Louisiana Revised Statutes 45:1237 – Additional assignee; powers and duties of the corporation; expenditures; perfection of security interest on storm recovery property; limitations on bankruptcy
Terms Used In Louisiana Revised Statutes 45:1237
- Assignee: means any legal or commercial entity, including but not limited to a corporation, limited liability company, partnership, limited partnership, or other legally recognized entity to which an electric utility sells, assigns, or transfers, other than as security, all or a portion of its interest in or right to storm recovery property. See Louisiana Revised Statutes 45:1227
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Commission: means the Public Service Commission or, solely with respect to an electric utility furnishing electric service within the city of New Orleans, the council of the city of New Orleans. See Louisiana Revised Statutes 45:1227
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Financing costs: means :
(a) Interest and acquisition, defeasance, or redemption premiums that are payable on storm recovery bonds;
(b) Any payment required under an ancillary agreement and any amount required to fund or replenish reserve or other accounts established under the terms of any indenture, ancillary agreement, or other financing documents pertaining to storm recovery bonds;
(c) Any other cost related to issuing, supporting, repaying, and servicing storm recovery bonds, including but not limited to servicing fees, accounting and auditing fees, trustee fees, legal fees, consulting fees, administrative fees, placement and underwriting fees, capitalized interest, rating agency fees, stock exchange listing and compliance fees, and filing fees, including costs related to obtaining the financing order;
(d) Any income taxes and license fees imposed on the revenues generated from the collection of storm recovery charges or otherwise resulting from the collection of storm recovery charges, in any such case whether paid, payable, or accrued; or
(e) Any state and local taxes, franchise, gross receipts, and other taxes or similar charges including but not limited to regulatory assessment fees, in any such case whether paid, payable, or accrued. See Louisiana Revised Statutes 45:1227
- Financing order: means an order of the commission, if granted by the commission in its sole discretion, which allows for:
(a) The issuance of storm recovery bonds. See Louisiana Revised Statutes 45:1227
- Financing party: means any holder of storm recovery bonds and any trustee, collateral agent, or other person acting for the benefit of holders of storm recovery bonds. See Louisiana Revised Statutes 45:1227
- Lien: A claim against real or personal property in satisfaction of a debt.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- person: includes a body of persons, whether incorporated or not. See Louisiana Revised Statutes 1:10
- Secured party: means a financing party in favor of which an electric utility or its successors or assignees creates a security interest in all or any portion of its interest in or right to storm recovery property. See Louisiana Revised Statutes 45:1227
- Security interest: means a pledge, hypothecation, or other encumbrance of or other right over any portion of storm recovery property created by contract to secure the payment or performance of an obligation. See Louisiana Revised Statutes 45:1227
- Storm: means a named tropical storm or hurricane, ice or snow storm, flood, or other significant weather or natural disaster that occurred during calendar year 2005 or that occurs thereafter. See Louisiana Revised Statutes 45:1227
- Storm recovery bonds: means bonds, debentures, notes, certificates of participation, certificates of ownership, or other evidences of indebtedness or ownership that are issued pursuant to an indenture, contract, or other agreement of an electric utility or an assignee pursuant to a financing order, the proceeds of which are used directly or indirectly to provide, recover, finance, or refinance commission-approved storm recovery costs, financing costs, and costs to replenish or fund a storm recovery reserve to such level as the commission may authorize in a financing order, and which are secured by or payable from storm recovery property. See Louisiana Revised Statutes 45:1227
- Storm recovery costs: means , if requested by the electric utility, and as may be approved by the commission, costs incurred or to be incurred by an electric utility in undertaking a storm recovery activity. See Louisiana Revised Statutes 45:1227
- Storm recovery property: means the contract right constituting incorporeal movable property newly created pursuant to this Part which may consist of any of the following:
(a) All rights and interests of an electric utility or successor or assignee of the electric utility under a financing order, including the right to impose, bill, charge, collect, and receive storm recovery charges authorized in the financing order and to obtain periodic adjustments to such charges as may be provided in the financing order. See Louisiana Revised Statutes 45:1227
A. In addition to the purpose and powers granted pursuant to the Louisiana Utilities Restoration Corporation Act, La. Rev. Stat. 45:1311 through 1328, the Louisiana Utilities Restoration Corporation, hereinafter referred to as “corporation” in this Section and in La. Rev. Stat. 45:1238 through 1240, shall have the power and authority to participate as an assignee in the financial transactions provided by this Part. Prior to the corporation participating as an assignee, the corporation, in each instance, shall receive prior authorization from the commission. Supplemental to the powers and duties provided in La. Rev. Stat. 45:1313 and 1316, the corporation may perform the functions and activities that assignees are authorized to do by this Part in financing storm recovery costs through storm recovery bonds, except the corporation shall not be an issuer of storm recovery bonds. The corporation’s exercise of powers provided in this Part is the performance of an essential governmental function of the corporation.
