agent, WestLB and each of the Banks, which representations and warranties shall survive the execution and delivery of this Agreement and the Letter of Credit, regardless of any investigation made by or on behalf of the Agent, WestLB or any of the Banks:
Section 6.01. Due Organization, Etc. Each of the Company and its Subsidiaries (i) is a duly organized and validly existing corporation in good standing under the laws of the jurisdiction of its incorporation and (ii) has all requisite corporate power and authority to own its property and assets and to transact its business as presently conducted.
Section 6.02. No Conflicts. The execution, delivery and
performance by the Company of this Agreement and each of the other Operative
Documents to which it is a party (i) are within the Company's corporate power,
(ii) have been duly authorized by all necessary corporate action on the part of
the Company, (iii) do not and will not require any consent or approval of any
class of stockholders of the Company, (iv) do not and will not (a) contravene
the charter or by-laws of the Company or (b) contravene any applicable law,
rule, regulation (including, without limitation, Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System or any rules or
regulations of the Louisiana Public Service Commission), order, writ, judgment,
injunction or decree presently in effect having applicability to the Company or
any of its Subsidiaries, (v) except as required by the provisions of the
Refunding Agreement, do not and will not result in or require the creation of
any Lien upon or with respect to any of the properties of the Company or any of
its Subsidiaries and (vi) do not and will not result in the violation of or be
in conflict with or result in a default under or breach or termination of any
term or provision of any mortgage, lease, agreement, indenture, contract,
instrument or other document to or by which the Company or any of its
Subsidiaries is a party or otherwise bound or to which any of the assets or
properties of the Company or any of its Subsidiaries are subject, except any
such violation, conflict, default, breach or termination referred to in this
clause (vi) which, individually or in the aggregate, (a) would not affect the
legality, validity, enforceability or binding effect of the Bonds, this
Agreement or any of the other Operative Documents and (b) would not have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole.
Section 6.03. Due Authorization. No order, authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Company of this Agreement or any of the other Operative Documents to which it is a party, other than any of the foregoing which shall have been previously obtained or made by the Company and which are currently in full force and effect. The Louisiana Public Service Commission has duly issued its order authorizing the Company to enter into this Agreement and the other Operative Documents to which it is a party and to take all action contemplated hereby and thereby or in connection herewith or therewith, and such orders remain in full force and effect in the forms originally issued.
Section 6.04. Enforceability. This Agreement and each of the other Operative Documents to which the Company is a party constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
Section 6.05. Litigation. There are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries or any of their respective properties or rights, or involving any of the Operative Documents, before any court, administrative, governmental or regulatory agency or arbitrator, and there is no pending or, to the knowledge of the Company, proposed legislative, regulatory, rule-making, rate-setting or investigatory proceeding before any federal, state, county or municipal government, department, commission, board or agency or any other instrumentality of any of them involving or affecting the Company, any of its Subsidiaries or the Issuer, in any case which (i) alone or together with others would, if adversely determined, have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole (except that for the purposes of this clause (I) an earnings review or the commencement by the Company of rate increase proceedings with the Louisiana Public Service Commission or the Federal Energy Regulatory Commission shall not constitute such a pending or threatened action or proceeding unless and until such commission's determination is made thereunder that has such a material adverse effect) or (ii) questions the legality, validity, enforceability or binding effect of the Bonds, this Agreement or any other Operative Document or would impair materially the Company's ability to perform its obligations under this Agreement or any of the other Operative Documents to which it is a party.
Section 6.06. Compliance with ERISA. With respect to each Plan,
other than a multiemployer plan as defined in Section 4001(a)(3) of ERISA, (i)
each such Plan is in substantial compliance with ERISA and the Code; (ii) no
Reportable Event has occurred; (iii) no such Plan has an Unfunded Current
Liability which could have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of the Company or
of the Company and its Subsidiaries taken as a whole; (iv) no such Plan has an
accumulated or waived funding deficiency; (v) no such Plan has applied for an
extension of any amortization period under Section 412(a) of the Code; (vi) no
proceedings have been instituted to terminate any such Plan nor, to the
knowledge of the Company, does there exist reason for the PBGC to attempt to
take possession of or terminate any such Plan under Section 4042 of ERISA; and
(vii) there has been no withdrawal from any such Plan so as to result in
liability for the Company or any ERISA Affiliate under any of Sections 4062(e)
or 4063 of ERISA. With respect to Plans that are multi employer plans within
the meaning of Section 4001(a)(3) of ERISA, (a) no such Plan is insolvent or in
reorganization; (b) neither the Company nor any ERISA Affiliate has any
liability under Section 515 with respect to such Plan except for good faith
disputes concerning the amount of such liability; and (c) neither the Company
nor any ERISA Affiliate has withdrawn or partially withdrawn from any such Plan
and as a result thereof incurred any liability under Sections 4201 or 4204 of
ERISA. Neither the Company nor any of its Subsidiaries nor any ERISA Affiliate
expects to incur any material liability to or on account of a Plan pursuant to
Section 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA. No lien imposed under
the Code or ERISA on the assets of the Company or any of its Subsidiaries or
any ERISA Affiliate exists. Neither the Company nor any of its Subsidiaries
nor any ERISA Affiliate maintains or contributes to any employee welfare
benefit plan as defined in Section 3(1) of ERISA which provides benefits to
retired employees (other than as required by Section 601 of
ERISA) the obligations with respect to which could have a material adverse effect on the ability of the Company to perform any of its obligations under this Agreement.
Section 6.07. No Defaults. Neither the Company nor any of its Subsidiaries is in default under or breach of (nor does any circumstance or occurrence exist which, with the passage of time or the giving of notice or both, would constitute a default under or breach of) any mortgage, lease, agreement, indenture, contract, instrument or other document to which it is a party or to which it or any of its properties may be bound, other than any such breach or default which would not, individually or in the aggregate, have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 6.08. Financial Statements. The Company has furnished, or caused to be furnished, to the Agent, with sufficient copies for WestLB and each Bank, the following financial statements: (i) the consolidated balance sheets of the Company and its Subsidiaries as at December 31, 1995 and December 31, 1996, and the related consolidated statements of income and changes in shareholders' equity and of cash flows for the fiscal years ended as of such dates, which, in each case, have been certified by Coopers & Lybrand L.L.P., independent certified public accountants for the Company; and (ii) the consolidated balance sheets of the Company and its Subsidiaries as at June 30, 1995 and June 30, 1996, and the related consolidated statements of income and of cash flows for the six months ended as of such dates, which, in each case, have been prepared by the Company. Such financial statements (including any related schedules and/or notes thereto) have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as otherwise set forth in the notes to said financial statements) and reflect all liabilities, direct and contingent, of the Company and its Subsidiaries required to be shown in accordance with such principles. Such financial statements fairly present the consolidated financial condition of the Company as at the dates thereof and the consolidated results of operations and cash flows for the periods indicated (subject, as to any interim statements, to normal year end adjustments). There has been no material adverse change in the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole since December 31, 1996.
Section 6.09. Taxes. Each of the Company and its Subsidiaries has filed all federal and state income tax returns which are required to be filed by it, and each has paid all taxes as shown on such returns and on all assessments received by it except to the extent that such taxes have not become due and other than taxes the amount or validity of which are currently being contested in good faith by appropriate proceedings with respect to which reserves in accordance with general accepted accounting principles have been provided.
Section 6.10. Disclosure. Intentionally Omitted.
Section 6.11. Title to Property. Each of the Company and its
Subsidiaries has good and marketable title to all of its material real
properties and good title to all of its other material properties and assets,
free and clear of all Liens, other than those permitted to exist pursuant to
Section 8.04.
Section 6.12. Environmental and Other Matters. Each of the Company and its Subsidiaries is in compliance with all applicable statutes, rules and regulations governing pollution and environmental control, equal employment opportunity and employee safety in all jurisdictions in which it is doing business, other than such noncompliances which, individually or in the aggregate, would not have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole. No Lien in favor of any governmental authority has been asserted or recorded under any statute, rule or regulation, governing pollution and environmental control with respect to any of the assets or properties of the Company or any of its Subsidiaries.
Section 6.13. Operative Documents. The Company makes to WestLB, the Agent and each of the Banks each of the representations and warranties made by it in each of the other Operative Documents to which it is a party to the same extent as if the same were set forth at length herein. There is no default by the Company or, to the knowledge of the Company, by any other Person under any of the other Operative Documents.
Section 6.14. Margin Stock. The Company is not principally engaged in, nor does it have as one of its principal activities, the business of extending credit for the purpose of purchasing or carrying any "margin stock" (as such term is defined in Regulation U of the Board of Governors of the Federal Reserve System). None of the proceeds of the Bonds or of any drawing under the Letter of Credit will be used, directly or indirectly, to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock.
Section 6.15. Investment Company. The Company is not an "investment company", as defined in the Investment Company Act of 1940, as amended.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Company covenants that, from and after the Date of Issuance until such time as the Letter of Credit is no longer outstanding and all Obligations are paid in full:
Section 7.01. Preservation of Corporate Existence. Subject to
Section 8.01 hereof, the Company will, and will cause each of its Subsidiaries
to, (i) preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation and (ii) qualify and remain
qualified as a foreign
corporation in good standing in each jurisdiction where the operation of its businesses or the ownership of its assets requires such qualification; provided, however, that the Company and its Subsidiaries will not be required to preserve any such right, franchise, privilege or qualification if the Company or any such Subsidiary determines that the preservation thereof is no longer desirable or, in the case of qualification, required, and determines that the loss of such rights, franchises, privileges or qualifications will not have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 7.02. Compliance with Law; Environmental and Other Matters. The Company will, and will cause each of its Subsidiaries to, comply with the requirements of all applicable laws, rules, regulations and orders of any governmental authority having jurisdiction over it (including, without limitation, ERISA and the statutes, rules and regulations thereunder and all statutes, rules and regulations governing pollution and environmental control, equal employment opportunity and employee safety), except for such noncompliances which, individually or in the aggregate, would not have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 7.03. Performance of Agreements. The Company will, and will cause each of its Subsidiaries to, observe and perform (i) with respect to the Company, all of its obligations under this Agreement and the other Operative Documents to which it is a party and (ii) with respect to the Company and its Subsidiaries, all of their respective obligations under each mortgage, lease, agreement, indenture, contract, instrument or other document to which it is or may become a party or by which it is or may become bound, except such non-observance or non-performance which would not, individually or in the aggregate, have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
Section 7.04. Maintenance of Insurance. The Company will, and will cause each of its Subsidiaries to, maintain insurance with responsible and reputable insurance companies in such amounts, with such deductibles and covering such risks as is usually maintained by companies conducting similar businesses and owning similar properties.
Section 7.05. Furnishing of Information. The Company will, for itself and on behalf of each of its Subsidiaries, furnish to the Agent, WestLB and each Bank the following: (i) immediately following the occurrence of any Default or Event of Default, an Officer's Certificate setting forth details of such Default or Event of Default, the period of existence thereof and the action proposed to be taken by the Company or such Subsidiary with respect thereto and (ii) such other information respecting the business, operations, condition (financial or otherwise) or prospects of the Company or any of its Subsidiaries as WestLB, the Agent or any Bank may from time to time reasonably request.
Section 7.06. ERISA. The Company will, and will cause each of
its Subsidiaries and ERISA Affiliates to, as soon as possible and in any event
within ten days after the Company or any of its Subsidiaries or ERISA
Affiliates knows of the occurrence of any of the following, deliver to the
Agent, with sufficient copies for WestLB and each Bank, a certificate of the
chief financial officer of the Company, setting forth details as to such
occurrence and the action, if any, which the Company, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Company, such
Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant or the Plan
Administrator with respect thereto: (i) the occurrence of a Reportable Event;
(ii) the existence of an accumulated funding deficiency; (iii) the making of an
application to the Secretary of the Treasury for a waiver or modification of
the minimum funding standard (including any required installment payments) or
extension of any amortization period under Section 412 of the Code with respect
to a Plan; (iv) the termination, reorganization, partition or declaration of
insolvency under Title IV of ERISA of a Plan; (v) the existence of an Unfunded
Current Liability with respect to a Plan which has resulted in a lien being
imposed under ERISA or the Code with respect to the Company or any of its
Subsidiaries or ERISA Affiliates; (vi) the institution of proceedings to
terminate a Plan; (vii) the institution of a proceeding pursuant to Section 515
of ERISA to collect delinquent contributions from the Company or any of its
Subsidiaries or ERISA Affiliates; or (viii) the incurrence of any liability
(including any contingent or secondary liability) by the Company or any of its
Subsidiaries or ERISA Affiliates to or on account of the termination or
withdrawal from a Plan under Sections 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA; provided, however, that, with respect to any person (as defined in
Section 3(9) of ERISA) that is an ERISA Affiliate only within the meaning of
Section 414(m) or 414(o) of the Code, the Company need only use its best
efforts to cause such person to deliver such certificate and notices. The
Company will deliver and, with respect to any person (as defined in Section
3(9) of ERISA) that is an ERISA Affiliate only within the meaning of Section
414(m) or 414(o), will use its best efforts to obtain and deliver, to the
Agent, with sufficient copies for WestLB and each Bank, a complete copy of the
annual report (Form 5500) of each Plan required to be filed with the Internal
Revenue Service. Copies of annual reports and any notices received by the
Company, any of its Subsidiaries or any ERISA Affiliates with respect to any
Plan shall be delivered to the Agent no later than ten days after the later of
the date such report or notice has been filed with the Internal Revenue Service
or received by the Company, such Subsidiary or such ERISA Affiliate; provided,
however, that, with respect to any person (as defined in Section 3(9) of ERISA)
that is an ERISA Affiliate only within the meaning of Section 414(m) or Section
414(o) of the Code, the Company need only use its best efforts to obtain such
report or notice.
Section 7.07. Financial Statements. The Company will deliver, or cause to be delivered, to the Agent, with sufficient copies for WestLB and each Bank, in each case in duplicate: (i) as soon as available and in any event within 60 days after the end of each fiscal quarterly period in each fiscal year of the Company, a consolidated balance sheet of the Company and the related consolidated statements of income and cash flows of the Company for such period and for the period from the beginning of the then current fiscal year to the end of such fiscal quarterly period, setting forth in each case
in comparative form the figures for the corresponding periods for the previous
fiscal year, in each case certified by the chief financial officer or chief
accounting officer of the Company as fairly presenting the consolidated
financial condition of the Company as at such date and the consolidated results
of operations and cash flows of the Company for the period ended on such date,
all in accordance with generally accepted accounting principles consistently
applied, subject to normal year-end audit adjustments, (ii) as soon as
available and in any event within 120 days after the end of each fiscal year of
the Company, a consolidated balance sheet of the Company and the related
consolidated statements of income and changes in shareholders' equity and cash
flows of the Company for such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year, in each case
certified by Coopers & Lybrand L.L.P. or such other nationally recognized
independent certified public accountants acceptable to the Required Banks whose
certificate shall be reasonably satisfactory to WestLB and the Required Banks,
(iii) promptly after receipt thereof, copies of the material portion of any
detailed reports submitted to the Company or any of its Subsidiaries by its
independent accountants in connection with each annual or interim audit of the
accounts of the Company or its Subsidiaries relating to the business,
operations, condition (financial or otherwise) or prospects of the Company or
its Subsidiaries, (iv) promptly, and in any event within ten (10) days after an
officer of the Company obtains knowledge thereof, notice of any litigation or
governmental or regulatory proceedings pending against the Company or any of
its Subsidiaries which, individually or in the aggregate, would have a material
adverse effect on the business, operations, condition (financial or otherwise)
or prospects of the Company or of the Company and its Subsidiaries taken as a
whole, or otherwise pending with respect to the Bonds or any Operative
Document, (v) promptly, and in any event within ten (10) days after an officer
of the Company obtains knowledge thereof, notice of any event not otherwise
specified in clause (iv) above which, individually or in the aggregate, would
have a material adverse effect on the business, operations, condition
(financial or otherwise) or prospects of the Company or of the Company and its
Subsidiaries taken as a whole, (vi) promptly after the sending or filing
thereof, copies of all reports and registration statements (including without
limitation Forms 10-K and 10Q) which the Company sends to any of its security
holders or which the Company or any of its Subsidiaries files with Securities
and Exchange Commission or any national securities exchange, (vii) promptly
upon the written request of the Agent, WestLB or any Bank, copies of any
report, application, petition or other similar document which the Company or
any of its Subsidiaries sends to or files with the Federal Energy Regulatory
Commission or the Louisiana Public Service Commission, and (viii) such other
financial information as the Agent, WestLB or any Bank may reasonably request.
Together with each delivery of financial statements required by clauses (i) and
(ii) above, the Company shall deliver to the Agent, with sufficient copies for
WestLB and each Bank, (a) an Officer's Certificate stating that there exists no
Default or Event of Default or, if any such Default or Event of Default exists,
stating the nature thereof, the period of existence thereof and what action the
Company proposes to take with respect thereto and (b) a certificate prepared
and certified by the chief financial officer or chief accounting officer of the
Company setting forth the calculations required to establish whether the
Company is in compliance with the provisions of Sections 8.05 and 8.06 hereof
at the end of such fiscal quarter or fiscal year, as the case may be. The
Agent, WestLB and the Banks are hereby authorized to
deliver a copy of any financial statement or other document delivered to them pursuant to this Section 7.07 to any regulatory body having jurisdiction over them and to any prospective Participant in their interest herein or in the Letter of Credit.
Section 7.08. Inspection. The Company will, and will cause each of its Subsidiaries to, permit officers and designated representatives of the Agent, WestLB or any Bank to visit and inspect, at such Person's own expense, any of the properties of the Company or any of its Subsidiaries, to examine the corporate books and financial records of such entities and make copies thereof or extracts therefrom, and to discuss the affairs, finances and accounts of any of such entities with the principal officers and the internal and independent accountants of such entities, all upon reasonable prior notice and during regular business hours and as often as the Agent, WestLB or such Bank may reasonably request.
Section 7.09. Payment of Taxes, Etc. The Company will, and will cause each of its Subsidiaries to, pay and discharge all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, and all lawful claims which, if unpaid, would become a Lien upon any of its properties, in each case at such time as such taxes, assessments, governmental charges, levies or claims shall become due and payable; provided, however, that neither the Company nor any of its Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by appropriate proceedings and as to which appropriate reserves are being maintained in accordance with generally accepted accounting principles.
Section 7.10. Maintenance of Property. The Company will, and will cause each of its Subsidiaries to, keep all property that is useful and necessary in its business in good working order and condition, ordinary wear and tear excepted.
Section 7.11. Certain Notices. The Company will furnish to the Agent, with sufficient copies for WestLB and each Bank, a copy of any notice, certification, demand or other writing or communication given or received by the Company under or in connection with the Bonds or any of the other Operative Documents, in each case promptly after the receipt or giving of the same.
ARTICLE VIII
NEGATIVE COVENANTS
The Company covenants that, from and after the Date of Issuance and until such time as the Letter of Credit is no longer outstanding and all Obligations are paid in full:
Section 8.01. Consolidation, Merger, Sale of Assets, Etc. The Company will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of, whether in a single transaction or a series of related transactions, more than 5% of the consolidated total assets of the Company and its Subsidiaries as of the date of any such conveyance, sale, lease or other disposition, to any Person, or agree to do any of the foregoing at any future time; provided, however, that nothing contained in this Section 8.01 shall prohibit (i) a consolidation or merger of two or more Subsidiaries, (ii) a consolidation or merger of one or more Subsidiaries with or into the Company, if the Company is the surviving corporation, (iii) a consolidation or merger of another Person into the Company or a Subsidiary if the Company or a Subsidiary is the surviving Person, (iv) the conveyance, sale, lease or other disposition of assets of a Subsidiary to the Company or another Subsidiary, (v) the sale or other disposition of any Subsidiary in which the Company has made no capital investment (either by cash contribution, contribution of assets or otherwise), (vi) sales by the Company or a Subsidiary of its accounts receivable or other receivables or sales of undivided interests in such accounts receivable and other receivables or (vii) the sale or other disposition of pollution control facilities in connection with the issuance by a governmental entity of pollution control bonds substantially all of the proceeds of the sale of which are received by the Company.
Section 8.02. Redemption or Purchase of Bonds; Adjustment of Interest Rate Periods. The Company will not, without the prior consent of the Required Banks, such consent not to be unreasonably withheld, (i) take any action to cause a redemption of any of the Bonds, (ii) take any action to cause the Interest Rate Period (as defined in the Indenture) in respect of the Bonds to be adjusted or otherwise changed to a Short Term Interest Rate Period or a Long-Term Interest Rate Period (as defined in the Indenture) or (iii) take any affirmative action to purchase, or to permit any of its Subsidiaries to purchase, any of the Bonds.
Section 8.03. Amendment of Operative Document. The Company will not, without the prior written consent of the Required Banks, terminate or amend or consent to the termination or amendment of any of the terms or provisions of the Bonds or any Operative Document.
Section 8.04. Liens. The Company will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or personal, tangible or intangible) of the Company or any of its Subsidiaries, whether now owned or hereafter acquired, provided, however, that the provisions of this Section 8.04 shall not prevent the creation, incurrence, assumption or existence of:
(i) Liens to secure the CLECO Mortgage;
(ii) the following "permitted liens" pursuant to Section 1.04 of the CLECO Mortgage as presently in effect: (a) liens for taxes, assessments or governmental charges not then delinquent; (b) the lien of taxes, assessments or governmental charges due, or to become due, the validity of which is being contested at the time by the Company in good faith and, if necessary, by appropriate legal proceedings, provided that the Company shall have made such provision as may be
required by the trustee under the CLECO Mortgage for the payment of any
amount or the giving of such security as shall be required to prevent
the loss or forfeiture of any of the mortgaged and pledged property, and
for the payment of the amount of any such taxes, assessments or
governmental charges as shall ultimately be determined to be due and
payable; (c) any liens, the Indebtedness secured by which has not been
assumed by the Company and on which it does not customarily pay interest
charges, existing upon real estate or rights in or relating to real
estate acquired by the Company for substation, transmission lines,
distribution lines, pipelines, water mains, or right-of-way purposes or
for storeroom or service buildings incidental to any of the foregoing;
(d) rights reserved to or vested in any municipality or public authority
by the terms of any right, power, franchise, grant, license, permit or
by any provision of law to terminate such right, power, franchise,
grant, license or permit or to purchase, condemn or recapture or to
designate a purchaser of any of the property of the Company; (e) leases,
easements, restrictions, exceptions or reservations in any property of
the Company created at or before the acquisition thereof by the Company
for the purpose of roads, water mains, pipe lines, transmission lines,
distribution lines or for the joint or common use of real property and
equipment and other like purposes, and other minor defects and
irregularities of title in any property, in any case which do not
materially impair the use of such property in the operation of the
business of the Company or which the Company itself has power to cure by
appropriate legal proceedings; (f) rights reserved to or vested in any
municipality or public authority to use or control or regulate any
property of the Company; (g) any obligations or duties affecting the
property of the Company to any municipality or public authority with
respect to any franchise, grant, license or permit; (h) undetermined
liens and charges incidental to construction, except such as may result
from any delinquent obligation of the Company for the payment of money
on account of such construction; (i) funded liens; or (j) obligations
arising under agreements or otherwise relating to the ownership by the
Company of an undivided interest in real or personal property;
(iii) Liens on any property acquired, constructed or improved by the Company or any of its Subsidiaries after the date of this Agreement which are created or assumed contemporaneously with, or within 120 days after, such acquisition or completion of such construction or improvement, or within six months thereafter pursuant to a firm commitment for financing arranged with a lender or investor within such 120-day period, to secure or provide for the payment of all or any part of the purchase price of such property or the cost of such construction or improvement incurred after the date of this Agreement, or, in addition to Liens contemplated by clauses (iv) and (v) below, Liens on any property existing at the time of acquisition thereof, provided that the Liens shall not apply to any property theretofore owned by the Company or any of its Subsidiaries other than, in the case of any such construction or improvement, any theretofore unimproved real property on which the property so constructed or the improvement is located;
(iv) existing Liens on any property or indebtedness of a corporation which is merged with or into or consolidated
with the Company or any of its Subsidiaries;
(v) Liens on property or indebtedness of a corporation existing at the time such corporation becomes a Subsidiary of the Company;
(vi) Liens to secure Indebtedness of a Subsidiary to the Company or to another of its Subsidiaries;
(vii) Liens in favor of the United States of America, any state, any foreign country or any department, agency or instrumentality or political subdivision of any such jurisdiction, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any Indebtedness incurred for the purpose of financing all or any part of the purchase price of the cost of constructing or improving the property subject to such Liens, including, without limitation, Liens to secure pollution control or industrial revenue bond type Indebtedness;
(viii) Liens to secure sales by the Company or any of its Subsidiaries of accounts receivable or other receivables or sales of undivided interests in such accounts receivable and other receivables provided that such liens apply only to such accounts receivable and the related security;
(ix) Liens on any property (including any natural gas, oil or other mineral property) to secure all or part of the cost of exploration, drilling or development thereof or to secure Indebtedness incurred to provide funds for any such purpose;
(x) Liens existing on the date of this Agreement and set forth on Schedule II attached hereto;
(xi) Liens consisting of (a) pledges or deposits in the ordinary course of business to secure obligations under worker's compensation laws or similar legislation, including liens of judgments thereunder which are not currently dischargeable, (b) deposits in the ordinary course of business to secure, or in lieu of, surety, appeal, or customs bonds to which the Company is a party, (c) Liens created by or resulting from any litigation or legal proceeding which is currently being contested in good faith by appropriate proceedings diligently conducted, (d) pledges or deposits in the ordinary course of business to secure performance in connection with bids, tenders or contracts (other than contracts for the payment of money) or (e) materialmen's, mechanics', carriers', worker's, repairmen's or other like liens incurred in the ordinary course of business for sums not yet due or currently being contested in good faith by appropriate proceedings diligently conducted, or deposits to obtain the release of such liens;
(xii) Liens for the sole purposes of extending, renewing or replacing in whole or in part Indebtedness secured by any
Lien referred to in the foregoing clauses (i) to (xi), inclusive, or this clause (xii); provided, however, that the principal amount of Indebtedness secured thereby shall not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacement plus the amount of any redemption or repurchase premiums incurred in retiring such Indebtedness, and that such extension, renewal or replacement shall be limited to all or a part of the property or indebtedness which secured the Lien so extended, renewed or replaced (plus improvements on such property); and
(xiii) Liens not otherwise permitted by foregoing clauses (i) to
(xii), inclusive, to the extent such Liens encumber, in the aggregate,
no more than 5% of Consolidated Net Tangible Assets.
