UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
- --------------------------------------------
In the Matter of CERTIFICATE PURSUANT
TO
RULE 24
ENTERGY LONDON INVESTMENTS plc
File No. 70-9081
(Public Utility Holding Company Act of 1935)
- --------------------------------------------
This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that
the transactions described below, which were proposed by
Entergy London Investments plc ("Company") in its
Application-Declaration, as amended, in the above file, have
been carried out in accordance with the terms and conditions
of and for the purposes represented by said Application-
Declaration, as amended, and pursuant to the order of the
Securities and Exchange Commission with respect thereto
dated November 7, 1997.
On November 19, 1997, the Company's subsidiary,
Entergy London Capital, L.P., a limited partnership created
under the laws of the State of Delaware (the "Partnership"),
issued and sold, by negotiated public offering, to Goldman,
Sachs & Co., Bear Stearns & Co., Lehman Brothers Inc.,
Merrill Lynch Pierce Fennerm & Smith Incorporated, Morgan
Stanley & Co. Incorporated, Prudential Securities
Incorporated, and Smith Barney Inc., as underwriters,
12,000,000 85/8% Cumulative Quarterly Income Preferred
Securities, Series A ($300,000,000 in aggregate liquidation
amount) ("Series A Preferred Securities") issued by the
Partnership pursuant to the Amended and Restated Limited
Partnership Agreement of Entergy London Capital, L.P. dated
November 19, 1997 ("Partnership Agreement"). In connection
with the issuance and sale of the Series A Preferred
Securities, the Company executed and delivered a guarantee
of the Partnership's payment obligations under the Series A
Preferred Securities ("Guarantee"). In addition, the
Company, as general partner made an equity contribution in
the amount of $3,030,325 to the Partnership ("Equity
Contribution"). The Partnership invested the proceeds from
the sale of the Series A Preferred Securities and the Equity
Contribution in the Company's 85/8% Junior Subordinated
Deferrable Interest Debentures, Series A ("Series A
Debentures"), issued pursuant to the Indenture (For
Unsecured Subordinated Debt Securities relating to Preferred
Securities), dated as of November 1, 1997 between the
Company and The Bank of New York, as Trustee ("Indenture").
Attached hereto and incorporated by reference are:
Exhibit A-1(a) - Execution form of Indenture.
Exhibit A-2(a) - Execution form of Series A
Debenture.
Exhibit A-5(a) - Execution form of Partnership
Agreement including execution form
of Series A Preferred Securities.
Exhibit A-6(a) - Execution form of Guarantee.
Exhibit B-1(a) - Execution form of Underwriting
Agreement relating to the Series A
Preferred Securities.
Exhibit C-1(a) - Prospectus used in connection
with the sale of the Series A
Preferred Securities (filed
pursuant to Rule 424(b) in
Registration Nos. 333-33331 and 333-
33331-01 and incorporated herein by
reference).
Exhibit F-1(a) - Post-effective opinion of
Laurence M. Hamric, Esq., counsel
for the Company.
IN WITNESS WHEREOF, Entergy London Investments plc
has caused this certificate to be executed this 4th day of
December, 1997.
ENTERGY LONDON INVESTMENTS plc.
By: /s/ William J. Regan, Jr.
William J. Regan, Jr.
Treasurer
Exhibit A-1(a)
__________________________________________
ENTERGY LONDON INVESTMENTS plc
TO
THE BANK OF NEW YORK
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities
relating to Preferred Securities)
Dated as of November 1, 1997
__________________________________________
<PAGE>
ENTERGY LONDON INVESTMENTS plc
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of November 1, 1997
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
<PAGE>
INDENTURE, dated as of November 1, 1997, between
ENTERGY LONDON INVESTMENTS plc, a public limited company duly
incorporated under the laws of England and Wales (herein called
the "Company"), having its principal office at Templar House, 81-
87 High Holborn, London WC1V 6NU, England, and THE BANK OF NEW
YORK, a New York banking corporation, having its principal
corporate trust office at 101 Barclay Street, New York, New York
10286, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv
ery of this Indenture to provide for the issuance from time to
time of its unsecured subordinated debentures, notes or other
evidences of indebtedness (herein called the "Securities") in an
unlimited aggregate principal amount to be issued in one or more
series as contemplated herein; and all acts necessary to make
this Indenture a valid agreement of the Company have been
performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon
which the Securities are to be authenticated, issued and
delivered and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as
follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION I01 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States at the date of such
computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are de
fined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Additional Interest" has the meaning specified in
Section 312.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
to act on behalf of the Trustee to authenticate one or more
series of Securities.
"Authorized Officer" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other duly authorized officer of the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly authorized
to act in respect of matters relating to this Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, on a day on which the
Corporate Trust Office of the Trustee is closed for business,
except as may be otherwise specified as contemplated by Section
301.
"Commission" means the Securities and Exchange Commis
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per
forming such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request" or "Company Order" means a written re
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of execution and delivery of this Indenture is located at
101 Barclay Street, 21 West, New York, New York 10286.
"Corporation" means a corporation, association, compa
ny, joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"Event of Default" with respect to Securities of a
particular series has the meaning specified in Section 801.
"General Partner" has the meaning specified in Section
111.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any department,
agency, authority or other instrumentality of any of the
foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the princi
pal of and interest on which are unconditionally guaranteed
by, the United States and entitled to the benefit of the
full faith and credit thereof; and
(b) certificates, depositary receipts or other in
struments which evidence a direct ownership interest in obli
gations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or
examination with a combined capital and surplus of at least
$50,000,000; and provided, further, that except as may be
otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by
such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction
therefrom.
"Guarantee" means the guarantee agreement delivered
from the Company to a Partnership, for the benefit of the holders
of Preferred Securities issued by such Partnership.
"Holder" means a Person in whose name a Security is
registered in the Security Register or, in the case of a Security
in bearer form, the bearer thereof.
"Indenture" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Securities
established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated
Maturity, by declaration of immediate payability, upon call for
redemption or otherwise.
"Officer's Certificate" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other counsel
acceptable to the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore canceled or delivered to
the Securities Registrar for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to Sec
tion 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any
series, have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities, Securities owned
by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor (unless the
Company, such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or (except for purposes of
actions to be taken by Holders generally under Section 812 or
813) all Outstanding Securities of each such series, as the case
may be, determined without regard to this provision) shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to
be so owned shall be so disregarded; provided, however, that
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor; and provided, further,
that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the
principal amount of such Security that shall be deemed to be
Outstanding at any time for all purposes of this Indenture shall
be the original principal amount thereof less the aggregate
amount of principal thereof theretofore paid.
"Partnership" means Entergy London Capital, L.P., a
limited partnership created under the laws of the State of
Delaware, or any other Partnership designated pursuant to Section
301 hereof or any permitted successor under the Partnership
Agreement pertaining to such Partnership .
"Partnership Agreement" means the Amended and Restated
Limited Partnership Agreement, dated as of November 19, 1997,
relating to Entergy London Capital, L.P., or an Amended and
Restated Limited Partnership Agreement relating to a Partnership
designated pursuant to Section 301 hereof, in each case, among
the Company, as General Partner, and the limited partners
referred to therein, in each case, as such agreements may be
amended from time to time.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of, and premium,
if any, or interest, if any, on any Securities on behalf of the
Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company,
limited liability partnership or unincorporated organization or
any Governmental Authority.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 602,
principal of and premium, if any, and interest, if any, on the
Securities of such series are payable.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to
the extent lawful) to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Preferred Securities" means any limited partner
interests issued by a Partnership or similar securities issued by
permitted successors to such Partnership in accordance with the
Partnership Agreement pertaining to such Partnership.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Secur
ity to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other than
non-recourse obligations and the indebtedness issued under this
Indenture) of, or guaranteed or assumed by, the Company for
borrowed money, including both senior and subordinated
indebtedness for borrowed money (other than the Securities), or
for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Company and
its subsidiaries in accordance with generally accepted accounting
principles as in effect from time to time, or evidenced by bonds,
debentures, notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and refundings of
any such indebtedness or obligations, whether existing as of the
date of this Indenture or subsequently incurred by the Company
unless, in the case of any particular indebtedness, amendment,
renewal, extension, modification or refunding, the instrument
creating or evidencing the same or the assumption or guarantee of
the same expressly provides that such indebtedness, amendment,
renewal, extension, modification or refunding is not superior in
right of payment to or is pari passu with the Securities;
provided that the Company's obligations under the Guarantee shall
not be deemed to be Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or interest
thereon, means the date on which the principal of such obligation
or such installment of principal or interest is stated to be due
and payable (without regard to any provisions for redemption,
prepayment, declaration of immediate payability, purchase or
extension); provided that, with regard to any installment of
interest, Stated Maturity shall not include any date as to which
the Company shall have elected to extend the interest payment
period or defer the payment of interest in accordance with
Section 311.
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at
such time.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION I02 Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action (including any
covenants compliance with which constitutes a condition
precedent) have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the
case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such cer
tificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(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 each such
Person, such Person has made such examination or
investigation as is necessary to enable such Person 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, in the opinion of each
such Person, such condition or covenant has been complied
with.
SECTION I03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which such Officer's Certificate or
opinion are based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel
or other document or instrument, a clerical, typographical or
other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION I04 Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided
by this Indenture to be made, given or taken by Holders may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively,
may be embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called
and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901) conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of
Holders shall be proved in the manner provided in Section
1306.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof or may be proved in any other
manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount and serial numbers of
Securities in registered form held by any Person, and the
ownership and date of holding the same, shall be proved by
the Security Register. The ownership of Securities in
bearer form may be proved by the production of such
Securities or by a certificate executed by any trust
company, bank, banker or other depository, 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 depository,
or exhibited to it, the Securities therein described; or
such facts may be proved by the certificate or affidavit of
the Person holding such Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of
any Security in bearer form continues until (i) another such
certificate or affidavit bearing a later date issued in
respect of the same Security is produced, (ii) such Security
is produced to the Trustee by some other Person, (iii) such
Security is surrendered in exchange for a Security or (iv)
such Security is no longer Outstanding. The ownership of
Securities in bearer form may also be proved in any other
manner which the Trustee deems sufficient.
(d) Any request, demand, authorization, direction, no
tice, consent, election, waiver or other Act of a Holder
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Outstanding Securities for
the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a
Holder may be revoked with respect to any or all of such
Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series authenticated and
delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by
the Trustee as to any action taken by such Act of Holders.
If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be prepared and
executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such
series.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by
Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only
the Holders of record at the close of business on the record
date shall be deemed to be Holders for the purposes of (i)
determining whether Holders of the requisite percentage of
principal amount of Outstanding Securities have authorized
or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall
be computed as of the record date or (ii) determining which
Holders may revoke any such Act (notwithstanding Section
104(e)).
SECTION I05 Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of Holders or other
document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with, the Trustee by any Holder
or by the Company, or the Company by the Trustee or by any
Holder, shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and delivered
personally to an officer or other responsible employee of the
addressee, or transmitted by facsimile transmission, telex or
other direct written electronic means to such telephone number or
other electronic communications address as the parties hereto
shall from time to time designate, or transmitted by registered
mail, charges prepaid, to the applicable address set opposite
such party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-5287
Telecopy: (212) 815-5915
If to the Company, to:
Entergy London Investments plc
Templar House
81-87 High Holborn
London WC1V 6NU
England
Attention: Treasurer
Telephone: (504) 576-4308
Telecopy: (504) 576-5000
With a copy to:
Entergy London Investments plc
c/o 639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Legal Department - Corporate and Securities Law Division
Telephone: (504) 576-2272
Telecopy: (504) 576-4150
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission or other direct written electronic means, on the
date of transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION I06 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION I07 Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION I08 Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION I09 Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110 Separability Clause.
In case any provision in this Indenture or in the
Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 111 Benefits of Indenture.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder, the Holders and, so long as the
notice described in Section 1513 hereof has not been given, the
holders of Senior Indebtedness, any benefit or any legal or
equitable right, remedy or claim under this Indenture; provided,
however, if the general partner of the related Partnership
Agreement (the "General Partner") fails to enforce such
Partnership's rights under this Indenture with respect to the
Securities, a holder of Preferred Securities may institute a
legal proceeding directly against the Company to enforce such
Partnership's rights with respect to the Securities or this
Indenture, to the fullest extent permitted by law, without first
instituting any legal proceeding against the General Partner or
any other Person.
SECTION 112 Governing Law.
This Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State of New
York, except to the extent that the law of any other jurisdiction
shall be mandatorily applicable.
SECTION 113 Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or in the Board Resolution
or Officer's Certificate which establishes the terms of the
Securities of such series, which specifically states that such
provision shall apply in lieu of this Section) payment of
interest or principal and premium, if any, need not be made at
such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment, except that if
such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect, and in the same
amount, as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, as the case may be, and, if such
payment is made or duly provided for on such Business Day, no
interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to such Business Day.
SECTION 114 Consent to Jurisdiction; Appointment of Agent to
Accept Service of Process.
(a) The Company agrees (i) that any legal action, suit
or proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in
connection with this Indenture may be brought in any federal
or state court in the State of New York, County of New York,
and (ii) to file such consents with such authorities as may
be required to irrevocably evidence such agreement.
(b) The Company agrees to designate a designee,
appointee and agent in The City of New York satisfactory to
the Trustee for the purpose of consenting and agreeing to
the service of any and all legal process, summons, notices
and documents in any such action, suit or proceeding against
the Company, by serving a copy thereof upon the relevant
agent for service of process referred to in this Section 114
(whether or not the appointment of such agent shall for any
reason prove to be ineffective or such agent shall accept or
acknowledge such service) with a copy to the Company as
provided in Section 105. The Company agrees that the
failure of any such designee, appointee and agent to give
any notice of such service to it shall not impair or affect
in any way the validity of such service. Nothing herein
shall in any way be deemed to limit the ability of the
Trustee or the Holders of the Securities of any series to
serve any such legal process, summons, notices and documents
in any other manner permitted by applicable law or to obtain
jurisdiction over the Company, or bring actions, suits or
proceedings against it in such other jurisdictions, and in
such manner, as may be permitted by applicable law. The
Company irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection that it may
now or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings arising out of or
in connection with this Indenture brought in the federal
courts located in The City of New York or the courts of the
State of New York located in The City of New York and hereby
further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such
action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.
SECTION 115 Waiver of Immunities.
To the extent that the Company or any of its
properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on
the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any thereof,
from set-off or counterclaim, from the jurisdiction of any court,
from service or process, from attachment upon or prior to
judgment, from attachment in aid of execution of judgment, or
from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any
time be commenced, with respect to its obligations, liabilities
or any other matter under or arising out of or in connection with
this Indenture or the Securities of any series, the Company
hereby irrevocably and unconditionally waives and agrees not to
plead or claim any such immunity and consents to such relief and
enforcement. Nothing in this Section 115 shall be deemed to
waive any defense (other than any such immunity) available to the
Company.
SECTION 116 Judgment Currency.
The Company agrees to indemnify the Trustee and the
Holders of the Securities of any series against any loss incurred
by such indemnified party as a result of any judgment or order
being given or made for any amount due under this Indenture or
the Securities of any series and such judgment or order being
expressed and paid in a currency (the "Judgment Currency") other
than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange
at which any such indemnified party is able to purchase United
States dollars, at the nearest business day after the date of
judgment, with the amount of the Judgment Currency actually
received by any such indemnified party. If, alternatively, any
such indemnified party receives a profit as a result of such
currency conversion, it will return any such profits to the
Company (after taking into account any taxes or other costs
arising in connection with such conversion and repayment). The
foregoing indemnity shall constitute a separate and independent
obligation of the Company, and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid.
The term "rate of exchange" shall include any premiums and costs
of exchange payable in connection with the purchase of, or
conversion into United States Dollars.
ARTICLE II
Security Forms
SECTION II01 Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Sections
301 or 1201(g), the Securities of each series shall be issuable
in registered form without coupons. The definitive Securities
shall be produced in such manner as shall be determined by the
officers executing such Securities, as evidenced by their
execution thereof.
SECTION II02 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: _________________________________
as Trustee
By: _____________________________
Authorized Signatory
ARTICLE III
The Securities
SECTION III01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited;
provided, however, that all Securities shall be issued to a
Partnership in exchange for securities of the Company or to
evidence loans by a Partnership of the proceeds of the issuance
of Preferred Securities of such Partnership plus the amount
contributed by the General Partner of such Partnership from time
to time.
The Securities may be issued in one or more series.
Prior to the authentication, issuance and delivery of Securities
of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or a
Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406 or 1206
and except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such
series shall be payable on any Interest Payment Date, if
other than the Persons in whose names such Securities (or
one or more Predecessor Securities) are registered at the
close of business on the Regular Record Date for such
interest;
(d) the date or dates, if any, on which the principal
of the Securities of such seriesis payable or any formulary
or other method or other means by which such date or dates
shall be determined, by reference to an index or other fact
or event ascertainable outside this Indenture or otherwise
(without regard to any provisions for redemption,
prepayment, declaration of immediate payability, purchase or
extension);
(e) the rate or rates at which the Securities of such
series shall bear interest, if any (including the rate or
rates at which overdue principal shall bear interest, if
different from the rate or rates at which such Securities
shall bear interest prior to Maturity, and, if applicable,
the rate or rates at which overdue premium or interest shall
bear interest, if any), or any formulary or other method or
other means by which such rate or rates shall be determined,
by reference to an index or other fact or event
ascertainable outside this Indenture or otherwise; the date
or dates from which such interest shall accrue; the Interest
Payment Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest payable on
such Securities on any Interest Payment Date; the right of
the Company, if any, to extend the interest payment periods
and the duration of any such extension or to defer the
payment of interest as contemplated by Section 311; and the
basis of computation of interest, if other than as provided
in Section 310;
(f) the place or places at which or methods by which
(1) the principal of and premium, if any, and interest, if
any, on Securities of such series shall be payable, (2)
registration of transfer of Securities of such series may be
effected, (3) exchanges of Securities of such series may be
effected and (4) notices and demands to or upon the Company
in respect of the Securities of such series and this
Indenture may be served; the Security Registrar and Paying
Agent or Agents for such series; and if such is the case,
and if acceptable to the Trustee, that the principal of such
Securities shall be payable without presentment or surrender
thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms
and conditions upon which the Securities of such series may
be redeemed, in whole or in part, at the option of the
Company and any restrictions on such redemptions, including
but not limited to a restriction on a partial redemption by
the Company of the Securities of any series, resulting in
delisting of such Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series
pursuant to any sinking fund or other analogous mandatory
redemption provisions or at the option of a Holder thereof
and the period or periods within which or the date or dates
on which, the price or prices at which and the terms and
conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation,
and applicable exceptions to the requirements of Section 404
in the case of mandatory redemption or redemption at the
option of the Holder;
(i) the denominations in which Securities of such
series shall be issuable if other than denominations of $25
and any integral multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premi
um, if any, and interest, if any, on the Securities of such
series shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or in
terest, if any, on the Securities of such series are to be
payable, at the election of the Company or a Holder thereof,
in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods
within which and the terms and conditions upon which, such
election may be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series are to be
payable, or are to be payable at the election of the Company
or a Holder thereof, in securities or other property, the
type and amount of such securities or other property, or the
formulary or other method or other means by which such
amount shall be determined, and the period or periods within
which, and the terms and conditions upon which, any such
election may be made;
(m) if the amount payable in respect of principal of
or premium, if any, or interest, if any, on the Securities
of such series may be determined with reference to an index
or other fact or event ascertainable outside this Indenture,
the manner in which such amounts shall be determined to the
extent not established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series
which shall be payable upon declaration of immediate
payability or acceleration of the Maturity thereof pursuant
to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the
benefit of the Holders of the Securities of such series, in
addition to those set forth in Article Six and whether any
such covenants may be waived pursuant to Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series may be converted into or exchanged
for shares of capital stock or other securities of the
Company or any other Person;
(q) the obligations or instruments, if any, which
shall be considered to be Government Obligations in respect
of the Securities of such series denominated in a currency
other than Dollars or in a composite currency, and any
additional or alternative provisions for the reinstatement
of the Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as provided in
Section 701;
(r) if the Securities of such series are to be issued
in global form, (i) any limitations on the rights of the
Holder or Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer thereof,
(ii) any limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in definitive form
in lieu of global form and (iii) any and all other matters
incidental to such Securities;
(s) if the Securities of such series are to be
issuable as bearer securities, any and all matters
incidental thereto which are not specifically addressed in a
supplemental indenture as contemplated by clause (g) of
Section 1201;
(t) to the extent not established pursuant to clause
(r) of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series to transfer or
exchange such Securities or to obtain the registration of
transfer thereof; and if a service charge will be made for
the registration of transfer or exchange of Securities of
such series the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series;
(v) the designation of the Partnership to which
Securities of such series are to be issued upon their
initial issuance; and
(w) any other terms of the Securities of such series
not inconsistent with the provisions of this Indenture.
The Securities of each series shall be subordinated in
right of payment to Senior Indebtedness as provided in Article
Fifteen.
SECTION III02 Denominations.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, the Securities of
each series shall be issuable in denominations of $25 and any
integral multiple thereof.
SECTION III03 Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, the Securities
shall be executed on behalf of the Company by an Authorized
Officer and may have the corporate seal of the Company affixed
thereto or reproduced thereon attested by any other Authorized
Officer or by the Secretary or an Assistant Secretary of the
Company. The signature of any or all of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at the time of execution Authorized
Officers or the Secretary or an Assistant Secretary of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities
of a series, for original issue, at one time or from time to time
in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the
terms of such Securities shall not have been established in
an indenture supplemental hereto or in a Board Resolution,
or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, establishing such terms;
(c) the Securities of such series, executed on behalf
of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities
have been duly authorized by the Company and have been
established in conformity with the provisions of this
Indenture;
(ii) the terms of such Securities have been
duly authorized by the Company and have been estab
lished in conformity with the provisions of this Inden
ture; and
(iii) such Securities, when authenticated
and delivered by the Trustee and issued and delivered
by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating to
or affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and
insolvency laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at law).
If the form or terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
materially or adversely affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, each Security shall
be dated the date of its authentication.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, no Security shall
be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form
provided for herein executed by the Trustee or an Authenticating
Agent by manual signature of an authorized officer thereof, and
such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly
authenticated and made available for delivery hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and made
available for delivery hereunder to the Company, or any Person
acting on its behalf, but shall never have been issued and sold
by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and made available for delivery
hereunder and shall never be entitled to the benefits hereof.
SECTION III04 Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and make available for delivery,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the defi
nitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, after the
preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable,
without charge to the Holder thereof, for definitive Securities
of such series upon surrender of such temporary Securities at the
office or agency of the Company maintained pursuant to Section
602 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and make
available for delivery in exchange therefor definitive Securities
of the same series, of authorized denominations and of like tenor
and aggregate principal amount.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and
made available for delivery hereunder.
SECTION III05 Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in one of the
offices designated pursuant to Section 602, with respect to the
Securities of each series, a register (the register kept in
accordance with this Section being referred to as the "Security
Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of
Securities of such series and the registration of transfer
thereof. In addition to information regarding the names of the
registered owners of the Securities of each series issued in
registered form, the Security Register shall contain information
regardng the denominations and numbering of Securities of each
series issued in bearer form. The Company shall designate one
Person to maintain the Security Register for the Securities of
each series, and such Person is referred to herein, with respect
to such series, as the "Security Registrar." Anything herein to
the contrary notwithstanding, the Company may designate one of
its offices as the office in which the register with respect to
the Securities of one or more series shall be maintained, and the
Company may designate itself the Security Registrar with respect
to one or more of such series. The Security Register shall be
open for inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, upon
surrender for registration of transfer of any Security of such
series at the office or agency of the Company maintained pursuant
to Section 602 in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of
authorized denominations and of like tenor and aggregate
principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, any
Security of such series may be exchanged at the option of the
Holder, for one or more new Securities of the same series, of
authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and make available for delivery,
the Securities which the Holder making the exchange is entitled
to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Trustee or the Security Registrar) be duly
endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section
301 with respect to Securities of any series, no service charge
shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section
304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series during a period of 15 days
immediately preceding the date notice is to be given identifying
the serial numbers of such series called for redemption or (b)
any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in
part.
SECTION III06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor
a new Security of the same series, and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trus
tee (a) evidence to their satisfaction of the ownership of and
the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same
series, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security shall
be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION III07 Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, interest on any
Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series and subject to
Section 311, any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the related
Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Secu
rities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
date (herein called a "Special Record Date") for the payment
of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the pro
posed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such De
faulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the
Company, shall promptly cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such
Holder as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall be no longer payable pursuant
to the following clause (b).
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION III08 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and premium, if any,
and (subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION III09 Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with a Company Order delivered to the Security
Registrar and the Trustee, and the Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to
the Trustee and the Company.
SECTION 310 Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-
day year consisting of twelve 30-day months.
SECTION 311 Extension of Interest Payment Period; Deferral of
Interest Payment.
The Company shall have the right at any time, so long
as no Event of Default shall have occurred and be continuing with
respect to the Securities of any series hereunder, to extend
interest payment periods, or to defer the payment of interest, on
all Securities of one or more series, if so specified as
contemplated by Section 301 with respect to such Securities and
upon such terms as may be specified as contemplated by Section
301 with respect to such Securities.
SECTION 312 Additional Interest.
So long as any Preferred Securities remain outstanding,
if the Partnership which issued such Preferred Securities shall
be required to pay, with respect to its income derived from the
interest payments on the Securities of any series, any amounts
for or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed by the United
States, the United Kingdom, or any other taxing authority, then,
in any such case, the Company will pay as interest on such series
such additional interest ("Additional Interest") as may be
necessary in order that the net amounts received and retained by
such Partnership after the payment of such taxes, duties,
assessments or governmental charges shall result in such
Partnership's having such funds as it would have had in the
absence of the payment of such taxes, duties, assessments or
governmental charges.
SECTION 313 CUSIP Numbers.
The Company in issuing Securities of any series may use
a "CUSIP" number (if then generally in use) and, if so, the
Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to the Holders of the Securities of
such series; provided, that any such notice may state that no
such representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or in the Securities of
such series, and that reliance may be placed only on the other
identification numbers printed on the Securities of such series.
ARTICLE IV
Redemption of Securities
SECTION IV01 Applicability of Article.
Securities of any series which are redeemable shall be
redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities
of such series) in accordance with this Article.
SECTION IV02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Offi
cer's Certificate evidencing compliance with such restriction or
condition.
SECTION IV03 Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be
selected by the Security Registrar from the Outstanding
Securities of such series not previously called for redemption,
by such method as shall be provided for any particular series,
or, in the absence of any such provision, by such method of
random selection as the Security Registrar shall deem fair and
appropriate and which may, in any case, provide for the selection
for redemption of portions (equal to the minimum authorized
denomination for Securities of such series or any integral
multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized
denomination for Securities of such series; provided, however,
that if, as indicated in an Officer's Certificate, the Company
shall have offered to purchase all or any principal amount of the
Securities then Outstanding of any series, and less than all of
such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Security
Registrar, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which
have not been so tendered.
The Security Registrar shall promptly notify the
Company and the Trustee in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION IV04 Notice of Redemption.
Notice of redemption shall be given in the manner pro
vided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series are
to be redeemed, the identification of the particular
Securities to be redeemed and the portion of the principal
amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect to any
notice of redemption of Securities at the election of the
Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701,
such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall
not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION IV05 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION IV06 Securities Redeemed in Part.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), the
Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a
new Security or Securities of the same series, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE V
Sinking Funds
SECTION V01 Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, except as otherwise specified as contemplated by Section
301 for Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in
Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series in respect of which it was
made as provided for by the terms of such Securities.
SECTION V02 Satisfaction of Sinking Fund Payments with
Securities.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series in respect of which a mandatory sinking fund payment is to
be made and (b) may apply as a credit Securities of such series
which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of
all or any part of such mandatory sinking fund payment; provided,
however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION V03 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, the Company shall
deliver to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of
cash;
(e) the portion, if any, of such mandatory sinking
fund payment which is to be satisfied by delivering and
crediting Securities of such series pursuant to Section 502
and stating the basis for such credit and that such
Securities have not previously been so credited, and the
Company shall also deliver to the Trustee any Securities to
be so delivered. If the Company shall not deliver such
Officer's Certificate, the next mandatory sinking fund
payment for such series shall be made entirely in cash in
the amount of the mandatory sinking fund payment. Not less
than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section
403 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the
manner provided in Section 404. Such notice having been
duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 405 and
406.
ARTICLE VI
Covenants
SECTION VI01 Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if
any, and interest, if any (including Additional Interest), on the
Securities of each series in accordance with the terms of such
Securities and this Indenture.
SECTION VI02 Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for
the Securities of each series an office or agency where payment
of such Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected and where
notices and demands to or upon the Company in respect of such
Securities and this Indenture may be served. The Company shall
give prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency and
prompt notice to the Holders of any such change in the manner
specified in Section 106. If at any time the Company shall fail
to maintain any such required office or agency in respect of
Securities of any series, or shall fail to furnish the Trustee
with the address thereof, payment of such Securities shall be
made, registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may be served
at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent for all such purposes in
any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, for any or all of the foregoing purposes and
may from time to time rescind such designations; provided,
however, that, unless otherwise specified as contemplated by
Section 301 with respect to the Securities of such series, no
such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for
such purposes in each Place of Payment for such Securities in
accordance with the requirements set forth above. The Company
shall give prompt written notice to the Trustee, and prompt
notice to the Holders in the manner specified in Section 106, of
any such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION VI03 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, it shall, on
or before each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and premium or interest so
becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the Company (or any
other obligor on such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, it shall, on or before
each due date of the principal of and premium, if any, and
interest, if any, on such Securities, deposit with such Paying
Agents sums sufficient (without duplication) to pay the principal
and premium or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of any
failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, other than the Company or the Trustee,
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, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any failure
referred to in the preceding paragraph (b), upon the written
request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent and furnish to
the Trustee such information as it possesses regarding the
names and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all liability
of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
SECTION VI04 Corporate Existence.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION VI05 Maintenance of Properties.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION VI06 Annual Officer's Certificate as to Compliance.