B. Financing of storm recovery costs pursuant to this Part is hereby recognized to be a valid public purpose for the corporation. The corporation may negotiate and become a party to such contracts as are necessary, convenient, or desirable to carry out the purposes of this Part. The corporation may perform such other acts as are necessary, convenient, or desirable to effectuate the purposes of this Part.
C. The expenditure of money by the corporation pursuant to this Part shall be under the direction of its governing board and the regulation of the commission. Such money shall be paid by the corporation only in accordance with this Part and approved by the commission, pursuant to the procedures established by commission regulations or orders, as applicable. If authorized in a commission order, the corporation may purchase storm recovery property from an electric utility by using the net proceeds of storm recovery bonds that were loaned to the corporation by the issuer of storm recovery bonds that were approved by a financing order. The corporation shall not apply any proceeds of storm recovery bonds or storm recovery charges to any purpose not specified in a commission order, to any purpose in excess of the amount allowed for such purpose in the order, or to any purpose in contravention of the order.
D. In addition to the restrictions required by La. Rev. Stat. 45:1324, the governing board of the corporation shall be prohibited from authorizing any rehabilitation, liquidation, or dissolution of the corporation, and no such rehabilitation, liquidation, or dissolution of the corporation shall take effect, as long as any storm recovery bonds issued in a transaction involving the corporation are outstanding, unless adequate protection and provision has been made for the payment of the bonds pursuant to the documents authorizing the issuance of the bonds. Prior to the date that is two years and one day after which the corporation no longer has any payment obligation outstanding to any issuer of storm recovery bonds, the corporation shall be prohibited from filing and shall have no authority to file a voluntary petition under the federal Bankruptcy Code, as it may, from time to time, be in effect, and neither any public official nor any organization, entity, or other person shall authorize the corporation to be or to become a debtor under the federal Bankruptcy Code during such period. The provisions of this Subsection shall be part of any contractual obligation owed to the holders of storm recovery bonds issued under this Part involving the corporation. Any such contractual obligation shall not subsequently be modified by state law during the period of the contractual obligation, and the state of Louisiana and the Louisiana Legislature hereby covenant with the holders that the state and any public instrumentality thereof and the Louisiana Legislature shall not limit or alter the denial of authority pursuant to this Subsection during the period referred to in this Subsection.
E.(1) When the corporation is involved in the issuance of storm recovery bonds, the corporation shall pledge to, and agree with, the financing parties that until the storm recovery bonds and any ancillary agreements have been paid and performed in full, the corporation shall not do any of the following:
(a) Take or permit any action that impairs or would impair the value of storm recovery property.
(b) Except as allowed pursuant to this Paragraph and except for adjustments under any true-up mechanism established by the commission, reduce, alter, or impair storm recovery charges that are to be imposed, collected, and remitted for the benefit of the financing parties, until all principal, interest, premium, financing costs and other fees, expenses, or charges incurred, and any contracts to be performed, in connection with the related storm recovery bonds have been paid and performed in full. Nothing in this Paragraph shall preclude limitation or alteration if and when full compensation is made by law for the full protection of the storm recovery charges collected pursuant to a financing order and full protection of the holders of storm recovery bonds and any assignee or financing party.
(2) Any person or entity that issues storm recovery bonds may include the pledge specified in this Subsection in the bonds and related documentation.
F. For purposes of this Part, including without limitation all financing statements referenced in this Part, the corporation is considered to be a public entity under La. Rev. Stat. 39:1421 and a governmental unit under La. Rev. Stat. 10:9-102(a). Notwithstanding any provision of law to the contrary, including without limitation La. Rev. Stat. 33:4548.7 and La. Rev. Stat. 39:1430.1, the filing of a financing statement pursuant to this Part is the exclusive method of perfecting a sale, assignment, transfer, or pledge of or security interest or lien on storm recovery property or any right, title, or interest of an assignee or secured party including an issuer of storm recovery bonds therein, including without limitation to perfect a security interest granted by the corporation or by a governmental unit issuer. The provisions of this Section and La. Rev. Stat. 45:1239 shall not be interpreted to conflict with or modify the provisions of La. Rev. Stat. 10:9-109(c)(6) and La. Rev. Stat. 45:1230 through 1232. Financing statements referenced in this Part where the debtor, buyer, or secured party is a public entity and a governmental unit nevertheless shall be filed as provided in this Part.
Acts 2021, No. 293, §2, eff. June 14, 2021.