EXHIBIT 10(q)(1)
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated and effective as of
October 12, 1993, between CENTRAL LOUISIANA ELECTRIC COMPANY,
INC. (the "Company") and PAINEWEBBER INCORPORATED
("PaineWebber").
WHEREAS, on May 29, 1991, the Parish of DeSoto, State
of Louisiana (the "Issuer") issued 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 that
certain Trust Indenture dated as of May 1, 1991 (the
"Indenture") between the Issuer and First National Bank of
Commerce, as trustee (the "Trustee"); and
WHEREAS, the Company and the Issuer are parties to
that certain Refunding Agreement dated as of May 1, 1991 (the
"Refunding Agreement") pursuant to which the Issuer agreed to
make available the proceeds of the Bonds to the Company, and the
Company agreed to pay amounts sufficient to pay the principal
of, purchase price of, premium, if any, and interest on the
Bonds; and
WHEREAS, to secure the payment of the principal of,
interest on and purchase price of the Bonds, Swiss Bank
Corporation, New York Branch (the "Bank") issued its irrevocable
direct-pay letter of credit (as amended or extended from time to
time, the "Letter of Credit") to the Trustee and in connection
therewith the Company entered into a Reimbursement Agreement
dated as of May 1, 1991 (as amended or extended from time to
time, the "Reimbursement Agreement") with the Bank; and
WHEREAS, the Issuer has appointed PaineWebber (and
PaineWebber has accepted the appointment) as Remarketing Agent
pursuant to the Indenture; and
WHEREAS, the Company and PaineWebber desire to make
additional provisions regarding PaineWebber's role as
Remarketing Agent for the Bonds.
NOW, THEREFORE, the Company and PaineWebber hereby
agree as follows:
1. DEFINITIONS. All capitalized terms used in this
Agreement which are not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
2. CONFIRMATION OF APPOINTMENT. The Company hereby
confirms the appointment of PaineWebber as Remarketing Agent
pursuant to the Indenture.
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3. DUTIES. PaineWebber will perform the duties
specified as Remarketing Agent under the Indenture subject to
the terms of the Indenture and this Agreement. In acting as
Remarketing Agent, PaineWebber will act as agent and not as
principal except as expressly provided in this Section.
PaineWebber may, if it determines to do so in its sole
discretion, buy as principal any such Bonds but it will not in
any event be obligated to do so, and if it buys Bonds it will
have the same rights as would any other person holding the
Bonds.
4. DISCLOSURE STATEMENT. (a) If PaineWebber
determines that it is necessary or desirable to use a disclosure
statement in connection with its offering of the Bonds,
PaineWebber will notify the Company and the Company will provide
PaineWebber with a disclosure statement satisfactory to
PaineWebber and its counsel in respect of the Bonds. The
Company will supply PaineWebber with such number of copies of
the disclosure statement and documents related thereto as
PaineWebber requests from time to time and will amend the
disclosure statement (and/or the documents incorporated by
reference in it) so that at all times the disclosure statement
and any documents related thereto will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements in such documents, in the light
of the circumstances under which they were made, not misleading.
In addition, the Company will take all steps reasonably
requested by PaineWebber which PaineWebber or its counsel may
consider necessary or desirable to register the sale of the
Bonds by PaineWebber under any Federal or state securities law
or to qualify the Indenture under the Trust Indenture Act of
1939, as amended, and will provide PaineWebber such officers'
certificates, counsel opinions, accountants' letters and other
documents as may be customary in similar transactions. If the
Company does not perform its obligations under this Section,
PaineWebber may immediately cease remarketing efforts.
(b) The Company has previously prepared and delivered
to PaineWebber a copy of the Official Statement, dated May 29,
1991, including appendices consisting of financial and other
information in respect of the Company and the Bank. Such
Official Statement, including Appendices A, B and C thereto and
the materials incorporated by reference therein, is referred to
herein as the "Official Statement." The Company authorizes the
use by PaineWebber of the Official Statement in connection with
the remarketing of Bonds. For purposes of this Agreement, the
Official Statement and any other documents provided to
PaineWebber pursuant to paragraph (a) of this Section shall be
considered to be the Disclosure Statement (as defined in Section
5 hereof).