Section 8.05. Interest Coverage Ratio. The Company will not permit the ratio of EBITDA to Consolidated Interest Expense at any time (determined in each instance using the most recently completed 12-month period for which the relevant financial information is available) to be less than 2.00 to 1.00.
Section 8.06. Tangible Net Worth Ratio. The Company will not, at any time, permit Consolidated Tangible Net Worth to be less than 35% of Total Capitalization.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01. Events of Default. If any of the following events (each an "Event of Default") shall occur and be continuing:
(i) any representation or warranty made by the Company in this Agreement or in any of the other Operative Documents or in any writing furnished in connection with or pursuant to this Agreement or any other Operative Document shall be false or incomplete in any material respect when made or deemed made; or
(ii) the Company shall fail to make any payment required to be made by it when due hereunder (including, without limitation, pursuant to Article II or Article III hereof) or under any or the Operative Documents; or
(iii) the occurrence of an "event of default" as described and defined in the Indenture or the Refunding Agreement; or
(iv) the occurrence of an "event of default" as described and defined in either of the Other Reimbursement Agreements; or
(v) the Company shall fail to perform or observe any of the terms of Article VIII hereof; or
(vi) the Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the Operative Documents on its part to be performed or observed and (a) with respect to any such term, covenant or agreement contained herein, any such failure remains unremedied for 30 days, and (b) with respect to any such term, covenant or agreement contained in any of the other Operative Documents, any such failure remains unremedied after any applicable grace period specified in such Operative Document; or
(vii) any material provision of the Bonds, this Agreement or any other Operative Document shall at any time for any reason cease to be valid and binding on any party hereto or thereto (other than the Agent, WestLB or any Bank), or shall be declared to be null and void, or any such party (other than the Agent, WestLB or any Bank) shall contest the validity or enforceability thereof, or the Company shall deny that it has any further liability or obligation with respect to the Bonds, this Agreement or any other Operative Document to which it is a party; or
(viii) the Company or any of its Subsidiaries shall default in any payment of principal of or premium, if any, or interest on any Indebtedness of the Company or such Subsidiary (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) having an original aggregate principal amount in excess of $5,000,000, and such default shall continue beyond any period of grace provided with respect thereto, or the Company or any of its Subsidiaries shall default in the performance or observance of any other agreement, term or condition contained in any agreement under which any such Indebtedness is created (or if any other event of default thereunder or under such agreement shall occur and be continuing) and the effect of any such default is to cause, or as a result thereof the holder or holders of such obligation (or a trustee on behalf of such holder or holders) shall have caused or shall be entitled to cause, such obligation to become due prior to the stated maturity thereof; or
(ix) the Company or any of its Subsidiaries pursuant to or within the meaning of any Bankruptcy Law commences a voluntary case, admits in writing its inability to pay its debts generally as they become due, consents to the appointment of a Custodian of it or for all or substantially all of its property or makes a general assignment for the benefit of its creditors; or has an involuntary case filed against it, or a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that is for relief against the Company or any of its Subsidiaries in an involuntary case, appoints a Custodian of the Company or any of its Subsidiaries for all or substantially all of its property or orders the liquidation of the Company or any of its Subsidiaries, and such involuntary case, order or decree remains unstayed and in effect for more than 60 days; or
(x) with respect to any Plan, other than a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA, (a) such Plan shall fail to satisfy the minimum funding standard or a waiver of such standard or extension of any amortization period is sought under Section 412 of the Code; (b) such Plan is or is proposed to be terminated and as a result thereof liability in excess of $5,000,000 can be asserted under Title IV of ERISA as against the Company or any Subsidiary; (c) such Plan shall have an Unfunded Current Liability in excess of $5,000,000; or (d) there has been a withdrawal from any such Plan and as a result liability in excess of $5,000,000 can be asserted under Section 4062(e) or 4063 of ERISA against the Company or any Subsidiary; or, with respect to any Plan that is a multiemployer plan under Section 4001(a)(3) of ERISA, such Plan is insolvent or in reorganization or the Company or any ERISA Affiliate has withdrawn, or proposes to withdraw, either totally or partially, from such Plan and, in any case, in the opinion of the Required Banks, the Company or any Subsidiary might reasonably be anticipated to incur a liability which would have a material adverse effect on the business, operations, conditions (financial or otherwise) or prospects of the Company or the Company and Subsidiaries taken as a whole; or
(xi) one or more judgments or decrees shall be entered against the Company or any of its Subsidiaries involving in the aggregate a liability (not covered by insurance) of $10,000,000 or more, and all such judgments or decrees shall not have been vacated, satisfied, discharged or stayed or bonded pending appeal within 30 days from the entry thereof;
then, and in any such event, the Agent may and, upon the written request of the Required Banks, shall, without prejudice to the rights of the Agent, WestLB or any Bank, (i) by notice to the Company, declare all amounts payable by the Company hereunder (including, without limitation, all amounts payable pursuant to Article II and Article III hereof) to be forthwith due and payable, and the same shall thereupon become due and payable without demand, presentment, protest or further notice of any kind, all of which are hereby expressly waived, and/or (2) with respect to any undrawn amount under the Letter of Credit, require that the Company place with the Agent a collateral deposit which shall be, in the opinion of Bond counsel chosen by the Company and acceptable to the Agent, invested by the Agent in a manner which does not violate Section 148 of the Code, to secure repayment to the Banks by the Company of any drawings under the Letter of Credit and/or (3) exercise any or all of its rights and remedies under the Operative Documents and/or (4) by notice to the Trustee, require the Trustee to accelerate payment of all of the Bonds and interest accrued thereon as provided in Section 9.01 of the Indenture; provided that if an Event of Default described in clause (ix) of this Section 9.01 shall occur and be continuing, all amounts payable by the Company hereunder shall become immediately due and payable, without written notice and without presentment, protest or any other notice of any kind, all of which are hereby expressly waived.
Section 9.02. No Remedy Exclusive. No remedy herein conferred or reserved is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or under any of the other Operative Documents, whether now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default, omission or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to exercise any remedy reserved to the Agent, WestLB or any Bank in this Agreement, it shall not be necessary to give any notice, other than such notice as may be herein expressly required or required by applicable law. In the event any provision contained in this Agreement should be breached by any party and thereafter duly waived by the other party or parties so empowered to act, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver, amendment, release or modification or this Agreement shall be established by conduct, custom or course of dealing, but solely by an instrument in writing duly executed by the party or parties "thereto duly authorized by this Agreement.
ARTICLE X
THE AGENT
Section 10.01. The Agent. The Banks hereby designate Westdeutsche Landesbank Girozentrale, New York Branch, as agent to act as specified herein and in the other Operative Documents. Each Bank hereby irrevocably authorizes the Agent to take such action on its behalf under the provisions of this Agreement, the other Operative Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Agent by the terms hereof and thereof and such other powers as are-reasonably incidental thereto. The Agent may perform any of its duties hereunder by or through its officers, directors, agents or employees.
Section 10.02. Duties. The Agent shall have no duties or responsibilities except those expressly set forth in this Agreement. Neither the Agent nor any of its officers, directors, agents or employees shall be liable for any action taken or omitted by it or them hereunder or under any other Operative Document or in connection herewith or therewith, unless caused by its or their gross negligence or willful misconduct as determined by a final, non-appealable order of a court of competent jurisdiction. The duties of the Agent shall be mechanical and administrative in nature, and the Agent shall not have by reason of this Agreement or any other Operative Document a fiduciary relationship in respect of any Bank. Nothing in this Agreement or any other Operative Document, expressed or implied, is intended to or shall be so construed as to impose upon the Agent any obligations in respect of this Agreement or any other Operative Document except as expressly set forth herein.
Section 10.03. Investigation by Banks. Independently and without reliance upon the Agent, each Bank, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of the Company and the transactions contemplated herein, in each case in connection with the making and the continuance of the LC Commitments and the Advances and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of the Company and the transactions referred to in clause (i) above and, except as expressly provided in this Agreement, the Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Bank with any credit or other information with respect thereto, whether coming into its possession before the effectiveness of this Agreement or at any time or times thereafter. The Agent shall not be responsible to any Bank for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement or any other Operative Document or the financial condition of the Company or any other Person or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Operative Document, or the financial condition of the Company or any other Person or the existence or possible existence of any Default or Event of Default.
Section 10.04. Instructions. If the Agent shall request instructions from WestLB, the Banks or the Required Banks, as applicable, with respect to any act or action (including failure to act) in connection with the Letter of Credit, this Agreement or any other Operative Document, the Agent shall be entitled to refrain from such act or taking such action unless and until the Agent shall have received instructions from WestLB, the Banks or the Required Banks, as applicable, and the Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Bank shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder or under any other Operative Document in accordance with the instructions of WestLB, the Banks or the Required Banks, as applicable.
Section 10.05. Reliance by the Agent. The Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Operative Document and its duties hereunder and thereunder, upon advice of counsel selected by it.
Section 10.06. Indemnification. To the extent the Agent is not reimbursed and indemnified by the Company, the Banks will reimburse and indemnify the Agent, in proportion to their respective LC Commitments (or, if the Letter of Credit is no longer outstanding, in proportion to their respective LC Commitments
immediately prior to the expiration or other termination of the Letter of Credit), for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Agent in performing its duties hereunder or under any other Operative Document, or in any way relating to or arising out of this Agreement or any other Operative Document; provided that no Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent's gross negligence or willful misconduct.
Section 10.07. Agent as a Bank. The Agent shall have the rights and powers specified herein for a "Bank" and may exercise the same rights and powers as though it were not performing the duties specified herein, and the term "Banks", "Required Banks" or any similar terms shall, unless the context clearly otherwise indicates, include the Agent in its individual capacity. The Agent may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with the Company or any Subsidiary or Affiliate of the Company to the same extent as if it were not performing the duties specified herein, and may accept fees and other consideration from the Company or any such Subsidiary or Affiliate for services in connection with this Agreement and otherwise without having to account for the same to any of the Banks.
Section 10.08. Resignation by the Agent. (i) The Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Operative Documents at any time by giving 15 Business Days'
prior written notice to the Company and the Banks. Such resignation shall take
effect upon the appointment of a successor Agent pursuant to clauses (ii) and
(iii) below or as otherwise provided below.
(ii) Upon any such notice of resignation, the Required Banks shall appoint a successor Agent hereunder or thereunder which shall be a commercial bank or trust company reasonably acceptable to the Company.
(iii) If a successor Agent shall not have been so appointed within such 15 Business Day period, the Agent may then appoint a successor Agent who shall serve as Agent hereunder or thereunder until such time, if any, as the Required Banks appoint a successor Agent as provided above.
(iv) If no successor Agent has been appointed pursuant to clause (ii) or (iii) above by the 20th Business Day after the date such notice of resignation was given by the Agent, the Agent's resignation shall become effective and the Banks shall thereafter perform all the duties of the Agent hereunder and/or under any other Operative Document until such time, if any, as the Required Banks appoint a successor Agent as provided above.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Amendments, Etc. This Agreement may be amended, and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall obtain the written consent of the Required Banks, provided that without the consent of each Bank no such action or omission shall (i) extend the Termination Date of the Letter of Credit or the final maturity of any Advance, or reduce the rate or extend the time of payment of interest on any Advance, or reduce the principal amount of any Advance, or reduce the rate or extend the time of payment of any fees payable for the benefit of the Banks, or increase the LC Commitment of any Bank (it being understood that a waiver of any Event of Default shall not constitute a change in the terms of any LC Commitment of any Bank, and it being further understood that the LC Commitment of each Bank may be automatically adjusted pursuant to Section 2.02 hereof), (ii) amend, modify or waive any provision of this Section 11.01 or Sections 3.05, 3.06, 10.06, 11.03, 11.05, 11.07 or 11.16, (iii) reduce the percentage specified in the definition of Required Banks, or (iv) consent to the assignment or transfer by the Company of any of its rights and obligations under this Agreement or any other Operative Document to which it is a party; provided that no amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Banks required above to take such action, affect the rights or duties of the Agent under this Agreement; and provided, further, that no amendment, waiver or consent shall, unless in writing and signed by WestLB in addition to the Banks required above to take such action, affect the rights or duties of WestLB under this Agreement or the Letter of Credit.
Section 11.02. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including facsimile
communication, receipt of which is confirmed in writing) and shall be sent by
mail (postage prepaid return receipt requested), hand delivery or fax (i) if to
the Company, to it at P.O. Box 5000, Pineville, Louisiana 71361, Attention:
Treasurer, telecopy no. (318) 484-7465; (ii) if to the Agent, to it at the
offices of Westdeutsche Landesbank Girozentrale, New York Branch, 1211 Avenue
of the Americas, New York, New York 10036, Attention: Loan Operations,
telecopy number (212) 302-7946; (iii)if to WestLB, as issuer of the Letter of
Credit, or to Westdeutsche Landesbank Girozentrale, New York Branch, as a Bank
hereunder, to it at the offices of Westdeutsche Landesbank Girozentrale, New
York Branch, 1211 Avenue of the Americas, New York, New York 10036, Attention:
Trade Services, telecopy number (212) 768-4659; and (iv) if to any Bank (other
than Westdeutsche Landesbank Girozentrale, New York Branch), to it at its
address and telecopy number set forth opposite its signature below; or as to
any party at such other address or telecopy number as shall be designated by
such party in a written notice to all other parties hereto; provided that any
such communication to the Company may also, at the option of the Person
delivering such communication, be either delivered to the Company at its
address set forth above or to any officer of the Company. All such notices and
other communications shall be effective when received.
Section 11.03. Set-off. In addition to any rights now or hereafter granted under applicable law (including, but not limited to, Section 151 of the New York Debtor and Creditor Law) and not by way of limitation of any such rights, during the continuance of any Event of Default hereunder each Bank is hereby authorized at any time and from time to time, without notice to the Company or to any other Person, any such notice being hereby expressly waived, to set-off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing by WestLB or such Bank to or for the credit or the account of the Company against and on account of any Obligation or liability of the Company owing to SBC or the Banks under this Agreement and/or the Letter of Credit at the time, including, without limitation, all claims of any nature or description arising out of or in connection with this Agreement and/or the Letter of Credit, irrespective of whether or not the Agent, WestLB or any Bank shall have made any demand hereunder.
Section 11.04. Indemnification. The Company hereby agrees to protect, indemnify, pay and save the Agent, WestLB and each Bank harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including without limitation reasonable attorneys' fees) which such indemnified Person may incur or be subject to as a consequence, direct or indirect, of (i) the execution and delivery of this Agreement or the issuance of the Letter of Credit, other than as a result of the gross negligence or willful misconduct of such indemnified Person, (ii) the failure of WestLB to honor a drawing under the Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority (all such acts or omission herein called "Government Acts"), (iii) any breach by the Company, the Issuer, the Tender Agent, the Remarketing Agent or any other Person of any warranty, covenant, term or condition in, or the occurrence of any default under, this Agreement, any other Operative Document or the Bonds, together with all reasonable expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (iv) any inaccuracy or alleged inaccuracy, or any untrue statement or alleged untrue statement, contained in the Preliminary Official Statement or the Reoffering Supplement, which includes, as an attachment thereto, the Official Statement, or by reason of the omission or alleged omission to state therein any fact necessary to make such statements, in light of the circumstances under which they were made, not misleading (provided that this Section 11.04 shall not apply to any information contained in the Reoffering Supplement under the caption "WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH" or in the Preliminary Official Statement or the Official Statement under the caption "SWISS BANK CORPORATION, NEW YORK BRANCH") and (v) the defense against any legal action challenging the validity of any of the above referenced agreements or instruments. Nothing in this Section 11.04 is intended to limit the reimbursement or other obligations hereunder of the Company. The obligations of the Company under this Section 11.04 shall survive the payment of the Bonds and the termination of this Agreement.
Section 11.05. Benefit of Agreement. This Agreement is a continuing obligation and shall (i) be binding upon the Company and
its successors and assigns and (ii) inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns; provided, however, that the Company may not assign or transfer any of its rights or obligations hereunder without the prior written consent of WestLB and all of the Banks, and, provided further, that, although any Bank may grant participations in its rights hereunder and under the Letter of Credit, such Bank shall remain a "Bank" for all purposes hereunder, the Participant shall not constitute a "Bank" hereunder, the Company shall continue to deal solely with the Agent and such Bank (and not with any Participant) hereunder and with respect to this Agreement and the Letter of Credit and no such participation shall relieve WestLB of its obligations under the Letter of Credit.
In the case of any such participation, the Participant shall not have any rights under this Agreement or any of the other Operative Documents (the Participant's rights against such transferring Bank to be those set forth in the agreement executed by such Bank in favor of the Participant relating thereto) and all amounts payable by the Company hereunder shall be determined as if such Bank had not sold such participation, except that the Participant shall be entitled to the benefits of Sections 2.09 and 2.10 hereof as set forth therein. In connection with any such participation, the Bank proposing to transfer or grant such participation may disclose to the proposed Participant any information that the Company is required to deliver to such Bank pursuant to this Agreement or otherwise delivers to such Bank in connection with such Bank's credit review or continuing review of the Company and this Agreement, provided, however, that, prior to any such disclosure, each such Participant shall agree in writing to preserve the confidentiality of any confidential information relating to the Company or any of its Subsidiaries received from such Bank.
Notwithstanding the foregoing, any Bank may transfer the LC Commitment or any Advance of such Bank to another Bank or to another branch or lending office or, with the written consent of WestLB and the Agent (such consent not to be unreasonably withheld), an Affiliate of such Bank; provided that each such Bank agrees that it will use its reasonable efforts (subject to overall policy considerations of such Bank) to avoid the occurrence of any event giving rise to the operation of Sections 2.09 and 2.10 hereof as a result of any such transfer.
Neither WestLB nor any Bank may assign all or any portion of its rights and obligations hereunder to one or more banks or other financial institutions, unless (i) WestLB and the Company each shall have given its prior written consent to such assignment (such consent not to be unreasonably withheld) and (ii) such assignment shall be consummated pursuant to an assignment and acceptance agreement reasonably satisfactory to the Agent (such agreement to state, among other things, that upon the effectiveness of such assignment, the transferee entity shall become a "Bank" hereunder for all purposes of this Agreement). Upon the effectiveness of any such assignment, the transferee entity shall become a "Bank" hereunder for all purposes of this Agreement and Schedule I attached hereto shall be amended by the Agent to reflect the new LC Percentage of each Bank after giving effect to such assignment (which amended Schedule I shall be promptly delivered by the Agent to the Company, WestLB and each Bank, provided that the failure to deliver or prepare such amended
Schedule I shall in no event affect the validity of such assignment or the respective LC Percentages resulting therefrom).
Section 11.06. Liability of Parties. The Company assumes all
risks of the acts or omissions of the Trustee and any transferee of the Letter
of Credit with respect to its use of the Letter of Credit. Neither the Agent,
WestLB nor Bank, nor any of their respective officers or directors, shall be
liable or responsible for: (i) the use which may be made of the Letter of
Credit or for any acts or omissions of the Trustee or any transferee of the
Letter of Credit in connection therewith; (ii) the form, validity, sufficiency
or genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letter of Credit, even
if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (iii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign the
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iv) failure of the Trustee to comply fully with the conditions required in
order to draw upon the Letter of Credit; (v) errors, omission, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegram,
telex or otherwise, whether or not they be in cipher; (vi) errors in
interpretation of technical terms; (vii) any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under the
Letter of Credit or of the proceeds thereof; (viii) any misapplication by the
Trustee of the proceeds of any drawing under the Letter of Credit; or (ix) any
consequences arising from causes beyond the control of the Agent, WestLB or any
Bank, including, without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of any of the Agent's, WestLB's or
any Bank's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Agent, WestLB or any Bank under or in connection with this Agreement or the Letter of Credit or the related certificates attached thereto, if taken or omitted in good faith, shall not put the Agent, WestLB or any Bank under any resulting liability to the Company, and the Agent, WestLB and each Bank may accept any documents or instruments that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or any information to the contrary.
The obligations of the Company under this Section 11.06 shall survive the payment of the Bonds and the termination of this Agreement.
Notwithstanding anything to the contrary contained in this
Section 11.06, the Company shall have no obligation to indemnify the Agent,
WestLB or any Bank in respect of any liability incurred by such Person arising
solely out of the gross negligence or willful misconduct of such Person or the
wrongful dishonor by WestLB of a proper demand made under the Letter of Credit.
Section 11.07. Expenses, Etc. The Company agrees to pay on demand (i) all costs and out-of-pocket expenses incurred by WestLB or the Agent in connection with the preparation, execution, issuance, delivery and administration of this Agreement, the Letter of Credit and the other Operative Documents, including, without limitation, the reasonable fees and disbursements of outside counsel and the allocated time charges and disbursements of internal counsel for the Agent and WestLB, and of counsel for the Banks with respect thereto, and (ii) all costs and out-of-pocket expenses, including, without limitation, the reasonable fees and disbursements of outside counsel and the allocated time charges and disbursements of internal counsel to the Agent, WestLB and the Banks with respect thereto, in connection with the enforcement or preservation of any rights under this Agreement, the Letter of Credit or any other Operative Document or any modifications, amendments, consents or waivers or similar occurrences relating to or in respect of this Agreement, the Letter of Credit or any other Operative Document. In addition, the Company shall pay any and all stamp and other taxes (other than any franchise or income taxes) and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Agreement, the Letter of Credit or any other Operative Document and agrees to save the Agent, WestLB and the Banks harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes, fees and expenses referred to in this sentence and in the immediately preceding sentence. The Company also agrees to indemnify, defend and hold the Agent, WestLB and each Bank harmless from and against all liability "including, without limitation, interest, penalties and all reasonable fees and disbursements of counsel) to which any such Person may become subject insofar as such liability arises out of or is based upon any action, suit, proceeding or investigation or governmental action brought or taken in connection with the Project or the use (or the proposed or potential use) of the proceeds of any drawing under the Letter of Credit. A request for payment under this Section 11.07 shall be accompanied by supporting documentation thereof, identifying with reasonable specificity the basis for and the amount of such costs and expenses.
Section 11.08. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.
Section 11.09. Consent to Jurisdiction. The Company irrevocably
(i) agrees that any suit, action or other legal proceeding arising out of or
relating to this Agreement or the Letter of Credit may be brought by or on
behalf of the Agent, WestLB or any Bank in a court of record in the State of
New York or in the Courts of the United States of America located in such
State, (ii) consents to the jurisdiction of each such court in any such suit,
action or proceeding and (iii) waives any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such courts
and any claim that any such suit, action or proceeding has been brought in an
inconvenient forum. The Company hereby irrevocably appoints CT Corporation
System (the "Process Agent") with an office on the date hereof at 1633
Broadway, New York, New York 10019 as its agent to receive on behalf of the
Company and its property service of copies of the summons and complaint and any
other process which may be served in any such suit, action or proceeding. Such service may be made by mailing or delivering a copy of such process to the Company, in care of the Process Agent at the Process Agent's above address, and the Company hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. The Agent agrees to mail to the Company at its address provided in Section 11.02 hereof a copy of any summons, complaint or other process mailed or delivered by it to the Company in care of the Process Agent. As an alternate method of service, the Company also irrevocably consents to the service of any and all process in any such suit, action or proceeding by mailing of copies of such process to the Company at its address provided in Section 11.02 hereof. The Company agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. All mailings under this Section shall be by certified mail, return receipt requested. Nothing in this Section 11.09 shall affect the right of the Agent, WestLB or any Bank to serve legal process in any other manner permitted by law or affect the right of the Agent, WestLB or any Bank to bring any suit, action or proceeding against the Company or its property in the courts of any other jurisdiction.
SECTION 11.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN SAID STATE.
SECTION 11.11. Headings, Etc. Section headings, the table of contents and the cover page of this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
Section 11.12. Survival of Representations and Warranties. All representations and warranties contained herein or in any other Operative Document or made in writing by the Company in connection herewith or therewith shall survive the execution and delivery of this Agreement.
Section 11.13. Survival of Indemnities. All indemnities set forth herein including, without limitation, in Sections 2.09, 2.10, 10.06, 11.04 and 11.07 shall survive the execution and delivery of this Agreement and the repayment in full of all Obligations.
Section 11.14. Satisfaction Requirement. (i) If any agreement, certificate or other writing, or any action taken or to be taken, is by the terms of this Agreement required to be satisfactory to the Agent, WestLB or any Bank, the determination of such satisfaction shall be made by the Agent, WestLB or such Bank in its sole and exclusive judgment exercised in good faith.
(ii) For purposes of determining compliance with the conditions specified in Article V hereof, each of the Banks shall be deemed to have consented to, approved or accepted or to be satisfied with all matters required
there under to be consented to or acceptable or satisfactory to the Banks unless an officer of the Agent responsible for the transactions contemplated by this Agreement and holding the position of Vice President or a more senior position shall have received notice from any such Bank prior to the issuance of the Letter of Credit specifying such Bank's objections thereto and such objections shall not have been with drawn by notice to the Agent to that effect.
Section 11.15. Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States in conformity with those used in the preparation of the financial statements of the Company referred to in Section 7.07 hereof.