Not later than June 30 in each year, commencing June
30, 1998, the Company shall deliver to the Trustee an Officer's
Certificate which need not comply with Section 102, executed by
the principal executive officer, the principal financial officer
or the principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such compliance to
be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION VI07 Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in (a) any
covenant or restriction specified with respect to the Securities
of any series, as contemplated by Section 301 as being subject to
waiver pursuant to this Section 607, if before the time for such
compliance the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series with respect
to which compliance with such covenant or restriction is to be
omitted, considered as one class, shall, by Act of such Holders,
either waive such compliance in such instance or generally waive
compliance with such term, provision or condition and (b) Section
604, 605 or Article Eleven if before the time for such compliance
the Holders of a majority in principal amount of Securities
Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive
compliance with such term, provision or condition; but, in the
case of (a) or (b), no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect; provided, however, so long as a
Partnership is the beneficial owner of Securities of any series,
such Partnership may not waive compliance or waive any default in
compliance by the Company with any covenant or other term
contained in this Indenture or the Securities of such series
without the approval of the holders of a majority in aggregate
liquidation preference of the outstanding Preferred Securities
issued by such Partnership affected, obtained as provided in the
Partnership Agreement pertaining to such Partnership.
SECTION VI08 Restriction on Payment of Dividends.
Except as may be provided in a supplemental indenture
or an Officer's Certificate with respect to a series of
Securities, the Company shall not (a) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of the Company's
capital stock, or (b) make any payment of principal of or,
interest or premium, if any, on or repay or repurchase or redeem
any debt securities (including other Securities) that rank pari
passu with or junior in interest to the Securities or make any
guarantee payments with respect to the foregoing (other than
dividends or distributions in common stock of the Company and
payments under the Guarantee relating to any Preferred
Securities) if at such time (i) there shall have occurred and be
continuing a payment default pursuant to Section 801(a) or 801(b)
(whether before or after expiration of any period of grace) or an
Event of Default hereunder, or (ii) the Company shall be in
default with respect to its payment or other obligations under
the Guarantee relating to such Preferred Securities, or (iii) the
Company shall have elected to extend any interest payment period
or defer the payment of interest as provided in Section 311, and,
in the case of such an extension, any such period, or any
extension thereof, shall be continuing or, in the case of such a
deferral, payment of all such deferred interest, together with
any interest accrued thereon, should not have been made.
SECTION VI09 Maintenance of Partnership Existence.
So long as Preferred Securities of any series remain
outstanding, the Company shall (a) maintain direct or indirect
ownership of all interests in the Partnership which issued such
Preferred Securities, other than such Preferred Securities,
provided that certain successors which are permitted pursuant
hereto may succeed to the Company's ownership of such interests,
(b) not voluntarily (to the extent permitted by law) dissolve,
liquidate or wind up such Partnership, except (i) in connection
with a distribution of the Securities to the holders of the
Preferred Securities in liquidation of such Partnership, or (ii)
in connection with certain mergers, conversions, consolidations
or amalgamations permitted by the Partnership Agreement
pertaining to such Partnership, (c) timely perform in all
material respects all of its duties as General Partner (including
the duty to pay distributions on such Preferred Securities and
the duty to pay all costs and expenses of such Partnership),
provided that certain successors which are permitted pursuant
hereto may directly or indirectly succeed to its duties as
General Partner and (d) use reasonable efforts to cause such
Partnership to remain a limited liability partnership and
otherwise continue to be treated as a partnership for Federal
income tax purposes; provided that the Company may permit such
Partnership to consolidate or merge with or into or convert into
another limited liability partnership or other permitted
successor under the Partnership Agreement pertaining to such
Partnership so long as the Company agrees to comply with this
Section 609 with respect to such successor limited liability
partnership or other permitted successor.
SECTION 610 Rights of Holders of Preferred Securities.
The Company agrees that, for so long as any Preferred
Securities remain outstanding, its obligations under this
Indenture will also be for the benefit of the holders from time
to time of Preferred Securities, and the Company acknowledges and
agrees that if the General Partner of a Partnership fails to
enforce such Partnership's rights with respect to the Securities,
a holder of Preferred Securities may institute a legal proceeding
directly against the Company to enforce such Partnership's rights
with respect to the Securities, to the fullest extent permitted
by law, without first instituting any legal proceeding against
the General Partner or any other Person.
SECTION 611 Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as
possible and in any event within five days after the Company
becomes aware of the occurrence of any Event of Default or an
event which, with notice or the lapse of time or both, would
consitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the
action which the Company proposes to take with respect thereto.
ARTICLE VII
Satisfaction and Discharge
SECTION VII01 Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Government
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities
or portions thereof on or prior to Maturity; provided,
however, that in the case of the provision for payment or
redemption of less than all the Securities of any series,
such Securities or portions thereof shall have been selected
by the Security Registrar as provided herein and, in the
case of a redemption, the notice requisite to the validity
of such redemption shall have been given or irrevocable
authority shall have been given by the Company to the
Trustee to give such notice, under arrangements satisfactory
to the Trustee; and provided, further, that the Company
shall have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made
prior to the Maturity of such Securities, a Company
Order stating that the money and Government Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703; and
(y) if Government Obligations shall have
been deposited, an Opinion of Counsel that the
obligations so deposited constitute Government
Obligations and do not contain provisions permitting
the redemption or other prepayment at the option of the
issuer thereof, and an opinion of an independent public
accountant of nationally recognized standing, selected
by the Company, to the effect that the requirements set
forth in clause (b) above have been satisfied; and
(z) if such deposit shall have been made
prior to the Maturity of such Securities, an Officer's
Certificate stating the Company's intention that, upon
delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions
thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Government Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that the Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z), if required, shall not have been
delivered, such Securities or portions thereof shall nevertheless
be deemed to have been paid for all purposes of this Indenture,
and the Holders of such Securities or portions thereof shall
nevertheless be no longer entitled to the benefits of this
Indenture or of any of the covenants of the Company under Article
Six (except the covenants contained in Sections 602 and 603) or
any other covenants made in respect of such Securities or
portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or
portions thereof shall not be deemed to have been satisfied and
discharged prior to Maturity for any other purpose, and the
Holders of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company Request, the
Trustee shall acknowledge in writing that such Securities or
portions thereof are deemed to have been paid for all purposes of
this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series is to be provided for in the manner and
with the effect provided in this Section, the Security Registrar
shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for selection for
redemption of less than all the Securities of a series.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit of moneys or
Government Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 915 and this Article Seven
shall survive.
The Company shall pay, and shall indemnify the Trustee
or any Paying Agent with which Government Obligations shall have
been deposited as provided in this Section against, any tax, fee
or other charge imposed on or assessed against such Government
Obligations or the principal or interest received in respect of
such Government Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a)
if, at any time after a Security would be deemed to have been
paid for purposes of this Indenture, and, if such is the case,
the Company's indebtedness in respect thereof would be deemed to
have been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the Trustee
or any Paying Agent, as the case may be, shall be required to
return the money or Government Obligations, or combination
thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect thereof
shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION VII02 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be
of further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed to
have been paid for purposes of this Indenture, shall be
deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 915 and this Article Seven shall
survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to the Company, subject to the lien provided by Section
907, any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities
other than money and Government Obligations held by the Trustee
pursuant to Section 703.
SECTION VII03 Application of Trust Money.
Neither the Government Obligations nor the money
deposited pursuant to Section 701, nor the principal or interest
payments on any such Government Obligations, shall be withdrawn
or used for any purpose other than, and shall be held in trust
for, the payment of the principal of and premium, if any, and
interest, if any, on the Securities or portions of principal
amount thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 603; provided, how
ever, that, so long as there shall not have occurred and be
continuing an Event of Default any cash received from such
principal or interest payments on such Government Obligations, if
not then needed for such purpose, shall, to the extent prac
ticable, be invested upon Company Request and upon receipt of the
documents referred to in clause (y) of Section 701 in Government
Obligations of the type described in clause (b) in the first para
graph of Section 701 maturing at such times and in such amounts
as shall be sufficient together with any other moneys and the
principal of and interest on any other Government Obligations
then held by the Trustee to pay when due the principal of and
premium, if any, and interest, if any, due and to become due on
such Securities or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid
over to the Company as received, free and clear of any trust,
lien or pledge under this Indenture except the lien provided by
Section 907; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default, any
moneys held in accordance with this Section on the Maturity of
all such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest, if any, then due
on such Securities shall be paid over to the Company free and
clear of any trust, lien or pledge under this Indenture except
the lien provided by Section 907; and provided, further, that if
an Event of Default shall have occurred and be continuing, moneys
to be paid over to the Company pursuant to this Section shall be
held until such Event of Default shall have been waived or cured.
ARTICLE VIII
Events of Default; Remedies
SECTION VIII01 Events of Default.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one or more of the
following events which has occurred and is continuing:
(a) failure to pay interest, if any, including any
Additional Interest, on any Security of such series within
60 days after the same becomes due and payable (whether or
not payment is prohibited by the provisions of Article
Fifteen hereof); provided, however, that a valid extension
of the interest payment period or deferral of interest
payment by the Company as contemplated in Section 311 of
this Indenture shall not constitute a failure to pay
interest for this purpose; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series (whether or not payment
is prohibited by the provisions of Article Fifteen hereof)
when due and payable; or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 60 days
after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if
corrective action is initiated by the Company within such
period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such
decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of
90 consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization
of such action by the Board of Directors; or
(f) any other Event of Default specified with respect
to Securities of such series as contemplated by Section 301.
SECTION VIII02 Declaration of Immediate Payability; Rescission
and Annulment.
If an Event of Default due to the default in payment of
principal of, or interest on, any series of Securities or due to
the default in the performance or breach of any other covenant or
warranty of the Company applicable to the Securities of such
series but not applicable to all Outstanding Securities shall
have occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal of all
Securities of such series and interest accrued thereon to be due
and payable immediately (provided that the payment of principal
and interest on such Securities shall remain subordinated to the
extent provided in Article Fifteen hereof). If a Partnership is
the beneficial owner of the Securities of a series, and the
Preferred Securities issued by such Partnership are still
outstanding, and the Trustee or the Holders of not less than 33%
in principal amount of the Securities of such series fail to make
such declaration, then the holders of not less than 33% in
aggregate liquidation preference of such series of Preferred
Securities may make such declaration. If an Event of Default due
to default in the performance of any other of the covenants or
agreements herein applicable to all Outstanding Securities or an
Event of Default specified in Section 801(d) or (e) shall have
occurred and be continuing, either the Trustee or the Holders of
not less than 33% in principal amount of all Securities then
Outstanding (or Preferred Securities), considered as one class,
and not the Holders of the Securities (or Preferred Securities),
of any one of such series, may declare the principal of all
Securities and interest accrued thereon to be due and payable
immediately (provided that the payment of principal and interest
on such Securities shall remain subordinated to the extent
provided in Article 15).
At any time after such a declaration of immediate
payability with respect to Securities of any series shall have
been made and before a judgment or decree for payment of the
money due shall have been obtained by the Trustee as hereinafter
in this Article provided, the Event or Events of Default giving
rise to such declaration of immediate payability shall, without
further act, be deemed to have been waived, and such declaration
and its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on all Securities
of such series;
(2) the principal of and premium, if any, on
any Securities of such series which have become due
otherwise than by such declaration of immediate
payability and interest thereon at the rate or rates
prescribed therefor in such Securities;
(3) to the extent that payment of such inter
est is lawful, interest upon overdue interest, if any,
at the rate or rates prescribed therefor in such
Securities;
(4) all amounts due to the Trustee under
Section 907;
and
(b) any other Event or Events of Default with respect
to Securities of such series, other than the non-payment of
the principal of Securities of such series which shall have
become due solely by such declaration of immediate
payability, shall have been cured or waived as provided in
Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION VIII03 Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a) or (b)
of Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and in
terest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION VIII04 Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder 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
Holders, to pay to the Trustee any amounts due it under
Section 907.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION VIII05 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensa
tion, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders in
respect of which such judgment has been recovered.
SECTION VIII06 Application of Money Collected.
Subject to the provisions of Article Fifteen, any money
collected by the Trustee with respect to a particular series of
Securities pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal
or premium, if any, or interest, if any, upon presentation of the
Securities in respect of which or for the benefit of which such
money shall have been collected and the notation thereon of the
payment if only partially paid and upon surrender thereof if
fully paid:
First: To the payment of all amounts due the Trustee
under Section 907;
Second: To the payment of the amounts then due and un
paid upon the Securities for principal of and premium, if
any, and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively; and
Third: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
SECTION VIII07 Limitation on Suits.
No Holder shall have any right to institute any proceed
ing, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and
be continuing, considered as one class, shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-
day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any
other of such Holders or to obtain or to seek to obtain
priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all
of such Holders.
SECTION VIII08 Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 307 and 311)
interest, if any, on such Security on the Stated Maturity or
Maturities, if any, expressed in such Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder. If a Partnership is
the beneficial owner of the Securities of a series and the
Preferred Securities issued by such Partnership are still
outstanding, any holder of such Preferred Securities shall have
the right to directly institute a proceeding for the enforcement
of any such payment to such holder with respect to the Securities
of such series having a principal amount equal to the aggregate
liquidation preference amount of such Preferred Securities held
by such holder on or after the due dates thereof.
SECTION VIII09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 810 Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812 Control by Holders of Securities.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve
the Trustee in personal liability in circumstances where
indemnity would not, in the Trustee's sole discretion, be
adequate; and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 813 Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences,
except a default
(c) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series
(unless such default has been cured pursuant to Section
802), or
(d) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected;
provided, however, that so long as a Partnership is the
beneficial owner of the Securities of any series, such
Partnership may not waive any past default without the
consent of a majority in aggregate liquidation preference of
the outstanding Preferred Securities issued by such
Partnership affected, obtained as provided in the
Partnership Agreement pertaining to such Partnership.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 814 Undertaking for Costs.
The Company and the Trustee agree, and each Holder by
his acceptance thereof 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, suffered 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 Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 815 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE IX
The Trustee
SECTION IX01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
(1) the Trustee undertakes to perform, with
respect to Securities of such series, such duties and
only 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;
and
(2) in the absence of bad faith on its part,
the Trustee may, with respect to Securities of such
series, conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(b) In case an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee shall exercise, with respect to
Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of
his own affairs.
(c) 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
(1) this subsection shall not be construed
to limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be 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 a majority in principal amount of the
Outstanding Securities of any one or more series, as
provided herein, 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 with
respect to the Securities of such series; and
(4) no provision of this Indenture shall
require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION IX02 Notice of Defaults.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default
shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 75 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION IX03 Certain Rights of Trustee.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting in good faith
upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order, or as otherwise expressly provided herein,
and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel of its
selection and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any Holder pursuant
to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled
to examine, during normal business hours, the books, records
and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default with respect to the Securities of any
series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee shall have actual
knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee
by the Company, any other obligor on such Securities or by
any Holder of such Securities.
SECTION IX04 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities (ex
cept the Trustee's certificates of authentication) shall be taken
as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correct
ness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION IX05 May Hold Securities.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to
Sections 908 and 913, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION IX06 Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on or
investment of any moneys received by it hereunder except as
expressly provided herein or otherwise agreed with, and for the
sole benefit of, the Company.
SECTION IX07 Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time
to time agree to for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except to the extent that any such expense, disbursement or
advance may be attributable to its negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless
from and against, any loss, liability or expense reasonably
incurred by it arising out of or in connection with the
acceptance or administration of the trust or trusts here
under or the performance of its duties hereunder, including
the reasonable costs and expenses of defending itself
against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
SECTION IX08 Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series. The Partnership Agreement and the Guarantee
Agreement pertaining to each Partnership shall be deemed to be
specifically described in this Indenture for the purposes of
clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
SECTION IX09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under
the laws of the United States, any State or Territory
thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a corporation
or other Person organized and doing business under the laws
of a foreign government, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 or the Dollar equivalent
of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 910 Resignation and Removal; Appointment of Successor.
(c) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable
requirements of Section 911.
(d) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 911
shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(e) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trustee and to
the Company; provided that if a Partnership is the
beneficial owner of the Securities of a series and the
Preferred Securities issued by such Partnership are still
outstanding, such Partnership shall not execute any Act to
remove the Trustee without the consent of the holders of a
majority in aggregate liquidation preference of such
Preferred Securities outstanding, obtained as provided in
the Partnership Agreement pertaining to such Partnership.
(f) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 909 and shall fail to resign after
written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or
a receiver of the Trustee or of its property shall be
appointed or 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,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who has
been a bona fide Holder 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 with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(g) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause (other than as contemplated
in clause (y) in subsection (d) of this Section), with
respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
of Section 911, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(h) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default
shall have occurred and be continuing, and except with
respect to a Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such
successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Trustee shall
be deemed to have been appointed by the Company pursuant to
subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911,
all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(i) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by
mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such
series and the address of its corporate trust office.
SECTION 911 Acceptance of Appointment by Successor.
(j) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all
series, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment
of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(k) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent pro
vided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor
Trustee, such retiring Trustee, upon payment of all sums
owed to it, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such
successor Trustee relates.
(l) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in
and confirm to such successor Trustee all such rights,
powers and trusts referred to in subsection (a) or (b) of
this Section, as the case may be.
(m) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 912 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 913 Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(n) the term "cash transaction" means 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;
(o) the term "self-liquidating paper" means 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, manufacturing,
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.
SECTION 914 Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(p) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(q) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate
trustee;
(r) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Company,
may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(s) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(t) any Act of Holders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series,
which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original
issuance and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under
the laws of the United States, any State or territory thereof or
the District of Columbia or the Commonwealth of Puerto Rico,
authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section.
The provisions of Sections 308, 904 and 905 shall be ap
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series shall be made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: ____________________________
As Trustee
By__________________________
As Authenticating Agent
By__________________________
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE X
Holders' Lists and Reports by Trustee and Company
SECTION X01 Lists of Holders.
Semiannually, not later than December 31 and June 30 in
each year, commencing December 31, 1997, and at such other times
as the Trustee may request in writing, the Company shall furnish
or cause to be furnished to the Trustee information as to the
names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION X02 Reports by Trustee and Company.
Not later than June 30 in each year, commencing June
30, 1998, the Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Securities
are listed a report, dated as of the next preceding April 30,
with respect to any events and other matters described in Section
313(a) of the Trust Indenture Act, in such manner and to the
extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed and the Company
shall file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act. The
Company shall notify the Trustee of the listing of any Securities
on any securities exchanges and, to the extent known to the
Company, the delisting therefrom.
To the extent required by the Trust Indenture Act, the
Company shall file with the Trustee the following documents and
reports within 30 days after such documents or reports (or
consolidated documents or reports containing such documents or
reports) are filed with the Commission:
(a) The Company's annual reports on Form 10-K;
(b) The Company's quarterly reports on Form 10-Q;
(c) The Company's current reports on Form 8-K; and
(d) Any other documents filed with the Commission
which are filed with or incorporated by reference in the
foregoing reports, related to the Company, and have not
previously been filed with the Trustee.
To the extent that any of the foregoing documents or
reports are consolidated with similar documents or reports filed
by an affiliate, the Company may file such consolidated document
or report with the Trustee in lieu of the separate document or
report.
Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
ARTICLE XI
Consolidation, Merger, Conveyance or Other Transfer
SECTION XI01 Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into
any other corporation, or convey or otherwise transfer or lease
its properties and assets substantially as an entirety to any
Person, unless
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall expressly assume, by an indenture supplemen
tal hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of
the principal of and premium, if any, and interest, if any,
on all Outstanding Securities and the performance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(b) immediately after giving effect to such trans
action and treating any indebtedness for borrowed money
which becomes an obligation of the Company as a result of
such transaction as having been incurred by the Company at
the time of such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, or
other transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent
herein provided for relating to such transactions have been
complied with.
SECTION XI02 Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by
the Company into any other corporation or any conveyance, or
other transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section
1101, the successor corporation formed by such consolidation or
into which the Company is merged or the Person to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this
Indenture and the Securities Outstanding hereunder.
ARTICLE XII
Supplemental Indentures
SECTION XII01 Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities, all
as provided in Article Eleven; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for the
benefit of the Holders of, or to remain in effect only so
long as there shall be Outstanding, Securities of one or
more specified series, or to surrender any right or power
herein conferred upon the Company; or
(c) to add any additional Events of Default with
respect to all or any series of Securities Outstanding
hereunder; or
(d) to change or eliminate any provision of this Inden
ture or to add any new provision to this Indenture;
provided, however, that if such change, elimination or
addition shall adversely affect the interests of the Holders
of Securities of any series Outstanding on the date of such
indenture supplemental hereto in any material respect, such
change, elimination or addition shall become effective with
respect to such series only pursuant to the provisions of
Section 1202 hereof or when no Security of such series
remains Outstanding; or
(e) to provide collateral security for the Securities;
or
(f) to establish the form or terms of Securities of
any series as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof,
and for any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee or
co-trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit
the Company to utilize, at its option, a non-certificated
system of registration for all, or any series of, the Securi
ties; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on
all or any series of Securities shall be payable, (2) all or
any series of Securities may be surrendered for registration
of transfer, (3) all or any series of Securities may be
surrendered for exchange and (4) notices and demands to or
upon the Company in respect of all or any series of
Securities and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
changes to the provisions hereof or to add other provisions
with respect to matters or questions arising under this
Indenture, provided that such other changes or additions
shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act as in effect at the date of the execution
and delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one
or more changes to any provisions hereof or the
inclusion herein of any additional provisions, or shall
by operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes
or additional provisions; or
(y) if any such amendment shall permit one
or more changes to, or the elimination of, any
provisions hereof which, at the date of the execution
and delivery hereof or at any time thereafter, are
required by the Trust Indenture Act to be contained
herein, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION XII02 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in
aggregate principal amount of the Securities of all series then
Outstanding under this Indenture, considered as one class, by Act
of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may 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
modifying in any manner the rights of the Holders of Securities
of such series under the Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on (except as
provided in Section 311 hereof), any Security, or reduce the
principal amount thereof or the rate of interest thereon (or
the amount of any installment of interest thereon) or change
the method of calculating such rate or reduce any premium
payable upon the redemption thereof, or change the coin or
currency (or other property), in which any Security or any
premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any Security (or,
in the case of redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder of such
Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series (or, if applicable, in
liquidation preference of any series of Preferred
Securities), the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the
Holders of which is required for any waiver of compliance
with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements
of Section 1304 for quorum or voting, without, in any such
case, the consent of the Holders of each Outstanding
Security of such series, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, except to increase the percentages in principal
amount referred to in this Section or such other Sections or
to provide that other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the
requirements of Sections 911(b) and 1201(h).
Notwithstanding the foregoing, if a Partnership is the beneficial
owner of the Securities of a series and the Preferred Securities
issued by such Partnership are still outstanding, the Trustee may
not consent to a supplemental indenture under this Section 1202
without the prior consent, obtained as provided in the
Partnership Agreement pertaining to such Partnership, of the
holders of a majority in aggregate liquidation preference of all
such Preferred Securities affected, considered as one class, or,
in the case of changes described in clauses (a), (b) and (c)
above, 100% in aggregate liquidation preference of all such
Preferred Securities then outstanding which would be affected
thereby, considered as one class. A supplemental indenture which
changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of
such Holder's right to consent under this Section shall be deemed
to be a consent of such Holder.
SECTION XII03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION XII04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION XII05 Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION XII06 Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION XII07 Modification Without Supplemental Indenture.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an Officer's
Certificate pursuant to a Board Resolution as contemplated by
Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms
may be effected by means of a supplemental Board Resolution or
Officer's Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate shall not
be accepted by the Trustee or otherwise be effective unless all
conditions set forth in this Indenture which would be required to
be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE XIII
Meetings of Holders; Action Without Meeting
SECTION XIII01 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or
all, series may be called at any time and from time to time
pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION XIII02 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series for any
purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of
New York, as the Trustee shall determine, or, with the
approval of the Company, at any other place. Notice of
every such meeting, setting forth the time and the place of
such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series by the Company or by the Holders of 33% in aggregate
principal amount of all of such series, considered as one
class, for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
in the amount above specified, as the case may be, may
determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such
meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series shall be valid without notice if the
Holders of all Outstanding Securities of such series are
present in person or by proxy and if representatives of the
Company and the Trustee are present, or if notice is waived
in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or by such of them as
are not present at the meeting in person or by proxy, and by
the Company and the Trustee.
SECTION XIII03 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series a Person shall be (a) a
Holder of one or more Outstanding Securities of such series, or
(b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION XIII04 Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series with
respect to which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a quorum for
a meeting of Holders of Securities of such series; provided,
however, that if any action is to be taken at such meeting which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series,
considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Secu
rities of such series, considered as one class, shall constitute
a quorum. In the absence of a quorum within one hour of the time
appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
Except as limited by Section 1202, any resolution pre
sented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series with
respect to which such meeting shall have been called, considered
as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a specified per
centage, which is less than a majority, in principal amount of
the Outstanding Securities of such series, considered as one
class, may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such series,
considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this
Section shall be binding on all the Holders of Securities of the
series with respect to which such meeting shall have been held,
whether or not present or represented at the meeting.
SECTION XIII05 Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted
by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by
the Holder or future Holder (except as provided in Section
104(g)), of such Securities before being voted.
(b) Notwithstanding any other provisions of this Inden
ture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities
in regard to proof of the holding of such Securities 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 evidence of
the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except
as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104
or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairmanof the meeting, unless the
meeting shall have been called by the Company or by Holders
as provided in Section 1302(b), in which case the Company or
the Holders of Securities of the series 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 vote of the Persons entitled
to vote a majority in aggregate principal amount of the
Outstanding Securities of all series represented at the meet
ing, considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1 principal amount of
Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security 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,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302
at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
SECTION XIII06 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series with respect
to which the meeting shall have been called, held or represented
by them. The permanent 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 of
all votes cast at the meeting. A record of the proceedings of
each meeting of Holders 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 given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and
verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at
the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION XIII07 Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE XIV
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION XIV01 Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon
or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or
future of the Company or of any predecessor or successor cor
poration (either directly or through the Company or a predecessor
or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or
future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or
any predecessor or successor corporation, because 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 of the Securities or to be implied herefrom
or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issuance of the Securities.
ARTICLE XV
Subordination of Securities
SECTION XV01 Securities Subordinate to Senior Indebtedness.
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of the Securities of each
series, by its acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and premium, if any, and
interest, if any, on each and all of the Securities is hereby
expressly subordinated and subject to the extent and in the
manner set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article, and
appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION XV02 Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation, reorganization or
other similar proceedings in respect of the Company or a
substantial part of its property, or of any proceedings for
liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject
to the provisions of Section 1503, that (i) a default shall have
occurred with respect to the payment of principal of or interest
on or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default (other
than a default in the payment of principal or interest or other
monetary amounts due and payable) in respect of any Senior
Indebtedness, as defined therein or in the instrument under which
the same is outstanding, permitting the holder or holders thereof
to accelerate the maturity thereof (with notice or lapse of time,
or both), and such default shall have continued beyond the period
of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default shall
not have been cured or waived or shall not have ceased to exist,
or (c) that the principal of and accrued interest on the
Securities of any series shall have been declared due and payable
pursuant to Section 801 and such declaration shall not have been
rescinded and annulled as provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to receive
payment of the full amount due thereon, or
provision shall be made for such payment in money
or money's worth, before the Holders of any of the
Securities are entitled to receive a payment on
account of the principal of or premium, if any, or
interest on the indebtedness evidenced by the
Securities, including, without limitation, any
payments made pursuant to Articles Four and Five;
(2) any payment by, or distribution of
assets of, the Company of any kind or character,
whether in cash, property or securities, to which
any Holder or the Trustee would be entitled except
for the provisions of this Article, shall be paid
or delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise,
directly to the holders of such Senior
Indebtedness or their representative or
representatives or to the trustee or trustees
under any indenture under which any instruments
evidencing any of such Senior Indebtedness may
have been issued, ratably according to the
aggregate amounts remaining unpaid on account of
such Senior Indebtedness held or represented by
each, to the extent necessary to make payment in
full of all Senior Indebtedness remaining unpaid
after giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of
the indebtedness evidenced by the Securities or to
the Trustee under this Indenture; and
(3) in the event that, notwithstanding
the foregoing, any payment by, or distribution of
assets of, the Company of any kind or character,
whether in cash, property or securities, in
respect of principal of or interest on the
Securities or in connection with any repurchase by
the Company of the Securities, shall be received
by the Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision is made
for such payment in money or money's worth, such
payment or distribution in respect of principal of
or interest on the Securities or in connection
with any repurchase by the Company of the
Securities shall be paid over to the holders of
such Senior Indebtedness or their representative
or representatives or to the trustee or trustees
under any indenture under which any instruments
evidencing any such Senior Indebtedness may have
been issued, ratably as aforesaid, for application
to the payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the
123rd day following the date of deposit of cash or Government
Obligations pursuant to Section 701 (provided all conditions set
out in such Section shall have been satisfied), the funds so
deposited and any interest thereon will not be subject to any
rights of holders of Senior Indebtedness including, without
limitation, those arising under this Article Fifteen; provided
that no event described in clauses (d) and (e) of Section 801
with respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan or
reorganization or readjustment which are subordinate in right of
payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety,
to another corporation upon the terms and conditions provided for
in Article Eleven hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of
this Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with
the conditions stated in Article Eleven hereof. Nothing in
Section 1501 or in this Section 1502 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 907.
SECTION XV03 Disputes with Holders of Certain Senior
Indebtedness.