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5. INDEMNIFICATION AND CONTRIBUTION. (a) The
Company will indemnify and hold harmless PaineWebber, each of
its directors, officers and employees and each person who
controls PaineWebber within the meaning of Section 15 of the
Securities Act of 1933, as amended (such Act being herein called
the "Act" and any such person being herein sometimes called an
"Indemnified Party"), against any and all losses, claims,
damages or liabilities, joint or several, to which such
Indemnified Party may become subject under any statute or at law
or in equity or otherwise, and shall reimburse any such
Indemnified Party for any legal or other expenses incurred by it
in connection with investigating any claims against it and
defending any actions, but only to the extent that such losses,
claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in any disclosure statement referred to
in Section 4 hereof (a "Disclosure Statement") or any amendment
thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact necessary to make the
statements therein not misleading, but the Company shall not be
liable in any such case (x) to the extent that any such loss,
claim, damage, liability or action arises out of, or is based
upon, any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company
by PaineWebber specifically for use in connection with the
preparation thereof, or (y) if the person asserting any such
loss, claim, damage or liability purchased Bonds from
PaineWebber, if delivery to such person of the Disclosure
Statement or any amendment or supplement to it would have been a
valid defense to the action from which such loss, claim, damage
or liability arose and if the same was not delivered to such
person by or on behalf of PaineWebber; provided that the Company
has delivered the Disclosure Statement as amended or
supplemented to PaineWebber on a timely basis to permit such
delivery or sending. This indemnity agreement shall not be
construed as a limitation on any other liability which the
Company may otherwise have to any Indemnified Party, but in no
event shall the Company be obligated for double indemnification.
(b) PaineWebber shall indemnify and hold harmless the
Company and each of its directors, officers or employees and
each person who controls the Company within the meaning of
Section 15 of the Act (for purposes of this paragraph (b), an
"Indemnified Party") against all losses, claims, damages or
liabilities, joint or several, to which such Indemnified Party
may become subject under any statute or at law or in equity or
otherwise, and will reimburse any such Indemnified Party for any
legal or other expenses incurred by it in connection with
defending any actions, insofar as such losses, claims, damages,
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liabilities or actions arise out of or based upon any untrue
statement, or an alleged untrue statement, of a material fact
contained in a Disclosure Statement or any amendment thereof or
supplement thereto, or the omission or alleged omission to
state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, but only with reference to written
information, if any, relating to PaineWebber furnished to the
Company by PaineWebber specifically for use in the preparation
of a Disclosure Statement. The Company and PaineWebber agree
that any statements set forth in a Disclosure Statement
furnished in writing by or on behalf of PaineWebber for
inclusion in such documents shall be contained in a section
entitled "Remarketing" and that PaineWebber's indemnification
pursuant to this paragraph (b) shall be limited to such Section.
This indemnity agreement shall not be construed as a limitation
on any other liability which PaineWebber may otherwise have to
any Indemnified Party, but in no event shall PaineWebber be
obligated for double indemnification.
(c) An Indemnified Party (as defined in paragraph (a)
or paragraph (b) of this Section 5) shall, promptly after the
receipt of notice of the commencement of any action against such
Indemnified Party in respect of which indemnification may be
sought against PaineWebber or the Company, as the case may be
(in either case the "Indemnifying Party"), notify the
Indemnifying Party in writing of the commencement thereof.
Failure of the Indemnified Party to give such notice will not
relieve the Indemnifying Party from any liability which it may
have to an Indemnified Party otherwise than on account of this
Agreement. In case any such action shall be brought against an
Indemnified Party and such Indemnified Party shall notify the
Indemnifying Party of its commencement, the Indemnifying Party
may, or if so requested by such Indemnified Party shall,
participate therein or assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party, and after
notice from the Indemnifying Party to such Indemnified Party of
an election so as to assume the defense thereof, such
Indemnified Party shall reasonably cooperate in the defense
thereof, including, without limitation, the settlement of
outstanding claims, and the Indemnifying Party will not be
liable to such Indemnified Party under this Section 5 for any
legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation incurred with the consent
of the Indemnifying Party, which consent shall not be
unreasonably withheld; provided, however, that unless and until
the Indemnifying Party assumes the defense of any such action at
the request of such Indemnified Party, the Indemnifying Party
shall have the right to participate at its own expense in the
defense of any such action. If the Indemnifying Party shall not
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have employed counsel to have charge of the defense of any such
action or if any Indemnified Party shall have reasonably
concluded that there may be defenses available to it or them
which are different from or additional to those available to the
Indemnifying Party (in which case the Indemnifying Party shall
not have the right to direct the defense of such action on
behalf of such Indemnified Party), legal and other expenses
incurred by such Indemnified Party shall be borne by the
Indemnifying Party. Any obligation under this Section of an
Indemnifying Party to reimburse an Indemnified Party for
expenses includes the obligation to make advances to the
Indemnified Party to cover such expenses in reasonable amounts
as incurred. Notwithstanding the foregoing, the Indemnifying
Party shall not be liable for any settlement of any action or
claim effected without its consent, which consent shall not be
unreasonably withheld.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification
amounts provided for in paragraph (a) or (b) of this Section 5
are due in accordance with its terms but are for any reason held
by a court to be unavailable from the Company or PaineWebber on
grounds of policy or otherwise, the Company and PaineWebber
shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to
which the Company and PaineWebber may be subject (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and PaineWebber on the
other from the remarketing of the Bonds or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and PaineWebber in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits
received by the Company on the one hand and PaineWebber on the
other shall be deemed to be in the same proportion as the
aggregate principal amount of the Bonds remarketed pursuant to
this Agreement bear to the total remarketing fees received by
PaineWebber. The relative fault of the Company on the one hand
and of PaineWebber on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company or by PaineWebber and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable
by a party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include any
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legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action
or claim.