Section 11.16. Calculations. The financial statements to be furnished to the Agent, WestLB and the Banks pursuant hereto shall be made and prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes thereto). All calculations and computations required to determine compliance with Sections 8.05 and 8.06 hereof shall utilize accounting principals and policies in conformity with those used to prepare the financial statements referred to in Section 6.08(i) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers "hereunto duly authorized as of the date first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By /s/ THOMAS J. HOWLIN --------------------------------- Name: Thomas J. Howlin Title: Sr. V.P. Finance and CFO |
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
YORK BRANCH,
individually, as Agent and as issuer of the Letter of Credit
By /s/ CYNTHIA M. NIESEN --------------------------------- Name: Cynthia M. Niesen Title: Managing Director By /s/ KAREN E. GAREIS --------------------------------- Name: Karen E. Gareis Title: Vice President |
WACHOVIA BANK
By /s/ DAVID K. ALEXANDER --------------------------------- Name: David K. Alexander Title: Senior Vice President |
EXHIBIT 10(m)
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
401(k) SAVINGS AND INVESTMENT PLAN STOCK TRUST AGREEMENT
TABLE OF CONTENTS
ARTICLE ------- FIRST: ACCEPTANCE OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SECOND: INVESTMENT POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 THIRD: PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 FOURTH: ADMINISTRATIVE POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 FIFTH: INSURANCE COMPANY CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SIXTH: FIDUCIARY STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SEVENTH: PROHIBITION OF DIVERSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 EIGHTH: HOLD HARMLESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 NINTH: ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 TENTH: COMMITTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ELEVENTH: COMPENSATION AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 TWELFTH: RESIGNATION OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 THIRTEENTH: AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 FOURTEENTH: TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 FIFTEENTH: PLAN-TO-PLAN TRANSFERS; ROLLOVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SIXTEENTH: ADOPTING EMPLOYERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SEVENTEENTH: ALIENATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 EIGHTEENTH: BOND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 NINETEENTH: SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 TWENTIETH: COMMUNICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 TWENTY-FIRST: GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 |
STOCK TRUST AGREEMENT
WHEREAS, the Central Louisiana Electric Company, Inc. 401(k) Savings and Investment Plan, hereinafter referred to as the "Plan," was initially established with an effective date of January 1, 1985, by Central Louisiana Electric Company, Inc., hereinafter referred to as the "Company," for the purpose of providing retirement and related benefits to eligible employees of the Company and their beneficiaries, hereinafter referred to as "Participants"; and
WHEREAS, the Company amended and restated the Plan, effective April 2, 1991, to include an employee stock ownership plan, hereinafter referred to as an "ESOP" within the meaning of Section 4975(e)(7) of the Internal Revenue Code of 1986, as amended, hereinafter referred to as the "Code," and designed to meet the requirements of Section 4975(d)(3) of the Code, for the purpose of investing primarily in shares of convertible preferred or common stock of the Company qualifying as employer securities within the meaning of Section 409(1) of the Code; and
WHEREAS, the Plan Committee, the members of which are "named fiduciaries" as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (which named fiduciaries are hereinafter referred to as the "Committee") has general responsibility for administration of the Plan; and
WHEREAS, the Plan calls for the establishment of a trust to which contributions are to be made by the Company to be held by the Trustee and to be managed, invested and reinvested for the exclusive benefit of Participants of the Plan and their beneficiaries; and
WHEREAS, the Plan and trust are intended to qualify as a plan and trust which meet the applicable requirements of Sections 401(a) and 501(a) of the Code; and
WHEREAS, on January 1, 1985, the Company entered into an agreement of trust with Merrill Lynch Trust Company, a corporation organized and existing under the laws of the State of New Jersey, having its principal place of business at Somerset, NJ, which has been removed or has resigned as trustee; and
WHEREAS, on April 2, 1991, the Company, in order to effectuate the ESOP component of the Plan, entered into an agreement of trust with State Street Bank and Trust Company, a Massachusetts trust company with its principal place of business in Boston, Massachusetts, which
has been removed or has resigned as trustee; and
WHEREAS, effective August 1, 1997, the Company wishes to combine and restate as one the two agreements of trust, hereinafter referred to as the "Trust" in their entirety and appoint UMB Bank, N.A., a national banking association, having its principal place of business at Kansas City, Missouri, hereinafter referred to as the "Trustee"; and
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the Company and the Trustee do hereby covenant and agree as follows:
FIRST: Acceptance of Property. The Trustee shall accept such cash and other property as is tendered to it as contributions hereunder, and as is acceptable to it, hereinafter referred to as the "Trust Fund," but shall not be under any duty to require the Company or any other adopting employer to contribute to the Trust Fund or to determine whether the amount of any contribution has been correctly computed under the terms of the Plan. In no event shall the Trustee be considered a party to the Plan. The Trustee shall have only such duties with respect to the Plan as are set forth in this Agreement.
SECOND: Investment Powers. The Trustee shall invest the assets of the Trust Fund as directed by the Plan Administrator, Company or Committee, in accordance with the provisions of the Plan. In doing so, the Trustee will be a directed trustee. Trust investments may include, without limitation, employer securities, as that term is defined in section 407(D) of ERISA, without regard to limitations imposed by Section 407(A) of ERISA, and any fund created for the collective investment of the assets of employee benefit trusts, as long as such collective investment fund is a qualified trust under the applicable provisions of the Code (and while any portion of the trust fund is so invested, such collective investment fund shall constitute a part of the plan, and the instruments creating such fund shall constitute a part of this agreement). The Trustee shall have no independent investment duties or responsibilities. The Trustee assumes no financial responsibility with respect to the investment of the assets of the Trust Fund. The Trustee will have no liability for properly carrying out such investment directions and will have no liability for any loss or diminution in value occasioned thereby unless due to the Trustee's
own negligence or willful misconduct.
To the maximum extent permitted by law, the Trustee shall not be liable for the acquisition, retention or disposition of any assets of the Trust Fund or for any loss to or diminution of such assets unless due to the Trustee's own negligence or willful misconduct.
The Committee may appoint an "investment manager," as defined in
Section 3(38) of ERISA. Any investment manager so appointed shall be (i) an
investment adviser registered as such under the Investment Advisers Act of
1940, (ii) a bank, or (iii) an insurance company qualified to perform
investment management services under the laws of more than one state of the
United States. The Committee shall notify the Trustee of any such appointment
by delivering to the Trustee an executed copy of the instrument under which the
investment manager is appointed and evidencing the investment manager's
acceptance of such appointment, an acknowledgment by the investment manager
that it is a fiduciary of the Plan, and a certificate evidencing the investment
manager's current registration under the Investment Advisers Act of 1940 or
other appropriate qualification. The Committee shall specify to the Trustee
the portion of the Trust Fund which shall be subject to such investment
management. The Trustee shall invest and reinvest the portion of the Trust
Fund subject to such investment management only to the extent and in the manner
directed by the investment manager in writing. During the term of such
appointment, the Trustee shall have no liability for the acts or omissions of
such investment manager, and except as provided in the preceding sentence,
shall be under no obligation to invest or otherwise manage the portion of the
Trust Fund subject to such investment management. The Trustee may maintain
separate accounts within the Trust Fund for the assets of the Trust Fund
subject to such investment management. The Committee may terminate its
appointment of an investment manager at any time and shall notify the Trustee
in writing of such termination. To the maximum extent permitted by ERISA, the
Trustee shall be protected in assuming that the appointment of an investment
manager remains in effect until it is otherwise notified in writing by the
Committee.
In the event that the investment manager appointed hereunder is a bank or a trust company, or an affiliate of a bank or a trust company, the Trustee shall, upon the direction of the Committee, transfer funds to such bank, trust company, or affiliate for investment through the medium of any fund created and administered by such bank, trust company, or affiliate, acting as trustee therefore, for the collective investment of the assets of employee benefit trusts, provided that such fund is qualified under the applicable provisions of the Code and while any portion of the assets are so invested, such fund shall constitute part of the applicable plan or plans, and the instrument creating such fund shall constitute part of this Trust. In order to implement the provisions of this paragraph, the Trustee is authorized to enter into any required ancillary trust, agency or other type of agreement with an investment manager, or its affiliate, as described in the preceding sentence.
Except in the event of a tender or exchange offer as hereinafter provided, or in the case of fractional shares received in any stock dividend, stock split or other recapitalization or as necessary to make any distribution or payment from the Trust Fund, or unless expressly prohibited by ERISA, the Trustee shall have no power or duty to sell, tender, exchange or otherwise dispose of any of the Company's common stock held in the Fund, hereinafter referred to as the "Company Stock Fund". In the event that a tender or exchange offer is made for all or any portion of the stock held in the Company Stock Fund, the Company shall take such action as is practicable to provide each Participant in the Plan having an interest in such Fund with the same information that is distributed by the Company to the stockholders of the Company owning the same class of common stock for which such offer is made. Notwithstanding any other provision of the Plan or this Trust Agreement, in the event such an offer is made, each such Participant shall have the right to direct the Trustee, by timely notice, to tender or exchange all or any portion of the full shares of such common stock credited to this account which is at such time fully vested and the Trustee shall so tender or exchange only upon receipt of such direction. All property received in exchange for such common stock so tendered shall upon receipt be held by the Trustee in the Fund within the accounts of those Participants who so tendered, the
provisions of the Plan and this Trust Agreement shall hereby be deemed amended to permit the holding of such property within said Fund and thereafter administered, invested, reinvested and distributed in accordance with the applicable terms of the Plan and Trust.
With respect to the unallocated shares of the Company's stock held in the suspense account and fractional shares of Company stock allocated to participants' accounts, the Trustee shall exercise rights in connection with the tender offer or exchange offer for the shares of Company stock in the same proportion as the participants vote, tender or exchange shares. In the event any shares of Company stock held in the stock suspense account are tendered or exchanged, the proceeds shall at the direction of the Board of Directors of the Company either (i) if and to the extent the proceeds are attributable to unallocated Company stock, be used to repay installment purchase or other indebtedness used to purchase the Company stock to which such proceeds are attributable or (ii) be reinvested in Company stock within 90 days, or such longer period as may be approved by the Commissioner of Internal Revenue.
THIRD: Payments. Subject to the provisions of Article FOURTEENTH hereof, the Trustee shall from time to time transfer cash or other property from the Trust Fund to such persons, including an insurance company or companies or a paying agent designated by the Committee, at such addresses, in such amounts, for such purposes and in such manner as the Committee may direct, provided that such transfer is administratively feasible, and the Trustee shall incur no liability for any such payment made at the direction of the Committee. The Committee shall be solely responsible to insure that any payment made at its direction conforms with the provisions of the Plan, the provisions of this Agreement, and ERISA, and the Trustee shall have no duty to determine the rights or benefits of any person in the Trust Fund or under the Plan or to inquire into the right or power of the Committee to direct any such payment.
FOURTH: Administrative Powers. The Trustee is authorized to exercise from time to time the following powers in respect of any property, real or personal, of the Trust Fund, it being intended that these powers be construed in the broadest possible manner:
(1) power to sell at public or private sale for cash or upon credit or partly for cash and partly upon credit and upon such terms and conditions as it shall deem proper. No purchaser shall be bound to see to or be liable for the application of the proceeds of any such sale;
(2) power to exchange securities or property held by it for other securities or property, or partly for such securities or property and partly for cash, and to exercise conversion, subscription, option and similar rights with respect to securities held by it, and to make payments in connection therewith;
(3) power to vote in person or by proxy at corporate or other
meetings and to participate in or consent to any voting trust,
reorganization, dissolution, merger or other action affecting
securities in its possession or the issuers thereof; provided,
however, each Participant in the Plan who has an interest in
the Company Stock Fund shall be entitled to direct the Trustee
as to the manner in which the Company's stock having voting
rights which is allocated to such Participant's account is to
be voted. The Trustee, itself or by its nominee shall be
entitled to vote and shall vote said stock with voting rights
allocated to the accounts of said Participants as follows:
(i) The Company shall adopt reasonable measures to notify said
Participants of the date and purposes of each meeting of
stockholders of the Company at which holders of shares of
stock shall be entitled to vote, and to request instructions
from such Participants to the Company, its agent or the
Trustee as to the voting at such meeting of the number of
shares of common stock (including fractional shares) in the
account of each such Participant whether or not vested. (ii)
In each case, the Trustee, itself or by proxy, shall vote the
shares of said stock (including fractional shares) in the
account of each such Participant in accordance with the
directions of the Participant as communicated directly to the
Trustee or to the Trustee by the Company or its agent. (iii)
If prior to the time of such meeting of stockholders (or a
date prior thereto specified by the Trustee), the Trustee
shall not have received timely directions from a Participant
as to the
manner of voting any shares of allocated stock in the account of such Participant, the Trustee shall not vote such shares. The Trustee shall vote shares of stock held in the stock suspense account in the same proportion as directed shares are voted, giving effect to all directions by participants, including directions to vote for or against, to abstain, or to withhold the vote;
(4) power to own or to manage, administer, operate, lease for any number of years, regardless of any restrictions on leases made by fiduciaries except restrictions imposed by ERISA, develop, improve, repair, alter, demolish, mortgage, pledge, grant options with respect to, or otherwise deal with any real property or interest therein at any time held in the Trust Fund, to hold any such real property in its own name or in the name of its nominee, with or without the addition of words indicating that such property is held in a fiduciary capacity, and to cause to be formed a corporation, partnership, trust or other entity to hold title to any such real property with the aforesaid powers, all upon such terms and conditions as may be deemed advisable; to renew or extend or participate in the renewal or extension of any mortgage, and to agree to a reduction in the rate of interest on any mortgage or to any other modifications or change in the terms of any mortgage or of any guarantee pertaining thereto, in any manner and to any extent that may be deemed advisable for the protection of the Trust Fund or the preservation of any covenant or condition of any mortgage or in the performance of any guarantee, or to enforce any default in such manner and to such extent as may be deemed advisable; and to exercise and enforce any and all rights of foreclosure, to bid on any property in foreclosure, to take a deed in lieu of foreclosure with or without paying a consideration therefore and in connection therewith to release the obligation on the bond secured by such mortgage, and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies in respect of any such mortgage or guarantee;
(5) power to acquire, hold or dispose of property in unregistered form, or in its name without designation of fiduciary capacity, or in the name of its nominee or any custodian, and to the extent permitted by ERISA, to combine certificates representing investments with investments of the same issue held by the Trustee in other fiduciary capacities, and to deposit property in a depository or clearing corporation or with the federal reserve bank in its district;
(6) power to compromise and adjust all debts or claims due to or made against it, to participate in any plan or reorganization, consolidation, merger, combination, liquidation or other similar plan or any action thereunder, or any contract, lease, mortgage, purchase, sale or other action by any corporation or other entity;
(7) power to borrow money from any lender, in accordance with ERISA, in any amount and upon any reasonable terms and conditions, for purpose of this Agreement, and to pledge or mortgage any property held in the Trust Fund to secure the repayment of any such loan;
(8) power to deposit any such property with any protective, reorganization or similar committee; to delegate discretionary power to any such committee; and to pay part of the expenses and compensation of any such committee; and any assessments levied with respect to any property so deposited;
(9) power to exercise any conversion privilege or subscription right available in connection with any such property; to oppose or to consent to the reorganization, consolidation, merger or readjustment of the finances of any corporation, company or association, or to the sale, mortgage, pledge or lease of the property of any corporation, company or association any of the securities of which may at any time be held in the Trust Fund and to do any act with reference thereto, including the exercise of options, the making of agreements or subscriptions and the payments of expenses, assessments or subscriptions, which may be deemed necessary or advisable in connection therewith and to hold and retain any
securities or other property which it may so acquire;
(10) power to make distributions in cash or in specific property, real or personal, or an undivided interest therein, or partly in cash and partly in such property;
(11) power to engage legal counsel, including counsel to the Company or the Trustee in its individual capacity, and any other suitable agents, and to consult with such counsel or agents with respect to the construction of this Agreement, the administration of the Trust Fund, and the duties of the Trustee hereunder;
(12) power to commence or defend suits or legal proceedings and to represent the Trust Fund in all suits or legal proceedings; to settle, compromise or submit to arbitration any claims, debts or damages due or owing to or from the Trust Fund, provided that the Trustee shall notify the Committee of all such suits, legal proceedings and claims and, except in the case of a suit, legal proceeding or claim involving solely the Trustee's action or omissions to act, shall obtain the written consent of the Company before settling, compromising or submitting to binding arbitration any claim, suit or legal proceeding of any nature whatsoever;
(13) power, upon the written direction of the Committee, to enter into any contract or policy with an insurance company or companies, for the purpose of insurance coverage or otherwise, provided that, except as provided in Article FIFTH, the Trustee shall be the sole owner of all such contracts or policies and all such contracts or policies shall be held as assets of the Trust Fund;
(14) power to make, execute and deliver, as Trustee, any and all deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts, waivers, releases or other instruments in writing necessary or proper for the accomplishment of any of the foregoing powers;
(15) power to transfer assets of the Trust Fund to a successor trustee as provided in Article TWELFTH; and
(16) power to appoint custodians or subcustodians to hold any or all of the Trust Fund;
(17) power to appoint ministerial agents to perform various functions of the Trustee; and
(18) power to exercise, generally, any of the powers which an individual owner might exercise in connection with property either real, personal or mixed held by the Trust Fund, and to do all other acts that the Trustee may deem necessary or proper to carry out any of the powers set forth in this Article FOURTH or otherwise in the best interests of the Trust Fund.
Notwithstanding the foregoing, in the event that an investment manager is appointed pursuant to Article SECOND hereof, such investment manager shall exercise such of the powers enumerated in this Article FOURTH and otherwise contained in this Agreement with respect to the portion of the Trust Fund subject to its control as may be specified in the instrument under which the investment manager was appointed.
FIFTH: Insurance Company Contracts. The Trustee may, at the direction of the Committee, (i) enter into one or more contracts with legal reserve life insurance companies, the rate of return from which is fixed by the terms of such contracts, (ii) transfer to any such insurance companies a portion of the Trust Fund in accordance with any such contracts, and (iii) hold any such contracts as a part of the Trust Fund until directed otherwise by the Committee. The Committee shall give such direction to the Trustee by delivering to the Trustee a copy of the action of the Committee signed by at least two members thereof, which shall specifically refer to this Article FIFTH and direct the Trustee to so act. The Committee may direct the Trustee to (i) request any information from any such insurance companies necessary or appropriate to make an investment decision, (ii) demand or accept withdrawals or other distributions under any such contracts, (iii) exercise or not to exercise any rights, powers, privileges and options under any such contracts and (iv) assign, amend, modify or terminate any such contracts. The Trustee shall take no action with respect to any such contracts except at the direction of the Committee. The Trustee shall incur no liability for complying with or failing to comply with any direction of the Committee. Any insurance companies issuing any contracts as hereinabove described may deal
with the Trustee as the absolute owner of any such contracts and need not inquire as to the authority of the Trustee to act with regard to such contracts. Any such insurance company may accept and rely upon any communication from the Trustee which is signed by an officer of the Trustee. For purposes of this Agreement, any such insurance company shall be considered to be an investment manager with regard to the assets of the Plan subject to its control. In no event shall the underlying assets of such insurance company in which such contracts are invested be considered assets of the Plan or part of the Trust Fund.
SIXTH: Fiduciary Standards. The Trustee (or any investment manager appointed pursuant to Article SECOND hereof) shall (i) discharge its duties hereunder with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (ii) subject to the investment funds specified in the Plan, if any, and to the extent required by ERISA, diversify the investments of the Trust Fund so as to minimize the risk of large losses unless under the circumstances it is clearly prudent not to do so; and (iii) discharge its duties in accordance with the provisions of the Plan and this Agreement insofar as such provisions are consistent with ERISA.
The Trustee (or any investment manager appointed pursuant to Article SECOND hereof) shall not engage in any transaction which it knows or should know violates Section 406 of ERISA. Notwithstanding the foregoing, the Trustee (or any investment manager appointed pursuant to Article SECOND hereof) may, in accordance with any appropriate exemption provided under ERISA or upon the approval of the Secretary of the Department of Labor, enter into any transaction otherwise prohibited under Section 406 of ERISA.
The Trustee shall not be responsible for the administration of the Plan, for determining the funding policy of the Plan, or the adequacy of the Trust Fund to meet and discharge liabilities under the Plan.
The Trustee shall not be responsible for any failure of the Committee or the Company to discharge any of their respective responsibilities with respect to the Plan nor be required to
enforce payment of any contributions to the Trust Fund.
SEVENTH: Prohibition of Diversion.
(a) At no time prior to the satisfaction of all liabilities with
respect to Participants in the Plan and their beneficiaries
shall any part of the corpus or income of the Trust Fund be
used for, or diverted to, purposes other than for the
exclusive benefit of such Participants and their
beneficiaries. Except as provided in paragraphs (b), (c) and
(d) below, and Article THIRTEENTH, the assets of the Trust
Fund shall never inure to the benefit of the Company and shall
be held for the exclusive purpose of providing benefits to
Participants in the Plan and their beneficiaries and defraying
the reasonable expenses of administering the Plan.
(b) In the case of a contribution that is made by the Company by a mistake of fact, paragraph (a) above shall not prohibit the return to the Company of such contribution at the direction of the Committee within one year after the payment of the contribution.
(c) If a contribution by the Company is expressly conditioned on qualification of the Plan under Section 401 of the Code, and if the Plan does not so qualify, then paragraph (a) above shall not prohibit the return to the Company of such contribution at the direction of the Committee within one year after the date of denial of qualification of the Plan, to the extent permitted by ERISA and the Code.
(d) If a contribution by the Company is expressly conditioned upon the deductibility of the contribution under Section 404 of the Code, then to the extent such deduction is disallowed, paragraph (a) above shall not prohibit the return to the Company of such contribution at the direction of the Committee, to the extent disallowed, within one year after the date of such disallowance.
EIGHTH: Hold Harmless. To the maximum extent permitted by ERISA and other applicable law, the Trustee shall not be liable for and the Company shall indemnify the
Trustee against, and agrees to hold the Trustee harmless from, all liabilities
and claims (including attorney's fees and expenses in defending against such
liabilities and claims) against the Trustee, arising from the Trustee's
performance of its duties in conformance with the terms of the Plan and this
Agreement, including any liability and claim arising with regard to the
provisions of Article SECOND, unless such liability or claim results from the
negligence or reckless or willful acts of commission or omission by the
Trustee. To the maximum extent permitted by ERISA and other applicable law,
the Trustee shall not be liable for acting (or for taking no action) in
accordance with any written direction of the Committee or an investment manager
designated under Article SECOND, or, where an investment manager has been
designated, failing to act in the absence of any such direction, including,
without limitation, any claim or liability that may be asserted against the
Trustee on account of failure to receive securities purchased, or failure to
deliver securities sold pursuant to orders issued by an investment manager, and
the Company shall indemnify the Trustee against and agrees to hold the Trustee
harmless from, all such liabilities and claims (including attorney's fees and
expenses in defending against such liabilities and claims). The foregoing
indemnifications shall also apply to liabilities and claims against the Trustee
arising from any breach of fiduciary responsibility by a fiduciary other than
the Trustee, unless the Trustee (i) participates knowingly in or knowingly
undertakes to conceal such breach, (ii) has enabled such fiduciary to commit
such breach by its failure to exercise its fiduciary duties under ERISA or
(iii) has actual knowledge of such breach and fails to take reasonable remedial
action to remedy such breach.
NINTH: Accounts. The Trustee or its agent shall keep records of all transactions relating to the Trust Fund, which shall be made available at all reasonable times to persons designated by the Board of Directors of the Company or as may be required by law. The Trustee or its agent shall render an accounting to the Company and the Committee at least annually. The Committee may approve such accounting on behalf of itself and the Company by an instrument in writing delivered to the Trustee. If the Committee does not file with the Trustee objections to any such accounting within sixty (60) days after its receipt, the Committee shall be
deemed to have approved such accounting on behalf of itself and the Company. In such case, or upon the written approval of the Committee of any such accounting, the Trustee shall, to the extent permitted by law, be discharged from all liability to the Committee and the Company for its acts or failures to act described in such accounting. Except to the extent otherwise provided in ERISA, no person, other than the Company or the Committee, may require an accounting or bring any action against the Trustee with respect to the Trust Fund. The Trustee shall render to the Committee, at least quarterly, a statement of the Trust Fund assets and their values and, whenever a contribution is made to the Trust Fund other than in cash, a statement of the value of such property on the date it is received by the Trustee.
Nothing contained in this Agreement or in the Plan shall deprive the Trustee of the right to have judicial settlement of its accounts. In any proceeding for a judicial settlement of the Trustee's accounts, or for instructions with regard to the Trust, the only necessary parties thereto in addition to the Trustee shall be the Committee. If the Trustee so elects, it may join as a party or parties defendant any other person or persons.
TENTH: Committee. The Company shall certify to the Trustee the names of the persons from time to time constituting the Committee. All directions to the Trustee by the Committee shall be in writing, and the Trustee shall be entitled to rely without further inquiry upon all such written directions received from the Committee.
ELEVENTH: Compensation and Expenses. The Trustee shall be entitled to receive such reasonable compensation for its services as may be agreed upon from time to time by the Company and the Trustee. Unless paid by Company, such compensation, attorneys' fees incurred in the administration of the Trust Fund, all taxes levied or assessed against the Trust Fund, and such other expenses as are incurred in the administration of the Trust Fund shall be paid from the Trust Fund.
TWELFTH: Resignation of Trustee. The Trustee may resign at any time
by giving thirty (30) days written notice to the Company. The Board of
Directors of the Company may remove the Trustee at any time by giving thirty
(30) days written notice to the Trustee. In the case of the
resignation or removal of the Trustee, the Board of Directors of the Company shall appoint a successor trustee who shall have the same powers and duties as those conferred upon the Trustee. Upon the resignation or removal of the Trustee and the appointment of the successor trustee, the Trustee shall account for the administration of the Trust Fund up to the date of its resignation or removal in the manner provided in Article NINTH hereof and, upon the approval or deemed approval of such accounting, the Trustee shall transfer to the successor trustee all of the assets then constituting the Trust Fund and the Trustee shall to the maximum extent permitted by ERISA be forever released and discharged from all liability and accountability with respect to the propriety of its acts and transactions; provided, however, that the Trustee may, in its sole discretion, transfer such assets prior to the completion of such accounting if the Company agrees thereto in writing, such writing to include such limitations on the Trustee's liability therefor as the Trustee may deem appropriate. The term "Trustee" as used in this Agreement shall be deemed to apply to any successor trustee acting hereunder.