Any failure by the Company to make any payment on or
perform any other obligation in respect of Senior Indebtedness,
other than any indebtedness incurred by the Company or assumed or
guaranteed, directly or indirectly, by the Company for money
borrowed (or any deferral, renewal, extension or refunding
thereof) or any other obligation as to which the provisions of
this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or obligation,
shall not be deemed a default under clause (b) of Section 1502 if
(i) the Company shall be disputing its obligation to make such
payment or perform such obligation and (ii) either (A) no final
judgment relating to such dispute shall have been issued against
the Company which is in full force and effect and is not subject
to further review, including a judgment that has become final by
reason of the expiration of the time within which a party may
seek further appeal or review, or (B) in the event that a
judgment that is subject to further review or appeal has been
issued, the Company shall in good faith be prosecuting an appeal
or other proceeding for review and a stay or execution shall have
been obtained pending such appeal or review.
SECTION XV04 Subrogation.
Senior Indebtedness shall not be deemed to have been
paid in full unless the holders thereof shall have received cash
(or securities or other property satisfactory to such holders) in
full payment of such Senior Indebtedness then outstanding.
Subject to the prior payment in full of all Senior Indebtedness,
the rights of the Holders of the Securities shall be subrogated
to the rights of the holders of Senior Indebtedness to receive
any further payments or distributions of cash, property or
securities of the Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities shall be
paid in full; and such payments or distributions of cash,
property or securities received by the Holders of the Securities,
by reason of such subrogation, which otherwise would be paid or
distributed to the holders of such Senior Indebtedness shall, as
between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it being
understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights
of the Holders, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION XV05 Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Indebtedness and the Holders, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders the
principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders
and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any order
or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization
proceedings are pending for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders
of the Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon, and all other facts pertinent thereto or
to this Article.
SECTION XV06 Priority of Senior Indebtedness Upon Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise, all
matured principal of Senior Indebtedness and interest and
premium, if any, thereon shall first be paid in full before any
payment of principal or premium, if any, or interest, if any, is
made upon the Securities or before any Securities can be acquired
by the Company or any sinking fund payment is made with respect
to the Securities (except that required sinking fund payments may
be reduced by Securities acquired before such maturity of such
Senior Indebtedness).
SECTION XV07 Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set forth
in this Article with respect to any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior
Indebtedness. Nothing in this Article shall deprive the Trustee
of any of its rights as such holder. Nothing in this Article
shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION XV08 Notice to Trustee to Effectuate Subordination.
Notwithstanding the provisions of this Article or any
other provision of the Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee
unless and until the Trustee shall have received written notice
thereof from the Company, from a Holder or from a holder of any
Senior Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such written
notice, the Trustee shall be entitled, subject to Section 901, in
all respects to assume that no such facts exist; provided,
however, that, if prior to the fifth Business Day preceding the
date upon which by the terms hereof any such moneys may become
payable for any purpose, or in the event of the execution of an
instrument pursuant to Section 702 acknowledging satisfaction and
discharge of this Indenture, then if prior to the second Business
Day preceding the date of such execution, the Trustee shall not
have received with respect to such moneys the notice provided for
in this Section, then, anything herein contained to the contrary
notwithstanding, the Trustee may, in its discretion, receive such
moneys and/or apply the same to the purpose for which they were
received, and shall not be affected by any notice to the
contrary, which may be received by it on or after such date;
provided, however, that no such application shall affect the
obligations under this Article of the persons receiving such
moneys from the Trustee.
SECTION XV09 Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment of the
principal of and premium, if any, and interest, if any, on the
Securities, at any time or from time to time and in their
absolute discretion, agree with the Company to change the manner,
place or terms of payment, change or extend the time of payment
of, or renew or alter, any Senior Indebtedness, or amend or
supplement any instrument pursuant to which any Senior
Indebtedness is issued, or exercise or refrain from exercising
any other of their rights under the Senior Indebtedness
including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders or the Trustee.
SECTION 1510 Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and objectives as are specifically set forth in this
Indenture, and no implied covenants or obligations with respect
to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness,
and shall not be liable to any such holders if it shall
mistakenly pay over or deliver to the Holders or the Company or
any other Person, money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 1511 Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 1507, 1508
and 1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512 Rights of Holders of Senior Indebtedness Not
Impaired.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any
time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any noncompliance
by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
SECTION 1513 Effect of Subordination Provisions.
Notwithstanding anything contained herein to the
contrary, all the provisions of this Indenture shall be subject
to the provisions of this Article, so far as the same may be
applicable thereto.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
ENTERGY LONDON INVESTMENTS plc
By: /s/ Steven C. McNeal
ATTEST:
/s/ William J. Regan, Jr.
THE BANK OF NEW YORK, Trustee
By: /s/ Walter N. Gitlin
ATTEST:
/s/ MaryBeth Lewicki
<PAGE>
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
On the 14th day of November, 1997, before me personally
came Steven C. McNeal, to me known, who, being by me duly sworn,
did depose and say that he is an Assistant Treasurer of Entergy
London Investments plc, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
/s/ Denise Redmann
DENISE REDMANN
NOTARY PUBLIC
Parish of New Orleans, State of Louisiana
My Commission is issued for Life.
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 18th day of November, 1997, before me personally
came, Walter N. Gitlin, to me known, who, being by me duly sworn,
did depose and say that he is a Vice President of The Bank of New
York, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
/s/ William J. Cassels
William J. Cassels
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York County
Commission Expires May 16, 1998
Exhibit A-2(a)
CUSIP NO. 29364JAA5
No. 1
ENTERGY LONDON INVESTMENTS plc
8 5/8% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, SERIES A
ENTERGY LONDON INVESTMENTS plc, a public limited
company incorporated and existing under the laws of England and
Wales (herein referred to as the "Company", which term includes
any successor Person under the Indenture), for value received,
hereby promises to pay to bearer, the principal sum of THREE
HUNDRED AND THREE MILLION THIRTY THOUSAND THREE HUNDRED AND
TWENTY-FIVE Dollars, and to pay interest on said principal sum,
from and including, November 19, 1997 or from, and excluding, the
most recent Interest Payment Date through which interest has been
paid or duly provided for, quarterly on March 31, June 30,
September 30 and December 31 of each year, commencing December
31, 1997 at the rate of 8 5/8% per annum until the principal
hereof is paid or made available for payment. The amount of
interest payable on any Interest Payment Date shall be computed
on the basis of a 360-day year of twelve 30-day months. Interest
on the Securities of this series will accrue from, and including,
November 19, 1997 through the first Interest Payment Date, and
thereafter will accrue, from, and excluding, the last Interest
Payment Date through which interest has been paid or duly
provided for. In the event that any Interest Payment Date is not
a Business Day, then payment of the interest payable on such date
will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of such
delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on the Interest Payment Date.
Interest that is in arrears for more than one quarter will bear
additional interest (to the extent permitted by law) at the rate
of 8 5/8% per annum thereof, compounded quarterly. The term
"interest" as used herein shall include quarterly interest
payments, interest on quarterly interest payments in arrears and
Additional Amounts (as defined below) and Additional Interest, as
applicable. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will be paid to the
bearer hereof. Any such interest not so punctually paid or duly
provided for will be payable to the bearer hereof at the time of
payment.
All payments of principal and interest in respect of
the Securities of this series shall be made free and clear of,
and without withholding or deduction for or on account of, any
present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld
or assessed by or within the United Kingdom (the "UK") or by or
within any political subdivision thereof or any authority therein
or thereof having power to tax, unless such withholding or
deduction is required by law. In the event of any such
withholding or deduction the Company shall pay Additional Amounts
(as defined in, and subject to the limitations and qualifications
set forth in, the Certificate (as herein defined)).
Payment of the principal of and premium, if any, and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
the State of New York against, in the case of interest, receipt
therefor in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public
and private debts; provided that payment of interest may be made
at the option of the Company by check mailed to the address of
the persons entitled thereto under the Indenture; and provided,
further, that payment of the principal of this Debenture shall be
made only upon surrender thereof to the Trustee. Payments of any
interest on this Debenture may also be made, in the case of a
Holder of at least US $1,000,000 aggregate principal amount of
Debentures of this series, by wire transfer to a United States
Dollar account maintained by the payee with a bank in the United
States; provided that such Holder elects payment by wire transfer
by giving written notice to the Trustee or a Paying Agent to such
effect designating such account no later than 15 days immediately
preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
ENTERGY LONDON INVESTMENTS plc
By: /s/ Steven C. McNeal
Name: Steven C. McNeal
Title: Assistant Treasurer
ATTEST:
/s/ William J. Regan, Jr.
<PAGE>
CERTIFICATE OF AUTHENTICATION
Dated: November 19, 1997
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: /s/ Walter N. Gitlin
Authorized Signatory
<PAGE>
REVERSE OF 8 5/8% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE, SERIES A
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of November 1, 1997 (herein, together with any
amendments thereto, called the "Indenture", which term shall have
the meaning assigned to it in such instrument), between the
Company and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture,
including the Board Resolutions and Officer's Certificate filed
with the Trustee on November 19, 1997 (herein called the
"Certificate") creating the series designated on the face hereof,
for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and
the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $303,030,325.
The Securities of this series are subject to redemption
upon not less than 30 nor more than 60 days' notice given as
provided in the Indenture, at any time on or after November 19,
2002 as a whole or in part, at the election of the Company, at a
redemption price equal to 100% of the principal amount, together
in the case of any such redemption with accrued and unpaid
interest, to, but not including, the redemption date (herein
called the "Redemption Price"), but interest installments whose
Stated Maturity is on or prior to such redemption date will be
payable to the bearer of such Security, all as provided in the
Indenture.
The Securities of this series will also be redeemable
at the option of the Company if a Tax Event or an Investment
Company Event shall occur and be continuing, in whole but not in
part on any date within 90 days of the occurrence of such Tax
Event or Investment Company Event, at the Redemption Price, upon
not less than 30 nor more than 60 days' notice given as provided
in the Indenture. "Tax Event" means the receipt by Entergy
London Capital, L.P., a Delaware limited liability partnership
(the "Partnership"), or the Company of an Opinion of Counsel
experienced in such matters to the effect that, as a result of
any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the
United States, the UK or any political subdivision or taxing
authority thereof or therein affecting taxation, or as a result
of any official administrative pronouncement or decision
interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or
decision is announced on or after November 12, 1997, there is
more than an insubstantial risk that (i) the Partnership is, or
will be within 90 days of the date thereof, subject to United
States Federal income tax or UK tax with respect to income
received or accrued on the Securities of this series, (ii)
interest payable by the Company on the Securities of this series
is treated as a distribution within the meaning of Section 209 of
the Income and Corporation Taxes Act 1988 of the UK or in any
other manner is not, or within 90 days of the date thereof will
not be, deductible by the Company, in whole or in part, for UK
corporation income tax purposes, or (iii) the Partnership is, or
will be within 90 days of the date thereof, subject to more than
a de minimis amount of other taxes, duties or other governmental
charges. "Investment Company Event" means the occurrence of a
change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority to the effect that
the Partnership is or will be considered an "investment company"
that is required to be registered under the Investment Company
Act of 1940, as amended, which change in law becomes effective on
or after November 12, 1997.
If (a) the Company satisfies the Trustee prior to the
giving of a notice as provided below that it has or will become
obligated to pay Additional Amounts with respect to the
Securities of this series as a result of either (x) any change
in, or amendment to, the laws or regulations of the UK or any
political subdivision or any authority or agency thereof or
therein having power to tax or levy duties, or any change in the
application or interpretation of such laws or regulations, which
change or amendment becomes effective on or after November 12,
1997 or (y) the issuance of registered Securities of this series
pursuant to the first sentence or clause (i) or (ii) of the third
sentence of paragraph (15(b)) of the Certificate and (b) such
obligation cannot be avoided by the Company taking reasonable
measures available to it, the Company may, at its option, on
giving not more that 60 or less that 30 days' notice to the
Holders, redeem, as a whole but not in part, the Securities of
this series at the Redemption Price; provided, that no such
notice of redemption shall be given earlier than 90 days prior to
the earliest date on which the Company would be obligated to pay
such Additional Amounts were a payment in respect of the
Securities of this series then due.
In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued to the
bearer hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
So long as the Company is not in default under the
Indenture the Company has the right, at any time and from time to
time during the term of the Securities of this series, to defer
indefinitely the payment of interest. However, until all
deferred interest payments, together with interest thereon at the
annual rate of 8 5/8%, compounded quarterly, to the extent
permitted by applicable law, have been paid in full, or (A) there
shall have occurred and be continuing a payment default pursuant
to Section 801(a) or 801(b) of the Indenture (whether before or
after expiration of any period of grace) or an Event of Default
under the Indenture or (B) the Company shall be in default with
respect to its payment or other obligations under the Guarantee,
the Company may not, directly or indirectly (i) declare or pay
any dividends or distributions, on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any of its capital
stock, (ii) make any payment of principal, interest or premium,
if any, on or repay, repurchase or redeem any of its debt
securities that rank pari passu with or junior in interest to the
Securities of this series (including other Securities issued
under the Indenture), (iii) make any guarantee payments with
respect to any guarantee if such guarantee ranks pari passu with
or junior in interest to the Securities of this series, or (iv)
make any payment of principal, interest or premium, if any, on,
or repay, repurchase or redeem any of its debt securities held by
any affiliate, or make any loans or advances to, or make payments
on any guarantee of the debt of, any affiliate, in each case
other than (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares
of, the Company's common stock and exchanges or conversions of
common stock of one class for common stock of another class, (b)
payments by the Company under the Guarantee (or any other
guarantee by the Company with respect to any securities of any of
its subsidiaries, provided that the proceeds from the issuance of
such securities were used to purchase junior subordinated
deferrable interest debentures of the Company), and (c) any
dividend or payment by the Company which is applied, directly or
indirectly, to the payment of (x) principal of or interest or
premium, if any, on Acquisition Debt (as defined in the
Certificate) as and when due in accordance with the terms
thereof, and (y) and UK Tax Payments (as defined in the
Certificate).
The Securities of this series are issuable only in
registered form without coupons in denominations of $25 and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
As provided in the Indenture, the Company shall not be
required to make transfers or exchanges of Securities of this
series for a period of 15 days immediately preceding the date of
the mailing of any notice of redemption of such Securities and
the Company shall not be required to make transfers or exchanges
of any Securities of this series so selected for redemption in
whole or in part (except the unredeemed portion of thereof).
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer hereof as the absolute owner
hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
Exhibit A-5(a)
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
ENTERGY LONDON CAPITAL, L.P.
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
ENTERGY LONDON CAPITAL, L.P.
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT of
Entergy London Capital, L.P., a Delaware limited partnership (the
"Partnership"), dated as of November 19, 1997, among Entergy
London Investments plc (formerly known as Entergy Power UK plc),
a public limited company incorporated under the laws of England
and Wales, in its capacity as the general partner (the "General
Partner"), William J. Regan, Jr., as the initial limited partner
(the "Initial Limited Partner"), and such other Persons (as
defined herein) who become Partners (as defined herein) as
provided herein.
WHEREAS, the General Partner and the Initial Limited
Partner entered into an Agreement of Limited Partnership, dated
as of August 4, 1997 (as amended, the "Original Limited
Partnership Agreement");
WHEREAS, the Certificate of Limited Partnership of the
Partnership was filed with the Office of the Secretary of State
of the State of Delaware on August 4, 1997, and was later amended
by a Certificate of Amendment to Certificate of Limited
Partnership filed with the Secretary of State of the State of
Delaware on October 1, 1997; and
WHEREAS, the Partners desire to continue the
Partnership under the Act (as defined herein) and to amend and
restate the Original Limited Partnership Agreement in its
entirety.
NOW, THEREFORE, in consideration of the mutual
covenants, rights and obligations set forth herein and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree to amend
and restate the Original Limited Partnership Agreement as
follows:
ARTICLE I
DEFINED TERMS
Section I.1 Definitions. Unless the context otherwise
requires the terms defined in this Article I shall, for the
purposes of this Agreement, have the meanings herein specified.
"Act" means the Delaware Revised Uniform Limited
Partnership Act, as amended from time to time.
"Action" has the meaning set forth in Section 6.1(b).
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled or under
direct or indirect common control with such specified Person. As
used in this definition, the term "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" means this Amended and Restated Limited
Partnership Agreement, as amended, modified, supplemented or
restated from time to time in accordance with its terms.
"Business Day" means any day other than a Saturday or
Sunday, or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to
remain closed, or a day on which the corporate trust office of
the Debenture Trustee is closed for business.
"Capital Account" has the meaning set forth in Section
3.3.
"Certificate" means the Certificate of Limited
Partnership of the Partnership filed with the Secretary of State
of the State of Delaware on August 4, 1997, as it may be amended
and/or restated from time to time.
"Clearing Agency" means, with respect to a particular
series of Preferred Securities, an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act
designated in accordance with the provisions of Article VI to act
as depository for that series and in whose name (or nominee's
name) shall be registered one or more global Preferred Securities
evidenced by Preferred Certificates and which shall undertake to
effect book-entry transfers and pledges of beneficial interests
in such Preferred Securities.
"Closing Date" means, with respect to the Preferred
Securities of any series, the date of original issuance of such
Preferred Securities.
"Code" means the United States Internal Revenue Code of
1986, as amended, or any corresponding federal tax statute
enacted after the date of this Agreement. A reference to a
specific section () of the Code refers not only to such specific
section but also to any corresponding provision of any federal
tax statute enacted after the date of this Agreement, as such
specific section or corresponding provision is in effect on the
date of application of the provisions of this Agreement
containing such reference.
"Covered Person" means any Partner, any Affiliate of
any Partner and any officer, director, shareholder, partner,
employee, representative or agent of any Partner or their
respective Affiliates, or any employee or agent of the
Partnership or its Affiliates.
"Debenture Trustee" means the entity serving as the
trustee under the Indenture.
"Debentures" means a particular series of junior
subordinated deferrable interest debentures of Entergy London
Investments issued to or to the order of the Partnership from
time to time in connection with the issuance and sale by the
Partnership of a related series of Preferred Securities.
"Definitive Preferred Certificates" shall refer to the
Preferred Certificates distributed in the circumstances described
in Section 10.5.
"Dividends" means the distributions from the
Partnership with respect to the Preferred Securities of a
particular series, accumulating and payable in accordance with
their terms.
"Entergy London Investments" means Entergy London
Investments plc (formerly known as Entergy Power UK plc), a
public limited company incorporated under the laws of England and
Wales.
"Exchange Act" means the United States Securities
Exchange Act of 1934, as amended.
"Fiscal Period" means each calendar quarter.
"Fiscal Year" means (i) the period commencing upon the
formation of the Partnership and ending on December 31, 1997, and
(ii) any subsequent twelve (12) month period commencing on
January 1 and ending December 31. For United States federal
income tax reporting purposes the Fiscal Year of the Partnership
shall be the calendar year.
"General Partner" means Entergy London Investments, in
its capacity as general partner of the Partnership, its permitted
successors, or any successor general partner in the Partnership
admitted as such pursuant to the applicable provisions of this
Agreement.
"Guarantee" means the Guarantee Agreement dated as of
November 19, 1997, between Entergy London Investments and the
Guarantee Trustee, as the same may be amended, modified,
supplemented or restated from time to time in accordance with its
terms, which was executed and delivered by Entergy London
Investments for the benefit of the Holders, and any additional
Guarantee Agreements entered into by Entergy London Investments
for the benefit of the Holders.
"Guarantee Trustee" means the entity serving as the
trustee under the Guarantee.
"Holder" means a Limited Partner in whose name
Preferred Securities evidenced by Preferred Certificates are
registered on the books and records of the Partnership; provided,
however, that in determining whether the Holders of the requisite
percentage of Preferred Securities of a particular series have
given any request, notice, consent or waiver hereunder, "Holder"
shall not include the General Partner or any Affiliate thereof.
"Indemnified Person" means the General Partner, any
Affiliate of the General Partner, any officer, director,
shareholder, partner, employee, representative or agent of the
General Partner and any employee or agent of the Partnership
designated as such by the General Partner, or its Affiliates.
"Indenture" means the Indenture for Unsecured
Subordinated Debt Securities relating to Preferred Securities,
dated as of November 1, 1997, between Entergy London Investments
and the Debenture Trustee, as the same may be amended and
supplemented from time to time, pursuant to which the Debentures
are issued.
"Initial Limited Partner" means William J. Regan, Jr.,
in his capacity as initial limited partner of the Partnership.
"Interest" means the entire ownership interest of a
Partner in the Partnership at any particular time, including,
without limitation, its interest in the capital, profits, losses
and distributions of the Partnership.
"Investment Company Act" means the United States
Investment Company Act of 1940, as amended.
"Investment Company Event" means the occurrence of a
change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (an "Investment
Company Act Change") to the effect that the Partnership is or
will be considered an "investment company" that is required to be
registered under the Investment Company Act, which Investment
Company Act Change becomes effective on or after November 12,
1997.
"Limited Partner" means the Initial Limited Partner or
any Person who is admitted to the Partnership as a Limited
Partner pursuant to the terms of this Agreement, but does not
include any Person that has transferred to another Person in
accordance with Section 10.2 all Preferred Securities of which it
is the registered Holder.
"Liquidation Distribution" has the meaning set forth in
the applicable Action relating to a series of Preferred
Securities as described in Section 6.1(b)(v).
"Liquidation Preference" means the stated liquidation
preference of a Preferred Security as set forth in the Action
establishing a particular series of Preferred Securities.
"Liquidator" has the meaning set forth in Section
11.3.
"Majority or other stated Percentage in Liquidation
Preference" means Holder(s) of a series of Preferred Securities
or, as the context may require, Holder(s) of more than one series
of Preferred Securities voting as a class, who are the registered
owners of Preferred Securities whose Liquidation Preference
(including the stated liquidation preference that would be paid
on redemption or maturity plus, if applicable to such series,
accumulated and unpaid Dividends, whether or not declared, to the
date upon which the voting percentages are determined) represents
more than 50% or, as the case may be, such other percentage of
the Liquidation Preference of all Preferred Securities of such
series or, as applicable, multiple series.
"Original Limited Partnership Agreement" has the
meaning set forth in the recitals to this Agreement.
"Partners" means the General Partner and the Limited
Partners, collectively, where no distinction is required by the
context in which the term is used.
"Partnership" means the limited partnership formed
under the Act pursuant to the Original Limited Partnership
Agreement upon filing of the Certificate, and continued pursuant
to this Agreement, its permitted successors, or any successor
partnership created pursuant to the applicable provisions of this
Agreement.
"Person" means any individual, corporation, limited
liability company, partnership, joint venture, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Power of Attorney" means the Power of Attorney granted
pursuant to Section 13.2.
"Preferred Certificate" means a certificate evidencing
Preferred Securities, substantially in the form attached hereto
as Annex A or in such other form as may be set forth in the
Action establishing a particular series of Preferred Securities.
"Preferred Securities" has the meaning set forth in
Section 6.1(b).
"Purchase Price" for any Preferred Security means the
amount paid per such Preferred Security in the initial sale by
the Partnership of such Preferred Security.
"Securities Act" means the United States Securities Act
of 1933, as amended.
"Series A Preferred Securities" has the meaning set
forth in Section 6.2(a).
"Special Event" means the occurrence of a Tax Event or
an Investment Company Act Event.
"Tax Event" means, with respect to Preferred Securities
of a particular series, the receipt by the Partnership or Entergy
London Investments of an opinion of counsel experienced in such
matters to the effect that, as a result of any amendment to, or
change (including any announced prospective change) in, the laws
(or any regulations thereunder) of the United States, the United
Kingdom or any political subdivision or taxing authority thereof
or therein affecting taxation, or as a result of any official
administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or
after November 12, 1997, there is more than an insubstantial risk
that (i) the Partnership is, or will be within 90 days of such
date, subject to United States federal income or United Kingdom
income tax, with respect to income accrued or received on the
related series of Debentures, (ii) interest payable by Entergy
London Investments on such Debentures is treated as a
distribution within the meaning of Section 209 of the Income and
Corporation Taxes Act 1988 of the United Kingdom or in any other
manner is not, or within 90 days of such date will not be,
deductible by Entergy London Investments, in whole or in part,
for United Kingdom corporation tax purposes, or (iii) the
Partnership is, or will be within 90 days of such date, subject
to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Tax Matters Partner" means the General Partner
designated as such in Section 9.10 hereof.
"Transfer Agent" means the transfer agent, if any,
designated by the General Partner with respect to a particular
series of Preferred Securities and in accordance with the terms
thereof and its successors and assigns.
"Treasury Regulations" means the income tax
regulations, including temporary regulations, promulgated under
the Code, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
Section I.2 Headings. The headings and subheadings in
this Agreement are included for convenience and identification
purposes only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or
any provision hereof.
ARTICLE II
CONTINUATION OF THE PARTNERSHIP;
ADMISSION OF HOLDERS;
WITHDRAWAL OF INITIAL LIMITED PARTNER
Section II.1 Continuation of the Partnership. The
parties hereto agree to continue the Partnership in accordance
with the terms of this Agreement. The General Partner, for
itself and as agent for the Limited Partners, shall make every
reasonable effort to ensure that all necessary or appropriate
certificates and documents are properly executed and shall
accomplish all filing, recording, publishing and other acts, in
each case necessary or appropriate for compliance with the
requirements for the continuation of the Partnership as a limited
partnership under the Act and under all other laws of the State
of Delaware or such other jurisdictions in which the General
Partner determines that the Partnership may conduct business.
The rights and duties of the Partners shall be as provided herein
and, subject to the terms hereof, in the Act.
Section II.2 Name. The name of the Partnership is
"Entergy London Capital, L.P." Such name may be modified from
time to time by the General Partner following written notice to
the Limited Partners.
Section II.3 Business of the Partnership. The
purposes of the Partnership are (a) to issue from time to time
limited partner Interests in the Partnership including, without
limitation, Preferred Securities, and to use the aggregate
proceeds received by the Partnership from the issuance thereof,
together with the proceeds of the capital contribution of the
General Partner made at the time of such issuance for the
purchase of a related series of Debentures and (b) to engage in
any other business or activity that now or hereafter may be
necessary, incidental, proper, advisable or convenient to
accomplish the foregoing purposes and that is not forbidden by
the law of the jurisdiction in which the Partnership engages in
that business; provided, however, that the Partnership shall have
no power to borrow money, to become liable for the borrowings of
any third party or to engage in any financial or other trade or
business. Specifically, the Partnership may invest in investment
assets, such as the Debentures, but may not invest in assets
which are likely to result in Partnership liabilities, such as
active business assets.
Section II.4 Term. The term of the Partnership
commenced upon the filing of the Certificate with the Secretary
of State of the State of Delaware and shall continue thereafter
unless the Partnership is dissolved in accordance with the
provisions of this Agreement.
Section II.5 Registered Agent and Office. The
Partnership's registered agent and office in Delaware shall be
The Corporation Trust Company, Corporation Trust Center, 1209
Orange Street, Wilmington, New Castle County, Delaware 19801. At
any time, the General Partner may designate another registered
agent and/or registered office.
Section II.6 Principal Place of Business. The
principal place of business of the Partnership shall be at 639
Loyola Avenue, New Orleans, Louisiana 70113. Upon ten days'
prior written notice to the Limited Partners, the General Partner
may change the location of the Partnership's principal place of
business.
Section II.7 Name and Business Address of General
Partner. The name and address of the General Partner are as
follows:
Entergy London Investments plc
Templar House
81-87 High Holborn
London WClV 6NU, England
The General Partner may change its name or business address from
time to time, in which event the General Partner shall promptly
notify the Limited Partners of any such change in the manner set
forth in Section 13.1 and shall file an appropriate amendment to
the Certificate with the Secretary of State of the State of
Delaware.
Section II.8 Admission of Holders of Preferred
Securities; Withdrawal of Initial Limited Partner.
(a) Upon the issuance of a Preferred Certificate in
the name of a Person pursuant to this Agreement and receipt by
the Partnership of the Purchase Price paid in respect of the
Preferred Security represented by such Preferred Certificate,
which payment shall be deemed to constitute a direction of the
General Partner to execute this Agreement on such Person's behalf
and a request by such Person that the books and records of the
Partnership reflect such Person's admission as a Limited Partner,
such Person shall be admitted to the Partnership as a Limited
Partner and shall become bound by this Agreement.
(b) Immediately following the first admission of a
Holder to the Partnership as a Limited Partner, the Initial
Limited Partner shall be deemed to have withdrawn from the
Partnership, shall cease to be a limited partner of the
Partnership and shall receive the return of its capital
contributions without interest or deduction.
(c) The name and mailing address of each Partner and
the amount contributed by such Partner to the capital of the
Partnership shall be listed on the books and records of the
Partnership. The General Partner shall be required to update the
books and records from time to time as necessary to accurately
reflect such information.
ARTICLE III
CAPITAL CONTRIBUTIONS; REPRESENTATION OF
HOLDER'S INTEREST; CAPITAL ACCOUNTS
Section III.1 Capital Contributions.
(a) The General Partner has, on or prior to the date
hereof, contributed an aggregate of $3,030,325 to the capital of
the Partnership, which amount is equal to at least 1% of the
total capital contributions to the Partnership on the date
hereof. The General Partner shall, hereafter from time to time,
make such additional capital contributions as are necessary to
maintain its aggregate capital contributions in an amount equal
to at least 1% of the aggregate capital contributions made by all
Partners.
(b) The Initial Limited Partner has, prior to the date
hereof, contributed the amount of $10 to the capital of the
Partnership, which amount will be returned to the Initial Limited
Partner as contemplated by Section 2.8(b).
(c) Each Person who acquires a Preferred Security from
the Partnership shall, in connection with the acquisition of such
Preferred Security, contribute to the capital of the Partnership
an amount in cash equal to the Purchase Price for such Preferred
Security.
(d) No Limited Partner shall at any time be required
to make any additional capital contributions to the Partnership,
except as may be required by law.
Section III.2 Holder's Interest Represented by
Preferred Securities. A Holder's Interest shall be represented
by the Preferred Certificate held by such Holder. Each Holder's
ownership of Preferred Securities shall be set forth on the books
and records of the Partnership. Each Holder hereby agrees that
its Interest represented by its Preferred Certificate shall for
all purposes be personal property. A Holder shall have no
interest in specific Partnership property.