(e) The Company and PaineWebber agree that it would
not be just and equitable if contribution pursuant to this
Section 5 were determined by pro rata allocation or by any other
method of allocation which does not take account of the
equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provision of this
Section 5, PaineWebber shall not be required to contribute any
amount in excess of the remarketing fee applicable to the Bonds
remarketed pursuant to this Agreement. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who is not guilty of such fraudulent misrepresentation.
(f) The indemnification and contribution agreements
of all parties to this Agreement contained in this Section 5
shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of PaineWebber, by
or on behalf of any person controlling PaineWebber, by or on
behalf of the Company or by or on behalf of any person
controlling the Company or (ii) any termination of this
Agreement.
(g) For purposes of this Section 5, each person who
controls PaineWebber within the meaning of Section 15 of the Act
shall have the same rights as PaineWebber and each person who
controls the Company within the meaning of Section 15 of the Act
shall have the same rights as the Company. Any party entitled
to contribution shall, promptly after receipt of notice of
commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made
against another party or parties under paragraph (d), notify
such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties shall not
relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder
or otherwise than on account of this Agreement.
6. FEES AND EXPENSES. In consideration of
PaineWebber's services under this Agreement, the Company will
pay PaineWebber as Remarketing Agent, (a) "Standard Fee" of
$1.00/1,000 annually, (paid quarterly in arrears), based upon
the par amount of Bonds outstanding at the beginning of each
quarterly period and commencing on October 1, 1993, and on each
January 1, April 1, July 1 and October 1 thereafter and (b) in
connection with (i) any adjustment from a Short-Term Interest
Rate Period, a Daily Interest Rate Period or a Weekly Interest
Rate Period to a Long-Term Interest Rate Period or (ii) any
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mandatory tender of Bonds resulting from a substitution or
termination of the Letter of Credit then in effect, a fee to be
negotiated by the Company and PaineWebber. In addition, the
Agent may be entitled to additional compensation, the
"Performance Fee", based upon actual performance as Remarketing
Agent. The amount of such Performance Fee and its method of
determination shall be the subject of another agreement between
the Remarketing Agent and the Company. Such Performance Fee, if
any, shall be paid annually, in arrears. If no such Performance
Fee agreement is entered into and in effect between the
Remarketing Agent and the Company, the Remarketing Agent's
compensation will be limited to the $1.00/1,000 Standard Fee
described above.
The Company also will pay all expenses in connection with the
preparation of any Disclosure Statement and the registration of
the Bonds and any other documents relating to the Bonds under
any securities laws, qualifying the Indenture under the Trust
Indenture Act and will reimburse PaineWebber for all of its
direct out-of-pocket expenses incurred by it as Remarketing
Agent under this Agreement and the Indenture, including counsel
fees and disbursements.
7. FAILS. PaineWebber will not be liable to the
Company on account of the failure of any person to whom
PaineWebber has sold a Bond to pay for such Bond or to deliver
any document in respect of the sale.
8. REMARKETING AGENT'S PERFORMANCE. The duties and
obligations of PaineWebber as Remarketing Agent shall be
determined solely by the express provisions of this Agreement
and the Indenture, and PaineWebber shall not be responsible for
the performance of any other duties and obligation than as are
specifically set forth in this Agreement and the Indenture, an
no implied covenants or obligations shall be read into this
Agreement or the Indenture against PaineWebber. PaineWebber may
conclusively rely upon any notice or document given or furnished
to PaineWebber and conforming to the requirements of this
Agreement or the Indenture and shall be protected in acting upon
any such notice or document reasonably believed by it to be
genuine and to have been given, signed or presented by the
proper party or parties.
9. TERMINATION. This Agreement will terminate upon
the effective resignation or removal of PaineWebber as
Remarketing Agent in accordance with the Indenture. PaineWebber
will resign as Remarketing Agent under this Remarketing
Agreement if requested to do so by the Company in writing and
may resign at any time, all in accordance with the terms of the
Indenture. Following termination, the provisions of Section 5
will continue in effect, and each party will pay the other any
amounts owing at the time of termination.
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10. MISCELLANEOUS. This agreement will be governed by
the laws of the State of New York. Notices will be given to the
persons addressed below until a party designates a new address
in writing.
11. COUNTERPARTS. This Agreement may be signed in
several counterparts. Each will be an original, but all of them
together constitute the same instrument.
12. SEVERABILITY. If any provision of this Agreement
shall be determined to be unenforceable, that shall not affect
any other provisions of this Agreement.
CENTRAL LOUISIANA ELECTRIC
COMPANY, INC.
2030 Donahue Ferry Road
Pineville, Louisiana 71361
Attention: Treasurer
By: /s/ David M. Eppler
Title: Vice President
PAINEWEBBER INCORPORATED
1285 Avenue of the Americas
New York, New York 10019
Attention: Municipal Securities Group
By: /s/ Randall L. Finken
Title: Vice President