THIRTEENTH: Amendment. The Board of Directors of the Company may amend all or any part of this Agreement at any time provided, however, that any amendment shall not be effective until the instrument of amendment has been agreed to and executed by the Trustee. Any such amendment or modification of this Agreement may be retroactive if necessary or appropriate to qualify or maintain the Trust Fund as a part of a plan and trust exempt from federal income taxation under Sections 401(a) and 501(a) of the Code, the provisions of ERISA, or any other applicable provisions of federal or state law, as now in effect or hereafter amended or adopted, and any regulations issued thereunder, including, without limitation, any regulations issued by the United States Treasury Department, or the United States Department of Labor.
Notwithstanding anything contained in this Article THIRTEENTH to the contrary, no amendment shall divert any part of the Trust Fund to, and no part of the Trust Fund shall be used for, any purpose other than for the exclusive purpose of providing benefits to Participants and their beneficiaries; provided, however, that nothing in this Article THIRTEENTH shall be deemed to limit or otherwise prevent the payment from the Trust Fund of expenses and other
charges as provided in Article ELEVENTH.
FOURTEENTH: Termination. This Agreement and the Trust Fund hereby created may be terminated at any time by the Board of Directors of the Company by written notice, executed and acknowledged so as to authorize it to be recorded in the State of Missouri delivered to the Trustee. Upon receipt of such notice of termination, the Trustee shall, after payment of all expenses incurred in the administration of the Trust Fund and such compensation as the Trustee may be entitled to, and upon approval of the appropriate governmental or quasi-governmental authorities (if such approval shall be required under applicable law or desired by the Trustee), then distribute the Trust Fund in cash or in kind to such persons or entities, including the Company, at such time and in such amounts as the Committee shall direct, which direction shall be in conformity with the provisions of the Plan and ERISA.
FIFTEENTH: Plan-to-Plan Transfers; Rollovers. The Trustee or its agent may transfer all of the property representing a Participant's vested interest in the Plan to the trustees of any trust qualified under Section 401(a) of the Code or to the trustee or custodian of a Participant's individual retirement account. The Trustee or its agent may make such a transfer only at the direction of the Committee.
The Trustee may accept as part of the Trust Fund such property as is acceptable to the Trustee which represents a Participant's retirement benefits transferred from a trust qualified under Section 401(a) of the Code or transferred from the Participant or an individual retirement account as a permissible rollover under Section 402(c) or 408(d)(3) of the Code. The Trustee may accept such a transfer only at the direction of the Committee. A Participant shall at all times be fully vested in any property so transferred as a rollover to the Trust Fund. Such property shall be distributed to the Participant or his beneficiary at the direction of the Committee within the time required for distribution of his retirement benefits under the applicable provisions of the Plan.
SIXTEENTH: Adopting Employers. An affiliated corporation of the Company which has adopted the Plan in accordance with its terms shall become a party to this Agreement by
delivering to the Company and the Trustee a certified copy of a resolution of its board of directors to the effect that it agrees to adopt the Plan, to become a party to this Agreement, and to be bound by all the terms and conditions of the Plan and this Agreement. The Company shall have the sole authority to enforce this Agreement on behalf of any such affiliated corporation and the Trustee shall in no event be required to deal with any such affiliated corporation except by dealing with the Company as its agent. Irrespective of the number of affiliated corporations which may become parties to this Agreement, the Trustee shall in all respects invest and administer the Trust Fund as a single fund for investment and accounting purposes without allocation of any part of the Trust Fund as between the Company and any such affiliated corporation.
An affiliated corporation which has adopted the Plan shall cease to be a party to this Agreement upon the Company delivering to the Trustee a certified copy of a resolution of such affiliated corporation's board of directors terminating its participation in the Plan. In such event, or in the event of the merger, consolidation, sale of property or stock, separation, reorganization or liquidation of the Company or of any such affiliated corporation, or in the event of the establishment, modification or continuance of any other retirement plan which separately or in conjunction with this Plan qualifies under Section 401(a) of the Code, the Trustee shall continue to hold the portion of the Trust Fund which is attributable to the participation in the Plan of the employees and their beneficiaries affected by such termination or by such transaction, and this Agreement shall continue in force with respect to such portion, until otherwise directed by the Committee, in accordance with the provisions of the Plan and ERISA.
SEVENTEENTH: Alienation. No interest in the Trust Fund shall be assignable or subject to anticipation, sale, transfer, mortgage, pledge, charge, garnishment, attachment, bankruptcy or encumbrance or levy of any kind, and the Trustee shall not recognize any attempt to assign, sell, transfer, mortgage, pledge, charge, garnish, attach or otherwise encumber the same except to the extent that such attempt is made pursuant to a court order determined by the plan administrator to be a qualified domestic relations order, as defined in Section 414 of the
Code and Section 206 of ERISA or as otherwise required by law.
EIGHTEENTH: Bond. The Trustee shall not be required to give any bond or any other security for the faithful performance of its duties under this Agreement except as required by law.
NINETEENTH: Successors. This Agreement shall be binding upon the respective successors and assigns of the Company and the Trustee. Any corporation which shall, by merger, consolidation, purchase or otherwise, succeed to substantially all the trust business of the Trustee shall, upon such succession, and without any appointment or other action by any person, be and become successor Trustee hereunder.
TWENTIETH: Communications. Communications to the Company or the Committee shall be addressed to the Company, or to the Committee in care of the Company, as the case may be, at 2030 Donahue Ferry Road, Pineville, LA 71361-5000; provided, however, that upon the Company's written request such communications shall be sent to such other address as the Company may specify.
Communications to the Trustee shall be addressed to:
UMB Bank, N.A.
Employee Benefit Division
1010 Grand Avenue
P.O. Box 419692
Kansas City, MO 64141-6692
provided, however, that upon the Trustee's written request, such communications shall be sent to such other address as the Trustee may specify. No communication shall be binding on the Trustee until it is received by the Trustee.
TWENTY-FIRST: Governing Law. This Agreement shall be construed in accordance with ERISA and, to the extent not preempted by ERISA, the laws of the State of Missouri.
IN WITNESS WHEREOF the Company and the Trustee have executed this instrument this 1st day of August, 1997.
ATTEST: Central Louisiana Electric Company, Inc.
/s/ JUDY P. MILLER By: /s/ CATHERINE C. POWELL
------------------------------ --------------------------------------
Title: Title: Sr. Vice President
Employee & Corporate Service
(Corporate Seal)
UMB Bank, N.A.
|
By: /s/ WILLIAM A. HANN ----------------------------------- Title: Senior Vice President |
EXHIBIT 10(m)(1)
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
401(K) SAVINGS AND INVESTMENT PLAN
(As Amended and Restated Effective January 1, 1994)
FIRST AMENDMENT
Central Louisiana Electric Company, Inc., a Louisiana corporation (the
"Company"), having established the Central Louisiana Electric Company, Inc.
401(k) Savings and Investment Plan, as amended and restated effective January 1,
1994 (the "Plan"), and having reserved the right to amend the Plan under Section
10.03 thereof, does hereby amend the Plan, effective as of August 1, 1997, or as
otherwise herein provided, as follows:
1. The fourth paragraph in the Plan's Recitals is amended to read as follows:
The Central Louisiana Electric Company 401(k) Savings and Investment Trust established effective January 1, 1985, as amended and restated effective August 1, 1997, by Trust Agreement with UMB Bank, N.A., as trustee thereof, is intended to continue to effect and to form a part of this Plan. The Central Louisiana Electric Company 401(k) Savings and Investment Plan ESOP Trust, which was established effective April 2, 1991, and which was combined with the Central Louisiana Electric Company 401(k) Savings and Investment Trust pursuant to an amendment and restatement effective August 1, 1997, is also intended to form a part of this Plan. The Plan and Trust Agreement are also intended to meet the requirements of Sections 401(a), 401(k), and 501(a) of the Code, and of the Employee Retirement Income Security Act of 1974, as either may be amended from time to time.
2. The last two sentences of the fourth paragraph in Section 1.12 are deleted.
3. Section 1.20 is amended to read as follows:
1.20 Entry Date: The Effective Date and any other day during the calendar year.
4. Section 1.25 is amended to read as follows:
1.25 ESOP Trust: The Central Louisiana Electric Company 401(k) Savings and Investment Plan ESOP Trust established effective April 2, 1991, as
amended and restated and combined with the Savings Trust effective August 1, 1997, and as thereafter may be amended.
5. Section 1.26 is amended to read as follows:
1.26 ESOP Trustee: UMB Bank, N.A., a national banking association having its principal place of business at Kansas City, Missouri.
6. Section 1.31 is amended to read as follows:
1.31 Investment Fund: One (1) of the Investment Funds established and held under the Trust Fund, as described in Section 8.1.
7. Section 1.45 is amended to read as follows:
1.45 Savings Trust: Central Louisiana Electric Company 401(k) Savings and Investment Plan Trust as established effective January 1, 1985, as amended and restated effective August 1, 1997, and as thereafter may be amended.
8. Section 1.46 is amended to read as follows:
1.46 Savings Trustee: UMB Bank, N.A., a national banking association having its principal place of business at Kansas City, Missouri.
9. Section 1.53 is amended to read as follows:
1.53 Valuation Date: Each business day of the Plan Year. The last business day of each calendar quarter shall be the "quarterly Valuation Date," and the last day of December of each Plan Year shall be the "annual Valuation Date."
10. The last sentence of the first paragraph of Section 3.1 is amended to read as follows:
Each Employee who is not ineligible shall be eligible to participate in the Plan as of the Entry Date which coincides with his date of hire.
11. Section 3.4 is amended to read as follows:
3.4 Application by Participants: Each Employee who shall become eligible to participate in the Plan and who shall desire to become a Participant shall complete an application in such form as may be prescribed by the Committee and in accordance with administrative procedures established by the Committee, in which the Participant shall elect to make Pre-Tax Contributions which total no more than sixteen percent (16%) of his Compensation, and shall designate the amount, if any,
of his Pre-Tax Basic Contribution and Pre-Tax Excess Contribution, as contemplated under Section 4.2 hereof, and his choice of investment options under Section 8.1 hereof. Pre-Tax Contributions will begin as soon as administratively practicable after the application is filed.
12. The last five words in existing paragraph (b) of Section 3.5 are deleted, and the following new language is inserted at the end of that paragraph:
"Valuation Date which coincides with the date of distribution."
13. The third sentence in Section 3.8 is amended to read as follows:
Upon the re-employment of any person before he has a Break In Service, he shall participant in the Plan as of the date of his re-employment (if he is not ineligible), and he may be entitled to a new Employer Matching Contribution Account and ESOP Account if he had received no distribution by reason of his prior termination of Service.
14. The first sentence in paragraph (a) of Section 3.8 is amended to read as follows:
If the re-employed Employee was not a Participant in the Plan during his prior period of Service, he shall commence participation in the Plan on his date of re-employment (if he is not ineligible).
15. The first sentence in the second paragraph of paragraph (a) in
Section 3.9 is amended to read as follows:
If an individual is transferred to eligible employment covered by this Plan from employment with an Employer or Affiliate not covered by the Plan, he shall be eligible to participate in this Plan as of the date of his transfer.
16. The second and third paragraphs of Section 4.2 are amended to read as follows:
Each Participant shall notify the Committee of the amount he elects to defer as a Pre-Tax Basic Contribution and as a Pre-Tax Excess Contribution, in accordance with administrative procedures established by the Committee, until such time as the Committee may authorize the discontinuance of the Pre-Tax Contributions according to uniform, nondiscriminatory policies which may be developed by the Committee. Each such election shall continue in effect during subsequent Plan Years unless the Participant shall notify the Committee of his election to change or discontinue his
Pre-Tax Basic Contribution or his Pre-Tax Excess Contribution in accordance with administrative procedures established by the Committee.
A Participant may change the amount of his Pre-Tax Basic Contribution and/ or Pre-Tax Excess Contribution at any time during the Plan Year by directing the Committee, in accordance with administrative procedures established by the Committee, to change the rate of the Contribution(s). A Participant may discontinue his Pre-Tax Basic Contribution and/or Pre-Tax Excess Contribution at any time during the Plan Year by directing the Committee, in accordance with administrative procedures established by the Committee, to discontinue the deferral of his Compensation.
17. The following new paragraph is added at the end of Section 4.2:
The Committee may, as a part of the administrative procedures it establishes and in lieu of written procedures contemplated in this Plan, authorize use of an "automated response unit" which generates written acknowledgments of transactions.
18. Section 4.4 is amended to read as follows:
4.4 Actual Deferral Percentage Limits: The Actual Deferral Percentage for the eligible Highly Compensated Employees for any Plan Year shall not exceed the greater of (a) or (b), as follows:
(a) The Actual Deferral Percentage of Compensation for the eligible non-Highly Compensated Employees times 1.25, or
(b) The lesser of (i) the Actual Deferral Percentage of Compensation for the eligible non-Highly Compensated Employees times 2.0 or (ii) the Actual Deferral Percentage of Compensation for the eligible non-Highly Compensated Employees plus two (2) percentages points or such lesser amount as the Secretary of Treasury shall prescribe to prevent the multiple use of this alternative limitation with respect to any Highly Compensated Employee.
"Highly Compensated Employee" shall mean any Employee and any employee of an Affiliate who is a highly compensated employee under Section 414(q) of the Code, including any Employee and any employee of an Affiliate who
(i) during the current Plan Year or prior Plan Year, was at any time a five percent (5%) owner; or
(ii) received Compensation (as defined in Section 5.5(d)(6)) during the prior Plan Year in excess of $80,000 (or such other amount as determined by the Secretary of the Treasury which reflects cost-of-living increases in accordance with the provisions of Code Section 414(q)(1), and if the Employer so elects, the Employee was in the "top-paid group" (top twenty percent (20%) of payroll, ranked by Compensation) for such Plan Year, excluding Employees described in Code Section 414(q) and applicable regulations.
The Actual Deferral Percentage for any Highly Compensated
Employee who is eligible to have deferred contributions allocated to
his account under one or more plans described in Section 401(k) of the
Code that are maintained by an Employer or an Affiliate in addition to
this Plan shall be determined as if all such contributions were made to
this Plan. For purposes of determining whether the Actual Deferral
Percentage limits of this Section are satisfied, all Pre-Tax
Contributions that are made under two or more plans that are aggregated
for purposes of Code Section 401(a)(4) or 410(b) (other than Code
Section 410(b)(2)(A)(ii)) are to be treated as made under a single
plan, and if two or more plans are permissively aggregated for purposes
of Code Section 401(k), the aggregated plans must also satisfy Code
Sections 401(a)(4) and 410(b) as though they were a single plan.
19. Section 4.5 is amended to read as follows:
4.5 Reduction of Pre-Tax Contribution Rates: If, on the basis of the Pre-Tax Contribution rates elected by Participants for any Plan Year, the Committee determines, in its sole discretion, that neither of the tests contained in (a) or (b) of Section 4.4 will be satisfied, the Committee may reduce the Pre-Tax Contribution rate of any Participant who is among the eligible Highly Compensated Employees to the extent necessary to reduce the overall Actual Deferral Percentage for eligible Highly Compensated Employees to a level which will satisfy either (a) or (b) of Section 4.4. The reductions in Pre-Tax Contribution rates may be made proportionately or in the order provided in Section 4.7.
20. The last three sentences in the first paragraph of Section 4.7 are deleted.
21. The last two sentences in the third paragraph of Section 4.7 are deleted and the following sentences are inserted in their place:
Excess Pre-Tax Contributions shall be adjusted in the following manner:
The Highly Compensated Employee having the largest amount of Pre-Tax
Contributions shall
have his portion of excess Pre-Tax Contributions distributed to him
until one of the tests in (a) or (b) of Section 4.4 is satisfied, or
until his Pre-Tax Contributions equal the Pre-Tax Contributions of the
Highly Compensated Employee having the second largest amount of Pre-Tax
Contributions. This process shall continue until sufficient total
reductions have occurred to achieve compliance with (a) or (b) of
Section 4.4.
22. The second and third sentences in the fourth paragraph of Section 4.7 are deleted.
23. Section 4.8 is deleted in its entirety.
24. The second full paragraph in Section 4.10 (the paragraph immediately following paragraph (b)) is deleted.
25. Section 4.11 is amended to read as follows:
4.11 Treatment of Excess Aggregate Contributions or ESOP Contributions: If neither of the tests described above in Section 4.10 is satisfied with respect to either Aggregate Contributions or ESOP Contributions, the excess Aggregate Contributions or ESOP Contributions (as applicable), plus any income and minus any loss attributable thereto, shall be forfeited, or if not forfeitable, shall be distributed no later than the last day of the Plan Year following the Plan Year in which such excess Aggregate Contributions or ESOP Contributions (as applicable) were made. The income and loss attributable to the Participant's excess Aggregate Contributions or ESOP Contributions (as applicable) for the Plan Year shall be determined by multiplying the income or loss attributable to the Participant's Account for the Plan Year by a fraction, the numerator of which is the excess Aggregate Contribution or ESOP Contributions (as applicable), and the denominator of which is the Participant's total Account balance. Excess Aggregate Contributions or ESOP Contributions shall be treated as Annual Additions under Section 5.5 of the Plan.
The excess Aggregate Contributions or ESOP Contributions (as applicable), if any, of each Participant who is among the Highly Compensated Employees shall be determined by computing the maximum Contribution Percentage under (a) or (b) of Section 4.10 and then reducing the Contribution Percentage of some or all of such Participants whose Contribution Percentage exceeds the maximum by an amount of sufficient size to reduce the overall Contribution Percentage for eligible Participants who are among the Highly Compensated Employees to a level which satisfies (a) or (b) of Section 4.10. Excess Aggregate Contributions or ESOP Contributions (as applicable) shall be adjusted in the following manner: The Highly Compensated Employee having the largest amount of Aggregate Contributions or ESOP Contributions (as applicable) shall have his vested portion of the excess Aggregate Contributions or ESOP Contributions (as applicable), plus any income and minus any
loss attributable thereto, distributed to him and, if forfeitable, shall forfeit such non-vested excess Aggregate Contributions or ESOP Contributions (as applicable), plus any income and minus any loss attributable thereto, until one of the tests in (a) or (b) of Section 4.10 is satisfied, or until his remaining amount equals the amount of Aggregate Contributions or ESOP Contributions (as applicable) of the Highly Compensated Employee having the second largest amount. This process shall continue until sufficient total reductions have occurred to achieve compliance with (a) or (b) of Section 4.10. For each Participant who is a Highly Compensated Employee, the amount of excess Aggregate Contributions or ESOP Contributions (as applicable) is equal to the total Employer Contributions on behalf of the Participant (determined prior to the application of this paragraph) minus the amount determined by multiplying the Participant's actual contribution ratio (determined after application of this paragraph) by his Compensation used in determining such ratio. The individual ratios and Contribution Percentages shall be calculated to the nearest one-hundredth (1/100) of one percent (1%) of the Employee's Compensation as such term is used in paragraph (b) of Section 4.10.
26. Section 4.12 is deleted in its entirety.
27. The first sentence of Section 5.2 is amended to read as follows:
A valuation of the Trust Funds shall be made as of each Valuation Date.
28. The second sentence of Section 5.2 is deleted.
29. The first two sentences of paragraph (d) of Section 5.3 (preceding the colon) are amended to read as follows:
Any Employee who is a Participant, or who would be a Participant but for a failure to satisfy the participation requirements of Article III may, with the approval of the Administrator, make a contribution to a Rollover Account under the Plan. Such an Account shall be in cash and shall be a contribution attributable to:
30. Subparagraph (a)(4)(A) of Section 5.5 is amended to read as follows:
If any such Excess Amounts shall then remain, the Participant's Pre-Tax Contributions, and any earnings attributable thereto, shall be returned to him to the extent such returned Contributions would reduce the Excess Amount.
31. The first sentence to the last paragraph of Section 6.6 (identified as paragraph (c)) is amended to read as follows:
As installments payable in cash over a period certain not extending beyond ten (10) years.
32. Section 6.9 is amended to read as follows:
6.9 Required Minimum Distributions: Notwithstanding any provision of this Plan to the contrary, any benefits to which a Participant is entitled shall commence no later than the April 1 following the later of (a) the calendar year in which the Participant attains age seventy and one-half (70-1/2), or (b) the calendar year in which the Participant retires; provided, however, that in the case of a Participant who is a "five percent owner" (as defined in Section 401(a)(9) of the Code), benefits shall commence no later than the April 1 following the calendar year in which the Participant attains age seventy and one-half (70- 1/2). Such distribution shall be at least equal to the required minimum distributions under the Code; however, any installment distributions pursuant to this Section 6.9 to Participants who have not terminated employment shall be made over a period not to exceed ten (10) years. For purposes of this Section 6.9, the life expectancy of a Participant and/or a Participant's spouse shall not be redetermined annually.
33. Section 7.1 is amended to read as follows:
7.1 Withdrawal of Pre-Tax Contribution Account on or After Age 59-1/2: A Participant who has attained age fifty-nine and one-half (59-1/2) may elect, by giving notice in accordance with administrative procedures established by the Committee and following such other rules and procedures as may be prescribed from time to time by the Committee on a uniform and nondiscriminatory basis, to withdraw the entire amount of his After-Tax Contribution Account, his Rollover Account, or his Pre-Tax Contribution Account.
34. Section 7.2 is amended to read as follows:
7.2 Withdrawal of After-Tax Contributions and Rollover Account:
Pursuant to notice given in accordance with administrative procedures
established by the Committee and subject to the conditions of Section
7.3, each Participant may elect to withdraw as of any business day
during the Plan Year, an amount specified by the Participant which may
be attributable to (a) his After-Tax Contributions under the Original
Plan, or (b) his Rollover Account, determined as of the Valuation Date
which coincides with such withdrawal date.
35. Section 7.3 is amended to read as follows:
7.3 Conditions of Withdrawals of After-Tax Contributions and Rollover Account: In making a withdrawal pursuant to Section 7.2, no Participant shall be permitted to withdraw less than $500, or the combined balance of his After-Tax Contribution Account and his Rollover Account, if their combined total is less than $500. Except as provided under Article VI and Sections 7.1 and 7.4 hereof, no withdrawals shall be permitted from a
Participant's Pre-Tax Contribution Account, Employer Matching Contribution Account, or ESOP Account.
36. Section 7.4 is amended to read as follows:
7.4 Hardship Withdrawals from Pre-Tax Contribution Account: A Participant may at any time, in accordance with administrative procedures established by the Committee, make a request for a hardship withdrawal in either a dollar amount or a percentage figure from his Pre-Tax Contribution Account. Notwithstanding the foregoing, however, no Participant may withdraw any Income of the Trust Fund allocated to his Pre-Tax Contribution Account on or after January 1, 1989. The approval or disapproval of such request shall be made within the sole discretion of the Committee, except that no such request for a withdrawal shall be approved unless the Participant has certified in writing that he is facing a hardship creating an immediate and substantial financial need and that the resources necessary to satisfy that financial need are not reasonably available from other sources available to the Participant. The amount of the hardship withdrawal shall be limited to that amount which is required to meet the immediate financial need created by the hardship, including anticipated federal and state income taxes and penalties resulting from the distribution. The hardship withdrawal shall be made in cash as soon as practicable after the Participant submits the hardship request, and the dollar amount withdrawn shall be determined by reference to the value of the Pre-Tax Contribution Account as of the Valuation Date coincident with the date of the withdrawal.
A Participant who receives a hardship withdrawal shall be
prohibited from making pre-tax contributions to this Plan and any other
plan maintained by the Employer (except "welfare plans" as defined in
Section 3(1) of ERISA) for the twelve (12) consecutive months following
the date of distribution. The following standards (or such other
standards as may be acceptable under Treasury Regulations issued
pursuant to Section 401(k) of the Code) shall be applied on a uniform
and non-discriminatory basis in determining the existence of such a
hardship:
(a) A financial need shall be considered immediate if it
must be satisfied in substantial part within a period of twelve
(12) months from the date on which the Participant certifies his
eligibility for a hardship withdrawal.
(b) To be considered a hardship for purposes of this Section, the event giving rise to the need for funds must relate to financial hardship resulting from:
(1) expenses previously incurred for medical care (described in Code Section 213(d)) or expenses that are necessary to incur in order to obtain medical care (as evidenced by a written estimate thereof) for the Participant, the Participant's spouse, or the Participant's dependents (as defined in Code Section 152);
(2) purchase (excluding mortgage payments) of a principal residence for the Participant;
(3) payment for tuition for the next twelve (12) months of post-secondary education for the Participant or the Participant's spouse, children or dependents (as defined in Code Section 152);
(4) the need to prevent the eviction of the Participant from his principal residence or foreclosure on the mortgage of the Participant's principal residence; or
(5) payment for funeral expenses for the Participant's
spouse or the Participant's dependents (as defined in Code
Section 152).
A person shall be considered to be economically dependent on the Participant if the Participant certifies that he reasonably expects to be entitled to claim that person as a dependent for federal income tax purposes for a calendar year coinciding with the Plan Year in which the certification of hardship is made.
37. The first sentence of Section 7.5 is amended to read as follows:
From and after October 1, 1989, any Participant who is a "party in interest" (as defined in Section 3(14) of ERISA) (hereinafter "Borrower") may make application, in accordance with administrative procedures established by the Committee, to borrow from his Pre-Tax Contribution Account, his Rollover Account, or his Employer Matching Contribution Account (to the extent that the Account contains Employer matching Contributions) in the Trust Fund, and the Committee in its sole discretion may permit such a loan.