Section III.3 Capital Accounts. An individual
capital account (a "Capital Account") shall be established and
maintained for each Partner which shall be credited with the
capital contributions made and the profits allocated to the
Partner (or predecessor in interest) and debited by the
distributions made and losses allocated to the Partner (or
predecessor in interest). Any syndication expenses incurred by
the Partnership shall be allocated exclusively to the Capital
Account of the General Partner. All provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to
comply with the Treasury Regulations promulgated under Code
704(b), and shall be interpreted and applied in a manner
consistent with such Treasury Regulations.
Section III.4 Interest on Capital Contributions. No
Partner shall be entitled to interest on or with respect to any
capital contribution to the Partnership.
Section III.5 Withdrawal and Return of Capital
Contributions. Except as provided in Section 2.8(b), no Partner
shall be entitled to withdraw any part of such Partner's capital
contribution to the Partnership. No Partner shall be entitled to
receive any Dividends from the Partnership, except as provided in
this Agreement or in the Action creating a particular series of
Preferred Securities.
ARTICLE IV
ALLOCATIONS
Section IV.1 Profits. Each fiscal period, the net
profits of the Partnership will be allocated (a) first, to the
Holders, in proportion to the number of Preferred Securities held
by each such Holder, in an amount equal to the excess of (x) the
Dividends accumulated on the Preferred Securities since their
date of issuance through and including the close of the current
fiscal period (whether or not paid) over (y) the amount of
profits allocated to the Holders pursuant to this Section 4.1(a)
in all prior fiscal periods and (b) thereafter, to the General
Partner.
Section IV.2 Losses. Except in connection with a
dissolution and liquidation of the Partnership, the net losses of
the Partnership shall be allocated each year to the General
Partner. Upon a dissolution and liquidation of the Partnership,
net losses shall be allocated to each Holder in an amount equal
to the excess of (a) such Holder's Capital Account over (b) such
Holder's Liquidation Distribution (as defined with respect to
each Preferred Security in the Action establishing such Preferred
Security), with any remaining net losses being allocated to the
General Partner.
Section IV.3 Allocation Rules.
(a) For purposes of determining the profits, losses or
any other items allocable to any period, profits, losses and any
such other items shall be determined on a daily, monthly or other
basis, as determined by the General Partner using any method that
is permissible under 706 of the Code and the Treasury
Regulations thereunder.
(b) The Partners are aware of the income tax
consequences of the allocations made by this Article IV and
hereby agree to be bound by the provisions of this Article IV in
reporting their shares of Partnership income and loss for income
tax purposes.
Section IV.4 Withholding. The Partnership shall
comply with all withholding requirements under federal, state and
local law. The Partnership shall request, and the Partners shall
provide to the Partnership, such forms or certificates as are
necessary to establish an exemption from withholding with respect
to each Partner, and any representations and forms as shall
reasonably be requested by the Partnership to assist it in
determining the extent of, and in fulfilling, its withholding
obligations. The Partnership shall file required forms with
applicable jurisdictions and, unless an exemption from
withholding is properly established by a Partner, shall remit
amounts withheld with respect to the Partners to applicable
jurisdictions. To the extent that the Partnership is required to
withhold and pay over any amounts to any authority with respect
to distributions or allocations to any Partner, the amount
withheld shall be deemed to be a distribution in the amount of
the withholding to the Partner. In the event of any claimed
overwithholding, Partners shall be limited to an action against
the applicable jurisdiction. If the amount withheld was not
withheld from actual distributions, the Partnership may reduce
subsequent distributions by the amount of such withholding.
ARTICLE V
DIVIDENDS AND DISTRIBUTIONS
Section V.1 Dividends. Limited Partners shall receive
periodic Dividends, if any, a Redemption Price and a Liquidation
Preference in accordance with the applicable terms of any series
of Preferred Securities as established in the Action with respect
thereto. The General Partner shall determine whether and when
Dividends shall be payable pursuant to the terms and conditions
of the Action establishing a particular series of Preferred
Securities, and shall give notice thereof to all Limited Partners
of record as of the date of such determination. Subject to the
rights of the Preferred Securities, all remaining cash shall be
distributed to the General Partner at such time as the General
Partner shall determine.
Section V.2 Limitations on Distributions. The
Partnership shall not make a distribution to any Partner on
account of such Partner's Interest if such distribution would
violate Section 17-607 of the Act or other applicable law.
ARTICLE VI
ISSUANCE OF PREFERRED SECURITIES
Section VI.1 General Provisions Regarding Preferred
Securities.
(a) The aggregate number of Preferred Securities which
the Partnership shall have authority to issue is unlimited.
(b) The General Partner on behalf of the Partnership
is, subject to Section 6.2(b), authorized to issue from time to
time limited partner Interests in the Partnership (the "Preferred
Securities") in one or more series having such designations,
rights, privileges, restrictions, preferences and other terms and
provisions as may from time to time be established in a written
action or actions (each, an "Action") of the General Partner
providing for the issue of such series. In connection with the
foregoing, the General Partner is expressly authorized, prior to
issuance, to set forth in an Action or Actions providing for the
issue of such series, the following:
(i) the distinctive designation of such series of
Preferred Securities, which shall distinguish it from other
series of Preferred Securities and the Liquidation
Preference with respect to such series;
(ii) the number of Preferred Securities included
in such series, which number may not be increased or
decreased from time to time unless otherwise provided by the
General Partner in creating the series;
(iii) the annual Dividend rate (or method of
determining such rate) for Preferred Securities of such
series and the date or dates upon which such Dividends shall
be payable, provided, however, that Dividends on any series
of Preferred Securities shall be payable, in accordance with
the Action providing for the issuance of such series, on a
quarterly basis to Holders of such series of Preferred
Securities as of a record date in each quarter during which
such series of Preferred Securities are outstanding;
(iv) whether Dividends on the Preferred Securities
of such series shall be cumulative, and, in the case of
Preferred Securities of any series having cumulative
Dividend rights, the date or dates or method of determining
the date or dates from which Dividends on the Preferred
Securities of such series shall be cumulative;
(v) the amount or amounts which shall be paid out
of the assets of the Partnership to the Holders of the
Preferred Securities of such series upon voluntary or
involuntary dissolution, winding-up or liquidation of the
Partnership (the "Liquidation Distribution");
(vi) the obligation, if any, of the Partnership to
purchase or redeem Preferred Securities of such series and
the price or prices at which, the period or periods within
which, and the terms and conditions upon which, the
Preferred Securities of such series shall be purchased or
redeemed, in whole or in part, pursuant to such obligation
and, whether any such redemption shall be at the option of
the Partnership or the General Partner or otherwise;
provided, however, that unless otherwise set forth in the
Action providing for the issuance of such series, the
Preferred Securities of such series may at any time and from
time to time be purchased by the Partnership, at its option,
by tender, in the open market or by private agreement
subject to applicable law (including, without limitation,
Rule 14e-1 under the Exchange Act and any other applicable
United States federal securities laws);
(vii) the voting rights, if any, of the
Preferred Securities of such series in addition to those
required by law, including the number of votes per Preferred
Security and any requirement for the approval by the Holders
of Preferred Securities, or of the Preferred Securities of
one or more series, or of both, as a condition to specified
action or amendments to this Agreement;
(viii) the particular series of Debentures to
be purchased by the Partnership pursuant to Section 2.3(a);
and
(ix) any other relative rights, powers,
preferences or limitations of the Preferred Securities of
the series not inconsistent with this Agreement or with
applicable law.
(c) In connection with the foregoing and without
limiting the generality thereof, the General Partner is hereby
expressly authorized, without the vote or approval of any
existing Holder or other Person (i) to take any Action to create
under the provisions of this Agreement a series of Preferred
Securities that was not previously outstanding and (ii) to admit
Persons as Limited Partners, without the vote or approval of any
existing Holder or any other Person, and (iii) to execute, swear
to, acknowledge, deliver, file and record whatever documents may
be required in connection with the issue from time to time of
Preferred Securities in one or more series as shall be necessary,
convenient or desirable to reflect the issue of such series. The
General Partner shall do all things it deems to be appropriate or
necessary to comply with the Act and is authorized and directed
to do all things it deems to be necessary or permissible in
connection with any future issuance, including compliance with
any statute, rule, regulation or guideline of any federal, state
or other governmental agency or any securities exchange.
(d) Any Action or Actions taken by the General Partner
pursuant to the provisions of this Section 6.1 shall be deemed an
amendment and supplement to and part of this Agreement.
(e) The payment of Dividends and payments on
dissolution of the Partnership or on redemption in respect of
Preferred Securities shall be guaranteed by Entergy London
Investments pursuant to and to the extent set forth in the
Guarantee. Each Holder hereby authorizes the Guarantee Trustee
to hold the Guarantee on its behalf. The Guarantee Trustee has
the right to enforce the Guarantee on behalf of the Holders. The
Holders of a majority in Liquidation Preference of the Preferred
Securities of any series shall have the right to direct the
method and place of conducting any proceeding for any remedy
available in respect of the Guarantee with respect to such series
including the giving of directions to the Guarantee Trustee. A
Holder may institute a legal proceeding directly against Entergy
London Investments to enforce its rights under the Guarantee,
without first instituting a legal proceeding against the
Partnership or any other Person. Each Holder, by acceptance of a
Preferred Security, thereby agrees to the subordination
provisions and other terms of the Guarantee.
(f) Except as may be provided in the Action creating
the Preferred Securities of a particular series, the aggregate
proceeds received by the Partnership from the issuance of any
series of Preferred Securities, together with the proceeds of any
capital contribution of the General Partner made at the time of
such issuance, shall be invested by the Partnership in the
purchase of a related series of Debentures with (i) an aggregate
principal amount at least equal to such aggregate proceeds and
(ii) an interest rate at least equal to the Dividend rate of such
series of Preferred Securities.
(g) All Preferred Securities shall rank senior to the
General Partner's Interest in respect of the right to receive
Dividends, any Redemption Price and payments out of the assets of
the Partnership upon voluntary or involuntary dissolution,
winding-up or liquidation of the Partnership. All Preferred
Securities redeemed, purchased or otherwise acquired by the
Partnership (including Preferred Securities surrendered for
conversion or exchange) shall be canceled.
(h) No Holder shall be entitled as a matter of right
to subscribe for or purchase, or have any preemptive or similar
right with respect to, all or any part of any new or additional
issue of Preferred Securities of any class whatsoever, or of
securities convertible into any Preferred Securities of any class
whatsoever, whether now or hereafter authorized and whether
issued for cash or other consideration or by way of a Dividend.
(i) Neither Entergy London Investments nor any
Affiliate of Entergy London Investments shall have the right to
vote or give or withhold consent with respect to any Preferred
Security owned by it, directly or indirectly, and, for purposes
of any matter upon which the Limited Partners may vote or give or
withhold consent as provided in this Agreement, Preferred
Securities owned by Entergy London Investments or any Affiliate
shall be treated as if they were not outstanding.
Section VI.2 Series A Preferred Securities. (a)
Without prejudice to the power of the General Partner to
establish from time to time further series of Preferred
Securities pursuant to Section 6.1(b), the Partnership is hereby
authorized to issue and sell 12,000,000 8 5/8% Cumulative
Quarterly Income Preferred Securities, Series A (the "Series A
Preferred Securities"), having the designation, annual Dividend
rate, Liquidation Preference, Redemption Price, redemption terms,
voting rights and other powers, preferences and special rights
and limitations set forth in Annex B hereto. The authorization
set forth in this Section 6.2(a) with respect to the
establishment of the Series A Preferred Securities shall
constitute an Action for all purposes of this Agreement.
(b) So long as any of the Series A Preferred
Securities remain outstanding, no other series of Preferred
Securities may be issued.
ARTICLE VII
BOOKS OF ACCOUNT, RECORDS AND REPORTS
Section VII.1 Books and Records.
(a) Proper and complete records and books of account
of the Partnership shall be kept by the General Partner in which
shall be entered fully and accurately all transactions and other
matters relative to the Partnership's business as are usually
entered into records and books of account maintained by Persons
engaged in businesses of a like character, including a Capital
Account for each Partner. The books and records of the
Partnership, together with a certified copy of this Agreement and
of the Certificate, shall at all times be maintained at the
principal office of the General Partner and shall be open to the
inspection and examination of any Limited Partner or its duly
authorized representative during reasonable business hours for a
purpose reasonably related to such Limited Partner's interest in
the Partnership.
(b) The General Partner may, for such period of time
that the General Partner deems reasonable, keep confidential from
the Limited Partners any information with respect to the
Partnership the disclosure of which the General Partner in good
faith believes is not in the best interests of the Partnership or
could damage the Partnership or its business or which the
Partnership is required by law or by an agreement with any Person
to keep confidential.
(c) Within three months after the close of each Fiscal
Year, the General Partner shall transmit to each Partner, a
statement indicating such Partner's share of each item of
Partnership income, gain, loss, deduction or credit for such
Fiscal Year for federal income tax purposes.
Section VII.2 Accounting Method. For both financial
and tax reporting purposes and for purposes of determining
profits and losses, the books and records of the Partnership
shall be kept on the accrual method of accounting applied in a
consistent manner and shall reflect all Partnership transactions
and be appropriate and adequate for the Partnership's business.
ARTICLE VIII
POWERS, RIGHTS AND DUTIES
OF THE LIMITED PARTNERS
Section VIII.1 Limitations. The Limited Partners
shall not participate in the management or control of the
Partnership's business, property or other assets nor shall the
Limited Partners transact any business for the Partnership, nor
shall the Limited Partners have the power to act for or bind the
Partnership, said powers being vested solely and exclusively in
the General Partner. The Limited Partners shall, however, have
the rights set forth in this Agreement. The Limited Partners
shall have no interest in the properties or assets of the General
Partner, or any equity therein, or in any proceeds of any sales
thereof (which sales shall not be restricted in any respect by
virtue of acquiring or owning an Interest in the Partnership).
The Limited Partners will have no rights to remove or replace the
General Partner.
Section VIII.2 Liability. Subject to the provisions
of the Act, no Limited Partner shall be liable for the repayment,
satisfaction or discharge of any debts or other obligations of
the Partnership in excess of the Capital Account balance of such
Limited Partner.
ARTICLE IX
POWERS, RIGHTS AND DUTIES OF THE GENERAL PARTNER
Section IX.1 Authority. Subject to the limitations
provided in this Agreement, the General Partner shall have
exclusive and complete authority and discretion to manage the
operations and affairs of the Partnership and to make all
decisions regarding the business of the Partnership. Any action
taken by the General Partner shall constitute the act of and
serve to bind the Partnership. In dealing with the General
Partner acting on behalf of the Partnership no Person shall be
required to inquire into the authority of the General Partner to
bind the Partnership. Persons dealing with the Partnership are
entitled to rely conclusively on the power and authority of the
General Partner as set forth in this Agreement.
Section IX.2 Powers and Duties of General Partner.
Except as otherwise specifically provided herein, the General
Partner shall have all rights and powers of a general partner
under the Act and shall have all authority, rights and powers in
the management of the Partnership business to do any and all
other acts and things necessary, proper, convenient or advisable
to effectuate the purposes of this Agreement, including by way of
illustration but not by way of limitation, the following:
(a) to secure the necessary goods and services
required in performing the General Partner's duties for the
Partnership;
(b) to exercise all powers of the Partnership, on
behalf of the Partnership, in connection with enforcing the
Partnership's rights under any series of Debentures;
(c) to cause the Partnership to issue particular
series of Preferred Securities, to execute and deliver Preferred
Certificates and to admit Limited Partners in connection
therewith in accordance with this Agreement;
(d) to act as registrar and Transfer Agent for the
Preferred Securities or designate a Person to act as registrar
and Transfer Agent;
(e) to establish a record date with respect to all
actions to be taken hereunder that require a record date be
established, including with respect to Dividends and voting
rights, and to make determinations as to the payment of
Dividends, and make or cause to be made all other required
payments to Holders and to the General Partner;
(f) to open, maintain and close bank accounts and to
draw checks and other orders for the payment of money;
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Partnership;
(h) to deposit, withdraw, invest, pay, retain and
distribute the Partnership's funds in a manner consistent with
the provisions of this Agreement;
(i) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Partnership's valid existence, rights, franchises and privileges
as a limited partnership under the laws of the State of Delaware
and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Limited
Partners or to enable the Partnership to conduct the business in
which it is engaged;
(j) to cause the Partnership to enter into and
perform, on behalf of the Partnership, an underwriting or other
agreement in connection with the issuance and sale of a
particular series of Preferred Securities and to cause the
Partnership to purchase the related series of Debentures without
any further act, vote or approval of any Partner;
(k) to cause the Partnership to redeem or purchase
Preferred Securities of any series for cancellation, subject to
any limitation on such redemption or purchase set forth in the
Action providing for the issuance of such series of Preferred
Securities; and
(l) to execute and deliver any and all documents or
instruments, perform all duties and powers and do all things for
and on behalf of the Partnership in all matters necessary or
desirable or incidental to the foregoing.
Section IX.3 Liability. The General Partner shall not
be personally liable for (a) the return of any portion of the
capital contributions (or any return thereon) of the Limited
Partners, which shall be made solely from assets of the
Partnership; or (b) to the Partnership or to any Limited Partner
of any deficit in any Limited Partner's Capital Account upon
dissolution, liquidation or otherwise.
Section IX.4 Exculpation.
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Partnership or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Partnership and in a manner
reasonably believed to be within the scope of the authority
conferred on such Indemnified Person or its principal by this
Agreement or by law except that, for the avoidance of doubt, an
Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's bad faith,
recklessness or willful misconduct.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Partnership and
upon such information, opinions, reports or statements presented
to the Partnership by any Person as to matters the Indemnified
Person reasonably believes are within such Person's professional
or expert competence and who has been selected with reasonable
care by the General Partner on behalf of the Partnership,
including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or
any other facts pertinent to the existence and amount of assets
from which distributions to Partners might properly be paid.
Section IX.5 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Partnership or to any other
Covered Person, an Indemnified Person acting under this Agreement
shall not be liable to the Partnership or to any other Covered
Person for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that
they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein, (i)
whenever a conflict of interest exists or arises between Covered
Persons in connection with the taking of some action by an
Indemnified Person on behalf of the Partnership or a Partner, as
such, or (ii) whenever this Agreement or any other agreement or
instrument contemplated herein provides that an Indemnified
Person shall act in a manner that is fair and reasonable to the
Partnership or any Partner, the Indemnified Person shall resolve
such conflict of interest or shall take such action, considering
in each case the relative interest of each party (including its
own interest) to such conflict, agreement or instrument and the
benefits and burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally
accepted accounting practices or principles. In the absence of
bad faith by the Indemnified Person, the resolution made or
action taken or provided for by the Indemnified Person shall not
constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person
is permitted or required to make a decision (i) in its
"discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider only such
interests and factors as it desires, including its own interests,
and shall have no duty or obligation to give any consideration to
any interest of, or factors affecting, the Partnership or any
other Person, or (ii) in its "good faith" or under another
express standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other or
different standard imposed by this Agreement or other applicable
law.
Section IX.6 Indemnification.
(a) To the fullest extent permitted by applicable law,
the Partnership shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage or claim
incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good
faith on behalf of the Partnership and in a manner reasonably
believed to be within the scope of authority conferred on such
Indemnified Person by this Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by
reason of gross negligence or willful misconduct with respect to
such acts or omissions; provided, however, that any indemnity
under this Section 9.6 shall be provided out of and to the extent
of Partnership assets only, and no Covered Person shall have any
personal liability on account thereof.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall,
from time to time, be advanced by the Partnership prior to the
final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Partnership of an undertaking by
or on behalf of the Indemnified Person to repay such amount if it
shall be determined that the Indemnified Person is not entitled
to be indemnified as authorized in Section 9.6(a).
Section IX.7 Investment Company or Tax Actions. The
General Partner is authorized and directed to conduct the affairs
of and to operate the Partnership in such a way that the
Partnership will not be deemed to be an "investment company"
required to be registered under the Investment Company Act or
classified other than as a partnership for United States federal
income tax purposes and so that the Debentures of any series will
be treated as equity of Entergy London Investments for United
States federal income tax purposes. In this connection, the
General Partner is authorized to take any action not inconsistent
with applicable law or this Agreement, and that does not
materially and adversely affect the interests of Holders, that
the General Partner determines in its discretion to be necessary
or desirable for such purposes.
Section IX.8 Outside Businesses. Any Partner or
Affiliate thereof may engage in or possess an interest in other
business ventures of any nature or description, independently or
with others, similar or dissimilar to the business of the
Partnership, and the Partnership and the other Partners shall
have no rights by virtue of this Agreement in and to such
independent ventures or the income or profits derived therefrom
and the pursuit of any such venture, even if competitive with the
business of the Partnership, shall not be deemed wrongful or
improper. No Partner or Affiliate thereof shall be obligated to
present any particular investment opportunity to the Partnership
even if such opportunity is of a character that, if presented to
the Partnership, could be undertaken by the Partnership, and any
Partner or Affiliate thereof shall have the right to take for its
own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment opportunity.
Section IX.9 Limits on General Partner's Powers. (a)
Anything in this Agreement to the contrary notwithstanding, the
General Partner shall not cause or permit the Partnership to:
(i) acquire any assets other than as expressly
provided herein;
(ii) do any act that would make it impractical or
impossible to carry on the ordinary business of the
Partnership;
(iii) possess Partnership property other than for a
Partnership purpose;
(iv) perform any act that would subject any Limited
Partner to liability as a general partner in any
jurisdiction;
(v) engage in any activity that is not consistent with
the purposes of the Partnership, as set forth in Section
2.3; or
(vi) borrow money or become liable for the borrowings
of any third party or to engage in any financial or other
trade or business.
(b) The General Partner shall not revoke any action
previously authorized or approved by a vote of such Holders
except by subsequent vote of the Holders of not less than 66 2/3%
in Liquidation Preference of the Preferred Securities of such
series.
Section IX.10 Tax Matters Partner.
(a) The General Partner is hereby designated as "Tax
Matters Partner" of the Partnership for purposes of 6231(a)(7)
of the Code and shall have the power to manage and control, on
behalf of the Partnership, any administrative proceeding at the
Partnership level with the Internal Revenue Service relating to
the determination of any item of Partnership income, gain, loss,
deduction or credit for United States federal income tax
purposes.
(b) The General Partner shall not make an election in
accordance with 754 of the Code.
(c) The General Partner and the Holders acknowledge
that they intend, for United States federal income tax purposes,
that the Partnership shall be treated as a partnership and that
the General Partner and the Holders shall be treated as Partners
of such partnership for such purposes.
Section IX.11 Expenses.
(a) The General Partner shall pay directly (without
any obligation to first exhaust the assets of the Partnership)
all, and the Partnership shall not be obligated to pay, directly
or indirectly, for any, indebtedness, costs and expenses of the
Partnership (including, but not limited to, costs and expenses
relating to the organization of, and offering of limited partner
interests in, the Partnership and costs and expenses relating to
the operation of the Partnership, including without limitation,
costs and expenses of accountants, attorneys, statistical or
bookkeeping services and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating,
travel and telephone and costs and expenses incurred in
connection with the acquisition, financing, and disposition of
Partnership assets).
(b) The General Partner will pay any and all taxes
(other than United States withholding taxes) of the Partnership
and all liabilities, costs and expenses with respect to such
taxes of the Partnership.
Section IX.12 Mergers, Conversions, Consolidations,
Amalgamations or Replacements.
The General Partner shall not cause or allow the
Partnership to merge with or into, convert into, consolidate,
amalgamate, be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
except as described below or as permitted or required under
Section 11.3. The Partnership may, without the consent of the
Holders, merge with or into, convert into, consolidate,
amalgamate, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a limited
partnership, limited liability company or trust organized as such
under the laws of any jurisdiction; provided, that (i) such
successor entity either (a) expressly assumes all of the
obligations of the Partnership with respect to the Preferred
Securities of a particular series or (b) substitutes for such
series of Preferred Securities other securities (the "Successor
Securities") so long as the Successor Securities rank the same as
such series of Preferred Securities rank in priority with respect
to distributions and payments upon liquidation, redemption and
otherwise, (ii) Entergy London Investments expressly acknowledges
such successor entity as the holder of the related series of
Debentures, (iii) the Successor Securities are listed or traded,
or any Successor Securities will be listed or traded upon
notification of issuance, on any national securities exchange or
other organization on which such series of Preferred Securities
are then listed, if any, (iv) such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause such series of Preferred Securities
(including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such
merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders (including any
Successor Securities) in any material respect, (vi) such
successor entity has a purpose substantially identical to that of
the Partnership, (vii) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, Entergy
London Investments has received an opinion from independent
counsel experienced in such matters to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders (including any
Successor Securities) in any material respect, and (b) following
such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the
Partnership nor such successor entity will be required to
register as an investment company under the Investment Company
Act and (viii) Entergy London Investments or any permitted
successor or assignee guarantees the obligations of such
successor entity under the Successor Securities at least to the
extent provided by the Guarantee. Notwithstanding the foregoing,
the Partnership shall not, except with the consent of the Holders
of 100% in Liquidation Preference of the Preferred Securities,
consolidate, amalgamate, merge with or into, convert into, be
replaced by or convey, transfer or lease its properties and
assets substantially as an entirety or any other entity or permit
any other entity to consolidate, amalgamate, merge with or into,
convert into, or replace it if such consolidation, amalgamation,
merger, conversion or replacement would cause the Partnership or
the successor entity to be classified as other than a partnership
or grantor trust for United States federal income tax purposes.
ARTICLE X
TRANSFERS OF INTERESTS BY PARTNERS
Section X.1 Transfer of Interests.
(a) Preferred Securities shall be freely transferable
by a Holder.
(b) The General Partner may not assign or transfer its
interest in the Partnership in whole or in part unless (i) prior
to such assignment or transfer, the General Partner has obtained
the consent of the Holders of not less than 66 2/3% in
Liquidation Preference of the Preferred Securities or (ii) the
successor is a directly or indirectly wholly owned subsidiary of
Entergy London Investments that assumes all the obligations of
the General Partner, provided, however, in the case of
clause (ii), that the Partnership has received an opinion of
nationally recognized independent counsel to the Partnership
experienced in such matters to the effect that the Partnership
will continue to be treated as a partnership for federal income
tax purposes following the admission of such subsidiary as the
general partner. The admission of such successor as a general
partner of the Partnership shall be effective upon the filing of
an amendment to the Certificate with the Secretary of State of
the State of Delaware which indicates that such successor has
been admitted as a general partner in the Partnership, and the
General Partner shall cease to be a general partner in the
Partnership immediately following the admission of the successor
as a general partner in the Partnership. Any such successor
general partner in the Partnership is hereby authorized to and
shall continue the business of the Partnership without
dissolution.
(c) Except as provided above, no Interest shall be
transferred, in whole or in part, except in accordance with the
terms and conditions set forth in this Agreement. To the fullest
extent permitted by law, any transfer or purported transfer of
any Interest not made in accordance with this Agreement shall be
null and void.
Section X.2 Transfer of Preferred Certificates. The
General Partner shall provide for the registration and transfer
of Preferred Securities. Subject to the restrictions on transfer
of global Preferred Certificates issued pursuant to Section 10.4,
upon surrender for registration of transfer of any Preferred
Certificate, the General Partner shall cause one or more new
Preferred Certificates to be issued in the name of the designated
transferee or transferee. Every Preferred Certificate
surrendered for registration of transfer shall be accompanied by
a written instrument of transfer in form satisfactory to the
General Partner duly executed by the Holder or his or her
attorney duly authorized in writing. Each Preferred Certificate
surrendered for registration of transfer shall be canceled by the
General Partner. A transferee of a Preferred Security shall be
admitted to the Partnership as a Limited Partner and shall be
entitled to the rights and subject to the obligations of a Holder
hereunder upon the registration of such transfer on the books and
records of the Partnership. By acceptance of a Preferred
Certificate, each transferee of a Preferred Security shall be
deemed to have requested admission as a Limited Partner, to have
authorized the General Partner to execute this Agreement on its
behalf, and to have agreed to be bound by this Agreement.
Registration of transfer of Preferred Securities will
be effected without charge by or on behalf of the Partnership,
but upon payment of any tax or other governmental charges that
may be imposed in connection with any transfer or exchange. The
Partnership will not be required to register or cause to be
registered the transfer of Preferred Securities after such
Preferred Securities have been called for redemption.
Section X.3 Persons Deemed Holders. The Partnership
may treat the Person in whose name any Preferred Security shall
be registered on the books and records of the Partnership as the
sole Holder of such Preferred Security for purposes of receiving
Dividends and any notices required to be delivered to Holders by
this Agreement and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Preferred Certificate or in
the Preferred Securities represented by such Preferred
Certificate on the part of any other Person, whether or not the
Partnership shall have actual or other notice thereof.
Section X.4 Book-Entry Interests. (a) Except as
otherwise provided in the Action establishing a particular series
of Preferred Securities, the Preferred Securities of each series,
on original issuance, will be issued in the form of a global
Preferred Certificate or Preferred Certificates, to be delivered
to the Clearing Agency designated as such with respect to such
series by, or on behalf of, the Partnership. Such global
Preferred Certificate or Certificates shall be executed and
delivered by the General Partner and shall initially be
registered on the books and records of the Partnership in the
name of the Clearing Agency or its nominee and no Definitive
Preferred Certificates shall be issued except as provided in
Section 10.5 and shall bear such legends with respect to transfer
and related matters as may be required by the rules and
regulations of such Clearing Agency.
(b) None of the Partnership, the General Partner nor
any agent of the General Partner or the Partnership shall have
any liability with respect to or responsibility for the records
of the Clearing Agency.