38. Paragraph (f) of Section 7.5 is amended to read as follows:
(f) A request by a Borrower for a loan shall be made in accordance with administrative procedures established by the Committee and shall specify the amount of the loan. If a Borrower's request for a loan is approved, the loan shall be made in a lump-sum payment of cash to the Borrower. The cash for such payment shall be obtained by redeeming proportionately as of the date of payment the Investment Fund or Funds, or portions thereof, that are credited to the Pre-Tax Contribution Account, Rollover Account, and Employer Matching Contribution Account of such Borrower; provided, however, that, effective October 1, 1997, no withdrawals shall be made from the Common Stock Fund prior to the full depletion of all other Funds.
39. Paragraph (h) of Section 7.5 is amended to read as follows:
(h) Only one loan may be outstanding for a Borrower at any given time.
40. Section 8.1 is amended to read as follows:
8.1 Investment of Trust Funds:
(a) Investment Funds: Except as provided in Article VII with respect to Plan loans and as provided below with respect to the ESOP Fund, the Trust Fund shall be invested in separate Investment Funds chosen and established by the Committee. The Committee may adjust the number and types of Investment Funds to be established or discontinued as it deems advisable. One such Investment Fund, however, shall be the Common Stock Fund, which shall be invested and reinvested in the Common Stock of the Company. The Trustee, the Committee, or a recordkeeper designated by the Committee shall maintain records for each Participant's After-Tax Contribution Account, Employer Matching Contribution Account, Pre-Tax Contribution Account, and Rollover Account, if any, that reflect the value of each Participant's share of the Investment Funds.
(b) Investment Directions: The Participant shall have the right to direct the Committee to instruct the Savings Trustee to invest his Pre-Tax Contributions and contributions to his Rollover Account and the earnings and accretions thereon in any of the Investment Funds established by the Committee.
Each Participant shall elect an investment option at the time he begins participating in the Plan. Through notice to the Committee given pursuant to administrative procedures established by the Committee, a Participant may change his instructions with respect to the investment of his Pre-Tax Contributions, After-Tax Contributions, Employer Matching Contributions, and Rollover Contributions to the Trust Fund. A participant who desires to change his instructions in this manner may direct that the funds in his Future Pre-Tax Accounts be transferred (in no more than one percent (1%) increments) among the Investment Funds.
All earnings realized to the Trust Fund (including, but not limited to, dividends, capital gains, and interest) on an Investment Fund that are not reflected in the value of a share in that Investment Fund will be allocated to Participants' accounts. They will be allocated to a Participant's account in the same proportion the Participant's share of the Investment Fund (disregarding the earnings to be allocated) bears to the total value of the Investment Fund (disregarding the earnings to be allocated), both to be determined as of the date the earnings are realized. Notwithstanding the foregoing, the Committee may direct that dividends paid with respect to shares in the ESOP Fund be distributed on an annual basis or more frequently in order that the deduction under Code Section 404(k) be available to the Company, in which event income that constitutes dividends on shares of Company Stock in the ESOP Fund shall not be invested in Company Stock but shall be temporarily invested in cash equivalents until distribution to Participants. In making payments in respect to Exempt Loans, the Trustee shall utilize income and ESOP Contributions as is specified in Section 5.3 hereof; namely, that income shall be first used to fund principal payments and ESOP
Contributions shall be first used to fund interest payments. All purchases of Company Stock shall be made at prices which, in the judgment of the Trustee, do not exceed the fair market value of such Company Stock. Pending such investment or application of cash, the ESOP Trustee may retain cash uninvested without liability for interest if it is prudent to do so, or may invest all or any part thereof in Treasury Bills, commercial paper, and like holdings.
41. The first sentence in Section 8.2 is amended to read as follows:
Effective January 1, 1992, each qualified Participant (as defined herein) may elect within ninety (90) days after the close of each Plan Year in the qualified election period (as defined herein) to direct the change of the investment of at least twenty-five percent (25%) of the total number of shares of Company Stock allocated to the Participant's ESOP Account at the time of such election.
42. The first sentence of paragraph (g) of Section 11.7 is amended to read as follows:
In determining the present value of the cumulative accrued benefit or the amount of the account of any employee, such present value or account will include the amount in dollar value of the aggregate distributions made to such employee under the applicable plan during the five-year period ending on the Determination Date, unless already reflected in the value of the accrued benefit or account balance as of the date the determination is made.
43. The first sentence of paragraph (j) of Section 11.7 is amended to read as follows:
"Valuation Date" means, for purposes of determining the present value of an accrued benefit as of the Determination Date, the Determination Date.
IN WITNESS WHEREOF, Central Louisiana Electric Company, Inc., has caused these presents to be executed by its duly authorized officers in a number of copies, all of which shall constitute one and the same instrument, which may be sufficiently evidence by any executed copy hereof, this 1st day of October, 1997, but effective as of the dates specified herein.
CENTRAL LOUISIANA ELECTRIC
COMPANY, INC.
By /s/ CATHERINE C. POWELL
---------------------------------
ATTEST:
/s/ MICHAEL P. PRUDHOMME
----------------------------------
Secretary
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[SEAL]
UMB BANK, N.A.
TRUSTEE
By /s/ MARK P. HERMAN
---------------------------------
Mark P. Herman, Sr. V.P.
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EXHIBIT 11
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
COMPUTATION OF NET INCOME PER COMMON SHARE
FOR THE YEARS ENDED DECEMBER 31,
(In thousands, except share and per share amounts)
--------------------------------------------------
1997 1996 1995
-------------- ----------- -----------
BASIC
Net income applicable to common stock $ 50,402 $ 50,061 $ 46,651
============ ============ ============
Weighted average number of shares of common
stock outstanding during the year 22,459,770 22,442,683 22,417,522
============ ============ ============
Basic net income per common share $ 2.24 $ 2.23 $ 2.08
============ ============ ============
DILUTED
Net income applicable to common stock $ 50,402 $ 50,061 $ 46,651
Adjustments to net income related to Employee
Stock Ownership Plan (ESOP) under the "if-converted" method:
Add loss of deduction from net income for actual
dividends paid on convertible preferred stock,
net of tax 1,456 1,462 1,474
Deduct additional cash contribution
required which is equal to dividends
on preferred stock less dividends
paid at the common dividend rate, net
of tax (107) (140) (176)
Add tax benefit associated with dividends
paid on allocated common shares 297 227 185
------------ ------------ ------------
Adjusted income applicable to common stock $ 52,048 $ 51,610 $ 48,134
============ ============ ============
Weighted average number of shares of common
stock outstanding during the year 22,459,770 22,442,683 22,417,522
Number of equivalent common shares
attributable to ESOP 1,397,532 1,405,205 1,416,360
Common stock under stock option grants 6,729 10,079 13,237
------------ ------------ ------------
Average shares 23,864,031 23,857,967 23,847,119
============ ============ ============
Diluted net income per common share $ 2.18 $ 2.16 $ 2.02
============ ============ ============
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EXHIBIT 12
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
COMPUTATION OF EARNINGS TO
FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
FOR THE YEARS ENDED DECEMBER 31,
(In thousands, except ratios)
----------------------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
Earnings from continuing operations $ 52,519 $ 52,135 $ 48,703 $ 45,043 $ 41,812
Income taxes 27,729 26,154 25,229 19,901 19,565
-------- -------- -------- -------- --------
Earnings from continuing operations
before income taxes $ 80,248 $ 78,289 $ 73,932 $ 64,944 $ 61,377
-------- -------- -------- -------- --------
Fixed charges:
Interest, long-term debt $ 23,676 $ 25,134 $ 24,516 $ 23,194 $ 22,089
Interest, other 3,873 2,359 3,482 2,542 2,750
Amortization of debt expense and
premium, net 1,206 1,107 1,234 1,223 1,402
Portion of rental expense
representative of interest
factor 487 445 457 707 485
-------- -------- -------- -------- --------
Total fixed charges $ 29,242 $ 29,045 $ 29,689 $ 27,666 $ 26,726
-------- -------- -------- -------- --------
Earnings from continuing operations
before income taxes and
fixed charges $109,490 $107,334 $103,621 $ 92,610 $ 88,103
======== ======== ======== ======== ========
Ratio of earnings to fixed charges 3.74x 3.70x 3.49x 3.35x 3.30x
======== ======== ======== ======== ========
Fixed charges from above $ 29,240 $ 29,045 $ 29,689 $ 27,666 $ 26,726
Preferred dividends 2,884 2,909 2,960 2,966 3,008
-------- -------- -------- -------- --------
Total fixed charges and preferred
stock dividends $ 32,124 $ 31,954 $ 32,649 $ 30,632 $ 29,734
======== ======== ======== ======== ========
Ratio of earnings to combined
fixed charges and preferred
stock dividends 3.41x 3.36x 3.17x 3.02x 2.96x
======== ======== ======== ======== ========
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Exhibit 13
SELECTED FINANCIAL DATA
For the years ended December 31,
-----------------------------------------------------------------------------
1997 1996 1995 1994 1993
------------- ------------- ------------- ------------- -------------
(In thousands, except per share amounts, ratios and operating statistics)
FINANCIAL DATA
Statements of Income Data Operating
revenues(1)........................... $ 456,245 $ 437,121 $ 396,227 $ 381,482 $ 384,308
Net income............................ $ 52,519 $ 52,135 $ 48,703 $ 45,043 $ 41,812
Net income applicable to common
stock.............................. $ 50,402 $ 50,061 $ 46,651 $ 43,017 $ 39,827
Basic earnings per average common
share(2)........................... $ 2.24 $ 2.23 $ 2.08 $ 1.92 $ 1.78
Diluted earnings per average common
share(2)........................... $ 2.18 $ 2.16 $ 2.02 $ 1.86 $ 1.73
Cash dividends paid per common
share.............................. $ 1.57 $ 1.53 $ 1.49 $ 1.45 $ 1.41
Ratio of earnings to fixed charges...... 3.74X 3.70x 3.49x 3.35x 3.30x
Ratio of earnings to combined fixed
charges and preferred stock
dividends............................. 3.41X 3.36x 3.17x 3.02x 2.96x
Balance Sheet Data (at end of period)
Total assets.......................... $1,361,044 $1,321,771 $1,226,034 $1,178,191 $1,161,635
Long-term obligations and redeemable
preferred stock, net............... $ 372,017 $ 347,231 $ 367,432 $ 343,509 $ 358,329
OPERATING STATISTICS
Electric sales -- regular
system customers
(million kwh)
Residential........................... 2,838 2,723 2,763 2,532 2,470
Commercial............................ 1,393 1,338 1,265 1,180 1,109
Industrial............................ 2,467 2,369 2,227 2,030 2,005
Other retail.......................... 533 526 502 487 463
Sales for resale...................... 311 291 360 210 175
---------- ---------- ---------- ---------- ----------
Total sales to regular customers...... 7,542 7,247 7,117 6,439 6,222
Short-term energy sales to other
utilities............................. 157 330 68 174 266
---------- ---------- ---------- ---------- ----------
Total electric sales.................. 7,699 7,577 7,185 6,613 6,488
========== ========== ========== ========== ==========
System peak
(thousand kilowatts).................. 1,560 1,500 1,473 1,310 1,346
Electric customers...................... 238,061 224,703 220,923 217,568 212,559
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(1) Certain prior-period amounts have been reclassified to conform with the presentation shown in the current year's financial statements. These classifications had no effect on net income applicable to common stock or common shareholders' equity.
(2) Earnings per average common share for prior periods have been restated to reflect adoption of SFAS No. 128, "Earnings per Share."
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
INDUSTRY DEVELOPMENTS
Forces driving increased competition in the electric utility industry involve complex economic and legislative factors. These factors have resulted in the introduction of federal and state legislation and other regulatory initiatives that are likely to produce even greater competition at both the wholesale and retail levels in the future. The Louisiana Public Service Commission (LPSC) is investigating whether retail choice is in the best interest of Louisiana electric utility customers. The Company and a number of parties, including the other Louisiana electric utilities, certain power marketing companies and various associations representing industry and consumers, participated in electric industry restructuring testimony before the LPSC during 1997. Also during 1997, the Louisiana legislature deferred any action regarding restructuring of the electric utility industry within the State. We expect the debate relating to customer choice and other related issues to continue in legislative and regulatory bodies in 1998. At this time, we cannot predict whether any legislation or regulation will be enacted or adopted during 1998 and, if enacted or adopted, what form such legislation or regulation would take.
In general, Louisiana enjoys relatively low rates for electricity. Industry restructuring presents the possibility that rates could move closer to the national average, meaning possible higher prices for Louisiana's small consumers. With this in mind, we favor a plan that would protect the rates of small consumers and allow retail choice no later than the year 2000, primarily for larger commercial and industrial class customers. In the meantime, we recognize the need to resolve issues to create a level playing field for all energy suppliers. The increasingly competitive environment presents opportunities to compete for electric supply to new customers, as well as the risk of losing existing customers. We believe the Company is a reliable, low-cost provider of electricity and as such, is currently positioned to compete effectively in a restructured electric marketplace.
JOINT VENTURE
To better position ourselves for increased competition, we formed a joint venture with Covenant Energy Corporation (Covenant) on October 30, 1997. The joint venture will market electricity and natural gas services, as well as energy management services to commercial and industrial customers and utilities throughout the southeastern United States. The joint venture will also engage in energy asset development projects, such as cogeneration projects, natural gas pipelines connecting to customers' plants and potential strategic asset acquisitions in the southeastern United States. The newly formed venture, CLECO ENERGY, L.L.C., is headquartered in Houston, Texas. Covenant President John T. McDougal heads the venture. We own 51% of the newly formed venture through a subsidiary and Covenant owns the remaining 49%.
RESULTS OF OPERATIONS
EARNINGS
1997 earnings (net income applicable to common stock) totaled $50.4 million, or $2.24 per share, an increase of $0.3 million, or $0.01 per share, compared to 1996. Earnings increased because we sold more kilowatt-hours to our customers, adding an additional $10.4 million in base revenues. Earnings were negatively affected by expected increases in such nonfuel operating expenses as depreciation and ad valorem taxes, as well as a $3 million annual base rate reduction ordered by the LPSC.
1996 earnings increased $3.4 million, or $0.15 per share, compared to 1995. The growth in earnings was primarily due to increased sales of electricity to commercial and industrial customers, offset by an increase in nonfuel operating expenses. 1995 earnings increased $3.6 million, or $0.16 per share, compared to 1994. Results for 1995 were affected by increased electricity sales caused by warmer-than-normal weather, which were partially offset by higher operating expenses.
Earnings for past years are not necessarily indicative of future earnings and results. Future earnings will be affected by weather conditions, business development programs, the overall economy of the Company's service area, the effect of an additional $2 million rate reduction beginning January 1, 1998, legislative and other regulatory changes and increased competition.
REVENUES
Retail rates for residential, commercial and industrial customers and other retail sales (about 95% of revenues) are regulated by the LPSC. Rates for transmission and wholesale power sales are regulated by the Federal Energy Regulatory Commission (FERC). Retail rates consist of a base rate and a fuel rate. Base rates are designed to allow us to recover the cost of providing service and a return (profit) on utility assets. Fuel rates fluctuate, allowing us to recover, with no profit, the changing costs of purchased power and fuel used to generate electricity. The following chart shows the amounts and changes in base revenues and fuel cost recovery revenues for 1997 and 1996.
1997 1996
-------------------- --------------------
IN Percent In Percent
THOUSANDS Change Thousands Change
--------- ------- --------- -------
Base (nonfuel).................................... $278,412 3.9% $268,006 1.9%
Fuel cost recovery................................ 177,833 5.2% 169,115 26.9%
-------- ------- -------- -------
Total revenues.......................... $456,245 4.4% $437,121 10.3%
======== ======= ======== =======
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Base rates were reduced $3 million annually beginning November 1, 1996 by the settlement of an earnings review conducted by the LPSC. The settlement calls for an additional $2 million annual base rate reduction beginning January 1, 1998. For more information on the results of the LPSC earnings review, see "Financial Condition -- Retail Rates" below. Most of the $19.1 million, or 4.4% increase in 1997 operating revenues was due to an increase in base revenues from an additional 4.1% growth in kilowatt-hour sales.
Fuel cost recovery revenues collected in 1997 increased $8.7 million due to the lack of available low-cost power on the wholesale market or the lack of available transmission capacity to transport energy to our electric system. The lack of available purchased power increased the need for additional generation by our natural gas units at a higher cost. Net income is not affected by changes in the cost of fuel and purchased power because these cost fluctuations are currently passed on to customers through fuel cost adjustments clauses. For information on changes in the fuel adjustment clause, see "Financial Condition -- Retail Rates" below.
Total operating revenues for 1996 were 10.3% higher compared to 1995. This increase is primarily due to an increase in fuel cost recovery revenues, resulting primarily from higher natural gas prices in effect during 1996. As the cost of fuel increases, the amount of fuel cost recovery revenues we collect from customers similarly increases. The 1.9% rise in base revenues was caused by an increase in kilowatt-hour sales to commercial and industrial customers, who are less affected by weather conditions than residential customers.
SALES
Weather influences the demand for electricity, especially among residential customers. A hot summer or a cold winter will increase residential customer demand for electricity. Cooler summers and warmer winters will reduce customer demand. Demand for electricity by commercial and industrial customers is primarily dependent upon the strength of the economy in the service territory and the nation, and is less affected by weather. Sales to industrial customers are also affected by the national economy and by the worldwide demand for wood products, since our two largest
customers are producers of such products. The following chart compares the kilowatt-hour sales by customer class for 1997 and 1996.
1997 1996
------------------ ------------------
MILLION Percent Million Percent
KWH Change kwh Change
------- ------- ------- -------
Regular customers
Residential........................... 2,838 4.2% 2,723 (1.4)%
Commercial............................ 1,393 4.1% 1,338 5.8%
Industrial............................ 2,467 4.1% 2,369 6.4%
Other retail.......................... 533 1.3% 526 4.8%
Sales for resale...................... 311 6.9% 291 (19.2)%
----- ----- ----- -----
Total sales to regular customers........ 7,542 4.1% 7,247 1.8%
Short-term sales to other utilities..... 157 (52.4)% 330 385.3%
----- ----- ----- -----
Total electric sales.......... 7,699 1.6% 7,577 5.5%
===== ===== ===== =====
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The increase in sales to residential customers during 1997 resulted from a cooler-than-normal fall season in 1997. A milder winter during the beginning of 1997 offset the warmer summer of 1997. Sales to residential customers were also boosted by the addition of 7,700 mostly residential customers on September 30, 1997 through the acquisition of the business of Teche Electric Cooperative, Inc. (Teche). Sales to commercial and industrial customers grew from 1996 as a result of customer growth and increased consumption by our largest industrial customer.
During 1996, consumption by commercial and industrial customers was higher than in 1995 due to customer growth and increased consumption by our largest industrial customer. The summer weather in 1996 was milder than the summer weather in 1995, resulting in a 1.4% decrease in residential sales.
During the last five years, sales growth to regular customers averaged 4.6% per year and, based on current information, is expected to range from 3% to 4% per year during the next five years. The levels of future sales will depend upon weather conditions, customer conservation efforts, our retail marketing and business development programs, and the overall economy of the service area. Issues facing the electric utility industry that could affect sales include deregulation, retail wheeling, legislative and regulatory changes, retention of large industrial customers, franchises and access to transmission systems.
In 1995, we leased the England Industrial Airpark distribution system from the industrial development authority for a 20-year period. This facility includes a new commercial airport, industrial park, golf course and residential village. These are all portions of the former England Air Force Base near Alexandria, which we served prior to its closure several years ago.
In 1995, we began providing approximately 13 megawatts of wholesale power service to the city of St. Martinville under a five-year contract subject to the jurisdiction of the FERC. This contract was challenged in 1993 by the previous supplier, Louisiana Energy and Power Authority (LEPA), as well as the city of Lafayette and the American Public Power Association, with assertions of preferential, discriminatory and predatory pricing. An initial decision of the FERC's presiding administrative law judge in February 1995 rejected LEPA's arguments. Under FERC procedures, LEPA filed a brief requesting the FERC to revise the initial decision, and this matter is still pending. The Company has opposed LEPA's brief and management believes that the initial decision will be upheld.
In February 1995, we agreed to purchase Teche for a price, including the assumption or other discharge of Teche's liabilities, of about $22.4 million. The members of Teche overwhelmingly approved the sale at their annual meeting in March 1995. One of the conditions necessary to the closing of the Teche acquisition was an interim power purchase agreement with Cajun Electric Power Cooperative, Inc. (Cajun), Teche's former wholesale power supplier. Cajun has been
involved in bankruptcy proceedings since 1995. An interim agreement, acceptable to Cajun's bankruptcy trustee and the Rural Utilities Service, was reached in September 1997. We consummated the purchase of Teche on September 30, 1997.
In 1996, we signed a contract to serve a new industrial port on the Red River at Natchitoches. This port is a development resulting from a federal project which has made the Red River navigable from where it joins with the Mississippi River to near Shreveport. The Red River runs through our service territory in central and western Louisiana and provides a water transportation connection to the world via the Mississippi River and the Gulf of Mexico.
FUEL AND PURCHASED POWER
Changes in fuel and purchased power expenses reflect fluctuations in generation mix, fuel costs, availability of economy power and deferral of expenses for recovery from customers through fuel adjustment clauses in subsequent months. The following table shows the amount and changes in fuel and purchased power expenses for 1997 and 1996.
1997 1996
-------------------- --------------------
IN Percent In Percent
THOUSANDS Change Thousands Change
--------- ------- --------- -------
Fuel used for electric generation........ $136,009 17.6% $115,642 6.8%
Power purchased.......................... 44,590 (19.8)% 55,609 103.2%
-------- ----- -------- -----
Total fuel expenses............ $180,599 5.4% $171,251 26.2%
======== ===== ======== =====
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Fuel and purchased power costs increased $9.3 million in 1997. Fuel costs used for electric generation increased over 1996 primarily as a result of the lack of available low-cost power on the wholesale market or the lack of available transmission capacity to transport energy to our electric system which increased the need for additional generation by our natural gas units at a higher fuel cost. Consequently, 1997 purchased power costs decreased compared to 1996.
The increase in 1996 in the cost of fuel used for electric generation is attributable primarily to the higher cost of natural gas in 1996 compared to 1995. The increase in purchased power in 1996 resulted from the increased availability of low-cost power (generally from solid fuel generation) on the wholesale market, primarily due to the substantial increases in natural gas prices.
Coal and lignite are obtained under long-term contracts. Natural gas is purchased under short-term contracts on the spot market when prices are advantageous. Power is purchased from other utilities when the purchase price is less than the cost to generate and transmission capacity is available to transport the energy to our system. During 1997, 24% of our energy requirements were met with purchased power, compared to 33% in 1996.
We and the joint owner of one of our electric generating units jointly filed suit in 1997 against a joint venture and its partners who mine lignite for the generating unit. The joint venture has filed counterclaims. The counterclaims caused us and the joint owner to file another suit against the joint venture's parent company. Management believes the counterclaims, if successful, would not have a material adverse effect on our financial position or results of operations. Normal day-to-day operations continue at the mining facility and the jointly-owned electric generating unit.
During 1996, we constructed natural gas pipelines at three of our power stations where natural gas is used as a primary fuel. These pipelines increase our access to natural gas markets and lower-cost gas supplies. The pipelines are owned and operated by a subsidiary of the Company. Also during 1996, we terminated contracts with our main transporter and supplier of natural gas and replaced them with a base supply contract for approximately one-third of our natural gas requirements. The new natural gas contracts and access to the gas markets afforded by the pipelines are helping to maintain the competitiveness of our generating units.
The coal for one of our jointly-owned electric generating units is transported under a long-term transportation contract with a railroad. The railroad is experiencing operating problems, which began in 1997 and resulted in reduced volumes delivered to the unit. Coal inventory at the unit is currently below our desired minimum level. Based on the railroad's anticipated delivery schedule of future coal shipments, management anticipates restoration of the coal inventory at the unit to desired levels by July 1998.
NONFUEL OPERATING EXPENSES AND INCOME TAXES
Changes in nonfuel operating expenses (excluding restructuring charges) for 1997 and 1996 were as follows:
1997 1996
-------------------- --------------------
IN Percent In Percent
THOUSANDS Change Thousands Change
--------- ------- --------- -------
Other operation.......................... $ (152) (0.2)% $(2,994) (4.4)%
Maintenance.............................. $ (203) (0.9)% $ 873 3.9%
Depreciation............................. $2,449 5.6% $ 2,277 5.5%
Other taxes.............................. $3,827 12.9% $ 532 1.8%
Income taxes............................. $1,575 6.0% $ 925 3.7%
------ ---- ------- ----
Total.......................... $7,496 4.0% $ 1,613 0.9%
====== ==== ======= ====
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Total 1997 nonfuel operating expenses, excluding restructuring charges, increased 4.0% over 1996. For more information concerning a $1.9 million restructuring charge incurred in 1997, see "Restructuring Charge" below. Depreciation expense increased primarily due to a full year of depreciation on property additions associated with the Energy Control Center, and planned additions to generation, transmission and distribution facilities. Taxes other than income taxes increased primarily due to the expiration of the property tax exemption discussed below.
In 1996, total nonfuel operating expenses increased 0.9% compared to 1995. The increase was primarily due to higher depreciation expense and federal and state income taxes which were offset in part by a decrease in costs to operate our electric system. Depreciation expense increased primarily due to property additions associated with the Energy Control Center and transmission and distribution facilities. The increase in federal and state income taxes resulted from an increase in pretax income. Operating costs decreased as a result of reduced co-op acquisition expenses during 1996, and a higher employee incentive expense incurred in 1995. Maintenance expenses increased as a result of additional upkeep to the water plant facilities at the Coughlin Power Station.
In 1997, a ten-year property tax exemption expired on the Dolet Hills Power Station. Taxes other than income taxes increased primarily due to our share of the increased property taxes on this generating station.
A number of parishes have attempted in recent years to impose franchise fees on retail revenues earned within the unincorporated areas we serve. If the parishes are ultimately successful, taxes other than income taxes could increase substantially in future years.