Section X.5 Definitive Preferred Certificates. If (a)
the Clearing Agency elects to discontinue its services as
securities depository by giving notice to the Partnership or the
General Partner, and a successor Clearing Agency is not
appointed, (b) the Partnership fails to pay any amounts due and
payable on any series of the Preferred Securities or the
Guarantor fails to pay any amounts due and payable in respect of
the Guarantee as required by their respective terms, or (c) if
the General Partner on behalf of the Partnership elects to
terminate the book-entry system through the Clearing Agency, then
Definitive Preferred Certificates shall be prepared by the
Partnership. Upon surrender of the global Preferred Certificate
or Preferred Certificates registered in the name of the Clearing
Agency or its nominee, accompanied by registration instructions,
the General Partner shall cause Definitive Preferred Certificates
to be printed and delivered in accordance with the Cleaning
Agency's instructions. Neither the General Partner nor the
Partnership shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions. The Definitive Preferred
Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as may be required by any national
securities exchange on which the Preferred Securities may be
listed and as is reasonably acceptable to the General Partner, as
evidenced by its execution thereof. Definitive Preferred
Certificates shall be executed and delivered by the General
Partner and countersigned by the registrar and transfer agent
with respect thereto.
ARTICLE XI
WITHDRAWAL; DISSOLUTION;
LIQUIDATION AND DISTRIBUTION OF ASSETS
Section XI.1 Withdrawal of Partners. The General
Partner shall not at any time retire or withdraw from the
Partnership except as otherwise permitted hereunder. If the
General Partner retires or withdraws in contravention of this
Section 11.1, it shall indemnify, defend and hold harmless the
Partnership and the other Partners from and against any losses,
expenses, judgments, fines, settlements or damages suffered or
incurred by the Partnership or such other Partners arising out of
or resulting from such retirement or withdrawal.
Section XI.2 Dissolution of the Partnership.
(a) The Partnership shall not be dissolved by the
admission or withdrawal of Partners in accordance with the terms
of this Agreement. Except as provided in Section 11.2(b)(ii),
the death, retirement, resignation, expulsion, bankruptcy or
dissolution of a Partner, or the occurrence of any other event
which terminates the Interest of a Partner in the Partnership,
shall not cause the Partnership to be dissolved and its affairs
wound up so long as the Partnership at all times has at least two
Partners. Upon the occurrence of any such event, the business of
the Partnership shall be continued without dissolution.
(b) The Partnership shall be dissolved and its affairs
shall be wound up upon the earliest to occur of any of the
following events:
(i) the delivery of written direction by the General
Partner to dissolve the Partnership (which direction is
optional and wholly within the discretion of the General
Partner);
(ii) upon the assignment by the General Partner of its
entire interest in the Partnership when the assignee is not
admitted to the Partnership as a general partner of the
Partnership in accordance with Section 10.1(b), or the
filing of a certificate of dissolution or its equivalent,
with respect to the General Partner, or the revocation of
the General Partner's charter and the expiration of 90 days
after the date of notice to the General Partner of
revocation without a reinstatement of its charter, or any
other event occurs which causes the General Partner to cease
to be a general partner of the Partnership under the Act,
unless the business of the Partnership is continued in
accordance with this Agreement and the Act;
(iii) the entry of an order for the dissolution of
the Partnership under Section 17-802 of the Act by a court
of competent jurisdiction; or
(iv) in accordance with the provisions of each Action
establishing any series of Preferred Securities then
outstanding.
(c) Upon dissolution of the Partnership, the
Liquidator, as defined below, shall promptly notify the Partners
of such dissolution.
Section XI.3 Liquidation.
(a) In the event of the dissolution of the Partnership
for any reason, the General Partner (or, if the Partnership is
dissolved pursuant to Section 11.2(b)(ii), then a liquidating
trustee appointed by Holders of not less than 66 2/3% of the
aggregate Liquidation Preference of each series of Preferred
Securities then outstanding (the General Partner or such Person
so appointed is hereinafter referred to as the "Liquidator"))
shall commence to wind up the affairs of the Partnership and to
liquidate the Partnership's assets; provided, however, that a
reasonable time shall be allowed for the orderly liquidation of
the assets of the Partnership and the satisfaction of liabilities
to creditors so as to enable the Partners to minimize the normal
losses attendant upon liquidation. The Partners shall continue
to share all income, losses and distributions during the period
of liquidation in accordance with Articles IV and V. Subject to
the provisions of this Article XI, the Liquidator shall have full
right and unlimited discretion to determine the time, manner and
terms of any sale or sales of Partnership property pursuant to
such liquidation, giving due regard to the activity and condition
of the relevant market and general financial and economic
conditions.
(b) The Liquidator shall have all of the rights and
powers with respect to the assets and liabilities of the
Partnership in connection with the liquidation and termination of
the Partnership that the General Partner would have with respect
to the assets and liabilities of the Partnership during the term
of the Partnership, and the Liquidator is hereby expressly
authorized and empowered to execute any and all documents
necessary or desirable to effectuate the liquidation and
termination of the Partnership and the transfer of any assets.
(c) Notwithstanding the foregoing, a Liquidator that
is not the General Partner shall not be deemed a Partner in this
Partnership and shall not have any of the economic interests in
the Partnership of a Partner; and such Liquidator may be
compensated by the Limited Partners for its services to the
Partnership at normal, customary and competitive rates for its
services to the Partnership as reasonably determined by at least
50% of the Limited Partners.
Section XI.4 Distribution in Liquidation. The
proceeds of liquidation shall be applied in the following order
of priority (and without regard to the provisions of Section
17-804 of the Act):
(i) to creditors of the Partnership, including
Partners who are creditors, to the extent otherwise
permitted by law, in satisfaction of the liabilities of the
Partnership (whether by payment or the making of reasonable
provision for payment thereof), other than liabilities for
distributions (including Dividends) to Partners;
(ii) to the Limited Partners to the extent of and in
proportion to the Liquidation Preference of their respective
Preferred Securities; and
(iii) to the Partners in proportion to each
Partner's positive Capital Account balance.
Section XI.5 Rights of Limited Partners. Each Limited
Partner shall look solely to the assets of the Partnership for
all distributions with respect to the Partnership and such
Partner's capital contribution (including returns thereof), and
such Partner's share of profits or losses thereof, and shall have
no recourse therefor (upon dissolution or otherwise) against the
General Partner; provided, however, that nothing in this Section
11.5 shall limit the obligations of Entergy London Investments in
its capacity as Guarantor under the Guarantee. No Partner shall
have any right to demand or receive property other than cash upon
dissolution and termination of the Partnership.
Section XI.6 Termination. The Partnership shall
terminate when all of the assets of the Partnership shall have
been disposed of and the assets shall have been distributed as
provided in Section 11.4. The Liquidator shall then execute and
cause to be filed a certificate of cancellation of the
Certificate.
ARTICLE XII
AMENDMENTS AND MEETINGS
Section XII.1 Amendments. Except as otherwise
provided in this Agreement or by any applicable terms of any
Action establishing a series of Preferred Securities, this
Agreement may be amended by, and only by, a written instrument
executed by the General Partner and may be effected only as
permitted by the terms of any Action establishing such series of
Preferred Securities.
Section XII.2 Amendment of Certificate. In the event
this Agreement shall be amended pursuant to Section 12.1, the
General Partner shall cause the Certificate to be amended to
reflect such change if it deems such amendment of the Certificate
to be necessary or appropriate.
Section XII.3 Meetings of Partners.
(a) Meetings of the Limited Partners who are Holders
may be called at any time by the General Partner to consider and
act on any matter on which Limited Partners are entitled to act
under the terms of this Agreement or the Act. The General
Partner shall call a meeting of Holders of all of the outstanding
Preferred Securities or of Holders of any particular series of
Preferred Securities if directed to do so by Holders of not less
than 10% in Liquidation Preference of all the outstanding
Preferred Securities, or of that series, respectively, as
permitted by this Agreement. Such direction shall be given by
delivering to the General Partner a request in writing stating
that the signing Limited Partners desire a meeting to be called
and indicating the general or specific purpose for which the
meeting is to be called.
(b) Notice of any such meeting shall be given to all
Partners not less than seven Business Days nor more than 60 days
prior to the date of such meeting. Each such notice shall set
forth the date, time and place of the meeting, a description of
any matter on which Holders are entitled to vote and instructions
for the delivery of proxies or written consents.
(c) Any required approval of Holders of any Preferred
Securities may be given at a meeting of such Holders convened for
such purpose or pursuant to written consent. The Partnership
will cause a notice of any meeting at which Holders of any
Preferred Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken,
to be mailed to each Holder of record of such Preferred
Securities. Each such notice will include a statement setting
forth (x) the date, time and place of such meeting or the date by
which such action is to be taken, (y) a description of any matter
on which such Holders are entitled to vote or upon which written
consent is sought and (z) instructions for the delivery of
proxies or written consents. No vote or consent of the Holders
of Preferred Securities will be required for the Partnership to
redeem and cancel Preferred Securities in accordance with the
provisions of this Agreement or the terms of the Action
establishing the relevant series of Preferred Securities.
(d) Each Partner may authorize any Person to act for
it by proxy on all matters as to which a Partner is entitled to
participate, including waiving notice of any meeting, or voting
or participating at a meeting. Every proxy must be signed by the
Partner or its attorney-in-fact. No proxy shall be valid after
the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the Partner executing it.
(e) Each meeting of Partners shall be conducted by the
General Partner or by such other Person that the General Partner
may designate.
(f) The General Partner may establish all other
reasonable procedures relating to meetings of Partners or the
giving of written consents, in addition to those expressly
provided, including waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person, by representative or by proxy or
any other matter with respect to the exercise of any such right
to vote.
ARTICLE XIII
MISCELLANEOUS
Section XIII.1 Notices. All notices provided for in
this Agreement shall be in writing, and shall be delivered or
mailed by first class or registered or certified mail or, with
respect to the Partnership and General Partner, telecopied, as
follows:
(a) if given to the Partnership, in care of the
General Partner at the Partnership's mailing address set forth
below:
Entergy London Capital, L.P.
c/o Entergy London Investments plc
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: General Partner
Telecopy No: (504) 576-4455
(b) if given to the General Partner, at its mailing
address set forth below:
Entergy London Investments plc
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
Telecopy No: (504) 576-4455
(c) if given to any other Partner, at the address set
forth on the books and records of the Partnership.
Section XIII.2 Power of Attorney. Each Holder does
hereby constitute and appoint the General Partner as its true and
lawful representative and attorney-in-fact, with full power of
substitution, in its name, place and stead to make, execute,
sign, deliver and file (a) any amendment of the Certificate
required because of an amendment of this Agreement or in order to
effect any change in the Partnership consistent with the terms of
this Agreement, (b) this Agreement, (c) any duly adopted
amendments to this Agreement and (d) all such other instruments,
documents and certificates which from time to time may be
required by the laws of the United States of America, the State
of Delaware or any other jurisdiction, or any political
subdivision or agency thereof, to effectuate, implement and
continue the valid and subsisting existence of the Partnership or
to dissolve the Partnership or for any other purpose consistent
with this Agreement and the transactions contemplated hereby.
The power of attorney granted hereby is coupled with an
interest and shall (a) survive and not be affected by the
subsequent death, incapacity, disability, dissolution,
termination, or bankruptcy of the Holder granting the same or the
transfer of all or any portion of such Holder's Interest and (b)
extend to such Holder's successors, assigns and legal
representatives.
Section XIII.3 Entire Agreement. This Agreement
constitutes the entire agreement among the parties. It
supersedes any prior agreement or understandings among them, and
it may not be modified or amended in any manner other than as set
forth herein.
Section XIII.4 GOVERNING LAW. THIS AGREEMENT AND THE
RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Section XIII.5 Effect. Except as herein otherwise
specifically provided, this Agreement shall be binding upon and
inure to the benefit of the parties and their legal
representatives, successors and assigns.
Section XIII.6 Pronouns and Number. Wherever from the
context it appears appropriate, each term stated in either the
singular or the plural shall include the singular and the plural,
and pronouns stated in the masculine, feminine or neuter shall
include the masculine, feminine and neuter.
Section XIII.7 Captions. Captions contained in this
Agreement are inserted only as a matter of convenience and in no
way define, limit or extend the scope or intent of this Agreement
or any provision hereof.
Section XIII.8 Partial Enforceability. If any
provision of this Agreement, or the application of such provision
to any Person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision
to Persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
Section XIII.9 Counterparts. This Agreement may
contain more than one counterpart of the signature page and this
Agreement may be executed by the affixing of the signature of
each of the signers to one of such counterpart signature pages.
All of such counterparts signature pages shall be read as though
one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
Section XIII.10 Remedies. The failure of any party to
seek redress for violation of, or to insist upon the strict
performance of, any provision of this Agreement shall not prevent
a subsequent act, which would have originally constituted a
violation, from having the effect of an original violation. The
rights and remedies provided by this Agreement are cumulative and
the use of any one right or remedy by any party shall not
preclude or waive its right to use any or all other remedies.
Said rights and remedies are given in addition to any other
rights the parties may have by law, statute, ordinance or
otherwise.
Section XIII.11 Acceptance of Terms of the Guarantee
and the Indenture.
The receipt and acceptance of a Preferred Security or
any interest therein by or on behalf of a Holder or any
beneficial owner, without any signature or further manifestation
of assent, shall constitute the unconditional agreement by the
Holder and all others having a beneficial interest in such
Preferred Security to the subordination provisions and other
terms of the Guarantee and the Indenture and shall constitute the
agreement of the Partnership, such Holder and such others that
those terms and provisions shall be binding, operative and
effective as between the Partnership and such Holder and such
others.
Section XIII.12 Consent to Jurisdiction.
(a) The General Partner agrees (i) that any legal
action, suit or proceeding against it with respect to its
obligations, liabilities or any other matter arising out of or in
connection with this Agreement may be brought in any federal or
state court in the State of Delaware, and (ii) to file such
consents with such authorities as may be required to irrevocably
evidence such agreement.
(b) The General Partner irrevocably and
unconditionally waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of
venue of any of the aforesaid actions, suits or proceedings
arising out of or in connection with this Agreement brought in
any federal or state court located in the State of Delaware and
hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in
an inconvenient forum.
Section XIII.13 Waiver of Immunities. To the extent
that the General Partner or any of its properties, assets or
revenues may have or may hereafter become entitled to, or have
attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any thereof, from
set-off or counterclaim, from the jurisdiction of any court, from
service process, from attachment upon or prior to judgment, from
attachment in aid of execution of judgment, or from execution of
judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Agreement or
the Preferred Securities of any series, the General Partner
hereby irrevocably and unconditionally waives and agrees not to
plead or claim, any such immunity and consents to such relief and
enforcement. Nothing in this Section 13.13 shall be deemed to
waive any defense (other than any such immunity) available to the
General Partner.
Section XIII.14 Judgment Currency. The General
Partner agrees to indemnify the Holders of the Preferred
Securities of any series against any loss incurred by such
indemnified party as a result of any judgment or order being
given or made for any amount due under this Agreement or the
Preferred Securities of any series and such judgment or order
being expressed and paid in a currency (the "Judgment Currency")
other than United States dollars and as a result of any variation
as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange
at which any such indemnified party is able to purchase United
States dollars on the nearest business day after the date of
judgment, with the amount of the Judgment Currency actually
received by any such indemnified party. If, alternatively, any
such indemnified party receives a profit as a result of such
currency conversion, it will return any such profits to the
General Partner (after taking into account any taxes or other
costs arising in connection with such conversion and repayment).
The foregoing indemnity shall constitute a separate and
independent obligation of the General Partner, and shall continue
in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "rate of exchange" shall include
any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, United States dollars.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above stated.
General Partner:
ENTERGY LONDON INVESTMENTS plc
By: /s/ Steven C. McNeal
Name: Steven C. McNeal
Title: Assistant Treasurer
INITIAL LIMITED PARTNER:
WILLIAM J. REGAN, JR.
/s/ William J. Regan, Jr.
LIMITED PARTNERS:
All Limited Partners now and hereafter
admitted as limited partners pursuant to
powers of attorney and/or authorizations
now or hereafter given in favor of the
General Partner
By: Entergy London Investments plc
By: /s/ Steven C. McNeal
Name: Steven C. McNeal
Title: Assistant Treasurer
<PAGE>
ANNEX A
[INSERT ANY LEGEND REQUIRED BY CLEARING AGENCY]
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Entergy London Capital, L.P.
__% Cumulative Quarterly Income Preferred Securities, Series _
(liquidation preference $__ per Preferred Security)
Entergy London Capital, L.P., a limited partnership
formed under the laws of the State of Delaware (the
"Partnership"), hereby certifies that _____________ (the
"Holder") is the registered owner of _______% Cumulative
Quarterly Income Preferred Securities, Series __ (liquidation
preference $_____ per Preferred Security) (the "Series __
Preferred Securities") representing limited partner interests in
the Partnership. The Series __ Preferred Securities are fully
paid and are nonassessable limited partner interests in the
Partnership, as to which the Limited Partners in the Partnership
who hold the Preferred Securities (the "Holders"), in their
capacities as limited partners in the Partnership, will, assuming
such Holders do not participate in the control of the business of
the Partnership, have no liability solely by reason of being
Holders (subject to the obligation of a limited partner to repay
any funds wrongfully distributed to it), and [[,subject to any
restrictions on transfer required by a Clearing Agency,] , INSERT
IF GLOBAL CERTIFICATE], are freely transferable on the books and
records of the Partnership, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The rights, privileges or preference
of the Series __ Preferred Securities are set forth in, and this
certificate and the Series __ Preferred Securities represented
hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Limited
Partnership Agreement, dated as of November 19, 1997, as the same
may be amended from time to time in accordance with its terms
(the "Limited Partnership Agreement"), and the Action of the
General Partner (the "Action") taken pursuant thereto authorizing
the issuance of the Series __ Preferred Securities and
determining the designations, rights, privileges, restrictions,
preferences and other terms and provisions regarding Dividends,
voting, return of capital and other matters relating to the
Series __ Preferred Securities. Capitalized terms used herein
but not defined herein shall have the meaning given them in the
Limited Partnership Agreement or the Action. The Holder is
entitled to the benefits of the Guarantee Agreement between
Entergy London Investments plc, a public limited company
incorporated under the laws of England and Wales ("Entergy London
Investments"), and the Guarantee Trustee dated as of _______ __,
______ (as amended from time to time in accordance with its
terms, the "Guarantee") to the extent provided therein. The
Partnership will furnish a copy of the Limited Partnership
Agreement and the Guarantee to the Holder without charge upon
written request to the Partnership at its principal place of
business or registered office.
The Holder, by accepting this certificate, is deemed to
have agreed (i) to be bound by the provisions of the Limited
Partnership Agreement and the Action and (ii) to the
subordination provisions and other terms of the Indenture and the
Guarantee. Upon registration of this Certificate in the books
and records of the Partnership, the Holder was admitted to the
Partnership as a limited partner of the Partnership, is bound by
the Limited Partnership Agreement and is entitled to the benefits
thereunder.
Reference is hereby made to the further provisions of
the Series ____ Preferred Securities set forth on the reverse
hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, the Partnership has executed this
certificate this __ the day of __________.
ENTERGY LONDON CAPITAL, L.P.
By: ENTERGY LONDON INVESTMENTS
plc, its General Partner
By:___________________________
Name:
Title:
[Countersigned and Registered:
By:[_____________________________]
Transfer Agent and Registrar
By:_________________________
Name:
Title: ]*
___________________________
* Only for Preferred Securities in definitive form.
[REVERSE OF CERTIFICATE]
[Insert Terms of Particular Series of Preferred Securities from
Action with Respect Thereto]
<PAGE>
ANNEX B
TERMS OF THE 8 5/8% CUMULATIVE QUARTERLY
INCOME PREFERRED SECURITIES, SERIES A
OF ENTERGY LONDON CAPITAL, L.P.
(liquidation preference $25 per Preferred Security)
I Designation. 12,000,000 Preferred Securities of
the Partnership are hereby constituted as a series of Preferred
Securities, with a liquidation preference of $25 each (the
"Liquidation Preference"), designated as "8 5/8% Cumulative
Quarterly Income Preferred Securities, Series A" (hereinafter
called the "Series A Preferred Securities"). The Series A
Preferred Securities are being issued pursuant to the Amended and
Restated Limited Partnership Agreement of Entergy London Capital,
L.P., dated as of November 19, 1997 (as amended from time to time
in accordance with its terms, the "Limited Partnership
Agreement"). Capitalized terms used but not defined herein have
the meanings set forth in the Limited Partnership Agreement.
2. Ranking. The limited partner interests
represented by the Series A Preferred Securities will have a
preference with respect to cash distributions and amounts payable
on dissolution, redemption or otherwise over the general partner
interests in the Partnership.
3. Dividends. Holders of the Series A Preferred
Securities shall be entitled to receive cumulative distributions
out of funds of the Partnership legally available therefor,
accumulating from the date of original issuance and payable
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year (each, a "Dividend Payment Date"),
commencing December 31, 1997 ("Dividends"). The Dividends
payable on each Series A Preferred Security will be fixed at a
rate per annum of $2.15625, or 8 5/8% of the initial Liquidation
Preference of $25. Dividends that are in arrears for more than
one quarter will accumulate additional Dividends thereon at the
rate of 8 5/8% per annum thereof compounded quarterly
("Additional Dividends"). The term "Dividends" as used herein
includes any Additional Dividends, Additional Amounts (as defined
herein) or Additional Interest (as defined in the Indenture).
The amount of Dividends payable for any period will be computed
on the basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full quarter, will be computed on the
basis of the actual number of days elapsed in such period.
If the payment of interest on the Series A Debentures
(as defined herein) is deferred pursuant to Section 311 of the
Indenture, then Dividends on the Series A Preferred Securities
will be deferred for as long as such interest payments are
deferred and the rate per annum at which Dividends on the Series
A Preferred Securities accumulate shall be increased by an amount
such that the aggregate amount of Dividends that accumulate on
all Series A Preferred Securities during any such deferral is
equal to the aggregate amount of interest (including, to the
extent permitted by law, interest payable on unpaid interest at
the percentage rate per annum set forth above, compounded
quarterly) that accrues while interest is so deferred on the
Series A Debentures. The General Partner shall give notice of
Entergy London Investments' intention to defer payment of
interest on the Series A Debentures to the Holders of the Series
A Preferred Securities within five Business Days of the receipt
of notice thereof.
The Partnership will be required to declare and pay in
full on each Dividend Payment Date Dividends on the Series A
Preferred Securities to the extent that the Partnership has funds
legally available for the payment of such Dividends and cash on
hand sufficient to make such payments. The Partnership will be
prohibited from paying Dividends in any other circumstances.
Dividends declared on the Series A Preferred Securities
will be payable to the Holders thereof as they appear on the
books and records of the Partnership at the close of business on
the relevant record date, which will be one Business Day prior to
the relevant Dividend Payment Date. In the event that any Series
A Preferred Securities are not in book-entry form, the relevant
record date for such Series A Preferred Securities shall be the
date 15 days prior to the relevant Dividend Payment Date. In the
event that any Dividend Payment Date is not a Business Day, then
payment of the Dividends payable on such date will be made on the
next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar
year, payment of such Dividends shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date.
Holders of the Series A Preferred Securities will not
be entitled to any Dividend or other payment (other than the
Redemption Price or the Liquidation Preference), whether payable
in cash, property or shares, in excess of full cumulative
Dividends.
4. Series A Debentures. The aggregate proceeds
received by the Partnership from the issuance of the Series A
Preferred Securities, together with the proceeds of the capital
contribution of the General Partner at the time of such issuance,
will be used to purchase $303,030,325 aggregate principal amount
of the 8 5/8% Junior Subordinated Deferrable Interest Debentures,
Series A, of Entergy London Investments issued pursuant to the
Indenture (the "Series A Debentures").
5. Redemptions.
Mandatory Redemption. Upon the redemption, in whole or
in part, of the Series A Debentures, the proceeds from such
redemption will be applied by the Partnership to redeem a Like
Amount (as defined below) of Series A Preferred Securities, upon
not less than 30 nor more than 60 days' notice to each Holder of
Series A Preferred Securities at its registered address, at a
redemption price equal to $25 per Series A Preferred Security,
plus accumulated and unpaid Dividends thereon to the date of
redemption (the "Redemption Price").
Optional Redemption of Series A Debentures. Entergy
London Investments will have the right to redeem the Series A
Debentures on or after November 19, 2002, in whole at any time or
in part from time to time, and thereby cause a mandatory
redemption of a Like Amount of Series A Preferred Securities at
the Redemption Price.
Entergy London Investments will also have the right to
redeem the Series A Debentures in whole (but not in part), if
Entergy London Investments has or will become obligated to pay
Additional Amounts (as defined in the Officer's Certificate dated
November 19, 1997 delivered pursuant to Sections 201 and 301 of
the Indenture), and thereby cause a mandatory redemption of the
Series A Preferred Securities in whole (but not in part) at the
Redemption Price.
Special Event Redemption or Distribution of Series A
Debentures. If a Special Event shall have occurred and be
continuing, Entergy London Investments shall have the right to
redeem the Series A Debentures at any time and thereby cause a
mandatory redemption of the Series A Preferred Securities in
whole (but not in part) at the Redemption Price within 90 days
following the occurrence of such Special Event.
Whether or not a Special Event has occurred, the
General Partner has the right, at any time, to dissolve and,
after satisfaction of liabilities to creditors of the
Partnership, if any, as provided by the Act, to cause a Like
Amount of Series A Debentures to be distributed to the Holders of
the Series A Preferred Securities in liquidation of the
Partnership.
If a Special Event occurs and Entergy London
Investments does not elect to redeem the Series A Debentures or
to dissolve the Partnership, the Series A Preferred Securities
will remain outstanding and, if such Special Event is a Tax
Event, Additional Interest will be payable on the Series A
Debentures.
"Like Amount" means (i) with respect to a redemption of
any Series A Preferred Securities, Series A Preferred Securities
having a Liquidation Preference equal to that portion of the
principal amount of Series A Debentures to be contemporaneously
redeemed and the proceeds of which will be used to pay the
Redemption Price of such Series A Preferred Securities, and (ii)
with respect to a distribution of Series A Debentures to Holders
of the Series A Preferred Securities in connection with a
dissolution of the Partnership, Series A Debentures having a
principal amount equal to the Liquidation Preference of the
Series A Preferred Securities of the Holder to whom such Series A
Debentures are distributed.
6. Redemption Procedures. Series A Preferred
Securities redeemed on each redemption date shall be redeemed at
the Redemption Price with the applicable proceeds from the
contemporaneous redemption of the Series A Debentures.
Redemptions of the Series A Preferred Securities shall be made,
and the Redemption Price shall be payable, on each redemption
date only to the extent that the Partnership has funds on hand
available for the payment of such Redemption Price.
If the Partnership gives a notice of redemption in
respect of the Series A Preferred Securities, then, by 12:00
noon, New York City time, on the redemption date, to the extent
funds are available, the Partnership will deposit irrevocably
with the Clearing Agency funds sufficient to pay the applicable
Redemption Price and will give the Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the
Holders of such Series A Preferred Securities. If the Series A
Preferred Securities are no longer in book-entry form, the
Partnership, to the extent funds are available therefor, will
irrevocably deposit with the paying agent for the Series A
Preferred Securities funds sufficient to pay the applicable
Redemption Price and will give such paying agent irrevocable
instructions and authority to pay the Redemption Price to the
holders thereof upon surrender of their certificates evidencing
such Series A Preferred Securities. Notwithstanding the
foregoing, Dividends payable on or prior to the redemption date
for any Series A Preferred Securities called for redemption shall
be payable to the Holders of such Series A Preferred Securities
as of the relevant record dates for the related Dividend Payment
Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all
rights of the Holders of such Series A Preferred Securities so
called for redemption will cease, except the right of the Holders
of such Series A Preferred Securities to receive the Redemption
Price, but without interest on such Redemption Price, and such
Series A Preferred Securities will cease to be outstanding. In
the event that any date fixed for redemption of Series A
Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if
such Business Day falls in the next succeeding calendar year,
such payment will be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on
the redemption date. In the event that payment of the Redemption
Price in respect of Series A Preferred Securities called for
redemption is improperly withheld or refused and not paid either
by the Partnership or by Entergy London Investments pursuant to
the Guarantee, Dividends on the Series A Preferred Securities
will continue to accumulate at the then applicable rate from the
redemption date originally established by the Partnership for
such Series A Preferred Securities to the date such Redemption
Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of calculating
the Redemption Price.
Subject to applicable law (including, without
limitation, Rule 14e-1 under the Exchange Act and any other
applicable United States federal securities law), Entergy London
Investments or its subsidiaries may at any time and from time to
time purchase outstanding Series A Preferred Securities by
tender, in the open market or by private agreement.
Payment of the Redemption Price on the Series A
Preferred Securities and any distribution of Series A Debentures
to Holders of Series A Preferred Securities shall be made to the
holders of record as they appear on the books and records of the
Partnership as of the relevant record date, which, as long as the
Series A Preferred Securities remain in book-entry form, will be
one Business Day prior to the relevant redemption date or
liquidation date, as applicable; provided, however, that in the
event that the Series A Preferred Securities are not in book-
entry form, the relevant record date for the Series A Preferred
Securities shall be the date 15 days prior to the redemption date
or liquidation date, as applicable.
If less than all of the Series A Preferred Securities
are to be redeemed on a redemption date, the particular Series A
Preferred Securities to be redeemed shall be selected not more
than 60 days prior to the redemption date by the General Partner
from the outstanding Series A Preferred Securities not previously
called for redemption, by lot or by such method as the General
Partner shall deem fair and appropriate, which shall provide for
the selection for redemption of portions (equal to $25 or an
integral multiple of $25 in excess thereof) of the Liquidation
Preference of Series A Preferred Securities of a denomination
larger than $25. The General Partner shall promptly notify the
transfer agent and registrar in writing of the Series A Preferred
Securities selected for redemption and, in the case of any Series
A Preferred Securities selected for partial redemption, the
aggregate Liquidation Preference thereof to be redeemed.
7. Liquidation Distribution. In the event of any
voluntary or involuntary liquidation, dissolution or winding up
of the Partnership (other than a dissolution that results in a
Like Amount of Debentures being distributed to the Holders of the
Series A Preferred Securities), the Holders of the Series A
Preferred Securities at the time outstanding will be entitled to
receive the Liquidation Preference of the Series A Preferred
Securities plus all accumulated and unpaid Dividends to the date
of payment (the "Liquidation Distribution") out of the assets of
the Partnership legally available for distribution to Partners,
after satisfaction of liabilities to creditors as required by the
Revised Uniform Limited Partnership Act of the State of Delaware
(Title 6, Chapter 17 of the Delaware Code) (the "Delaware Act"),
prior to any distribution of assets by the Partnership to the
General Partner. If such Liquidation Distribution can be paid
only in part because the Partnership has insufficient assets
available to pay in full the aggregate Liquidation Distribution,
then the amounts payable directly by the Partnership on the
Series A Preferred Securities shall be paid on a pro rata basis
in proportion to the full Liquidation Distribution for which the
Series A Preferred Securities would be entitled.
If, upon any liquidation of the Partnership, the
Holders of Series A Preferred Securities are paid in full the
aggregate Liquidation Distribution to which they are entitled,
then such Holders will not be entitled to receive or share in any
other assets of the Partnership then or thereafter available for
distribution to any other holders of partnership interests in the
Partnership.
8. Voting Rights. The Limited Partnership Agreement
may be amended from time to time by the General Partner, without
the consent of the Holders of the Series A Preferred Securities
(i) to cure any ambiguity, to correct or supplement any
provisions in the Limited Partnership Agreement that may be
inconsistent with any other provision, or to make any other
provisions with respect to matters or questions arising under the
Limited Partnership Agreement, that shall not be inconsistent
with the other provisions of the Limited Partnership Agreement,
or (ii) to modify, eliminate or add to any provisions of the
Limited Partnership Agreement to such extent as shall be
necessary to ensure that the Partnership will be classified for
United States federal income tax purposes as a partnership or a
grantor trust at all times that any Series A Preferred Securities
are outstanding or to ensure that the Partnership will not be
required to register as an "investment company" under the
Investment Company Act, provided, however, that except in the
case of clause (ii), such action shall not adversely affect in
any material respect the interests of any Holder of Series A
Preferred Securities, and, in the case of clause (i), any such
amendments of the Limited Partnership Agreement shall become
effective when notice thereof is given to the Holders of Series A
Preferred Securities. The Limited Partnership Agreement may be
amended by the General Partner with the consent of Holders of a
Majority in Liquidation Preference of the outstanding Series A
Preferred Securities and upon receipt by the General Partner of
an opinion from independent counsel experienced in such matters
to the effect that such amendment of the exercise of any power
granted to the General Partner in accordance with such amendment
will not affect the Partnership's status as a partnership for
United States federal income tax purposes or the Partnership's
exemption from the status as an "investment company" under the
Investment Company Act, provided that without the consent of each
Holder of the Preferred Securities, the Limited Partnership
Agreement may not be amended to change the amount or timing of
any Dividend on the Series A Preferred Securities or otherwise
adversely affect the amount of any Dividend required to be made
in respect of the Series A Preferred Securities as of a specified
date or restrict the right of Holders of the Series A Preferred
Securities to institute suit for the enforcement of any such
payment on or after such date as described below.
So long as any Series A Debentures are held by or for
the benefit of the Partnership, the General Partner shall not (i)
direct the time, method and place of conducting any proceeding
for any remedy available to the Debenture Trustee, or executing
any trust or power conferred on the Debenture Trustee with
respect to the Series A Debentures, (ii) waive any past default
that is waiveable under Section 813 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Series A Debentures shall be due and payable
or (iv) consent to any amendment, modification or termination of
the Indenture or the Series A Debentures, where such consent
shall be required, without, in each case, obtaining the prior
approval of the Holders of a Majority in Liquidation Preference
of all outstanding Series A Preferred Securities; provided,
however, that where a consent under the Indenture would require
the consent of each holder of Series A Debentures affected
thereby, no such consent shall be given by the General Partner
without the prior written consent of each Holder of the Series A
Preferred Securities. The General Partner shall not revoke any
action previously authorized or approved by a vote of the Series
A Preferred Securities except by subsequent vote of not less than
66 2/3% in Liquidation Preference of the Holders of the Series A
Preferred Securities. The General Partner shall notify all
Holders of Series A Preferred Securities of any notice of default
with respect to the Series A Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Series A
Preferred Securities, prior to taking any of the foregoing
actions, the General Partner shall obtain an opinion from
independent counsel experienced in such matters to the effect
that the Partnership will be classified as a partnership or
grantor trust and not as an association taxable as a corporation
for United States federal income tax purposes on account of such
action.
If the General Partner fails to enforce the
Partnership's rights under the Series A Debentures or the
Indenture, a Holder of Series A Preferred Securities may
institute a legal proceeding directly against Entergy London
Investments to enforce the Partnership's rights with respect to
the Series A Debentures or the Indenture, to the fullest extent
permitted by law, without first instituting any legal proceeding
against the General Partner or any other Person. Notwithstanding
the foregoing, a Holder of Series A Preferred Securities may
directly institute a proceeding for enforcement of payment to
such Holder of principal of or interest on the Series A
Debentures having a principal amount equal to the Liquidation
Preference of the Series A Preferred Securities of such Holder on
or after the due dates specified in the Series A Debentures.
Any required approval of Holders of Series A Preferred
Securities may be given at a meeting of Holders of Series A
Preferred Securities convened for such purpose or pursuant to
written consent. The General Partner will cause a notice of any
meeting at which Holders of Series A Preferred Securities are
entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be given to each
Holder of record of Series A Preferred Securities in the manner
set forth in the Limited Partnership Agreement.
No vote or consent of the Holders of Series A Preferred
Securities will be required for the Partnership to redeem and
cancel the Series A Preferred Securities in accordance with the
Limited Partnership Agreement.
Notwithstanding that Holders of Series A Preferred
Securities are entitled to vote or consent under any of the
circumstances described above, any of the Series A Preferred
Securities that are owned by Entergy London Investments, or any
Affiliate of Entergy London Investments, shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
9. Clearing Agency. The Depository Trust Company
will act as the initial Clearing Agency for the Series A
Preferred Securities.
10. Registrar and Transfer Agent. The Bank of New
York will act as the initial registrar and initial transfer agent
for the Series A Preferred Securities.
11. Guarantee. It shall be a condition precedent to
the issuance of the Series A Preferred Securities that Entergy
London Investments execute and deliver the Guarantee.
12. Form of Security. The Preferred Certificates in
respect of the Series A Preferred Securities shall be in the form
set forth as Exhibit I to this Annex B.
13. Payment and Paying Agency. Payments in respect
of Series A Preferred Securities held by the Clearing Agency or
its nominee shall be made to the Clearing Agency by the
Partnership pursuant to the Clearing Agency's procedures. If any
Series A Preferred Securities are not held by the Clearing Agency
or its nominee, such payments shall be made by check mailed to
the address of the Holder entitled thereto as such address shall
appear on the books and records of the Partnership. The paying
agent shall initially be The Bank of New York.
<PAGE>
EXHIBIT I
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST THEREIN.
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Entergy London Capital, L.P.
8 5/8% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation preference $25 per Preferred Security)
Entergy London Capital, L.P., a limited partnership formed under
the laws of the State of Delaware (the "Partnership"), hereby
certifies that __________ (the "Holder") is the registered owner
of _________ 8 5/8% Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per Preferred
Security) (the "Securities") representing limited partner
interests in the Partnership. The Securities are fully paid and
are nonassessable limited partner interests the Partnership, as
to which the Limited Partners in the Partnership who hold the
Securities (the "Holders"), in their capacities as limited
partners in the Partnership, will, assuming such Holders do not
participate in the control of the business of the Partnership,
have no liability solely by reason of being Holders (subject to
the obligation of a limited partner to repay any funds wrongfully
distributed to it), and, subject to any restrictions of transfer
required by any Clearing Agency, are freely transferable on the
books and records of the Partnership, in person or by a duly
authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The rights, privileges
or preference of the Securities are set forth in, and this
certificate and the Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of,
the Amended Restated Limited Partnership Agreement of the
Partnership, dated as of November 19, 1997, as the same may be
amended from time to time in accordance with its terms (the
"Limited Partnership Agreement"), and the Action of the General
Partner (the "Action") taken pursuant thereto authorizing the
issuance of the Securities and determining the designations,
rights, privileges, restrictions, preferences and other terms and
provisions regarding Dividends, voting, return of capital and
other matters relating to the Securities. Capitalized terms used
herein but not defined herein shall have the meaning given them
in the Limited Partnership Agreement or the Action. The Holder
is entitled to the benefits of the Guarantee Agreement between
Entergy London Investments plc, a public limited company
incorporated under the laws of England and Wales ("Entergy London
Investments"), and the Guarantee Trustee, dated as of November
19, 1997 (as amended from time to time in accordance with its
terms, the "Guarantee") to the extent provided therein. The
Partnership will furnish a copy of the Limited Partnership
Agreement and the Guarantee to the Holder without charge upon
written request to the Partnership at its principal place of
business or registered office.
The Holder, by accepting this certificate, is deemed to
have agreed (i) to be bound by the provisions of the Limited
Partnership Agreement and the Action and (ii) to the
subordination provisions and other terms of the Indenture and the
Guarantee. Upon registration of this Certificate in the books
and records of the Partnership, the Holder was admitted to the
Partnership as a Limited Partner, is bound by the Limited
Partnership Agreement and is entitled to the benefits thereunder.
Reference is hereby made to the further provisions of
the Securities set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, this certificate has been executed
on behalf of the Partnership by its duly authorized General
Partner, this ____ day of __________ 1997.
ENTERGY LONDON CAPITAL, L.P.
By: ENTERGY LONDON INVESTMENTS
plc, its General Partner
By:______________________________
Name: [ ]
Title: [ ]
<PAGE>
[REVERSE OF CERTIFICATE]
Ranking. The limited partner interests represented by the
Securities will have a preference with respect to cash
distributions and amounts payable on dissolution, redemption or
otherwise over the general partner interests in the Partnership.
Dividends. Holders shall be entitled to receive cumulative
dividends out of funds of the Partnership legally available
therefor, accumulating from November 19, 1997 and payable
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year (each, a "Dividend Payment Date"),
commencing December 31, 1997 ("Dividends"). The Dividends
payable on each Security will be fixed at a rate per annum of
$2.15625 or 8 5/8% of the initial Liquidation Preference of $25.
Dividends that are in arrears for more than one quarter will
accumulate additional Dividends thereon at the rate of 8 5/8% per
annum thereof compounded quarterly ("Additional Dividends"). The
term "Dividends" as used herein includes any Additional
Dividends, Additional Amounts (as defined herein) or Additional
Interest (as defined in the Indenture). The amount of Dividends
payable for any period will be computed on the basis of twelve 30-
day months and a 360-day year and, for any period shorter than a
full quarter, will be computed on the basis of the actual number
of days elapsed in such period.
If the payment of interest on the Series A Debentures (as
defined herein) is deferred pursuant to Section 311 of the
Indenture, then Dividends on the Securities will be deferred for
as long as such interest payments are deferred and the rate per
annum at which Dividends on the Securities accumulate shall be
increased by an amount such that the aggregate amount of
Dividends that accumulate on all Securities during any such
deferral is equal to the aggregate amount of interest (including,
to the extent permitted by law, interest payable on unpaid
interest at the percentage rate per annum set forth above,
compounded quarterly) that accrues while interest is so deferred
on the Series A Debentures. The General Partner shall give
notice of Entergy London Investments' intention to defer payment
of interest on the Series A Debentures to the Holders of the
Securities within five Business Days of the receipt of notice
thereof.
The Partnership will be required to declare and pay in full on
each Dividend Payment Date Dividends on the Securities to the
extent that the Partnership has funds legally available for the
payment of such Dividends and cash on hand sufficient to make
such payments. The Partnership will be prohibited from paying
Dividends in any other circumstances.
Dividends declared on the Securities will be payable to the
Holders thereof as they appear on the books and records of the
Partnership at the close of business on the relevant record date,
which will be one Business Day prior to the relevant Dividend
Payment Date. In the event that any Series A Preferred
Securities are not in book-entry form, the relevant record date
for such Series A Preferred Securities shall be the date 15 days
prior to the relevant Dividend Payment Date. In the event that
any Dividend Payment Date is not a Business Day, then payment of
the Dividends payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that if
such Business Day is in the next succeeding calendar year,
payment of such Dividends shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date. If such Business Day is in the
next succeeding calendar year, however, the payment will be made
on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date.
Holders will not be entitled to any Dividend or other payment
(other than the Redemption Price or the Liquidation Preference),
whether payable in cash, property or shares, in excess of full
cumulative Dividends.
Series A Debentures. The aggregate proceeds received by the
Partnership from the issuance of the Series A Preferred
Securities, together with the proceeds of the capital
contribution of the General Partner at the time of such issuance,
will be used to purchase $303,030,325 aggregate principal amount
of the 8 5/8% Junior Subordinated Deferrable Interest Debentures,
Series A, of Entergy London Investments issued pursuant to the
Indenture (the "Series A Debentures").
Redemptions.
Mandatory Redemption. Upon the redemption, in whole or in
part, of the Series A Debentures, the proceeds from such
redemption will be applied by the Partnership to redeem a Like
Amount (as defined below) of Securities, upon not less than 30
nor more than 60 days' notice to each Holder of Securities at its
registered address, at a redemption price equal to $25 per
Security, plus accumulation and unpaid Dividends thereon to the
date of redemption (the "Redemption Price").
Optional Redemption of Series A Debentures. Entergy London
Investments will have the right to redeem the Series A Debentures
on or after November 19, 2002, in whole at any time or in part
from time to time, and thereby cause a mandatory redemption of a
Like Amount of Securities at the Redemption Price.
Entergy London Investments will also have the right to redeem
the Series A Debentures in whole (but not in part), if Entergy
London Investments has or will become obligated to pay Additional
Amounts (as defined in the Officer's Certificate dated November
19, 1997 delivered pursuant to Sections 201 and 301 of the
Indenture), and thereby cause a mandatory redemption of the
Securities in whole (but not in part) at the Redemption Price.
Special Event Redemption or Distribution of Series A
Debentures. If a Special Event shall have occurred and be
continuing, Entergy London Investments shall have the right to
redeem the Series A Debentures at any time in whole (but not in
part) and thereby cause a mandatory redemption of the Securities
in whole (but not in part) at the Redemption Price within 90 days
following the occurrence of such Special Event.
Whether or not a Special Event has occurred, the General
Partner has the right, at any time, to dissolve and, after
satisfaction of liabilities to creditors of the Partnership, if
any, as provided by the Act, to cause a Like Amount of Series A
Debentures to be distributed to the Holders in liquidation of the
Partnership.
If a Special Event occurs and Entergy London Investments does
not elect to redeem the Series A Debentures or to dissolve the
Partnership, the Securities will remain outstanding and, if such
Special Event is a Tax Event, Additional Interest will be payable
on the Series A Debentures.
"Like Amount" means (i) with respect to a redemption of any
Securities, Securities having a Liquidation Preference equal to
that portion of the principal amount of Series A Debentures to be
contemporaneously redeemed and the proceeds of which will be used
to pay the Redemption Price of such Securities, and (ii) with
respect to a distribution of Series A Debentures to Holders in
connection with a dissolution of the Partnership, Series A
Debentures having a principal amount equal to the Liquidation
Preference of the Securities of the Holder to whom such Series A
Debentures are distributed.
Redemption Procedures. Securities redeemed on each redemption
date shall be redeemed at the Redemption Price with the
applicable proceeds from the contemporaneous redemption of the
Series A Debentures. Redemptions of the Securities shall be
made, and the Redemption Price shall be payable, on each
redemption date only to the extent that the Partnership has funds
on hand available for the payment of such Redemption Price.
If the Partnership gives a notice of redemption in respect of
the Securities, then, by 12:00 noon, New York City time, on the
redemption date, to the extent funds are available, the
Partnership will deposit irrevocably with the Clearing Agency
funds sufficient to pay the applicable Redemption Price and will
give the Clearing Agency irrevocable instructions and authority
to pay the Redemption Price to the Holders of such Securities.
If the Securities are no longer in book-entry form, the
Partnership, to the extent funds are available therefor, will
irrevocably deposit with the paying agent for the Securities
funds sufficient to pay the applicable Redemption Price and will
give such paying agent irrevocable instructions and authority to
pay the Redemption Price to the holders thereof upon surrender of
their certificates evidencing such Securities. Notwithstanding
the foregoing, Dividends payable on or prior to the redemption
date for any Securities called for redemption shall be payable to
the Holders of such Securities as of the relevant record dates
for the related Dividend Payment Date. If notice or redemption
shall have been given and funds deposited as required, then upon
the date of such deposit, all rights of the Holders of such
Securities so called for redemption will cease, except the right
of the Holders of such Securities to receive the Redemption
Price, but without interest on such Redemption Price, and such
Securities will cease to be outstanding. In the event that any
date fixed for redemption of Securities is not a Business Day,
then payment of the Redemption Price payable on such date will be
made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next
succeeding calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on the redemption date. In the event
that payment of the Redemption Price in respect of Securities
called for redemption is improperly withheld or refused and not
paid either by the Partnership or by Entergy London Investments
pursuant to the Guarantee, Dividends on the Securities will
continue to accumulate at the then applicable rate from the
redemption date originally established by the Partnership for
such Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date
fixed for redemption for purposes of calculating the Redemption
Price.
Subject to applicable law (including, without limitation, Rule
14e-1 under the Exchange Act and any other applicable United
States federal securities law), Entergy London Investments or its
subsidiaries may at any time and from time to time purchase
outstanding Securities by tender, in the open market or by
private agreement.
Payment of the Redemption Price on the Securities and any
distribution of Series A Debentures to Holders of Securities
shall be made to the holders of record as they appear on the
books and records of the Partnership as of the relevant record
date, which, as long as the Securities remain in book-entry form,
will be one Business Day prior to the relevant redemption date or
liquidation date, as applicable; provided, however, that in the
event that the Securities are not in book-entry form, the
relevant record date for the Securities shall be the date 15 days
prior to the redemption date or liquidation date, as applicable.
If less than all of the Securities are to be redeemed on a
redemption date, the particular Securities to be redeemed shall
be selected not more than 60 days prior to the redemption date by
the General Partner from the outstanding Securities not
previously called for redemption, by lot or by such method as the
General Partner shall deem fair and appropriate, which shall
provide for the selection for redemption of portions (equal to
$25 or an integral multiple of $25 in excess thereof) of the
Liquidation Preference of Securities of a denomination larger
than $25. The General Partner shall promptly notify the transfer
agent and registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected for
partial redemption, the aggregate Liquidation Preference thereof
to be redeemed.
Liquidation Distribution. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Partnership (other than a dissolution that results in a Like
Amount of Debentures being distributed to the Holders of the
Series A Preferred Securities), the Holders of the Series A
Preferred Securities at the time outstanding will be entitled to
receive the Liquidation Preference of the Series A Preferred
Securities plus all accumulated and unpaid Dividends to the date
of payment (the "Liquidation Distribution") out of the assets of
the Partnership legally available for distribution to Partners,
after satisfaction of liabilities to creditors as required by the
Delaware Act, prior to any distribution of assets by the
Partnership to the General Partner. If such Liquidation
Distribution can be paid only in part because the Partnership has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by
the Partnership on the Series A Preferred Securities shall be
paid on a pro rata basis in proportion to the full Liquidation
Distribution for which the Series A Preferred Securities would be
entitled.
If, upon any liquidation of the Partnership, the Holders are
paid in full the aggregate Liquidation Distribution to which they
are entitled, then such Holders will not be entitled to receive
or share in any other assets of the Partnership then or
thereafter available for distribution to any other holders of
partnership interests in the Partnership.
Voting Rights. The Limited Partnership Agreement may be amended
from time to time by the General Partner, without the consent of
the Holders (i) to cure any ambiguity, to correct or supplement
any provisions in the Limited Partnership Agreement that may be
inconsistent with any other provision, or to make any other
provisions with respect to matters or questions arising under the
Limited Partnership Agreement, that shall not be inconsistent
with the other provisions of the Limited Partnership Agreement,
or (ii) to modify, eliminate or add to any provisions of the
Limited Partnership Agreement to such extent as shall be
necessary to ensure that the Partnership will be classified for
United States federal income tax purposes as a partnership or a
grantor trust at all times that any Securities are outstanding or
to ensure that the Partnership will not be required to register
as an "investment company" under the Investment Company Act,
provided, however, that except in the case of clause (ii), such
action shall not adversely affect in any material respect the
interests of any Securities, and, in the case of clause (i), any
such amendments of the Limited Partnership Agreement shall become
effective when notice thereof is given to the Holders. The
Limited Partnership Agreement may be amended by the General
Partner with the consent of Holders of a Majority in Liquidation
Preference of the outstanding Securities and upon receipt by the
General Partner of an opinion from independent counsel
experienced in such matters to the effect that such amendment of
the exercise of any power granted to the General Partner in
accordance with such amendment will not affect the Partnership's
status as a partnership for United States federal income tax
purposes or the Partnership's exemption from the status as an
"investment company" under the Investment Company Act, provided
that without the consent of each Holder of the Securities, the
Limited Partnership Agreement may not be amended to change the
amount or timing of any Dividend on the Securities or otherwise
adversely affect the amount of any Dividend required to be made
in respect of the Securities as of a specified date or restrict
the right of Holders to institute suit for the enforcement of any
such payment on or after such date as described below.
So long as any Series A Debentures are held by or for the
benefit of the Partnership, the General Partner shall not (i)
direct the time, method and place of conducting any proceeding
for any remedy available to the Debenture Trustee, or executing
any trust or power conferred on the Debenture Trustee with
respect to the Series A Debentures, (ii) waive any past default
that is waiveable under Section 813 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Series A Debentures shall be due and payable
or (iv) consent to any amendment, modification or termination of
the Indenture or the Series A Debentures, where such consent
shall be required, without, in each case, obtaining the prior
approval of the Holders of a Majority in Liquidation Preference
of all outstanding Series A Preferred Securities; provided,
however, that where a consent under the Indenture would require
the consent of each holder of Series A Debentures affected
thereby, no such consent shall be given by the General Partner
without the prior written consent of each Holder of the Series A
Preferred Securities. The General Partner shall not revoke any
action previously authorized or approved by a vote of the Series
A Preferred Securities except by subsequent vote of not less than
66 2/3% in Liquidation Preference of the Holders of the Series A
Preferred Securities. The General Partner shall notify all
Holders of Series A Preferred Securities of any notice of default
with respect to the Series A Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Series A
Preferred Securities, prior to taking any of the foregoing
actions, the General Partner shall obtain an opinion from
independent counsel experienced in such matters to the effect
that the Partnership will be classified as a partnership or
grantor trust and not as an association taxable as a corporation
for United States federal income tax purposes on account of such
action.
If the General Partner fails to enforce the Partnership's
rights under the Series A Debentures or the Indenture, a Holder
of Series A Preferred Securities may institute a legal proceeding
directly against Entergy London Investments to enforce the
Partnership's rights with respect to the Series A Debentures or
the Indenture, to the fullest extent permitted by law, without
first instituting any legal proceeding against the General
Partner or any other Person. Notwithstanding the foregoing, a
Holder of Series A Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of principal
of or interest on the Series A Debentures having a principal
amount equal to the Liquidation Preference of the Series A
Preferred Securities of such Holder on or after the due dates
specified in the Series A Debentures.
Any required approval of Holders may be given at a meeting of
Holders convened for such purpose or pursuant to written consent.
The General Partner will cause a notice of any meeting at which
Holders are entitled to vote, or of any matter upon which action
by written consent of such Holders is to be taken, to be given to
each Holder of record of Securities in the manner set forth in
the Limited Partnership Agreement.
No vote or consent of the Holders will be required for the
Partnership to redeem and cancel the Securities in accordance
with the Limited Partnership Agreement.
Notwithstanding that Holders are entitled to vote or consent
under any of the circumstances described above, any of the
Securities that are owned by Entergy London Investments, or any
Affiliate of Entergy London Investments, shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
Payment and Paying Agency. Payments in respect of Series A
Preferred Securities held by the Clearing Agency or its nominee
shall be made to the Clearing Agency by the Partnership pursuant
to the Clearing Agency's procedures. If any Series A Preferred
Securities are not held by the Clearing Agency or its nominee,
such payments shall be made by check mailed to the address of the
Holder entitled thereto as such address shall appear on the books
and records of the Partnership. The paying agent shall initially
be The Bank of New York.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST THEREIN.
Certificate Number Number of Preferred Securities
R-1 8,000,000
CUSIP NO. 29364K203
Certificate Evidencing Preferred Securities
of
Entergy London Capital, L.P.
8 5/8% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation preference $25 per Preferred Security)
Entergy London Capital, L.P., a limited partnership formed under
the laws of the State of Delaware (the "Partnership"), hereby
certifies that CEDE & CO. (the "Holder") is the registered owner
of EIGHT MILLION (8,000,000) 8 5/8% Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25 per
Preferred Security) (the "Securities") representing limited
partner interests in the Partnership. The Securities are fully
paid and are nonassessable limited partner interests the
Partnership, as to which the Limited Partners in the Partnership
who hold the Securities (the "Holders"), in their capacities as
limited partners in the Partnership, will, assuming such Holders
do not participate in the control of the business of the
Partnership, have no liability solely by reason of being Holders
(subject to the obligation of a limited partner to repay any
funds wrongfully distributed to it), and, subject to any
restrictions of transfer required by any Clearing Agency, are
freely transferable on the books and records of the Partnership,
in person or by a duly authorized attorney, upon surrender of
this certificate duly endorsed and in proper form for transfer.
The rights, privileges or preference of the Securities are set
forth in, and this certificate and the Securities represented
hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended Restated Limited Partnership
Agreement of the Partnership, dated as of November 19, 1997, as
the same may be amended from time to time in accordance with its
terms (the "Limited Partnership Agreement"), and the Action of
the General Partner (the "Action") taken pursuant thereto
authorizing the issuance of the Securities and determining the
designations, rights, privileges, restrictions, preferences and
other terms and provisions regarding Dividends, voting, return of
capital and other matters relating to the Securities.
Capitalized terms used herein but not defined herein shall have
the meaning given them in the Limited Partnership Agreement or
the Action. The Holder is entitled to the benefits of the
Guarantee Agreement between Entergy London Investments plc, a
public limited company incorporated under the laws of England and
Wales ("Entergy London Investments"), and the Guarantee Trustee,
dated as of November 19, 1997 (as amended from time to time in
accordance with its terms, the "Guarantee") to the extent
provided therein. The Partnership will furnish a copy of the
Limited Partnership Agreement and the Guarantee to the Holder
without charge upon written request to the Partnership at its
principal place of business or registered office.
The Holder, by accepting this certificate, is deemed to
have agreed (i) to be bound by the provisions of the Limited
Partnership Agreement and the Action and (ii) to the
subordination provisions and other terms of the Indenture and the
Guarantee. Upon registration of this Certificate in the books
and records of the Partnership, the Holder was admitted to the
Partnership as a Limited Partner, is bound by the Limited
Partnership Agreement and is entitled to the benefits thereunder.
Reference is hereby made to the further provisions of
the Securities set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, this certificate has been executed
on behalf of the Partnership by its duly authorized General
Partner, this 19th day of November 1997.
ENTERGY LONDON CAPITAL, L.P.
By: ENTERGY LONDON INVESTMENTS
plc, its General Partner
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Treasurer
<PAGE>
[REVERSE OF CERTIFICATE]
Ranking. The limited partner interests represented by the
Securities will have a preference with respect to cash
distributions and amounts payable on dissolution, redemption or
otherwise over the general partner interests in the Partnership.
Dividends. Holders shall be entitled to receive cumulative
dividends out of funds of the Partnership legally available
therefor, accumulating from November 19, 1997 and payable
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year (each, a "Dividend Payment Date"),
commencing December 31, 1997 ("Dividends"). The Dividends
payable on each Security will be fixed at a rate per annum of
$2.15625 or 8 5/8% of the initial Liquidation Preference of $25.
Dividends that are in arrears for more than one quarter will
accumulate additional Dividends thereon at the rate of 8 5/8% per
annum thereof compounded quarterly ("Additional Dividends"). The
term "Dividends" as used herein includes any Additional
Dividends, Additional Amounts (as defined herein) or Additional
Interest (as defined in the Indenture). The amount of Dividends
payable for any period will be computed on the basis of twelve 30-
day months and a 360-day year and, for any period shorter than a
full quarter, will be computed on the basis of the actual number
of days elapsed in such period.
If the payment of interest on the Series A Debentures (as
defined herein) is deferred pursuant to Section 311 of the
Indenture, then Dividends on the Securities will be deferred for
as long as such interest payments are deferred and the rate per
annum at which Dividends on the Securities accumulate shall be
increased by an amount such that the aggregate amount of
Dividends that accumulate on all Securities during any such
deferral is equal to the aggregate amount of interest (including,
to the extent permitted by law, interest payable on unpaid
interest at the percentage rate per annum set forth above,
compounded quarterly) that accrues while interest is so deferred
on the Series A Debentures. The General Partner shall give
notice of Entergy London Investments' intention to defer payment
of interest on the Series A Debentures to the Holders of the
Securities within five Business Days of the receipt of notice
thereof.
The Partnership will be required to declare and pay in full on
each Dividend Payment Date Dividends on the Securities to the
extent that the Partnership has funds legally available for the
payment of such Dividends and cash on hand sufficient to make
such payments. The Partnership will be prohibited from paying
Dividends in any other circumstances.