RESTRUCTURING CHARGE
During 1997, we reorganized our electric production staff. The primary objective of this reorganization was to create a centralized power production maintenance workforce. Other initiatives included improving power production operations and providing better service to customers. As a result, approximately 30 employee positions were eliminated, resulting in a charge to earnings of $1,891,000 ($1,248,000 on an after-tax basis), consisting mainly of voluntary severance programs offered to eligible employees.
OTHER INCOME AND INTEREST EXPENSE
"Other income (expenses), net" increased $0.9 million mainly due to earnings from our nonregulated activities.
In 1996, "other income (expenses), net" increased $0.2 million as a result of lower charitable donations and other miscellaneous expenses compared to 1995.
Interest expense for 1997 increased $0.6 million, as compared to 1996. This increase was due to higher average outstanding balances of commercial paper and medium-term notes during 1997 at interest rates similar to 1996, which was partially offset by a decrease in interest on first mortgage bonds because of the redemption in 1996 of $50 million Series Y first mortgage bonds.
Interest expense decreased $0.2 million in 1996, as compared to 1995, due in part to lower interest rates on short-term debt and variable-rate pollution control bonds. During 1996, $50 million of 9 5/8% first mortgage bonds were redeemed with proceeds from $45 million of medium-term notes issued at a weighted average interest rate of 6.37%.
ALLOWANCE FOR FUNDS USED DURING CONSTRUCTION (AFUDC)
AFUDC represents the estimated cost of financing construction work-in-progress and is not a current source of cash. A return on and recovery of AFUDC is permitted by regulatory bodies in setting rates charged for utility services. AFUDC for 1997 decreased as a result of lower balances of eligible construction work-in-progress. AFUDC for 1996 decreased as a result of lower average construction work-in-progress balances compared to 1995. AFUDC accounted for 0.9% of earnings in 1997, compared to 1.5% in 1996 and 4.5% in 1995.
EARNINGS PER SHARE
Earnings per average common share have been computed using the weighted average number of shares of common stock outstanding during the year. Earnings per average common share have been restated for the years 1997, 1996, and 1995 to reflect adoption of SFAS No. 128, "Earnings per Share."
LIQUIDITY AND CAPITAL RESOURCES
Financing for construction requirements and operational needs is dependent upon the cost and availability of external funds through capital markets and from financial institutions. Access to funds is dependent upon factors such as general economic conditions, regulation and the Company's credit rating.
From 1990 through 1996, we participated in a program where up to $35 million of our receivables were sold on an ongoing basis. The amount of receivables that could have been sold any time depended upon seasonal fluctuations in the amount of eligible receivables. In December 1996, sales of accounts receivable were reduced to zero and the program was terminated in early 1997. To replace this short-term liquidity program, our committed bank borrowing capacity was increased by $25 million in 1997.
The Company has an effective shelf registration statement and all regulatory approvals necessary to issue up to $140 million of medium-term notes.
At December 31, 1997 and 1996, there was $34.2 million and $65.2 million, respectively, of short-term debt outstanding in the form of commercial paper borrowings. Short-term debt decreased as a result of the net increase in medium-term notes outstanding in 1997. Currently, we have a $100 million revolving credit facility, which is scheduled to continue through June 2000, and a $25 million revolving credit facility, which is scheduled to expire in March 1998. We expect to extend
the term of the $25 million facility for another year prior to its scheduled expiration date. Both credit facilities support the issuance of commercial paper. Uncommitted lines of credit with banks totaling $20 million are available to meet short-term working capital needs. Additionally, at December 31, 1997, one of our nonregulated consolidated subsidiaries held $12.7 million of cash and marketable securities.
CASH GENERATION AND CASH REQUIREMENTS
During 1997, cash flows from our operating activities generated $117.8 million as shown in the Consolidated Statements of Cash Flows. Net cash provided by operating activities resulted from net income, adjusted for noncash charges to income, and changes in working capital. Net cash used in investing activities is related to additions to utility plant, including the purchase of Teche's assets, and changes in utility and nonutility investments. Net cash used in financing activities resulted principally from the payment of dividends to shareholders and the changes in short-term and long-term financing activities.
In recent years, our construction program has consisted primarily of enhancements to the transmission and distribution systems. Additions to utility plant for 1997 as shown in the Consolidated Statements of Cash Flows include the $22.4 million acquisition of the former business and property of Teche. In 1996, we completed $10 million in additions to our Energy Control Center. Utility expenditures, excluding AFUDC, totaled $54.1 million in 1997 and $60 million in 1996.
Construction expenditures, excluding AFUDC, for 1998 are estimated to be $54.9 million and for the five-year period ending 2002 are expected to total $253 million. More than half of the planned construction in the five-year period will support line extensions and substation upgrades to accommodate new business and load growth. Some investment will be made to rehabilitate older transmission, distribution and generation assets. We will also continue to invest in technology to allow us to operate more efficiently.
All of the construction requirements were funded internally in 1997 as compared to 96% in 1996 and 93% in 1995. Substantially all of the construction requirements for 1998 and for the five-year period ended 2002 are expected to be funded internally.
Other capital requirements in 1996 and 1995 were funded by the issuance of debt.
Scheduled maturities of debt and preferred stock will total about $15.3 million for 1998 and approximately $121.6 million for the five-year period ending 2002. In 1991, we began a common stock repurchase program, and as part of that program, up to $23 million of common stock may be repurchased in the future. No shares of common stock were repurchased in 1997 or 1996.
The Company has committed to provide credit support up to $10 million for working capital and electricity or natural gas commodity positions for CLECO ENERGY, L.L.C. Commitments for asset development projects will be made as they occur up to $5 million per year for the next five years.
RETAIL RATES
Retail rates regulated by the LPSC account for 95% of our 1997 revenues. Fuel costs and monthly fuel adjustment billing factors are subject to audit by the LPSC. In the past, we have sought increases in base rates to reflect the cost of service related to plant facility additions and increases in operating costs. If we were to request an increase in our rates and adequate rate relief were not granted on a timely basis, our ability to attract capital at reasonable costs to finance our operations and capital improvements might be impaired.
The LPSC elected in 1993 to review the earnings of all electric, gas, water and telecommunications utilities regulated by it to determine whether the returns on equity of these companies may be higher than returns that might be awarded in the current economic environment. In 1996, the LPSC approved a settlement of our earnings review, providing our customers with lower electricity rates.
The first rate decrease of $3 million annually was effective November 1, 1996, with a second decrease of an additional $2 million annually effective January 1, 1998. The terms of this settlement will be effective for a five-year period.
During the five-year period, which began November 1, 1996, a rate stabilization plan is in place. This plan allows the Company to retain all earnings equating to a regulatory return on equity up to and including 12.25% on its regulated utility operations. Any earnings which result in a return on equity over 12.25%, up to and including 13%, will be shared equally between the Company and our customers, which effectively allows us the opportunity to realize a regulatory rate of return of up to 12.625%. Any earnings above 13% will be refunded fully to customers.
During the five-year period 1997-2001, our revenues and return on equity will be reviewed each year by the LPSC. If the Company is found to be achieving a regulatory return on equity in any given year which requires a refund to customers, the refund will be made in the form of billing credits during the months of July, August and September following the evaluation period.
During the five-year rate stabilization period, we will have the right to apply for a rate increase if a significant event affecting our earnings would justify it, such as regulatory or economic changes, major hurricane damage or other unforeseen circumstances. During the period, we will also be able to propose for LPSC consideration any revenue-neutral rate design changes we feel appropriate, such as revenue redistribution among customer classes which may be warranted. During the period, the LPSC may amend or modify any of the settlement's terms should the LPSC determine changes are warranted by the public interest.
In November 1997, the LPSC issued an order in a generic docket which promulgated new standards for the monthly Fuel Cost Adjustment (FCA) rate filings of electric companies under its jurisdiction. The order adopted new rules and procedures for the monthly FCA computation and changes in reporting of fuel and purchased power costs to be implemented in 1998 after final LPSC approval. Although the order narrows the types of costs that can be included in the FCA, the changes are expected to have no effect upon our financial position or results of operations, as costs no longer includable in the FCA will be granted as an increase in base rates under the provisions of the order.
INFLATION AND FUEL COSTS
The Company is a capital-intensive electric utility. As such, we are affected by inflation since depreciation, which is based on the historical cost of assets, will in all likelihood not fully reflect the cost of replacing assets. Although the cost of fuel used for electric generation is a major component of total costs, we are not currently exposed to the effects of market fluctuations in fuel prices since fuel costs are currently recovered from customers through fuel adjustment clauses.
YEAR 2000
We are currently conducting an inventory and evaluation of our computers and computer programs to see how they will be affected by the "year 2000" issue. The issue arises in some computer systems because there is a two-digit representation of the calendar year which is a carryover from earlier generations of computers when data storage costs were at a premium. In this convention, the year 1999 would be represented by "99" and the year 2000 by "00". Computer systems using a two-digit year may improperly calculate due dates, lead times for orders, billing calculations for late payments and interest computations.
Our operating systems programs and major application programs for accounting, billing, cash management, energy control and materials management are licensed from outside software vendors who provide periodic updates and enhancements to their computer software. We have received and have a schedule for installing modifications from most of these vendors, converting them to a four-digit date, or otherwise resolving the year 2000 problem. Our other vendors are scheduled to provide program modifications in time for us to install them by the end of 1998. In addition, there are more than 1,100 personal computers in use by our employees, a number of
computer programs unique to a single or a small group of employees, and a number of analog devices in our communications and power station systems. We have been conducting an inventory of the computer devices and programs used in personal computers and analyzing whether they will need year 2000 modification and will be in compliance by the year 2000.
Management anticipates the remaining costs of year 2000 compliance of its computer devices and programs will not be significant because of the nature of our business; our operations primarily rely upon the delivery of boiler fuels, electrical materials and supplies, the wholesale market for electricity and its transmission, the financial markets and the banking system. To the extent that any of these markets are seriously affected or disrupted by year 2000 issues, our operations could be adversely affected.
ENVIRONMENTAL MATTERS
The Company is subject to federal, state and local laws and regulations governing the protection of the environment. Violations of these laws and regulations may result in substantial fines and penalties. We have obtained all material environmental permits necessary for our operations and believe we are in substantial compliance with these permits, as well as all applicable environmental laws and regulations. We anticipate that existing environmental rules will not affect operations significantly, but some capital improvements may have to be made in response to new environmental programs expected in the next few years.
Implementation of Phase I of the Clean Air Act will not require us to reduce sulfur emissions at our solid-fuel generating units, which either burn low-sulfur coal or utilize pollution control equipment. Installation of continuous emission monitoring equipment on our generating units was completed in 1996 at a cost of approximately $3 million. Although Phase II of the legislation, effective in 2000, involves more stringent limits on emissions, these requirements should not significantly affect the operation of our generating units. However, some capital investment may be necessary in order to comply with Phase II requirements. Capital expenditures for environmental matters were $0.4 million in 1997 and are estimated to be $0.6 million for 1998.
REGULATORY MATTERS
In 1996, the FERC issued rules requiring open access to utilities transmission systems. The open access provisions require FERC-regulated electric utilities to offer third parties access to transmission under comparable terms and conditions as the utilities' use of their own systems. Providing unbundled transmission services to firm-requirements customers may have significant financial consequences to the utility industry. Providing open access for non-firm sales may have significant effects on utility operations. Currently, we have three wholesale full-requirements customers representing about 0.9% of our total kilowatt-hour sales to regular customers.
Federal and state regulators and legislators are studying potential effects of deregulating the vertically integrated utility systems and providing retail customers a choice of supplier. At this time, it is not possible to predict when, if, or to what extent, retail customers will be able to choose their electric service suppliers. The regulatory requirement to serve customers and industry standards for reliability of electric supply have resulted in the construction of facilities sufficient to meet peak load conditions with a margin for reserve.
With customer choice, above market costs associated with utility services specifically dedicated to, or used by, departing customers (stranded costs) would have to be paid by the departing customers, absorbed by remaining and new customers or written off by the Company.
The Company has recorded regulatory assets and liabilities, primarily for the effects of income taxes, as a result of past rate actions of our regulators, pursuant to Statement of Financial Accounting Standards No. 71, "Accounting for the Effects of Certain Types of Regulation" (SFAS 71). The effects of potential deregulation of the industry or possible future changes in the method of rate regulation of the Company could require the Company to discontinue the application of SFAS 71, pursuant to Statement of Financial Accounting Standards No. 101, "Regulated Enterprises -- Accounting for the Discontinuation of Application of FASB Statement No. 71"
(SFAS 101). At December 31, 1997, the Company had recorded $52.8 million of regulatory assets, net of regulatory liabilities, because of the regulatory requirement to flow through the tax benefits of accelerated deductions to current customers and an implied regulatory compact that future customers would pay when the Company paid the additional taxes. These differences occur over the lives of relatively long-lived assets, up to 30 years or more. Under the current regulatory and competitive environment, the Company believes that these regulatory assets are fully recoverable. However, if in the future, as a result of regulatory changes or increased competition, the Company's ability to recover these regulatory assets would not be probable, then to the extent that these regulatory assets were determined not to be recoverable, the Company would be required to write off or write down these assets.
Statement of Financial Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of" (SFAS 121), establishes accounting standards for determining if long-lived assets are impaired, and when and how losses, if any, should be recognized. The Company believes that the net cash flows that will result from the operation of its assets are sufficient to cover the carrying value of the assets.
The Emerging Issues Task Force (EITF) assists the Financial Accounting
Standards Board (FASB) in identifying emerging issues affecting financial
reporting. In 1997, the EITF reached a consensus in Issue No. 97-4:
"Deregulation of the Pricing of Electricity -- Issues Related to the Application
of SFAS No. 71 and No. 101." EITF 97-4 specified that SFAS No. 71 should be
discontinued at a date no later than when the details of a transition plan
toward the deregulation of electric rates for all or a portion of the entity
subject to such plan are known. However, other factors could cause the
discontinuation of SFAS No. 71 before that date. Additionally, EITF 97-4
establishes that regulatory assets to be recovered through cash flows derived
from another portion of the entity which continues to apply SFAS No. 71 should
not be written off, but rather, should continue to be considered regulatory
assets of the separable portion which will continue to apply SFAS No. 71.
NEW ACCOUNTING STANDARDS
Periodically, the FASB issues Statements of Financial Accounting Standards (SFAS). These standards reflect accounting, reporting and disclosure requirements the Company should follow in the accumulation of financial data and in the presentation of financial statements. The FASB, a nongovernmental organization, is the primary source of generally accepted accounting principles within the United States.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive Income" effective for fiscal years beginning after December 15, 1997. Adoption of this statement will affect only financial statement presentation and will not affect our financial position or results of operations.
In June 1997, the FASB issued SFAS No. 131, "Disclosures about Segments of an Enterprise and Related Information" effective for financial statements for periods beginning after December 15, 1997. Adoption of this statement will affect only financial statement disclosure and will not affect our financial position or results of operations. This Statement need not be applied to interim financial statements in the initial year of its application, but comparative information for interim periods in the initial year of application is to be reported in financial statements for interim periods in the second year of application.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report to Shareholders includes "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. All statements
other than statements of historical fact included in this Report, including,
without limitation, the statements under "Management's Discussion and Analysis
of Results of Operations and Financial Condition -- Industry Developments,"
"-- Results of Operations," "-- Financial Condition -- Liquidity and Capital
Resources," "-- Financial Condition -- Regulatory Matters" and Note K to the
Consolidated Financial Statements contain forward-looking statements. Located
elsewhere in this Report are forward-looking statements regarding sales growth,
capital expenditures, the settlement of our earnings review approved by the LPSC
in October 1996, our shelf registration statement, the effect of certain recent
FERC regulations, future legislative and regulatory changes affecting electric
utilities, and other matters. Although we believe the expectations reflected in
such forward-looking statements are reasonable, such forward-looking statements
are based on numerous assumptions (some of which may prove to be incorrect) and
are subject to risks and uncertainties which could cause the actual results to
differ materially from our expectations. Forward-looking statements have been
and will be made in written documents and oral presentations by management. Such
statements are based on management's beliefs as well as assumptions made by and
information currently available to management. When used in our documents or
oral presentations, the words "anticipate," "estimate," "expect," "objective,"
"projection," "forecast," "goal" and similar expressions are intended to
identify forward-looking statements. In addition to any assumptions and other
factors referred to specifically in connection with such forward-looking
statements, factors that could cause our actual results to differ materially
from those contemplated in any forward-looking statements include, among others,
the following:
Factors affecting utility operations such as unusual weather conditions; catastrophic weather-related damage; unscheduled generation outages; unusual maintenance or repairs; unanticipated changes to fuel costs, gas supply costs, or availability constraints due to higher demand, shortages, transportation problems or other developments; environmental incidents; or electric transmission or gas pipeline system constraints;
Increased competition in the electric environment, including effects of: industry restructuring, transmission system operation or administration, retail wheeling or cogeneration;
Regulatory factors such as unanticipated changes in rate-setting policies or procedures; recovery of investments made under traditional regulation; and the frequency and timing of rate increases;
Financial or regulatory accounting principles or policies imposed by the FASB, the Securities and Exchange Commission, FERC, LPSC, or similar entities with regulatory or accounting oversight;
Economic conditions, including inflation rates and monetary fluctuations;
Changing market conditions and a variety of other factors associated with physical energy and financial trading activities, including, but not limited to, price, basis, credit, liquidity, volatility, capacity, transmission, interest rate and warranty risks;
Availability or cost of capital resulting from changes in the Company, interest rates, and securities ratings or market perceptions of the electric utility industry and energy-related industries;
Employee workforce factors, including changes in key executives;
Legal and regulatory delays and other obstacles associated with mergers, acquisitions or investments in joint ventures;
Cost and other effects of legal and administrative proceedings, settlements, investigations, claims and other matters; and
Changes in federal, state or local legislature requirements, such as changes in tax laws or rates or environmental law and regulations.
The Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of changes in actual results, changes in assumptions or other factors affecting such statements.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
CONSOLIDATED STATEMENTS OF INCOME
For the Years Ended December 31
------------------------------------------
1997 1996 1995
------------ ------------ ------------
(In thousands, except share and per share
amounts)
OPERATING REVENUES.................................... $456,245 $437,121 $396,227
Operating expenses
Fuel used for electric generation................... 136,009 115,642 108,322
Power purchased..................................... 44,590 55,609 27,367
Other operation..................................... 64,618 64,770 67,764
Restructuring charges............................... 1,891
Maintenance......................................... 23,286 23,489 22,616
Depreciation........................................ 45,890 43,441 41,164
Taxes other than income taxes....................... 33,422 29,595 29,063
Federal and state income taxes...................... 27,729 26,154 25,229
---------- ---------- ----------
Total operating expenses.................... 377,435 358,700 321,525
---------- ---------- ----------
OPERATING INCOME...................................... 78,810 78,421 74,702
Interest income....................................... 427 256 219
Allowance for other funds used during construction.... 620 1,134 1,912
Other income (expenses), net.......................... 1,248 333 74
---------- ---------- ----------
INCOME BEFORE INTEREST CHARGES........................ 81,105 80,144 76,907
---------- ---------- ----------
Interest charges
Interest on debt and other.......................... 27,549 27,492 27,998
Allowance for borrowed funds used during
construction..................................... (169) (590) (1,028)
Amortization of debt discount, premium and expense,
net.............................................. 1,206 1,107 1,234
---------- ---------- ----------
Total interest charges...................... 28,586 28,009 28,204
---------- ---------- ----------
NET INCOME............................................ 52,519 52,135 48,703
Preferred dividend requirements, net.................. 2,117 2,074 2,052
---------- ---------- ----------
NET INCOME APPLICABLE TO COMMON STOCK................. $ 50,402 $ 50,061 $ 46,651
========== ========== ==========
AVERAGE SHARES OF COMMON STOCK OUTSTANDING
Basic............................................... 22,459,770 22,442,683 22,417,522
========== ========== ==========
Diluted............................................. 23,864,031 23,857,967 23,847,119
========== ========== ==========
EARNINGS PER AVERAGE SHARE
Basic............................................... $2.24 $2.23 $2.08
========== ========== ==========
Diluted............................................. $2.18 $2.16 $2.02
========== ========== ==========
CASH DIVIDENDS PAID PER SHARE OF COMMON STOCK......... $1.57 $1.53 $1.49
========== ========== ==========
|
The accompanying notes are an integral part of the consolidated financial statements.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
CONSOLIDATED BALANCE SHEETS
At December 31
------------------------
1997 1996
---------- ----------
(In thousands)
ASSETS
Utility plant (Notes A and B)
Property, plant and equipment............................. $1,506,949 $1,425,547
Accumulated depreciation.................................. (518,664) (480,486)
---------- ----------
Net property, plant and equipment......................... 988,285 945,061
Construction work-in-progress............................. 37,277 49,075
---------- ----------
Total utility plant, net............................ 1,025,562 994,136
---------- ----------
Investments and other assets (Note D)....................... 3,479 8,488
---------- ----------
Current assets
Cash and cash equivalents (Note A)........................ 18,015 20,307
Accounts receivable, net (Note C)
Customer accounts receivable............................ 28,822 23,145
Other accounts receivable............................... 18,601 20,767
Notes receivable.......................................... 930
Unbilled revenues......................................... 11,090 11,193
Fuel inventory, at average cost........................... 8,648 9,366
Material and supplies inventory, at average cost.......... 14,413 17,029
Other current assets...................................... 1,894 2,505
---------- ----------
Total current assets................................ 102,413 104,312
---------- ----------
Prepayments................................................. 8,331 8,683
---------- ----------
Regulatory assets -- deferred taxes (Note J)................ 115,285 103,839
---------- ----------
Other deferred charges...................................... 29,418 28,082
---------- ----------
Accumulated deferred federal and state income taxes (Note
J)........................................................ 76,556 74,231
---------- ----------
TOTAL ASSETS........................................ $1,361,044 $1,321,771
========== ==========
CAPITALIZATION AND LIABILITIES
Common shareholders' equity
Common stock, $2 par value, authorized 50,000,000 shares,
issued 22,762,754 and 22,760,154 shares at December 31,
1997 and 1996, respectively (Note F).................... $ 45,525 $ 45,520
Premium on capital stock.................................. 113,763 113,702
Retained earnings......................................... 255,549 240,414
Treasury stock, at cost, 299,842 and 307,577 shares at
December 31, 1997 and 1996, respectively................ (6,086) (6,242)
---------- ----------
Total common shareholders' equity................... 408,751 393,394
---------- ----------
Preferred stock (Note H)
Not subject to mandatory redemption....................... 30,102 30,280
Subject to mandatory redemption........................... 6,120 6,372
Deferred compensation related to preferred stock held by
ESOP...................................................... (18,766) (20,751)
Long-term debt, net (Note E)................................ 365,897 340,859
---------- ----------
Total capitalization................................ 792,104 750,154
---------- ----------
Current liabilities
Short-term debt (Note E).................................. 34,219 65,161
Long-term debt due within one year (Note E)............... 15,000 15,000
Accounts payable.......................................... 53,365 50,022
Customer deposits......................................... 20,172 19,761
Taxes accrued (Note J).................................... 12,211 5,806
Interest accrued.......................................... 7,681 7,521
Accumulated deferred fuel................................. 2,965 2,168
Other current liabilities................................. 5,102 3,252
---------- ----------
Total current liabilities........................... 150,715 168,691
---------- ----------
Deferred credits
Accumulated deferred federal and state income taxes
(Note J)................................................ 296,123 281,684
Accumulated deferred investment tax credits (Note J)...... 29,574 31,364
Regulatory liabilities -- deferred taxes (Note J)......... 62,468 60,058
Other deferred credits.................................... 30,060 29,820
---------- ----------
Total deferred credits.............................. 418,225 402,926
---------- ----------
Commitments and contingencies (Notes E, F, H, I, J and K)
TOTAL CAPITALIZATION AND LIABILITIES................ $1,361,044 $1,321,771
========== ==========
|
The accompanying notes are an integral part of the consolidated financial statements.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended December 31
--------------------------------
1997 1996 1995
-------- -------- --------
(In thousands)
OPERATING ACTIVITIES
Net income................................................ $ 52,519 $ 52,135 $ 48,703
Adjustments to reconcile net income to net cash provided
by operating activities
Depreciation and amortization......................... 47,719 44,548 42,398
Allowance for funds used during construction.......... (789) (1,724) (2,940)
Amortization of investment tax credits................ (1,790) (1,809) (1,814)
Deferred income taxes................................. 2,908 3,818 2,854
Deferred fuel costs................................... 797 (1,483) (2,463)
Restructuring charge.................................. 1,285
Loss on disposition of utility plant, net............. (224) (20) (270)
Changes in assets and liabilities
Accounts receivable, net........................... (4,441) (26,837) (5,928)
Unbilled revenues.................................. 103 (8,095) (2,525)
Fuel, material and supplies inventories............ 3,334 (1,877) 611
Accounts payable................................... 2,058 (1,065) 7,621
Customer deposits.................................. 411 36 212
Taxes accrued...................................... 6,405 3,303 (759)
Interest accrued................................... 160 (1,388) 611
Other, net............................................ 7,321 1,251 1,343
-------- -------- --------
Net cash provided by operating activities.......... 117,776 60,793 87,654
-------- -------- --------
INVESTING ACTIVITIES
Additions to utility plant................................ (77,525) (64,425) (57,839)
Allowance for funds used during construction.............. 789 1,724 2,940
Sale of utility plant..................................... 417 482 546
Purchase of investments................................... (222) (420) (2,618)
Sale of investments....................................... 1 807 14,278
-------- -------- --------
Net cash used in investing activities.............. (76,540) (61,832) (42,693)
-------- -------- --------
FINANCING ACTIVITIES
Issuance of common stock.................................. 66 288 379
Repurchase of common stock................................ (16) (16)
Redemption of preferred stock............................. (252) (238) (310)
Issuance of long-term debt................................ 40,000 45,000 25,000
Retirement of long-term debt.............................. (15,000) (50,000) (15,481)
Increase (decrease) in short-term debt, net............... (30,942) 42,099 (5,915)
Dividends paid on common and preferred stock, net......... (37,384) (36,408) (35,453)
-------- -------- --------
Net cash provided by (used in) financing
activities....................................... (43,528) 725 (31,780)
-------- -------- --------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS........ (2,292) (314) 13,181
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR.............. 20,307 20,621 7,440
-------- -------- --------
CASH AND CASH EQUIVALENTS AT END OF YEAR.................... $ 18,015 $ 20,307 $ 20,621
======== ======== ========
Supplementary cash flow information
Interest paid (net of amount capitalized)................. $ 28,770 $ 29,881 $ 27,744
======== ======== ========
Income taxes paid......................................... $ 23,752 $ 20,351 $ 24,357
======== ======== ========
|
The accompanying notes are an integral part of the consolidated financial statements.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN
COMMON SHAREHOLDERS' EQUITY
For the Years Ended December 31, 1995, 1996 and 1997
-------------------------------------------------------------------
Common Stock Premium Treasury Stock
--------------------- on Capital Retained ----------------
Shares Amount Stock Earnings Shares Cost
---------- ------- ------------ -------- ------- ------
(In thousands, except share and per share amounts)
BALANCE, JANUARY 1, 1995............ 22,720,074 $45,440 $113,070 $211,198 329,433 $6,681
Redemptions of preferred stock...... 39
Incentive stock options exercised... 25,030 50 329
Issuance of treasury stock.......... 6 (10,987) (222)
Dividend requirements, preferred
stock, net........................ (2,052)
Cash dividends paid, common stock,
$1.49 per share................... (33,401)
Change in unrealized holding loss on
available-for-sale securities,
net............................... 240
Net income.......................... 48,703
---------- ------- -------- -------- ------- ------
BALANCE, DECEMBER 31, 1995.......... 22,745,104 45,490 113,444 224,688 318,446 6,459
---------- ------- -------- -------- ------- ------
Redemptions of preferred stock...... 31
Incentive stock options exercised... 15,050 30 220
Issuance of treasury stock.......... 7 (11,484) (233)
Incentive shares forfeited.......... 615 16
Dividend requirements, preferred
stock, net........................ (2,073)
Cash dividends paid, common stock,
$1.53 per share................... (34,336)
Net income.......................... 52,135
---------- ------- -------- -------- ------- ------
BALANCE, DECEMBER 31, 1996.......... 22,760,154 45,520 113,702 240,414 307,577 6,242
---------- ------- -------- -------- ------- ------
Redemptions of preferred stock...... 18
Incentive stock options exercised... 2,600 5 38
Issuance of treasury stock.......... 5 (8,528) (172)
Incentive shares forfeited.......... 793 16
Dividend requirements, preferred
stock, net........................ (2,118)
Cash dividends paid, common stock,
$1.57 per share................... (35,266)
Net income.......................... 52,519
---------- ------- -------- -------- ------- ------
BALANCE, DECEMBER 31, 1997.......... 22,762,754 $45,525 $113,763 $255,549 299,842 $6,086
========== ======= ======== ======== ======= ======
|
The accompanying notes are an integral part of the consolidated financial statements.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE A -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRESENTATION AND REGULATION
Central Louisiana Electric Company, Inc. (the Company) provides electric service to a diversified base of residential, commercial and industrial customers in 23 parishes of Louisiana. The Company maintains its accounts in accordance with the Uniform System of Accounts prescribed for electric utilities by the Federal Energy Regulatory Commission (FERC), as adopted by the Louisiana Public Service Commission (LPSC). The Company's retail rates for residential, commercial and industrial customers and other retail sales are regulated by the LPSC, and its rates for transmission services and wholesale power sales are regulated by the FERC.
The consolidated financial statements include the accounts of the Company and all subsidiaries in which the Company holds at least a majority interest. Intercompany balances and transactions are eliminated in consolidation.
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
RECLASSIFICATION
Certain reclassifications have been made to the 1996 and 1995 consolidated financial statements to conform to the presentation used in the 1997 consolidated financial statements. These reclassifications had no effect on net income applicable to common stock or total common shareholders' equity.
UTILITY PLANT AND DEPRECIATION
Utility plant is stated at the original cost of construction, which includes certain materials, labor, payroll taxes and benefits, administrative and general costs, and the estimated cost of funds used during construction. The cost of repairs and minor replacements is charged as incurred to the appropriate operating expense and clearing accounts. The cost of improvements is capitalized. Upon retirement or disposition, the recorded cost of depreciable plant and the cost of removal, net of salvage value, are charged to accumulated depreciation.
The provision for depreciation is computed using the straight-line method at rates which will amortize the unrecovered cost of depreciable property over its estimated useful life. Annual depreciation provisions expressed as a percentage of average depreciable property were 3.27% for 1997, 3.21% for 1996 and 3.19% for 1995.
CASH EQUIVALENTS
The Company considers highly liquid, marketable securities and other similar instruments with original maturity dates of three months or less at the time of purchase to be cash equivalents.
INCOME TAXES
Deferred income taxes are provided at the current enacted income tax rate on all temporary differences between tax and book bases of assets and liabilities. The Company recognizes regulatory assets and liabilities for the tax effect of temporary differences, which, to the extent past ratemaking practices are continued by regulators, will be realized over the accounting lives of the related properties.
INVESTMENT TAX CREDITS
Investment tax credits which were deferred for financial statement purposes are amortized to income over the estimated service lives of the properties which gave rise to the credits.
DEBT EXPENSE, PREMIUM AND DISCOUNT
Expense, premium and discount applicable to debt securities are amortized to income ratably over the lives of the related issues. Expense and call premium related to refinanced debt are amortized over the remaining life of the original issue.
REVENUES AND FUEL COSTS
Revenues from sales of electricity are recognized based upon the amount of energy delivered. The cost of fuel is currently recovered from customers through fuel adjustment clauses, based upon fuel costs incurred in prior months. These adjustments are subject to audit and final determination by regulators.
ALLOWANCE FOR FUNDS USED DURING CONSTRUCTION (AFUDC)
The capitalization of AFUDC is a utility accounting practice prescribed by the FERC and the LPSC. AFUDC represents the estimated cost of financing construction work-in-progress. AFUDC does not represent a current source of cash, but under regulatory practices, a return on and recovery of AFUDC is permitted in setting rates charged for utility services. The composite AFUDC rate, including borrowed and other funds on a combined basis, for 1997 was 13.97% on a pre-tax basis (8.59% net of tax), 13.33% on a pre-tax basis (8.20% net of tax) for 1996, and 15.10% on a pre-tax basis (9.29% net of tax) for 1995.
DERIVATIVES
From time to time, the Company or its subsidiaries may limit exposure to interest rate risk or electricity or generator boiler-fuel market price risk by using hedging transactions. In each case, the transactions reflect underlying indebtedness or commodity requirements. No transactions are entered into for speculative purposes. The Company did not engage in any interest rate hedges in 1997 and had no significant amounts of natural gas futures transactions outstanding at December 31, 1997.
RECENT ACCOUNTING STANDARDS
Statements of Financial Accounting Standards No. 130, "Reporting Comprehensive Income," and No. 131, "Disclosure about Segments of an Enterprise and Related Information," are required to be implemented during the Company's fiscal year ending December 31, 1998. These pronouncements are not expected to have a significant effect on the Company's consolidated financial condition and results of operations.
EARNINGS PER AVERAGE COMMON SHARE
Earnings per average common share have been computed using the weighted average number of shares of common stock outstanding during the year. Earnings per average common share have been restated for the years 1997, 1996 and 1995 to reflect the Company's adoption of SFAS No. 128, "Earnings per Share." The following table is a reconciliation of the components in the calculation of basic and diluted earnings per share.
For the year ended December 31
(In thousands, except per share amounts)
1997 1996
------------------------------------ ---------------------------
Per-
INCOME SHARES share Income Shares
(NUMERATOR) (DENOMINATOR) Amount (Numerator) (Denominator)
----------- ------------- ------ ----------- -------------
Net income............ $52,519 $52,135
Less: preferred
dividend
requirements, net.... (2,117) (2,074)
------- -------
BASIC EPS
Income available for
common
shareholders......... $50,402 22,460 $2.24 $50,061 22,443
=====
EFFECT OF DILUTIVE
SECURITIES
Stock option grants... 7 10
Convertible ESOP
preferred stock...... 1,646 1,397 1,549 1,405
------- ------ ------- ------
DILUTED EPS
Income available to
common shareholders +
assumed
conversions.......... $52,048 23,864 $2.18 $51,610 23,858
======= ====== ===== ======= ======
For the year ended December 31
(In thousands, except per share amounts)
1996 1995
------ ------------------------------------
Per- Per-
share Income Shares share
Amount (Numerator) (Denominator) Amount
------ ----------- ------------- ------
Net income............ $48,703
Less: preferred
dividend
requirements, net.... (2,052)
-------
BASIC EPS
Income available for
common
shareholders......... $2.23 $46,651 22,418 $2.08
===== =====
EFFECT OF DILUTIVE
SECURITIES
Stock option grants... 13
Convertible ESOP
preferred stock...... 1,483 1,416
------- ------
DILUTED EPS
Income available to
common shareholders +
assumed
conversions.......... $2.16 $48,134 23,847 $2.02
===== ======= ====== =====
|
NOTE B -- JOINTLY OWNED GENERATING UNITS
Two electric generating units operated by the Company are jointly owned with other utilities. The Company's proportionate share of operation and maintenance expenses associated with these two units is reflected in the financial statements.
At December 31, 1997
-------------------------
Rodemacher Dolet Hills
Unit #2 Unit #1
---------- -----------
(Dollar amounts in
thousands)
Percentage of ownership..................................... 30% 50%
Utility plant in service.................................... $82,251 $272,618
Accumulated depreciation.................................... $39,155 $ 95,312
Unit capability (thousand kilowatts)........................ 523.0 650.0
Share of capability (thousand kilowatts).................... 156.9 325.0
|
NOTE C -- RECEIVABLES
During 1996, the Company participated in a program in which it sold an ownership interest in certain types of accounts receivable and unbilled revenues. A maximum of $35 million of receivables could be sold at any time and new receivables were sold as previously sold receivables were collected. The Company discontinued selling receivables in late 1996 and terminated its participation in the program in early 1997.
For the year ended
December 31
------------------
1997 1996
------- -------
(In thousands)
Receivables sold but not collected (at
year-end)............................. $ 0 $ 0
Average amount of receivables sold...... $ 0 $33,706
Costs charged to operating expense...... $ 0 $ 1,911
Receivables subject to repurchase (at
year-end)............................. $ 0 $ 0
Accumulated provision for uncollectible
accounts (at year-end)................ $ 684 $ 681
|
NOTE D -- FAIR VALUE OF FINANCIAL INSTRUMENTS
The amounts reflected in the financial statements at December 31, 1997 and 1996 for cash and cash equivalents, accounts receivable, accounts payable and short-term debt approximate fair value because of their short-term nature. The fair value of investments at December 31, 1997 and 1996 is estimated based on quoted market prices for these or similar investments. The fair value of the Company's long-term debt and nonconvertible preferred stock is estimated based upon the quoted market price for the same or similar issues or by a discounted present value analysis of future cash flows using current rates obtainable by the Company for debt and preferred stock with similar maturities. The fair value of convertible preferred stock is estimated assuming its conversion into common stock at the market price per common share at December 31, 1997 and 1996, with proceeds from the sale of the common stock used to repay the principal balance of the Company's loan to the ESOP.
At December 31
---------------------------------------------
1997 1996
--------------------- ---------------------
CARRYING Estimated Carrying Estimated
VALUE Fair Value Value Fair Value
-------- ---------- -------- ----------
(In thousands)
Investments..................................... $ 807 $ 807 $ 585 $ 585
Long-term debt.................................. $381,260 $395,183 $356,260 $364,784
Preferred stock:
Not subject to mandatory redemption........... $ 11,336 $ 24,248 $ 9,529 $ 15,889
Subject to mandatory redemption............... $ 6,120 $ 5,058 $ 6,372 $ 5,490
|
NOTE E -- DEBT
The Company has revolving credit facilities totaling $125 million. A $100 million facility, which is scheduled to continue to June 15, 2000, and a $25 million facility, which is scheduled to expire on March 19, 1998, provide for uncollateralized borrowings at prevailing interest rates, and the $100 million facility provides for borrowings at interest rates established by competitive bid. Commitment fees are based upon the Company's lowest secured debt ratings and are currently 0.10% on the $100 million facility and 0.05% on the $25 million facility. Compensating balances are not maintained in connection with either revolving credit facility. In addition, various uncommitted borrowing arrangements with banks total $20 million. The banks are not obligated to lend under uncommitted arrangements, and any borrowings are made at negotiated interest rates and are uncollateralized. No fees are paid on any of the uncommitted arrangements, nor are compensating balances required. The weighted average interest rate on short-term debt was 5.97% at December 31, 1997 and 5.56% at December 31, 1996.
Total indebtedness for the two-year period ended December 31, 1997 was as follows:
At December 31
-------------------
1997 1996
-------- --------
(In thousands)
Commercial paper, net....................................... $ 34,219 $ 65,161
======== ========
Total short-term debt..................................... $ 34,219 $ 65,161
======== ========
First mortgage bonds Series X, 9 1/2%, due 2005............. $ 60,000 $ 60,000
Pollution control revenue bonds, variable rate, due 2018.... 61,260 61,260
Medium-term notes
9.10%, due 1997........................................... 5,000
9.15%, due 1997........................................... 10,000
7.85%, due 2000........................................... 25,000 25,000
7.55%, due 2004, callable at 100%, 2002................... 15,000 15,000
7.50%, due 2004, callable at 100%, 2002................... 10,000 10,000
7.00%, due 2003........................................... 10,000 10,000
6.90%, due 1998........................................... 15,000 15,000
5.90%, due 1999........................................... 10,000 10,000
6.55%, due 2003........................................... 15,000 15,000
6.33%, due 2002........................................... 25,000 25,000
5.78%, due 2001........................................... 10,000 10,000
6.20%, due 2006........................................... 15,000 15,000
6.42%, due 2001........................................... 15,000 15,000
6.95%, due 2006........................................... 10,000 10,000
6.53%, due 2007........................................... 10,000 10,000
6.32%, due 2006........................................... 15,000 15,000
6.28%, due 2008, putable at 100%, 1999.................... 20,000 20,000
7.50%, due 2007........................................... 15,000
7.00%, due 2007........................................... 25,000
-------- --------
Total long-term debt.............................. $381,260 $356,260
Amount due within one year.................................. (15,000) (15,000)
Unamortized premium and discount, net....................... (363) (401)
-------- --------
Total long-term debt, net.............................. $365,897 $340,859
======== ========
|
1998 1999 2000 2001 2002 Thereafter
------- ------- ------- ------- ------- ----------
(In thousands)
Amounts payable under long-
term debt agreements........ $15,000 $30,000 $25,000 $25,000 $25,000 $261,260
======= ======= ======= ======= ======= ========
|
NOTE F -- COMMON STOCK
In association with incentive compensation plans in effect during the three-year period ended December 31, 1997, certain officers and key employees were awarded shares of restricted common stock. The cost of the restricted stock awards, as measured by the market value of the common stock at the time of the grant, is recorded as compensation expense during the periods in which the restrictions lapse. Had the Company accounted for the value of these awards after 1994 using an estimate of their "fair value," including the effects of historical volatility of the market price, rather than their "intrinsic value," additional compensation expense of $57,512, $104,272 and $42,154 would have been recorded for the years 1997, 1996 and 1995, respectively.
The Company makes no charge to expense with respect to the granting of options. At December 31, 1997, all options were exercisable. The number of shares of restricted stock previously granted for which restrictions had not lapsed totaled 50,946 shares.
Changes in incentive shares for the three-year period ended December 31, 1997 were as follows:
Incentive Shares
----------------------------------------------
Option Price Unexercised Available for
per Share Option Shares Future Grants
------------ ------------- -------------
Balance, January 1, 1995............ 59,230 757,431
------- -------
Options exercised................... $14.75 (18,230)
$16.78 (6,800)
Restricted stock granted............ (11,186)
------- -------
Balance, December 31, 1995.......... 34,200 746,245
------- -------
Options exercised................... $14.75 (1,250)
$16.78 (13,800)
Options lapsed...................... $14.75 (750)
Restricted stock granted............ (12,751)
Restricted stock forfeited.......... 615
Incentive stock awarded............. (2,258)
------- -------
Balance, December 31, 1996.......... 18,400 731,851
------ ------- -------
Options exercised................... $16.78 (2,600)
Restricted stock granted............ (20,904)
Restricted stock forfeited.......... 793
Incentive stock awarded............. (3,701)
------- -------
BALANCE, DECEMBER 31, 1997.......... 15,800 708,039
======= =======
|
The Company's charter and various debt agreements to which the Company is a party contain covenants which restrict the amount of retained earnings that may be distributed as dividends to common shareholders. The most restrictive covenant requires that common shareholders' equity be not less than 35% of total capitalization, including short-term debt. At December 31, 1997, approximately $114.3 million of retained earnings was not restricted.
NOTE G -- SUPPLEMENTARY PROFIT AND LOSS INFORMATION
For the years ended December 31
--------------------------------
1997 1996 1995
-------- -------- --------
(In thousands)
Operating revenue derived from one customer................. $36,260 $33,359 $28,695
======= ======= =======
Other taxes included in the consolidated income
statements................................................ $33,422 $29,595 $29,063
Other taxes capitalized to plant............................ 1,325 1,049 1,010
------- ------- -------
Total other taxes........................................... $34,747 $30,644 $30,073
======= ======= =======
Other taxes consist of:
Parish and municipal property............................. $21,436 $16,302 $15,868
State and municipal franchise............................. 10,204 10,434 10,072
Other..................................................... 3,107 3,908 4,133
------- ------- -------
Total other taxes........................................... $34,747 $30,644 $30,073
======= ======= =======
|
NOTE H -- PREFERRED STOCK
In connection with the establishment of the ESOP, the Company sold 300,000 shares of 8.125% convertible preferred stock to the ESOP. Each share of preferred stock is convertible into 4.8 shares of common stock. The amount of total capitalization reflected in the consolidated financial statements has been reduced by an amount of deferred compensation expense related to the shares of convertible preferred stock which have not yet been allocated to ESOP participants. The amount
shown in the consolidated financial statements for preferred dividend requirements in 1997, 1996 and 1995 has been reduced by $587,000, $658,000 and $716,000, respectively, to reflect the benefit of the income tax deduction for dividend requirements on unallocated shares held by the ESOP.
Upon involuntary liquidation, preferred shareholders are entitled to receive par value for shares held before any distribution is made to common shareholders. Upon voluntary liquidation, preferred shareholders are entitled to receive the redemption price per share applicable at the time such liquidation occurs plus any accrued dividends.
Information about the components of preferred stock capitalization is as follows:
Balance Balance BALANCE BALANCE
Jan. 1, Dec. 31, DEC. 31, DEC. 31,
1995 Change 1995 Change 1996 CHANGE 1997
--------- ------- --------- ------- --------- ------- ---------
(In thousands, except share amounts)
CUMULATIVE PREFERRED STOCK, $100 par
value
NOT SUBJECT TO MANDATORY REDEMPTION
4.50%............................... $ 1,029 $ 1,029 $ 1,029 $ 1,029
Convertible, Series of 1991,
variable rate..................... 29,719 $ (229) 29,490 $ (239) 29,251 $ (178) 29,073
--------- ------- --------- ------- --------- ------- ---------
$ 30,748 $ (229) $ 30,519 $ (239) $ 30,280 $ (178) $ 30,102
========= ======= ========= ======= ========= ======= =========
SUBJECT TO MANDATORY REDEMPTION
4.50%, Series of 1955............... $ 440 $ (40) $ 400 $ (40) $ 360 $ (40) $ 320
4.65%, Series of 1964............... 3,360 (140) 3,220 (140) 3,080 (140) 2,940
4.75%, Series of 1965............... 3,120 (130) 2,990 (58) 2,932 (72) 2,860
--------- ------- --------- ------- --------- ------- ---------
$ 6,920 $ (310) $ 6,610 $ (238) $ 6,372 $ (252) $ 6,120
========= ======= ========= ======= ========= ======= =========
Deferred compensation related to
convertible preferred stock held by
the ESOP............................ $ (24,404) $ 1,809 $ (22,595) $ 1,844 $ (20,751) $ 1,985 $ (18,766)
========= ======= ========= ======= ========= ======= =========
CUMULATIVE PREFERRED STOCK,
$100 par value
Number of Shares
Authorized.......................... 1,416,800 (2,700) 1,414,100 (1,975) 1,412,125 (2,125) 1,410,000
Issued and Outstanding.............. 376,676 (5,389) 371,287 (4,768) 366,519 (4,301) 362,218
========= ======= ========= ======= ========= ======= =========
CUMULATIVE PREFERRED STOCK,
$25 par value
Number of Shares Authorized (None
outstanding)........................ 3,000,000 3,000,000 3,000,000 3,000,000
========= ========= ========= =========
|
Preferred stock, other than the convertible preferred stock held by the ESOP, is redeemable at the Company's option, subject to 30 days' prior written notice to holders. Preferred stock subject to mandatory redemption is redeemable annually through sinking funds or purchase funds at prices of not more than $100 per share until all shares have been redeemed. The convertible preferred stock is redeemable at any time at the Company's option. If the Company were to elect to redeem the convertible preferred shares, shareholders may elect to receive the optional redemption price or
convert the preferred shares into common stock. The redemption provisions for the various series of preferred stock are shown in the following table.
Optional Redemption Mandatory Redemption
------------------- ----------------------------
Price Number of Price
Series per Share Shares Annually per Share
------ --------- --------------- ---------
4.50%................................ $101
4.50%, Series of 1955................ $102 400 $100
4.65%, Series of 1964................ $102 1,400* $100
4.75%, Series of 1965................ $100 1,300* $100
Convertible, Series of 1991
Through March 31, 1998............. $103.25
Thereafter......................... $102.4375 to $100
|
* The Company is required to offer holders of the Series of 1964 the opportunity to redeem 1,400 shares each year and holders of the Series of 1965 the opportunity to redeem 1,300 shares each year. Only shares actually tendered, if any, are required to be redeemed.
NOTE I -- PENSION PLAN AND EMPLOYEE BENEFITS
Substantially all employees are covered by a noncontributory, defined benefit pension plan. Benefits under the plan reflect an employee's years of service, age at retirement and highest total average compensation for any consecutive five calendar years during the last ten years of employment with the Company. The Company's policy is to fund contributions to the employee pension plan based upon actuarial computations utilizing the projected unit credit method, subject to the Internal Revenue Service's full funding limitation. No contributions to the pension plan were required during the three-year period ended December 31, 1997.
For the years ended December 31
---------------------------------
1997 1996 1995
--------- -------- --------
(In thousands)
Service costs for benefits earned during the
period........................................... $ 2,984 $ 3,010 $ 2,498
Interest costs on projected benefit obligation..... 7,288 6,768 6,542
Actual gain on assets.............................. (10,290) (9,572) (8,920)
Net amortization and deferral...................... (970) (1,037) (1,037)
-------- ------- -------
Net pension benefit cost........................... $ (988) $ (831) $ (917)
======== ======= =======
Actuarial assumptions
Weighted average discount rate................... 7.00% 7.50% 7.00%
Rate of increase in future compensation.......... 5.00% 5.00% 5.00%
Rate of return on plan assets.................... 9.50% 9.50% 9.50%
|
Employee pension plan assets are invested in the Company's common stock, other publicly traded domestic common stocks, U.S. government, federal agency and corporate obligations, an international equity fund, commercial real estate funds and pooled temporary investments.
The employee pension plan's funded status as determined by the actuary at December 31, 1997 and 1996 is presented in the following table.
1997 1996
--------- --------
(In thousands)
Actuarial present value of benefit obligation
Vested benefits........................................... $ (91,000) $(77,769)
Nonvested benefits........................................ (7,927) (3,648)
--------- --------
Accumulated benefit obligation............................ (98,927) (81,417)
Effect of projected future compensation levels............ (24,155) (16,307)
--------- --------
Projected benefit obligation for service rendered to date... (123,082) (97,724)
Plan assets at fair market value............................ 163,574 138,672
--------- --------
Plan assets in excess of projected benefit obligation....... 40,492 40,948
Unamortized transition asset................................ (7,943) (9,261)
Unrecognized net gain....................................... (26,101) (26,226)
--------- --------
Prepaid pension asset....................................... $ 6,448 $ 5,461
========= ========
|
Effective January 1, 1998, the Company changed the method of calculating fair market value of assets to reflect the difference between actual and projected appreciation for the current year ratably over five years. Also, on January 1, 1998, the Company increased the crediting rates for each year of service but limited the maximum number of years of service credited to 35.
Substantially all employees are eligible to participate in a savings and
investment plan (401(k) Plan). The Company makes matching contributions to
401(k) Plan participants by allocating shares of convertible preferred stock
held by the ESOP. Compensation expense related to the 401(k) Plan is based upon
the value of shares of preferred stock allocated to ESOP participants and the
amount of interest incurred by the ESOP, less dividends on unallocated shares
held by the ESOP. At December 31, 1997 and 1996, the ESOP had allocated to
employees 109,668 and 90,905 shares, respectively.
The table below contains information about the 401(k) Plan and the ESOP:
For the years ended December 31
--------------------------------
1997 1996 1995
-------- -------- --------
(In thousands)
401(k) Plan expense.................................... $1,453 $1,490 $1,542
------ ------ ------
Dividend requirements to ESOP on convertible preferred
stock................................................ $2,367 $2,378 $2,396
------ ------ ------
Interest incurred by ESOP on its indebtedness.......... $1,604 $1,746 $1,905
------ ------ ------
Company contributions to ESOP.......................... $1,235 $1,239 $1,071
------ ------ ------
|
The Company's retirees and their dependents are eligible to receive health, dental and life insurance benefits. The Company recognizes the expected cost of these benefits during the periods in which the benefits are earned.