Dividends declared on the Securities will be payable to the
Holders thereof as they appear on the books and records of the
Partnership at the close of business on the relevant record date,
which will be one Business Day prior to the relevant Dividend
Payment Date. In the event that any Series A Preferred
Securities are not in book-entry form, the relevant record date
for such Series A Preferred Securities shall be the date 15 days
prior to the relevant Dividend Payment Date. In the event that
any Dividend Payment Date is not a Business Day, then payment of
the Dividends payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that if
such Business Day is in the next succeeding calendar year,
payment of such Dividends shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date. If such Business Day is in the
next succeeding calendar year, however, the payment will be made
on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date.
Holders will not be entitled to any Dividend or other payment
(other than the Redemption Price or the Liquidation Preference),
whether payable in cash, property or shares, in excess of full
cumulative Dividends.
Series A Debentures. The aggregate proceeds received by the
Partnership from the issuance of the Series A Preferred
Securities, together with the proceeds of the capital
contribution of the General Partner at the time of such issuance,
will be used to purchase $202,020,225 aggregate principal amount
of the 8 5/8% Junior Subordinated Deferrable Interest Debentures,
Series A, of Entergy London Investments issued pursuant to the
Indenture (the "Series A Debentures").
Redemptions.
Mandatory Redemption. Upon the redemption, in whole or in
part, of the Series A Debentures, the proceeds from such
redemption will be applied by the Partnership to redeem a Like
Amount (as defined below) of Securities, upon not less than 30
nor more than 60 days' notice to each Holder of Securities at its
registered address, at a redemption price equal to $25 per
Security, plus accumulation and unpaid Dividends thereon to the
date of redemption (the "Redemption Price").
Optional Redemption of Series A Debentures. Entergy London
Investments will have the right to redeem the Series A Debentures
on or after November 19, 2002, in whole at any time or in part
from time to time, and thereby cause a mandatory redemption of a
Like Amount of Securities at the Redemption Price.
Entergy London Investments will also have the right to redeem
the Series A Debentures in whole (but not in part), if Entergy
London Investments has or will become obligated to pay Additional
Amounts (as defined in the Officer's Certificate dated November
19, 1997 delivered pursuant to Sections 201 and 301 of the
Indenture), and thereby cause a mandatory redemption of the
Securities in whole (but not in part) at the Redemption Price.
Special Event Redemption or Distribution of Series A
Debentures. If a Special Event shall have occurred and be
continuing, Entergy London Investments shall have the right to
redeem the Series A Debentures at any time in whole (but not in
part) and thereby cause a mandatory redemption of the Securities
in whole (but not in part) at the Redemption Price within 90 days
following the occurrence of such Special Event.
Whether or not a Special Event has occurred, the General
Partner has the right, at any time, to dissolve and, after
satisfaction of liabilities to creditors of the Partnership, if
any, as provided by the Act, to cause a Like Amount of Series A
Debentures to be distributed to the Holders in liquidation of the
Partnership.
If a Special Event occurs and Entergy London Investments does
not elect to redeem the Series A Debentures or to dissolve the
Partnership, the Securities will remain outstanding and, if such
Special Event is a Tax Event, Additional Interest will be payable
on the Series A Debentures.
"Like Amount" means (i) with respect to a redemption of any
Securities, Securities having a Liquidation Preference equal to
that portion of the principal amount of Series A Debentures to be
contemporaneously redeemed and the proceeds of which will be used
to pay the Redemption Price of such Securities, and (ii) with
respect to a distribution of Series A Debentures to Holders in
connection with a dissolution of the Partnership, Series A
Debentures having a principal amount equal to the Liquidation
Preference of the Securities of the Holder to whom such Series A
Debentures are distributed.
Redemption Procedures. Securities redeemed on each redemption
date shall be redeemed at the Redemption Price with the
applicable proceeds from the contemporaneous redemption of the
Series A Debentures. Redemptions of the Securities shall be
made, and the Redemption Price shall be payable, on each
redemption date only to the extent that the Partnership has funds
on hand available for the payment of such Redemption Price.
If the Partnership gives a notice of redemption in respect of
the Securities, then, by 12:00 noon, New York City time, on the
redemption date, to the extent funds are available, the
Partnership will deposit irrevocably with the Clearing Agency
funds sufficient to pay the applicable Redemption Price and will
give the Clearing Agency irrevocable instructions and authority
to pay the Redemption Price to the Holders of such Securities.
If the Securities are no longer in book-entry form, the
Partnership, to the extent funds are available therefor, will
irrevocably deposit with the paying agent for the Securities
funds sufficient to pay the applicable Redemption Price and will
give such paying agent irrevocable instructions and authority to
pay the Redemption Price to the holders thereof upon surrender of
their certificates evidencing such Securities. Notwithstanding
the foregoing, Dividends payable on or prior to the redemption
date for any Securities called for redemption shall be payable to
the Holders of such Securities as of the relevant record dates
for the related Dividend Payment Date. If notice or redemption
shall have been given and funds deposited as required, then upon
the date of such deposit, all rights of the Holders of such
Securities so called for redemption will cease, except the right
of the Holders of such Securities to receive the Redemption
Price, but without interest on such Redemption Price, and such
Securities will cease to be outstanding. In the event that any
date fixed for redemption of Securities is not a Business Day,
then payment of the Redemption Price payable on such date will be
made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next
succeeding calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on the redemption date. In the event
that payment of the Redemption Price in respect of Securities
called for redemption is improperly withheld or refused and not
paid either by the Partnership or by Entergy London Investments
pursuant to the Guarantee, Dividends on the Securities will
continue to accumulate at the then applicable rate from the
redemption date originally established by the Partnership for
such Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date
fixed for redemption for purposes of calculating the Redemption
Price.
Subject to applicable law (including, without limitation, Rule
14e-1 under the Exchange Act and any other applicable United
States federal securities law), Entergy London Investments or its
subsidiaries may at any time and from time to time purchase
outstanding Securities by tender, in the open market or by
private agreement.
Payment of the Redemption Price on the Securities and any
distribution of Series A Debentures to Holders of Securities
shall be made to the holders of record as they appear on the
books and records of the Partnership as of the relevant record
date, which, as long as the Securities remain in book-entry form,
will be one Business Day prior to the relevant redemption date or
liquidation date, as applicable; provided, however, that in the
event that the Securities are not in book-entry form, the
relevant record date for the Securities shall be the date 15 days
prior to the redemption date or liquidation date, as applicable.
If less than all of the Securities are to be redeemed on a
redemption date, the particular Securities to be redeemed shall
be selected not more than 60 days prior to the redemption date by
the General Partner from the outstanding Securities not
previously called for redemption, by lot or by such method as the
General Partner shall deem fair and appropriate, which shall
provide for the selection for redemption of portions (equal to
$25 or an integral multiple of $25 in excess thereof) of the
Liquidation Preference of Securities of a denomination larger
than $25. The General Partner shall promptly notify the transfer
agent and registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected for
partial redemption, the aggregate Liquidation Preference thereof
to be redeemed.
Liquidation Distribution. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Partnership (other than a dissolution that results in a Like
Amount of Debentures being distributed to the Holders of the
Series A Preferred Securities), the Holders of the Series A
Preferred Securities at the time outstanding will be entitled to
receive the Liquidation Preference of the Series A Preferred
Securities plus all accumulated and unpaid Dividends to the date
of payment (the "Liquidation Distribution") out of the assets of
the Partnership legally available for distribution to Partners,
after satisfaction of liabilities to creditors as required by the
Delaware Act, prior to any distribution of assets by the
Partnership to the General Partner. If such Liquidation
Distribution can be paid only in part because the Partnership has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by
the Partnership on the Series A Preferred Securities shall be
paid on a pro rata basis in proportion to the full Liquidation
Distribution for which the Series A Preferred Securities would be
entitled.
If, upon any liquidation of the Partnership, the Holders are
paid in full the aggregate Liquidation Distribution to which they
are entitled, then such Holders will not be entitled to receive
or share in any other assets of the Partnership then or
thereafter available for distribution to any other holders of
partnership interests in the Partnership.
Voting Rights. The Limited Partnership Agreement may be amended
from time to time by the General Partner, without the consent of
the Holders (i) to cure any ambiguity, to correct or supplement
any provisions in the Limited Partnership Agreement that may be
inconsistent with any other provision, or to make any other
provisions with respect to matters or questions arising under the
Limited Partnership Agreement, that shall not be inconsistent
with the other provisions of the Limited Partnership Agreement,
or (ii) to modify, eliminate or add to any provisions of the
Limited Partnership Agreement to such extent as shall be
necessary to ensure that the Partnership will be classified for
United States federal income tax purposes as a partnership or a
grantor trust at all times that any Securities are outstanding or
to ensure that the Partnership will not be required to register
as an "investment company" under the Investment Company Act,
provided, however, that except in the case of clause (ii), such
action shall not adversely affect in any material respect the
interests of any Securities, and, in the case of clause (i), any
such amendments of the Limited Partnership Agreement shall become
effective when notice thereof is given to the Holders. The
Limited Partnership Agreement may be amended by the General
Partner with the consent of Holders of a Majority in Liquidation
Preference of the outstanding Securities and upon receipt by the
General Partner of an opinion from independent counsel
experienced in such matters to the effect that such amendment of
the exercise of any power granted to the General Partner in
accordance with such amendment will not affect the Partnership's
status as a partnership for United States federal income tax
purposes or the Partnership's exemption from the status as an
"investment company" under the Investment Company Act, provided
that without the consent of each Holder of the Securities, the
Limited Partnership Agreement may not be amended to change the
amount or timing of any Dividend on the Securities or otherwise
adversely affect the amount of any Dividend required to be made
in respect of the Securities as of a specified date or restrict
the right of Holders to institute suit for the enforcement of any
such payment on or after such date as described below.
So long as any Series A Debentures are held by or for the
benefit of the Partnership, the General Partner shall not (i)
direct the time, method and place of conducting any proceeding
for any remedy available to the Debenture Trustee, or executing
any trust or power conferred on the Debenture Trustee with
respect to the Series A Debentures, (ii) waive any past default
that is waiveable under Section 813 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Series A Debentures shall be due and payable
or (iv) consent to any amendment, modification or termination of
the Indenture or the Series A Debentures, where such consent
shall be required, without, in each case, obtaining the prior
approval of the Holders of a Majority in Liquidation Preference
of all outstanding Series A Preferred Securities; provided,
however, that where a consent under the Indenture would require
the consent of each holder of Series A Debentures affected
thereby, no such consent shall be given by the General Partner
without the prior written consent of each Holder of the Series A
Preferred Securities. The General Partner shall not revoke any
action previously authorized or approved by a vote of the Series
A Preferred Securities except by subsequent vote of not less than
66 2/3% in Liquidation Preference of the Holders of the Series A
Preferred Securities. The General Partner shall notify all
Holders of Series A Preferred Securities of any notice of default
with respect to the Series A Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Series A
Preferred Securities, prior to taking any of the foregoing
actions, the General Partner shall obtain an opinion from
independent counsel experienced in such matters to the effect
that the Partnership will be classified as a partnership or
grantor trust and not as an association taxable as a corporation
for United States federal income tax purposes on account of such
action.
If the General Partner fails to enforce the Partnership's
rights under the Series A Debentures or the Indenture, a Holder
of Series A Preferred Securities may institute a legal proceeding
directly against Entergy London Investments to enforce the
Partnership's rights with respect to the Series A Debentures or
the Indenture, to the fullest extent permitted by law, without
first instituting any legal proceeding against the General
Partner or any other Person. Notwithstanding the foregoing, a
Holder of Series A Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of principal
of or interest on the Series A Debentures having a principal
amount equal to the Liquidation Preference of the Series A
Preferred Securities of such Holder on or after the due dates
specified in the Series A Debentures.
Any required approval of Holders may be given at a meeting of
Holders convened for such purpose or pursuant to written consent.
The General Partner will cause a notice of any meeting at which
Holders are entitled to vote, or of any matter upon which action
by written consent of such Holders is to be taken, to be given to
each Holder of record of Securities in the manner set forth in
the Limited Partnership Agreement.
No vote or consent of the Holders will be required for the
Partnership to redeem and cancel the Securities in accordance
with the Limited Partnership Agreement.
Notwithstanding that Holders are entitled to vote or consent
under any of the circumstances described above, any of the
Securities that are owned by Entergy London Investments, or any
Affiliate of Entergy London Investments, shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
Payment and Paying Agency. Payments in respect of Series A
Preferred Securities held by the Clearing Agency or its nominee
shall be made to the Clearing Agency by the Partnership pursuant
to the Clearing Agency's procedures. If any Series A Preferred
Securities are not held by the Clearing Agency or its nominee,
such payments shall be made by check mailed to the address of the
Holder entitled thereto as such address shall appear on the books
and records of the Partnership. The paying agent shall initially
be The Bank of New York.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST THEREIN.
Certificate Number Number of Preferred Securities
R-2 4,000,000
CUSIP NO. 29364K203
Certificate Evidencing Preferred Securities
of
Entergy London Capital, L.P.
8 5/8% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation preference $25 per Preferred Security)
Entergy London Capital, L.P., a limited partnership formed under
the laws of the State of Delaware (the "Partnership"), hereby
certifies that CEDE & CO. (the "Holder") is the registered owner
of FOUR MILLION (4,000,000) 8 5/8% Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25 per
Preferred Security) (the "Securities") representing limited
partner interests in the Partnership. The Securities are fully
paid and are nonassessable limited partner interests the
Partnership, as to which the Limited Partners in the Partnership
who hold the Securities (the "Holders"), in their capacities as
limited partners in the Partnership, will, assuming such Holders
do not participate in the control of the business of the
Partnership, have no liability solely by reason of being Holders
(subject to the obligation of a limited partner to repay any
funds wrongfully distributed to it), and, subject to any
restrictions of transfer required by any Clearing Agency, are
freely transferable on the books and records of the Partnership,
in person or by a duly authorized attorney, upon surrender of
this certificate duly endorsed and in proper form for transfer.
The rights, privileges or preference of the Securities are set
forth in, and this certificate and the Securities represented
hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended Restated Limited Partnership
Agreement of the Partnership, dated as of November 19, 1997, as
the same may be amended from time to time in accordance with its
terms (the "Limited Partnership Agreement"), and the Action of
the General Partner (the "Action") taken pursuant thereto
authorizing the issuance of the Securities and determining the
designations, rights, privileges, restrictions, preferences and
other terms and provisions regarding Dividends, voting, return of
capital and other matters relating to the Securities.
Capitalized terms used herein but not defined herein shall have
the meaning given them in the Limited Partnership Agreement or
the Action. The Holder is entitled to the benefits of the
Guarantee Agreement between Entergy London Investments plc, a
public limited company incorporated under the laws of England and
Wales ("Entergy London Investments"), and the Guarantee Trustee,
dated as of November 19, 1997 (as amended from time to time in
accordance with its terms, the "Guarantee") to the extent
provided therein. The Partnership will furnish a copy of the
Limited Partnership Agreement and the Guarantee to the Holder
without charge upon written request to the Partnership at its
principal place of business or registered office.
The Holder, by accepting this certificate, is deemed to have
agreed (i) to be bound by the provisions of the Limited
Partnership Agreement and the Action and (ii) to the
subordination provisions and other terms of the Indenture and the
Guarantee. Upon registration of this Certificate in the books
and records of the Partnership, the Holder was admitted to the
Partnership as a Limited Partner, is bound by the Limited
Partnership Agreement and is entitled to the benefits thereunder.
Reference is hereby made to the further provisions of the
Securities set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, this certificate has been executed on
behalf of the Partnership by its duly authorized General Partner,
this 19th day of November 1997.
ENTERGY LONDON CAPITAL, L.P.
By: ENTERGY LONDON INVESTMENTS
plc, its General Partner
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Treasurer
<PAGE>
[REVERSE OF CERTIFICATE]
Ranking. The limited partner interests represented by the
Securities will have a preference with respect to cash
distributions and amounts payable on dissolution, redemption or
otherwise over the general partner interests in the Partnership.
Dividends. Holders shall be entitled to receive cumulative
dividends out of funds of the Partnership legally available
therefor, accumulating from November 19, 1997 and payable
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year (each, a "Dividend Payment Date"),
commencing December 31, 1997 ("Dividends"). The Dividends
payable on each Security will be fixed at a rate per annum of
$2.15625 or 8 5/8% of the initial Liquidation Preference of $25.
Dividends that are in arrears for more than one quarter will
accumulate additional Dividends thereon at the rate of 8 5/8% per
annum thereof compounded quarterly ("Additional Dividends"). The
term "Dividends" as used herein includes any Additional
Dividends, Additional Amounts (as defined herein) or Additional
Interest (as defined in the Indenture). The amount of Dividends
payable for any period will be computed on the basis of twelve 30-
day months and a 360-day year and, for any period shorter than a
full quarter, will be computed on the basis of the actual number
of days elapsed in such period.
If the payment of interest on the Series A Debentures (as
defined herein) is deferred pursuant to Section 311 of the
Indenture, then Dividends on the Securities will be deferred for
as long as such interest payments are deferred and the rate per
annum at which Dividends on the Securities accumulate shall be
increased by an amount such that the aggregate amount of
Dividends that accumulate on all Securities during any such
deferral is equal to the aggregate amount of interest (including,
to the extent permitted by law, interest payable on unpaid
interest at the percentage rate per annum set forth above,
compounded quarterly) that accrues while interest is so deferred
on the Series A Debentures. The General Partner shall give
notice of Entergy London Investments' intention to defer payment
of interest on the Series A Debentures to the Holders of the
Securities within five Business Days of the receipt of notice
thereof.
The Partnership will be required to declare and pay in full on
each Dividend Payment Date Dividends on the Securities to the
extent that the Partnership has funds legally available for the
payment of such Dividends and cash on hand sufficient to make
such payments. The Partnership will be prohibited from paying
Dividends in any other circumstances.
Dividends declared on the Securities will be payable to the
Holders thereof as they appear on the books and records of the
Partnership at the close of business on the relevant record date,
which will be one Business Day prior to the relevant Dividend
Payment Date. In the event that any Series A Preferred
Securities are not in book-entry form, the relevant record date
for such Series A Preferred Securities shall be the date 15 days
prior to the relevant Dividend Payment Date. In the event that
any Dividend Payment Date is not a Business Day, then payment of
the Dividends payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that if
such Business Day is in the next succeeding calendar year,
payment of such Dividends shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date. If such Business Day is in the
next succeeding calendar year, however, the payment will be made
on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date.
Holders will not be entitled to any Dividend or other payment
(other than the Redemption Price or the Liquidation Preference),
whether payable in cash, property or shares, in excess of full
cumulative Dividends.
Series A Debentures. The aggregate proceeds received by the
Partnership from the issuance of the Series A Preferred
Securities, together with the proceeds of the capital
contribution of the General Partner at the time of such issuance,
will be used to purchase $101,010,100 aggregate principal amount
of the 8 5/8% Junior Subordinated Deferrable Interest Debentures,
Series A, of Entergy London Investments issued pursuant to the
Indenture (the "Series A Debentures").
Redemptions.
Mandatory Redemption. Upon the redemption, in whole or in
part, of the Series A Debentures, the proceeds from such
redemption will be applied by the Partnership to redeem a Like
Amount (as defined below) of Securities, upon not less than 30
nor more than 60 days' notice to each Holder of Securities at its
registered address, at a redemption price equal to $25 per
Security, plus accumulation and unpaid Dividends thereon to the
date of redemption (the "Redemption Price").
Optional Redemption of Series A Debentures. Entergy London
Investments will have the right to redeem the Series A Debentures
on or after November 19, 2002, in whole at any time or in part
from time to time, and thereby cause a mandatory redemption of a
Like Amount of Securities at the Redemption Price.
Entergy London Investments will also have the right to redeem
the Series A Debentures in whole (but not in part), if Entergy
London Investments has or will become obligated to pay Additional
Amounts (as defined in the Officer's Certificate dated November
19, 1997 delivered pursuant to Sections 201 and 301 of the
Indenture), and thereby cause a mandatory redemption of the
Securities in whole (but not in part) at the Redemption Price.
Special Event Redemption or Distribution of Series A
Debentures. If a Special Event shall have occurred and be
continuing, Entergy London Investments shall have the right to
redeem the Series A Debentures at any time in whole (but not in
part) and thereby cause a mandatory redemption of the Securities
in whole (but not in part) at the Redemption Price within 90 days
following the occurrence of such Special Event.
Whether or not a Special Event has occurred, the General
Partner has the right, at any time, to dissolve and, after
satisfaction of liabilities to creditors of the Partnership, if
any, as provided by the Act, to cause a Like Amount of Series A
Debentures to be distributed to the Holders in liquidation of the
Partnership.
If a Special Event occurs and Entergy London Investments does
not elect to redeem the Series A Debentures or to dissolve the
Partnership, the Securities will remain outstanding and, if such
Special Event is a Tax Event, Additional Interest will be payable
on the Series A Debentures.
"Like Amount" means (i) with respect to a redemption of any
Securities, Securities having a Liquidation Preference equal to
that portion of the principal amount of Series A Debentures to be
contemporaneously redeemed and the proceeds of which will be used
to pay the Redemption Price of such Securities, and (ii) with
respect to a distribution of Series A Debentures to Holders in
connection with a dissolution of the Partnership, Series A
Debentures having a principal amount equal to the Liquidation
Preference of the Securities of the Holder to whom such Series A
Debentures are distributed.
Redemption Procedures. Securities redeemed on each redemption
date shall be redeemed at the Redemption Price with the
applicable proceeds from the contemporaneous redemption of the
Series A Debentures. Redemptions of the Securities shall be
made, and the Redemption Price shall be payable, on each
redemption date only to the extent that the Partnership has funds
on hand available for the payment of such Redemption Price.
If the Partnership gives a notice of redemption in respect of
the Securities, then, by 12:00 noon, New York City time, on the
redemption date, to the extent funds are available, the
Partnership will deposit irrevocably with the Clearing Agency
funds sufficient to pay the applicable Redemption Price and will
give the Clearing Agency irrevocable instructions and authority
to pay the Redemption Price to the Holders of such Securities.
If the Securities are no longer in book-entry form, the
Partnership, to the extent funds are available therefor, will
irrevocably deposit with the paying agent for the Securities
funds sufficient to pay the applicable Redemption Price and will
give such paying agent irrevocable instructions and authority to
pay the Redemption Price to the holders thereof upon surrender of
their certificates evidencing such Securities. Notwithstanding
the foregoing, Dividends payable on or prior to the redemption
date for any Securities called for redemption shall be payable to
the Holders of such Securities as of the relevant record dates
for the related Dividend Payment Date. If notice or redemption
shall have been given and funds deposited as required, then upon
the date of such deposit, all rights of the Holders of such
Securities so called for redemption will cease, except the right
of the Holders of such Securities to receive the Redemption
Price, but without interest on such Redemption Price, and such
Securities will cease to be outstanding. In the event that any
date fixed for redemption of Securities is not a Business Day,
then payment of the Redemption Price payable on such date will be
made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next
succeeding calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on the redemption date. In the event
that payment of the Redemption Price in respect of Securities
called for redemption is improperly withheld or refused and not
paid either by the Partnership or by Entergy London Investments
pursuant to the Guarantee, Dividends on the Securities will
continue to accumulate at the then applicable rate from the
redemption date originally established by the Partnership for
such Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date
fixed for redemption for purposes of calculating the Redemption
Price.
Subject to applicable law (including, without limitation, Rule
14e-1 under the Exchange Act and any other applicable United
States federal securities law), Entergy London Investments or its
subsidiaries may at any time and from time to time purchase
outstanding Securities by tender, in the open market or by
private agreement.
Payment of the Redemption Price on the Securities and any
distribution of Series A Debentures to Holders of Securities
shall be made to the holders of record as they appear on the
books and records of the Partnership as of the relevant record
date, which, as long as the Securities remain in book-entry form,
will be one Business Day prior to the relevant redemption date or
liquidation date, as applicable; provided, however, that in the
event that the Securities are not in book-entry form, the
relevant record date for the Securities shall be the date 15 days
prior to the redemption date or liquidation date, as applicable.
If less than all of the Securities are to be redeemed on a
redemption date, the particular Securities to be redeemed shall
be selected not more than 60 days prior to the redemption date by
the General Partner from the outstanding Securities not
previously called for redemption, by lot or by such method as the
General Partner shall deem fair and appropriate, which shall
provide for the selection for redemption of portions (equal to
$25 or an integral multiple of $25 in excess thereof) of the
Liquidation Preference of Securities of a denomination larger
than $25. The General Partner shall promptly notify the transfer
agent and registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected for
partial redemption, the aggregate Liquidation Preference thereof
to be redeemed.
Liquidation Distribution. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Partnership (other than a dissolution that results in a Like
Amount of Debentures being distributed to the Holders of the
Series A Preferred Securities), the Holders of the Series A
Preferred Securities at the time outstanding will be entitled to
receive the Liquidation Preference of the Series A Preferred
Securities plus all accumulated and unpaid Dividends to the date
of payment (the "Liquidation Distribution") out of the assets of
the Partnership legally available for distribution to Partners,
after satisfaction of liabilities to creditors as required by the
Delaware Act, prior to any distribution of assets by the
Partnership to the General Partner. If such Liquidation
Distribution can be paid only in part because the Partnership has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by
the Partnership on the Series A Preferred Securities shall be
paid on a pro rata basis in proportion to the full Liquidation
Distribution for which the Series A Preferred Securities would be
entitled.
If, upon any liquidation of the Partnership, the Holders are
paid in full the aggregate Liquidation Distribution to which they
are entitled, then such Holders will not be entitled to receive
or share in any other assets of the Partnership then or
thereafter available for distribution to any other holders of
partnership interests in the Partnership.
Voting Rights. The Limited Partnership Agreement may be amended
from time to time by the General Partner, without the consent of
the Holders (i) to cure any ambiguity, to correct or supplement
any provisions in the Limited Partnership Agreement that may be
inconsistent with any other provision, or to make any other
provisions with respect to matters or questions arising under the
Limited Partnership Agreement, that shall not be inconsistent
with the other provisions of the Limited Partnership Agreement,
or (ii) to modify, eliminate or add to any provisions of the
Limited Partnership Agreement to such extent as shall be
necessary to ensure that the Partnership will be classified for
United States federal income tax purposes as a partnership or a
grantor trust at all times that any Securities are outstanding or
to ensure that the Partnership will not be required to register
as an "investment company" under the Investment Company Act,
provided, however, that except in the case of clause (ii), such
action shall not adversely affect in any material respect the
interests of any Securities, and, in the case of clause (i), any
such amendments of the Limited Partnership Agreement shall become
effective when notice thereof is given to the Holders. The
Limited Partnership Agreement may be amended by the General
Partner with the consent of Holders of a Majority in Liquidation
Preference of the outstanding Securities and upon receipt by the
General Partner of an opinion from independent counsel
experienced in such matters to the effect that such amendment of
the exercise of any power granted to the General Partner in
accordance with such amendment will not affect the Partnership's
status as a partnership for United States federal income tax
purposes or the Partnership's exemption from the status as an
"investment company" under the Investment Company Act, provided
that without the consent of each Holder of the Securities, the
Limited Partnership Agreement may not be amended to change the
amount or timing of any Dividend on the Securities or otherwise
adversely affect the amount of any Dividend required to be made
in respect of the Securities as of a specified date or restrict
the right of Holders to institute suit for the enforcement of any
such payment on or after such date as described below.
So long as any Series A Debentures are held by or for the
benefit of the Partnership, the General Partner shall not (i)
direct the time, method and place of conducting any proceeding
for any remedy available to the Debenture Trustee, or executing
any trust or power conferred on the Debenture Trustee with
respect to the Series A Debentures, (ii) waive any past default
that is waiveable under Section 813 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Series A Debentures shall be due and payable
or (iv) consent to any amendment, modification or termination of
the Indenture or the Series A Debentures, where such consent
shall be required, without, in each case, obtaining the prior
approval of the Holders of a Majority in Liquidation Preference
of all outstanding Series A Preferred Securities; provided,
however, that where a consent under the Indenture would require
the consent of each holder of Series A Debentures affected
thereby, no such consent shall be given by the General Partner
without the prior written consent of each Holder of the Series A
Preferred Securities. The General Partner shall not revoke any
action previously authorized or approved by a vote of the Series
A Preferred Securities except by subsequent vote of not less than
66 2/3% in Liquidation Preference of the Holders of the Series A
Preferred Securities. The General Partner shall notify all
Holders of Series A Preferred Securities of any notice of default
with respect to the Series A Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Series A
Preferred Securities, prior to taking any of the foregoing
actions, the General Partner shall obtain an opinion from
independent counsel experienced in such matters to the effect
that the Partnership will be classified as a partnership or
grantor trust and not as an association taxable as a corporation
for United States federal income tax purposes on account of such
action.
If the General Partner fails to enforce the Partnership's
rights under the Series A Debentures or the Indenture, a Holder
of Series A Preferred Securities may institute a legal proceeding
directly against Entergy London Investments to enforce the
Partnership's rights with respect to the Series A Debentures or
the Indenture, to the fullest extent permitted by law, without
first instituting any legal proceeding against the General
Partner or any other Person. Notwithstanding the foregoing, a
Holder of Series A Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of principal
of or interest on the Series A Debentures having a principal
amount equal to the Liquidation Preference of the Series A
Preferred Securities of such Holder on or after the due dates
specified in the Series A Debentures.
Any required approval of Holders may be given at a meeting of
Holders convened for such purpose or pursuant to written consent.
The General Partner will cause a notice of any meeting at which
Holders are entitled to vote, or of any matter upon which action
by written consent of such Holders is to be taken, to be given to
each Holder of record of Securities in the manner set forth in
the Limited Partnership Agreement.
No vote or consent of the Holders will be required for the
Partnership to redeem and cancel the Securities in accordance
with the Limited Partnership Agreement.