The components of net postretirement benefit cost for 1997, 1996 and 1995 were as follows:
1997 1996 1995
------ ------ ------
(In thousands)
Service costs for benefits earned...................... $ 601 $ 596 $ 639
Interest costs......................................... 1,034 934 1,066
Amortization of transition obligation.................. 513 513 513
Amortization of net loss............................... (82)
------ ------ ------
Net postretirement benefit cost........................ $2,066 $2,043 $2,218
====== ====== ======
|
The financial status of the postretirement benefit plan at December 31, 1997 and 1996, as determined by the actuary, is presented in the following table.
1997 1996
------- -------
(In thousands)
Accumulated benefit obligation
Retirees.................................................. $ 8,807 $ 8,169
Fully eligible participants............................... 3,411 2,581
Other active participants................................. 3,161 2,591
------- -------
Total accumulated benefit obligation........................ 15,379 13,341
Unamortized transition obligation........................... (7,700) (8,213)
Unrecognized gain........................................... 1,676 3,005
------- -------
Accrued unfunded postretirement benefit liability........... $ 9,355 $ 8,133
======= =======
|
The assumed health care cost trend rate used to measure the expected cost of benefits was 9.5% in 1997, declining to 5.5% by 2008 and remaining at 5.5% thereafter. The initial health care cost trend rate was reduced from 10% in 1996 to 9.5% in 1997 and resulted in an unrecognized gain. If the health care cost trend rate assumptions were increased by 1%, the accumulated benefit obligation would be $15.7 million at December 31, 1997, and the aggregate of the service and interest cost components of the net periodic cost of health care benefits would be $1.7 million annually. The weighted average assumed discount rate used to measure the accumulated benefit obligation in 1997 was changed from 7.5% to 7.25% and resulted in a minimal unrecognized gain. The weighted average assumed discount rate used to measure the accumulated benefit obligation in 1996 was changed from 7% to 7.5% and, together with a decrease in per capita claims cost, resulted in an unrecognized gain.
NOTE J -- INCOME TAX EXPENSE
Federal income tax expense is less than the amount computed by applying the statutory federal rate to book income before tax as follows:
For the years ended December 31
---------------------------------------------------
1997 1996 1995
--------------- --------------- ---------------
AMOUNT % Amount % Amount %
------- ----- ------- ----- ------- -----
(In thousands, except for %)
Book income before tax................ $80,248 100.0 $78,289 100.0 $73,932 100.0
Tax at statutory rate on book income
before tax.......................... $28,087 35.0 $27,401 35.0 $25,876 35.0
Increase (decrease):
Tax effect of AFUDC................. (276) (0.3) (185) (0.2) (1,029) (1.4)
Amortization of investment tax
credits.......................... (1,790) (2.2) (1,809) (2.3) (1,814) (2.5)
Tax effect of prior-year tax
benefits not deferred............ 978 1.2 921 1.1 900 1.2
Other, net.......................... (2,645) (3.3) (3,296) (4.2) (1,435) (1.9)
------- ----- ------- ----- ------- -----
Total federal income tax expense...... 24,354 30.4 23,032 29.4 22,498 30.4
------- ----- ------- ----- ------- -----
Current state income tax expense...... 3,375 4.2 3,122 4.0 2,731 3.7
------- ----- ------- ----- ------- -----
Total federal and state income tax
expense............................. $27,729 34.6 $26,154 33.4 $25,229 34.1
======= ===== ======= ===== ======= =====
|
Information about current and deferred income tax expense is as follows:
1997 1996 1995
------- ------- -------
(In thousands)
Current federal income tax expense.................. $23,236 $21,023 $21,458
Deferred federal income tax expense................. 2,908 3,818 2,854
Amortization of accumulated deferred investment tax
credits........................................... (1,790) (1,809) (1,814)
------- ------- -------
Total federal income tax expense.................... 24,354 23,032 22,498
Current state income tax expense.................... 3,375 3,122 2,731
------- ------- -------
Total federal and state income tax expense.......... $27,729 $26,154 $25,229
======= ======= =======
Deferred federal income tax expense attributable to:
Depreciation...................................... $ 2,733 $ 4,834 $ 3,746
Storm damages..................................... (332) 70 (15)
Asset basis differences........................... (1,707) 425 (1,213)
Employee benefits................................. 321 (504) (558)
Fuel costs........................................ 790 (481) 890
Reacquired debt................................... 1,037 (238) (288)
Other............................................. 66 (288) 292
------- ------- -------
Total deferred federal income tax expense......... $ 2,908 $ 3,818 $ 2,854
======= ======= =======
|
The balance of accumulated deferred federal and state income tax assets and liabilities at December 31, 1997 and 1996 was comprised of the tax effect of the following:
1997 1996
-------------------- --------------------
ASSET Liability Asset Liability
------- --------- ------- ---------
(In thousands)
Depreciation and property basis
differences......................... $ 6,978 $132,491 $ 6,851 $129,710
Allowance for funds used during
construction........................ 40,608 41,564
Investment tax credits................ 18,498 19,617
FASB 109 adjustments.................. 42,614 112,562 38,897 101,287
Postretirement benefits other than
pension............................. 3,266 3,007
Other................................. 5,200 10,462 5,859 9,123
------- -------- ------- --------
Accumulated deferred federal and state
income taxes........................ $76,556 $296,123 $74,231 $281,684
======= ======== ======= ========
|
Regulatory assets recorded for deferred taxes at December 31, 1997 and 1996 were $115.3 million and $103.8 million, respectively. Regulatory liabilities recorded for deferred taxes at December 31, 1997 and 1996 were $62.5 million and $60.1 million, respectively. Regulatory assets and liabilities will be realized over the accounting lives of the related properties to the extent past ratemaking practices are continued by regulators.
NOTE K -- COMMITMENTS AND CONTINGENCIES
Construction expenditures for 1998 are estimated to be $54.9 million, excluding AFUDC, and for the five-year period ending 2002 are expected to total $253 million, excluding AFUDC. Scheduled maturities of debt and preferred stock will total approximately $15.3 million for 1998 and approximately $121.6 million for the five-year period ending 2002.
The Company has entered into various long-term contracts for the procurement of coal and lignite to fuel certain of its generating stations. These contracts contain provisions for price changes, minimum purchase levels and other financial commitments. The Company purchases, as an additional fuel source for generation, natural gas under short-term contracts on the spot market.
The Company and another utility filed suit against a joint venture and its partners who mine lignite for one of the Company's jointly-owned electric generating units. The joint venture has filed counterclaims. The counterclaims resulted in the filing of another suit by the Company and the other utility against the joint venture's parent company. Management believes the counterclaims, if successful, would not have a material adverse effect on the Company's financial position or results of operations. Normal day-to-day operations continue at the mining facility and the Company's electric generating unit.
The coal for one of the Company's jointly-owned electric generating units is transported under a long-term transportation contract with a railroad. The railroad is overcoming operating problems, which began in 1997 and resulted in reduced volumes delivered to the unit. Coal inventory at the unit is currently below the Company's desired minimum level. Based on the railroad's anticipated delivery schedule of future coal shipments, management anticipates restoration of the coal inventory at the unit to desired levels by July 1998.
The Company has accrued for liabilities to third parties, environmental claims, employee medical benefits, storm damages and deductibles under insurance policies which it maintains on major properties, primarily generating stations and transmission substations. Consistent with regulatory treatment, annual charges to operating expense to provide a reserve for future storm
damages are based upon the average amount of noncapital, uninsured storm damages experienced by the Company during the previous five years.
The Company has committed to provide credit support up to $10 million for working capital and electricity or natural gas commodity positions for CLECO ENERGY, L.L.C. Commitments for asset development projects will be made as they occur up to $5 million per year for the next five years.
The Company has recorded regulatory assets and liabilities, primarily for the effects of income taxes, as a result of past rate actions of its regulators, pursuant to Statement of Financial Accounting Standards No. 71, "Accounting for the Effects of Certain Types of Regulation" (SFAS 71). The effects of potential deregulation of the industry or possible future changes in the method of rate regulation of the Company could require the Company to discontinue the application of SFAS 71, pursuant to Statement of Financial Accounting Standards No. 101, "Regulated Enterprises -- Accounting for the Discontinuation of Application of FASB Statement No. 71" (SFAS 101). At December 31, 1997, the Company recorded $52.8 million of regulatory assets, net of regulatory liabilities, because of the regulatory requirement to flow through the tax benefits of accelerated deductions to current customers and an implied regulatory compact that future customers would pay when the Company paid the additional taxes. These differences occur over the lives of relatively long-lived assets, up to 30 years or more. Under the current regulatory and competitive environment, the Company believes that these regulatory assets are fully recoverable. However, if in the future, as a result of regulatory changes or increased competition, its ability to recover these regulatory assets would not be probable, then to the extent that such regulatory assets were determined not to be recoverable, it would be required to write off or write down such assets.
Statement of Financial Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of" (SFAS 121), establishes accounting standards for determining if long-lived assets are impaired, and when and how losses, if any, should be recognized. The Company believes that the net cash flows that will result from the operation of its assets are sufficient to cover the carrying value of the assets.
The Emerging Issues Task Force (EITF) assists the Financial Accounting
Standards Board (FASB) in identifying emerging issues affecting financial
reporting. In 1997, the EITF reached a consensus in Issue No. 97-4:
"Deregulation of the Pricing of Electricity -- Issues Related to the Application
of SFAS No. 71 and No. 101." EITF 97-4 specified that SFAS No. 71 should be
discontinued at a date no later than when the details of a transition plan
toward the deregulation of electric rates for all or a portion of the entity
subject to such plan are known. However, other factors could cause the
discontinuation of SFAS No. 71 before that date. Additionally, EITF 97-4
establishes that regulatory assets to be recovered through cash flows derived
from another portion of the entity which continues to apply SFAS No. 71 should
not be written off, but rather, should continue to be considered regulatory
assets of the separable portion which will continue to apply SFAS No. 71.
NOTE L -- MISCELLANEOUS FINANCIAL INFORMATION (UNAUDITED)
Quarterly information for 1997 and 1996 is shown in the following table.
1997
----------------------------------------------------
1ST 2ND 3RD 4TH
QUARTER QUARTER QUARTER QUARTER
------- -------- -------- --------
(In thousands, except per share amounts)
Operating revenues......................... $97,668 $105,324 $138,099 $115,154
Operating income........................... $14,798 $ 18,459 $ 28,624 $ 16,929
Net income applicable to common stock...... $ 7,002 $ 10,744 $ 22,360 $ 10,296
Basic earnings per average common
share(2)................................. $ 0.31 $ 0.48 $ 1.00 $ 0.45
Diluted earnings per average common
share(2)................................. $ 0.31 $ 0.47 $ 0.95 $ 0.45
Dividends paid per common share............ $ 0.385 $ 0.395 $ 0.395 $ 0.395
Market price per share
High..................................... $ 28 $ 28 1/8 $ 28 7/16 $ 33 1/8
Low...................................... $ 26 $ 24 3/4 $ 25 13/16 $ 25 9/16
|
1996
----------------------------------------------------
1st 2nd 3rd 4th
Quarter Quarter Quarter Quarter
------- -------- -------- -------
(In thousands, except per share amounts)
Operating revenues(1)....................... $99,042 $113,303 $130,477 $94,299
Operating income............................ $16,747 $ 21,566 $ 27,190 $12,918
Net income applicable to common stock....... $ 9,516 $ 14,026 $ 20,379 $ 6,140
Basic earnings per average common share(2).. $ 0.42 $ 0.63 $ 0.91 $ 0.27
Diluted earnings per average common
share(2).................................. $ 0.41 $ 0.61 $ 0.87 $ 0.27
Dividends paid per common share............. $ 0.375 $ 0.385 $ 0.385 $ 0.385
Market price per share
High...................................... $ 27 3/4 $ 27 3/8 $ 27 1/4 $ 29 1/4
Low....................................... $ 25 3/8 $ 25 1/8 $ 25 3/8 $ 26 1/8
|
(1) Certain prior-period amounts have been reclassified to conform with the presentation shown in the current year's financial statements. These classifications had no effect on net income applicable to common stock or common shareholders' equity.
(2) Earnings per average common share have been restated to reflect the Company's adoption of SFAS No. 128, "Earnings per Share."
The Company's common stock is listed for trading on the New York and Pacific stock exchanges under the ticker symbol "CNL." The Company's preferred stock is not listed on any stock exchange. On December 31, 1997, the Company had 11,088 common and 174 preferred shareholders, as determined from the records of the transfer agent.
On January 23, 1998, the Company's Board of Directors declared a quarterly dividend of 39 1/2 cents per share, payable February 15, 1998, to common shareholders of record on February 2, 1998. Preferred dividends were also declared, payable March 1, 1998, to preferred shareholders of record on February 15, 1998.
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of Central Louisiana Electric Company, Inc.
We have audited the accompanying consolidated balance sheets of Central Louisiana Electric Company, Inc. as of December 31, 1997 and 1996, and the related consolidated statements of income, cash flows and changes in common shareholders' equity for each of the three years in the period ended December 31, 1997. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based upon our audits.
We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of Central Louisiana Electric Company, Inc. as of December 31, 1997 and 1996, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 1997, in conformity with generally accepted accounting principles.
/s/ COOPERS & LYBRAND L.L.P. COOPERS & LYBRAND L.L.P. New Orleans, Louisiana January 27, 1998 |
EXHIBIT 23
[COOPERS & LYBRAND L.L.P. LOGO] CERTIFIED PUBLIC ACCOUNTANTS
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statements of Central Louisiana Electric Company, Inc. on Form S-8 (Registration Nos. 2-79671, 33-10169, 33-38362 and 33-44663) and Form S-3 (Nos. 33-24895, 33-62950 and 333-02895) of our reports dated January 27,1998, on our audits of the consolidated financial statements and financial statement schedule of Central Louisiana Electric Company, Inc. as of December 31, 1997 and 1996, and for the years ended December 31, 1997, 1996 and 1995, which reports are included or incorporated by reference in this Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
New Orleans, Louisiana
March 27, 1998
EXHIBIT 24
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana corporation (the "Company"), intends to file with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the Company's fiscal year ended December 31, 1997, with any and all amendments thereto as may be necessary or appropriate, together with any and all exhibits and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director or officer or both a director and officer of the Company, as the case may be, does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them severally, his true and lawful attorney(s)-in-fact and agent(s) with power to act without the other, with full power of substitution and resubstitution, to execute in his name, place and stead, in any and all capacities, the Form 10-K and any and all amendments thereto and any and all instruments necessary or incidental in connection therewith, to file the same with the Commission and to appear before the Commission in connection with any matter relating thereto. Each of said attorneys-in-fact and agents shall have full power and authority to do and perform in the name and on behalf of the undersigned, in any and all capacities, every act whatsoever necessary or desirable to be done in the premises, as fully and to all intents and purposes as the undersigned might or could do in person, the undersigned hereby ratifying, approving and confirming the acts that said attorneys-in-fact and agents and each of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as of the 23rd day of January, 1998.
/s/ Sherian G. Cadoria
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Sherian G. Cadoria
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CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana corporation (the "Company"), intends to file with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the Company's fiscal year ended December 31, 1997, with any and all amendments thereto as may be necessary or appropriate, together with any and all exhibits and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director or officer or both a director and officer of the Company, as the case may be, does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them severally, his true and lawful attorney(s)-in-fact and agent(s) with power to act without the other, with full power of substitution and resubstitution, to execute in his name, place and stead, in any and all capacities, the Form 10-K and any and all amendments thereto and any and all instruments necessary or incidental in connection therewith, to file the same with the Commission and to appear before the Commission in connection with any matter relating thereto. Each of said attorneys-in-fact and agents shall have full power and authority to do and perform in the name and on behalf of the undersigned, in any and all capacities, every act whatsoever necessary or desirable to be done in the premises, as fully and to all intents and purposes as the undersigned might or could do in person, the undersigned hereby ratifying, approving and confirming the acts that said attorneys-in-fact and agents and each of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as of the 23rd day of January, 1998.
/s/ Richard B.Crowell
----------------------------------------
Richard B. Crowell
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CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana corporation (the "Company"), intends to file with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the Company's fiscal year ended December 31, 1997, with any and all amendments thereto as may be necessary or appropriate, together with any and all exhibits and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director or officer or both a director and officer of the Company, as the case may be, does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them severally, his true and lawful attorney(s)-in-fact and agent(s) with power to act without the other, with full power of substitution and resubstitution, to execute in his name, place and stead, in any and all capacities, the Form 10-K and any and all amendments thereto and any and all instruments necessary or incidental in connection therewith, to file the same with the Commission and to appear before the Commission in connection with any matter relating thereto. Each of said attorneys-in-fact and agents shall have full power and authority to do and perform in the name and on behalf of the undersigned, in any and all capacities, every act whatsoever necessary or desirable to be done in the premises, as fully and to all intents and purposes as the undersigned might or could do in person, the undersigned hereby ratifying, approving and confirming the acts that said attorneys-in-fact and agents and each of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as of the 23rd day of January, 1998.
/s/ J. Patrick Garrett
----------------------------------------
J. Patrick Garrett
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CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana corporation (the "Company"), intends to file with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the Company's fiscal year ended December 31, 1997, with any and all amendments thereto as may be necessary or appropriate, together with any and all exhibits and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director or officer or both a director and officer of the Company, as the case may be, does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them severally, his true and lawful attorney(s)-in-fact and agent(s) with power to act without the other, with full power of substitution and resubstitution, to execute in his name, place and stead, in any and all capacities, the Form 10-K and any and all amendments thereto and any and all instruments necessary or incidental in connection therewith, to file the same with the Commission and to appear before the Commission in connection with any matter relating thereto. Each of said attorneys-in-fact and agents shall have full power and authority to do and perform in the name and on behalf of the undersigned, in any and all capacities, every act whatsoever necessary or desirable to be done in the premises, as fully and to all intents and purposes as the undersigned might or could do in person, the undersigned hereby ratifying, approving and confirming the acts that said attorneys-in-fact and agents and each of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as of the 23rd day of January, 1998.
/s/ F. Ben James, Jr.
----------------------------------------
F. Ben James, Jr.
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CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana corporation (the "Company"), intends to file with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the Company's fiscal year ended December 31, 1997, with any and all amendments thereto as may be necessary or appropriate, together with any and all exhibits and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director or officer or both a director and officer of the Company, as the case may be, does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them severally, his true and lawful attorney(s)-in-fact and agent(s) with power to act without the other, with full power of substitution and resubstitution, to execute in his name, place and stead, in any and all capacities, the Form 10-K and any and all amendments thereto and any and all instruments necessary or incidental in connection therewith, to file the same with the Commission and to appear before the Commission in connection with any matter relating thereto. Each of said attorneys-in-fact and agents shall have full power and authority to do and perform in the name and on behalf of the undersigned, in any and all capacities, every act whatsoever necessary or desirable to be done in the premises, as fully and to all intents and purposes as the undersigned might or could do in person, the undersigned hereby ratifying, approving and confirming the acts that said attorneys-in-fact and agents and each of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as of the 23rd day of January, 1998.
/s/ Hugh J. Kelly
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Hugh J. Kelly
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CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana corporation (the "Company"), intends to file with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the Company's fiscal year ended December 31, 1997, with any and all amendments thereto as may be necessary or appropriate, together with any and all exhibits and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director or officer or both a director and officer of the Company, as the case may be, does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them severally, his true and lawful attorney(s)-in-fact and agent(s) with power to act without the other, with full power of substitution and resubstitution, to execute in his name, place and stead, in any and all capacities, the Form 10-K and any and all amendments thereto and any and all instruments necessary or incidental in connection therewith, to file the same with the Commission and to appear before the Commission in connection with any matter relating thereto. Each of said attorneys-in-fact and agents shall have full power and authority to do and perform in the name and on behalf of the undersigned, in any and all capacities, every act whatsoever necessary or desirable to be done in the premises, as fully and to all intents and purposes as the undersigned might or could do in person, the undersigned hereby ratifying, approving and confirming the acts that said attorneys-in-fact and agents and each of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as of the 23rd day of January, 1998.
/s/ A. DeLoach Martin, Jr.
----------------------------------------
A. DeLoach Martin, Jr.
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CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana corporation (the "Company"), intends to file with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the Company's fiscal year ended December 31, 1997, with any and all amendments thereto as may be necessary or appropriate, together with any and all exhibits and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director or officer or both a director and officer of the Company, as the case may be, does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them severally, his true and lawful attorney(s)-in-fact and agent(s) with power to act without the other, with full power of substitution and resubstitution, to execute in his name, place and stead, in any and all capacities, the Form 10-K and any and all amendments thereto and any and all instruments necessary or incidental in connection therewith, to file the same with the Commission and to appear before the Commission in connection with any matter relating thereto. Each of said attorneys-in-fact and agents shall have full power and authority to do and perform in the name and on behalf of the undersigned, in any and all capacities, every act whatsoever necessary or desirable to be done in the premises, as fully and to all intents and purposes as the undersigned might or could do in person, the undersigned hereby ratifying, approving and confirming the acts that said attorneys-in-fact and agents and each of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as of the 28th day of January, 1998.
/s/ Robert T. Ratcliff
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Robert T. Ratcliff
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CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana corporation (the "Company"), intends to file with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the Company's fiscal year ended December 31, 1997, with any and all amendments thereto as may be necessary or appropriate, together with any and all exhibits and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director or officer or both a director and officer of the Company, as the case may be, does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them severally, his true and lawful attorney(s)-in-fact and agent(s) with power to act without the other, with full power of substitution and resubstitution, to execute in his name, place and stead, in any and all capacities, the Form 10-K and any and all amendments thereto and any and all instruments necessary or incidental in connection therewith, to file the same with the Commission and to appear before the Commission in connection with any matter relating thereto. Each of said attorneys-in-fact and agents shall have full power and authority to do and perform in the name and on behalf of the undersigned, in any and all capacities, every act whatsoever necessary or desirable to be done in the premises, as fully and to all intents and purposes as the undersigned might or could do in person, the undersigned hereby ratifying, approving and confirming the acts that said attorneys-in-fact and agents and each of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as of the 23rd day of January, 1998.
/s/ Edward M. Simmons
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Edward M. Simmons
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CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana corporation (the "Company"), intends to file with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the Company's fiscal year ended December 31, 1997, with any and all amendments thereto as may be necessary or appropriate, together with any and all exhibits and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director or officer or both a director and officer of the Company, as the case may be, does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them severally, his true and lawful attorney(s)-in-fact and agent(s) with power to act without the other, with full power of substitution and resubstitution, to execute in his name, place and stead, in any and all capacities, the Form 10-K and any and all amendments thereto and any and all instruments necessary or incidental in connection therewith, to file the same with the Commission and to appear before the Commission in connection with any matter relating thereto. Each of said attorneys-in-fact and agents shall have full power and authority to do and perform in the name and on behalf of the undersigned, in any and all capacities, every act whatsoever necessary or desirable to be done in the premises, as fully and to all intents and purposes as the undersigned might or could do in person, the undersigned hereby ratifying, approving and confirming the acts that said attorneys-in-fact and agents and each of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney as of the 23rd day of January, 1998.
/s/ William H. Walker, Jr.
----------------------------------------
William H. Walker, Jr.
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| ARTICLE OPUR1 |
| This schedule contains summary financial information extracted form the Company's financial statements and is qualified in its intirety by reference to such financial statements. |
| PERIOD TYPE | 12 MOS |
| FISCAL YEAR END | DEC 31 1997 |
| PERIOD START | JAN 01 1997 |
| PERIOD END | DEC 31 1997 |
| BOOK VALUE | PER BOOK |
| TOTAL NET UTILITY PLANT | 1,025,562 |
| OTHER PROPERTY AND INVEST | 3,479 |
| TOTAL CURRENT ASSETS | 102,413 |
| TOTAL DEFERRED CHARGES | 221,259 |
| OTHER ASSETS | 8,331 |
| TOTAL ASSETS | 1,361,044 |
| COMMON | 45,525 |
| CAPITAL SURPLUS PAID IN | 107,677 |
| RETAINED EARNINGS | 255,549 |
| TOTAL COMMON STOCKHOLDERS EQ | 408,751 |
| PREFERRED MANDATORY | 6,120 |
| PREFERRED | 11,336 |
| LONG TERM DEBT NET | 120,897 |
| SHORT TERM NOTES | 0 |
| LONG TERM NOTES PAYABLE | 245,000 |
| COMMERCIAL PAPER OBLIGATIONS | 34,219 |
| LONG TERM DEBT CURRENT PORT | 15,000 |
| PREFERRED STOCK CURRENT | 0 |
| CAPITAL LEASE OBLIGATIONS | 0 |
| LEASES CURRENT | 0 |
| OTHER ITEMS CAPITAL AND LIAB | 519,721 |
| TOT CAPITALIZATION AND LIAB | 1,361,044 |
| GROSS OPERATING REVENUE | 456,245 |
| INCOME TAX EXPENSE | 27,729 |
| OTHER OPERATING EXPENSES | 349,706 |
| TOTAL OPERATING EXPENSES | 377,435 |
| OPERATING INCOME LOSS | 78,810 |
| OTHER INCOME NET | 2,295 |
| INCOME BEFORE INTEREST EXPEN | 81,105 |
| TOTAL INTEREST EXPENSE | 28,586 |
| NET INCOME | 52,519 |
| PREFERRED STOCK DIVIDENDS | 2,117 |
| EARNINGS AVAILABLE FOR COMM | 50,402 |
| COMMON STOCK DIVIDENDS | 35,266 |
| TOTAL INTEREST ON BONDS | 9,100 |
| CASH FLOW OPERATIONS | 117,776 |
| EPS PRIMARY | 2.24 |
| EPS DILUTED | 2.18 |