Notwithstanding that Holders are entitled to vote or consent
under any of the circumstances described above, any of the
Securities that are owned by Entergy London Investments, or any
Affiliate of Entergy London Investments, shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
Payment and Paying Agency. Payments in respect of Series A
Preferred Securities held by the Clearing Agency or its nominee
shall be made to the Clearing Agency by the Partnership pursuant
to the Clearing Agency's procedures. If any Series A Preferred
Securities are not held by the Clearing Agency or its nominee,
such payments shall be made by check mailed to the address of the
Holder entitled thereto as such address shall appear on the books
and records of the Partnership. The paying agent shall initially
be The Bank of New York.
Exhibit A-6(a)
GUARANTEE AGREEMENT
Between
Entergy London Investments plc
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
November 19, 1997
<PAGE>
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 1.1, 2.5, 3.2
314(f) 2.1, 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1
315(d) 3.1(d)
316(a) 5.4(a), 2.6
316(b) 5.3
316(c) 2.2
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.1(b)
318(b) 2.1
318(c) 2.1(a)
_____________
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of November 19, 1997, is executed and delivered by Entergy
London Investments plc, a public limited company incorporated
under the laws of England and Wales (the "Guarantor"), and The
Bank of New York, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of
the Preferred Securities (as defined herein) of Entergy London
Capital, L.P., a Delaware limited partnership (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Limited
Partnership Agreement (the "Partnership Agreement"), dated as of
November 19, 1997 among Entergy London Investments plc, as
General Partner (the "General Partner"), the Initial Limited
Partner (as defined therein) and the several Holders (as defined
therein), as Limited Partners, the Issuer is issuing as of the
date hereof 12,000,000 of its 8 5/8% Cumulative Quarterly Income
Preferred Securities, Series A ($300,000,000 in aggregate
liquidation amount) (the "Preferred Securities") representing
preferred limited partner interests in the Issuer and having the
terms set forth in the Partnership Agreement;
WHEREAS, the Preferred Securities are to be issued by
the Issuer and the proceeds thereof are to be used to purchase a
series of Debentures (as defined in the Partnership Agreement)
which will be issued in the name of the Partnership or to its
order and held, directly or indirectly, as assets of the
Partnership for the benefit of the Holders; and
WHEREAS, in order to enhance the value of the Preferred
Securities, the Guarantor desires to irrevocably and
unconditionally agree, to the extent set forth herein, to pay to
the Holders the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase by
each Holder of the Preferred Securities, which purchase the
Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time.
ARTICLE 1
DEFINITIONS
1.1 Definitions.
As used in this Guarantee Agreement, the terms set
forth below shall, unless the context otherwise requires, have
the following meanings. Capitalized or otherwise defined terms
used but not otherwise defined herein shall have the meanings
assigned to such terms in the Partnership Agreement as in effect
on the date hereof.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Guarantee
Agreement.
"Guarantee Payments" shall mean the following payments
or distributions, without duplication, with respect to the
Preferred Securities, to the extent not paid or made by or on
behalf of the Issuer: (i) any accumulated and unpaid
Distributions that are required to be paid on such Preferred
Securities but only if and to the extent that the Partnership has
available funds sufficient to make such payment, (ii) the
redemption price (the "Redemption Price"), and all accumulated
and unpaid Distributions to the date of redemption, with respect
to the Preferred Securities called for redemption by the Issuer
but only if and to the extent that the Partnership has available
funds sufficient to make such payment, (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with a redemption of all of the
Preferred Securities), the lesser of (a) the aggregate of the
Liquidation Amount and all accumulated and unpaid Distributions
on the Preferred Securities to the date of payment, and (b) the
amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee
Trustee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Preferred Securities then
outstanding; provided, however, that in determining whether the
holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indenture" means the Indenture (for Unsecured
Subordinated Debt Securities relating to Preferred Securities)
dated as of November 1, 1997, among the Guarantor (the "Debenture
Issuer") and The Bank of New York, as trustee, pursuant to which
the Debentures are issued.
"Majority in liquidation amount of the Preferred
Securities" means a vote by Holders, voting separately as a
class, of more than 50% of the aggregate liquidation amount of
all Preferred Securities.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall
include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer 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, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any vice-president, any assistant vice-
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Corporate Trust Department of
the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
ARTICLE 2
TRUST INDENTURE ACT
2.1 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required or
deemed to be part of this Guarantee Agreement and shall, to
the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
2.2 Lists of Holders of Preferred Securities.
(a) The Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee (a) semiannually, not
later than June 30 and December 31 in each year, a list, in
such form as the Guarantee Trustee may reasonably require,
of the names and addresses of the Holders ("List of
Holders") as of a date not more than 15 days prior to the
delivery thereof, and (b) at such other times as the
Guarantee Trustee may request in writing, within 30 days
after the receipt by the Guarantor of any such request, a
List of Holders as of a date not more than 15 days prior to
the time such list is furnished; provided that, the
Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from
the most recent List of Holders given to the Guarantee
Trustee by the Guarantor. The Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a) of the Trust Indenture Act,
subject to the provisions of Section 311(b) and Section
312(b) of the Trust Indenture Act.
2.3 Reports by the Guarantee Trustee.
Within 60 days after June 30 of each year, commencing
June 30, 1998, the Guarantee Trustee shall provide to the Holders
such reports, if any, as are required by Section 313(a) of the
Trust Indenture Act in the form and in the manner provided by
Section 313(a) of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Sections 313(b), (c)
and (d) of the Trust Indenture Act.
2.4 Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee
such documents, reports and information as required by Section
314 (if any) and the compliance certificate required by Section
314 of the Trust Indenture Act in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee
such evidence of compliance with any conditions precedent
provided for in this Guarantee Agreement as and to the extent
required by Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may be
given in the form of an Officers' Certificate.
2.6 Events of Default; Waiver.
The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of all of the
Holders, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement,
but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent
thereon.
2.7 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days
after the occurrence of an Event of Default, transmit
by mail, first class postage prepaid, to the Holders,
notices of all Events of Default known to the Guarantee
Trustee, unless such defaults have been cured before
the giving of such notice, provided that, the Guarantee
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 or
Responsible Officers of the Guarantee Trustee in good
faith determines that the withholding of such notice is
in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee
Trustee shall have received written notice, or a Responsible
Officer charged with the administration of the Partnership
Agreement shall have obtained written notice, of such Event
of Default.
2.8 Conflicting Interests.
The Partnership Agreement and the Indenture shall be
deemed to be specifically described in this Guarantee Agreement
for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders, and the
Guarantee Trustee shall not transfer this Guarantee
Agreement or any rights hereunder to any Person except a
Holder exercising his or her rights pursuant to Section 5.4
or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest
of the Guarantee Trustee shall automatically vest in any
Successor Guarantee Trustee, and such vesting and cessation
of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) The Guarantee Trustee, prior to the occurrence of
any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants or obligations
shall be read into this Guarantee Agreement against the
Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6),
the Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Guarantee Agreement, and use the
same degree of care and skill in its exercise thereof, as a
prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability
for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such
Events of Default that may have occurred:
(A) the duties and obligations of
the Guarantee Trustee shall be determined solely
by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties
and obligations as are specifically set forth in
this Guarantee Agreement; and
(B) in the absence of bad faith on
the part of the Guarantee Trustee, the Guarantee
Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee
Agreement; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Guarantee Trustee, the Guarantee Trustee
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be
liable for any error of judgment made in good faith by
a Responsible Officer of the Guarantee Trustee, unless
it shall be proved that the Guarantee Trustee or such
Responsible Officer was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be
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 a Majority in liquidation
amount of the Preferred Securities relating to the
time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement
shall require the Guarantee Trustee to 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 the
Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may rely and shall
be fully protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever, in the administration of
this Guarantee Agreement, the Guarantee Trustee shall
deem it desirable that a matter be proved or
established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon
an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with
counsel of its choice, and the written advice or
opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such
advice or opinion; such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any
of its employees; the Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any
court of competent jurisdiction;
(v) the Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Guarantee Agreement at the request
or direction of any Holder, unless such Holder shall
have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable
person in the position of the Guarantee Trustee,
against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by
it in complying with such request or direction,
including such reasonable advances as may be requested
by the Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee
Agreement;
(vi) the Guarantee Trustee shall not be bound
to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, but the
Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit;
(vii) the Guarantee Trustee may execute
any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through
agents or attorneys, and the Guarantee Trustee shall
not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due
care by it hereunder;
(viii) whenever in the administration of
this Guarantee Agreement the Guarantee Trustee shall
deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (1) may request
instructions from the Holders, (2) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and (3)
shall be protected in acting in accordance with such
instructions; and
(ix) the Guarantee Trustee shall not be
liable for any action taken, suffered or omitted to be
taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or
powers conferred upon it by this Guarantee.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee
Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the
Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to
the Guarantee Trustee shall be construed to be a duty.
ARTICLE 4
GUARANTEE TRUSTEE
4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor;
and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to
above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Guarantee
Trustee shall immediately resign in the manner and with the
effect set out in Section 4.3(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act, the Guarantee Trustee and
Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
4.2 Compensation and Reimbursement.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time
such reasonable compensation as the Guarantor and the
Guarantee Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Guarantee Trustee in accordance with the
provisions of this Guarantee (including the reasonable
compensation and expenses of its agents and counsel), except
any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless
from and against, any and all loss, damage, claim, liability
or expense, including taxes (other than taxes based upon the
income of the Guarantee Trustee) incurred without negligence
or bad faith on its part, arising out of or in connection
with the acceptance of the administration of this Guarantee
Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any its powers or duties
hereunder.
As security for the performance of the obligations of
the Guarantor under this Section, the Guarantee Trustee shall
have a lien prior to the Preferred Securities upon all the
property and funds held or collected by the Guarantee Trustee as
such, except funds held in trust for the payment of principal of,
and premium (if any) or interest on, particular obligations of
the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
4.3 Appointment, Removal and Resignation of Guarantee
Trustee.
(a) Subject to Section 4.3(b), unless an Event of
Default shall have occurred and be continuing, the Guarantee
Trustee may be appointed or removed without cause at any
time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by
such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed to office shall
hold office until a Successor Guarantee Trustee shall have
been appointed or until its removal or resignation. The
Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed
by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this
Section 4.3 within 60 days after delivery to the Guarantor
of an instrument of resignation, the resigning Guarantee
Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court
may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) The Guarantor shall give notice of each
resignation and each removal of the Guarantee Trustee and
each appointment of a successor Guarantee Trustee to all
Holders in the manner provided in Section 8.3 hereof. Each
notice shall include the name of the successor Guarantee
Trustee and the address of its Corporate Trust Office.
ARTICLE 5
GUARANTEE
5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Issuer), as and
when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of
this Guarantee Agreement and of any liability to which it applies
or may apply, presentment, demand for payment, any right to
require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
5.3 Obligations Not Affected.
The obligation of the Guarantor to make the Guarantee
Payments under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to time
of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of
any express or implied agreement, covenant, term or
condition relating to the Preferred Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions,
Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Securities or the
extension of time for the performance of any other
obligation under, arising out of, or in connection with, the
Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the
extension of any interest payment period or deferral of
interest payment on the Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Holders pursuant to the terms of the Preferred Securities,
or any action on the part of the Issuer granting indulgence
or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or
defense of a guarantor, it being the intent of this Section
5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
5.4 Rights of Holders.
The Guarantor expressly acknowledges that: (i) this
Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on
behalf of the Holders; (iii) the Holders of a Majority in
liquidation amount of the Preferred Securities have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of
this Guarantee Agreement or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement without first instituting a legal proceeding
against the Issuer or any other person or entity.
5.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment
and not of collection. This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full
(without duplication).
5.6 Subrogation.
The Guarantor shall be subrogated to all (if any)
rights of the Holders against the Issuer in respect of any
amounts paid to the Holders by the Guarantor under this Guarantee
Agreement; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire
by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any
amounts of Guarantee Payments are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
5.7 Independent Obligations.
The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities and that the Guarantor shall
be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3.
ARTICLE 6
SUBORDINATION
6.1 Subordination.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to all Senior Debt of the Guarantor
(which is defined as all obligations (other than non-recourse
obligations and the indebtedness issued under the Indenture) of,
or guaranteed or assumed by, the Guarantor for borrowed money,
including both senior and subordinated indebtedness for borrowed
money (other than the Debentures), or for the payment of money
relating to any lease which is capitalized on the consolidated
balance sheet of the Guarantor and its subsidiaries in accordance
with generally accepted accounting principles as in effect from
time to time, or evidenced by bonds, debentures, notes or other
similar instruments, and in each case, amendments, renewals,
extensions, modifications and refundings of any such indebtedness
or obligations, whether existing as of the date of the Indenture
or subsequently incurred by the Guarantor unless, in the case of
any particular indebtedness, obligation, renewal, extension or
refunding, the instrument creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such
indebtedness, renewal, extension or refunding is not superior in
right of payment to or is pari passu with the Debentures;
provided that the Guarantor's obligations under this Guarantee or
any guarantee issued by the Guarantor on behalf of the holders of
Preferred Securities issued by entities affiliated with the
Guarantor similar to the Issuer shall not be deemed to be Senior
Debt of the Guarantor), and (ii) pari passu with any similar
guarantee now or hereafter issued by the Guarantor on behalf of
the holders of preferred securities issued by entities affiliated
with the Guarantor similar to the Issuer. Nothing in this
Section 6.1 shall apply to claims of, or payments to, the
Guarantee Trustee under or pursuant to Section 4.2 hereof.
ARTICLE 7
TERMINATION
7.1 Termination.
This Guarantee Agreement shall terminate and be of no
further force and effect upon: (i) full payment of the Redemption
Price of all Preferred Securities, (ii) the distribution of
Debentures to Holders in exchange for all of the Preferred
Securities or (iii) full payment of the amounts payable in
accordance with the Partnership Agreement upon dissolution of the
Issuer. Notwithstanding the foregoing, this Guarantee Agreement
will continue to be effective or will be reinstated, as the case
may be, if at any time any Holder must restore payment of any
sums paid with respect to the Preferred Securities or under this
Guarantee Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 Successors and Assigns.
All guarantees and agreements contained in this
Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and
shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is
permitted under Article Eleven of the Indenture and pursuant to
which the assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
8.2 Amendments.
This Guarantee Agreement may be amended only by an
instrument in writing entered into by the Guarantor and the
Guarantee Trustee. Except with respect to any changes which do
not materially adversely affect the rights of Holders (in which
case no consent of Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the
Holders of not less than a majority in aggregate liquidation
amount of all the outstanding Preferred Securities. The
provisions of Section 12.3 of the Partnership Agreement
concerning meetings of Holders shall apply to the giving of such
approval. Nothing herein contained shall be deemed to require
that the Guarantee Trustee enter into any amendment of this
Guarantee Agreement.
8.3 Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed
by the party giving such notice, and delivered, telecopied or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set
forth below or such other address as the Guarantor may give
notice of to the Holders of the Preferred Securities:
Entergy London Investments plc
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No: (504) 576-4455
Attention: Treasurer
(b) if given to the Issuer, in care of the General
Partner, at the Issuer's (and the General Partner's) address
set forth below or such other address as the General Partner
on behalf of the Issuer may give notice of to the Holders:
Entergy London Capital, L.P.
c/o Entergy London Investments plc
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No: (504) 576-4455
Attention: General Partner
(c) if given to the Guarantee Trustee, to the address
set forth below or such other address as the Guarantee
Trustee may give notice of to the Holders of the Preferred
Securities:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth
on the books and records of the Issuer.
All notices hereunder shall be deemed to have been
given when received in person, telecopied with receipt confirmed,
or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
8.4 Benefit.
This Guarantee Agreement is solely for the benefit of
the Holders and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
8.5 Interpretation.
In this Guarantee Agreement, unless the context
otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement
but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Guarantee Agreement" or
"this Guarantee Agreement" are to this Guarantee Agreement
as modified, supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires;
(f) a reference to the singular includes the plural
and vice versa; and
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter
genders.
8.6 Governing Law.
This Guarantee Agreement shall be governed by and
construed and interpreted in accordance with the laws of the
State of New York.
8.7 Consent to Jurisdiction; Appointment of Agent to
Accept Service of Process.
(a) The Guarantor agrees (i) that any legal action,
suit or proceeding against it with respect to its
obligations, liabilities or any other matter arising out of
or in connection with this Guarantee Agreement may be
brought in any federal or state court in the State of New
York, County of New York, and (ii) to file such consents
with such authorities as may be required to irrevocably
evidence such agreement.
(b) The Guarantor agrees to designate a designee,
appointee and agent in The City of New York satisfactory to
the Guarantee Trustee for the purpose of consenting and
agreeing to the service of any and all legal process,
summons, notices and documents in any such action, suit or
proceeding against the Guarantor, by serving a copy thereof
upon the relevant agent for service of process referred to
in this Section 8.7 (whether or not the appointment of such
agent shall for any reason prove to be ineffective or such
agent shall accept or acknowledge such service) with a copy
to the Guarantor as provided in Section 8.3. The Guarantor
agrees that the failure of any such designee, appointee and
agent to give any notice of such service to it shall not
impair or affect in any way the validity of such service.
Nothing herein shall in any way be deemed to limit the
ability of the Guarantee Trustee or the Holders to serve any
such legal process, summons, notices and documents in any
other manner permitted by applicable law or to obtain
jurisdiction over the Guarantor, or bring actions, suits or
proceedings against it in such other jurisdictions, and in
such manner, as may be permitted by applicable law. The
Guarantor irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection that it may
now or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings arising out of or
in connection with this Guarantee Agreement brought in the
federal courts located in The City of New York or the courts
of the State of New York located in The City of New York and
hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such
action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.
8.8 Waiver of Immunities.
To the extent that the Guarantor or any of its
properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on
the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any thereof,
from set-off or counterclaim, from the jurisdiction of any court,
from service or process, from attachment upon or prior to
judgment, from attachment in aid of execution of judgment, or
from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any
time be commenced, with respect to its obligations, liabilities
or any other matter under or arising out of or in connection with
this Guarantee Agreement, the Guarantor hereby irrevocably and
unconditionally waives and agrees not to plead or claim, any such
immunity and consents to such relief and enforcement. Nothing in
this Section 8.8 shall be deemed to waive any defense (other than
any such immunity) available to the Guarantor.
8.9 Judgment Currency.
The Guarantor agrees to indemnify the Guarantee Trustee
and the Holders of the Preferred Securities against any loss
incurred by such indemnified party as a result of any judgment or
order being given or made for any amount due under this Guarantee
Agreement and such judgment or order being expressed and paid in
a currency (the "Judgment Currency") other than United States
dollars and as a result of any variation as between (i) the rate
of exchange at which the United States dollar amount is converted
into the Judgment Currency for the purpose of such judgment or
order, and (ii) the rate of exchange at which any such
indemnified party is able to purchase United States dollars, at
the nearest business day after the date of judgment, with the
amount of the Judgment Currency actually received by any such
indemnified party. If, alternatively, any such indemnified party
receives a profit as a result of such currency conversion, it
will return any such profits to the Guarantor (after taking into
account any taxes or other costs arising in connection with such
conversion and repayment). The foregoing indemnity shall
constitute a separate and independent obligation of the
Guarantor, and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or
conversion into, United States dollars.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
Entergy London Investments plc
By: /s/ Steven C. McNeal
Name: Steven C. McNeal
Title: Assistant Treasurer
The Bank of New York, as
Guarantee Trustee
By: /s/ Walter N. Gitlin
Name: Walter N. Gitlin
Title: Vice President
Exhibit B-1(a)
12,000,000 Preferred Securities
Entergy London Capital, L.P.
8 5/8% Cumulative Quarterly Income Preferred Securities, Series A
("QUIPS"SM)
(liquidation preference $25 per preferred security)
fully and unconditionally guaranteed, as set forth herein, by
Entergy London Investments plc
UNDERWRITING AGREEMENT
November 12, 1997
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Merrill lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
As representatives of the several
Underwriters named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies & Gentlemen:
The undersigned, Entergy London Capital, L.P. (the
"Partnership"), a special purpose limited partnership formed
under the Revised Uniform Limited Partnership Act of the State of
Delaware (Title 6, Chapter 17 of the Delaware Code) (the
"Delaware Act"), proposes to issue and sell to the several
underwriters named in Schedule I hereto (the "Underwriters,"
which term, when the context permits, shall also include any
underwriters substituted as hereinafter in Section 11 provided),
for whom you are acting as representatives (in such capacity, you
shall hereinafter be referred to as the "Representatives"),
12,000,000 of its 8 5/8% Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per preferred
security), representing limited partner interests in the
Partnership (the "Preferred Securities"), as follows:
__________________________
SM QUIPS is a servicemark of Goldman, Sachs & Co.
<PAGE>
SECTION 1. Purchase and Sale of Preferred Securities. On
the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, the
Partnership shall issue and sell to each of the Underwriters
named in Schedule I hereto, and each Underwriter shall purchase
from the Partnership at the time and place herein specified,
severally and not jointly, the number of Preferred Securities set
forth opposite the name of such Underwriter in Schedule I hereto
at a purchase price of $25.00 per Preferred Security.
The Company (as defined herein) (a) agrees to issue the
Company Securities (as defined herein) concurrently with the
issue and sale of the Preferred Securities as contemplated herein
and (b) guarantees the timely performance by the Partnership of
its obligations under this Section 1. The Partnership agrees to
purchase the Debentures (as defined herein) with the proceeds of
the Preferred Securities (as defined herein) and the capital
contribution of the Company, as general partner of the
Partnership (in such capacity, the "General Partner"), as
contemplated herein.
Because the proceeds of the sale of the Preferred
Securities, together with the capital contribution of the General
Partner, will be used to purchase the Debentures, the Company
hereby agrees to pay on the Closing Date (as defined herein) to
Goldman, Sachs & Co., for the accounts of the several
Underwriters, as compensation for their arranging the investment
therein of such proceeds, an amount equal to $0.7875 per
Preferred Security ($0.5000 per Preferred Security sold to
certain institutions).
SECTION 2. Description of Preferred Securities, Debentures
and Guarantee. The Preferred Securities will be guaranteed by
Entergy London Investments plc, a public limited company
incorporated under the laws of England and Wales (the "Company"
and, together with the Partnership, the "Offerors"), with respect
to distributions and payments upon liquidation, redemption and
otherwise (the "Guarantee") pursuant to, and to the extent set
forth in, the Guarantee Agreement (the "Guarantee Agreement"),
dated as of November 19, 1997, between the Company and The Bank
of New York, as Trustee (the "Guarantee Trustee").
The proceeds from the sale of the Preferred Securities will
be combined with the capital contribution of the General Partner
and will be used by the Partnership to purchase $303,030,325
aggregate principal amount of 8 5/8% Junior Subordinated
Deferrable Interest Debentures, Series A issued by the Company
(the "Debentures" and, together with the Guarantee, the "Company
Securities"). The Preferred Securities will be issued pursuant
to the Amended and Restated Limited Partnership Agreement, dated
as of November 19, 1997 (the "Partnership Agreement"), among the
Company, as General Partner, William J. Regan, Jr., as the
initial limited partner (the "Initial Limited Partner"), and such
other Persons (as defined therein) who become Partners (as
defined therein) as provided therein. The Debentures will be
issued pursuant to an Indenture (For Unsecured Subordinated Debt
Securities relating to Preferred Securities), dated as of
November 1, 1997, as supplemented by a certificate of an officer
of the Company pursuant to resolutions of the Board of Directors
of the Company (the "Indenture"), between the Company and The
Bank of New York, as Trustee (the "Debenture Trustee"). The
Preferred Securities and the Company Securities are referred to
herein as the "Securities."
SECTION 3. Representations and Warranties of the Offerors.
Each of the Offerors jointly and severally represents and
warrants to the several Underwriters, and covenants and agrees
with the several Underwriters, that:
(a) The Company is duly incorporated as a public
limited company under the laws of England and Wales, is not
subject to any winding up proceedings and has the necessary
corporate power and authority to conduct the business that it is
described in the Prospectus (as defined herein) as conducting, to
own and operate the properties owned and operated by it in such
business, to issue the Company Securities, to enter into and
perform its obligations under this Underwriting Agreement, the
Partnership Agreement, the Indenture, the Guarantee Agreement and
the Company Securities, to purchase, own, and hold the general
partner interests of the Partnership and to consummate the
transactions herein and therein contemplated. The Company is the
sole General Partner of the Partnership.
(b) Each of London Electricity plc, London Electricity
Services Limited, The London Power Company Limited and London
Electricity Enterprises Limited (collectively, the "Significant
Subsidiaries") is duly incorporated as a public limited company
or private company limited by shares under the laws of England
and Wales, is not subject to any winding up proceedings and has
the necessary corporate power and authority to conduct the
business that it is described in the Prospectus as conducting and
to own and operate the properties owned and operated by it in
such business .
(c) The Partnership has been duly formed and is
validly existing as a limited partnership in good standing under
the Delaware Act, has the power and authority to own its
property, to conduct its business as described in the Prospectus,
to issue and sell the Preferred Securities, to enter into and
perform its obligations under this Underwriting Agreement and the
Preferred Securities and to consummate the transactions herein
contemplated; the Partnership has no subsidiaries and is duly
qualified to transact business and in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Partnership; the Partnership has conducted and will conduct no
business other than the transactions contemplated by this
Underwriting Agreement and described in the Prospectus; the
Partnership is not a party to or otherwise bound by any agreement
other than those described in the Prospectus and is not a party
to any action, suit or proceeding of any nature; the Partnership
is not and will not be classified as an association taxable as a
corporation for United States federal or United Kingdom income
tax purposes; and the Partnership is and will be treated as a
consolidated subsidiary of the Company pursuant to generally
accepted accounting principles.
(d) The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-1 (File Nos. 333-33331 and 333-33331-01) and a related
Preliminary Prospectus (as defined below) for the registration of
the Securities under the Securities Act of 1933, as amended (the
"Securities Act"), and such registration statement, as amended,
has become effective. Such registration statement, as amended at
the time it, or the most recent post-effective amendment thereto
(or any registration statement filed pursuant to Rule 462(b)
under the Securities Act and hereinafter referred to as a "Rule
462(b) Registration Statement"), became or becomes effective,
including the information deemed to be part thereof pursuant to
Rule 430A(b) under the Securities Act, is hereinafter referred to
as the "Registration Statement," and the prospectus constituting
a part thereof, in the form filed pursuant to subsection (1) or
(4) of Rule 424(b) under the Securities Act ("Rule 424(b)), and
as it may thereafter be amended or supplemented pursuant to
Section 6(d) hereof, is hereinafter referred to as the
"Prospectus," except that if any revised prospectus shall be
provided to the Underwriters by the Offerors for use in
connection with the offering of the Securities that differs from
the Prospectus filed with the Commission pursuant to Rule 424(b),
the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriters for
such use. For purposes herein, (i) "Preliminary Prospectus"
shall mean any preliminary prospectus included in the
Registration Statement prior to the Effective Date (as defined
below) or filed with the Commission pursuant to Rule 424(a) under
the Securities Act and (ii) "Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment
thereto (or any Rule 462(b) Registration Statement) became or
becomes effective under the Securities Act.
(e) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Offerors will not file any amendment to the
Registration Statement or supplement to the Prospectus, without
prior notice to the Underwriters and to Winthrop, Stimson, Putnam
& Roberts ("Counsel for the Underwriters"), or any such amendment
or supplement to which said Counsel shall reasonably object on
legal grounds in writing.
(f) The Registration Statement, the Indenture and the
Guarantee Agreement, at the Effective Date, will fully comply or
fully complied, and any Preliminary Prospectus, when delivered to
the Underwriters for their use in marketing the Preferred
Securities, fully complied, and the Prospectus, when delivered to
the Underwriters for their use in making confirmations of sales
of the Preferred Securities and at the Closing Date, as it may
then be amended or supplemented, will fully comply, in all
material respects with the applicable provisions of the
Securities Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the
Commission thereunder or pursuant to said rules and regulations
did or will be deemed to comply therewith. On the Effective
Date, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. At the time that any
Preliminary Prospectus was delivered to the Underwriters for
their use in marketing the Preferred Securities, such Preliminary
Prospectus did not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. At the time the Prospectus
is delivered to the Underwriters for their use in making
confirmations of sales of the Preferred Securities and at the
Closing Date, the Prospectus, as it may then be amended or
supplemented, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they are made, not misleading. The foregoing
representations and warranties in this paragraph (f) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Offerors by
the Underwriters or on behalf of any Underwriter specifically for
use in connection with the preparation of the Registration
Statement or the Prospectus, as they may be then amended or
supplemented, or to any statements in or omissions from the
statements of eligibility on Form T-1 of the Guarantee Trustee
and the Debenture Trustee, respectively, as they may be amended,
filed as exhibits to the Registration Statement (the "Form T-
1s").
(g) All of the issued general and limited partner
interests of the Partnership (other than the Preferred
Securities) are owned by the General Partner and the Initial
Limited Partner, respectively, and have been duly and validly
authorized and validly issued, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(h) This Underwriting Agreement has been duly
authorized, executed and delivered by each of the Partnership and
the Company.
(i) The Partnership Agreement has been duly authorized
by the General Partner and, at the Closing Date, will have been
duly executed and delivered by the General Partner, and will
constitute a valid and binding instrument of the General Partner,
in its capacity as general partner of the Partnership,
enforceable against the General Partner in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law); and the Partnership Agreement
will conform to the description thereof in the Prospectus.
(j) The Guarantee Agreement has been duly qualified
under the Trust Indenture Act, has been duly authorized by the
Company and, at the Closing Date, will have been duly executed
and delivered by the Company, and assuming due authorization,
execution and delivery of the Guarantee Agreement by the
Guarantee Trustee, will constitute a valid and binding instrument
of the Company, enforceable against the Company in accordance
with its terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and by general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law); and the Guarantee and the
Guarantee Agreement will conform to the descriptions thereof
contained in the Prospectus.
(k) The Preferred Securities have been duly authorized
by the Partnership and, when issued and delivered against payment
therefor in accordance with the provisions of this Agreement and
the Partnership Agreement, will constitute validly issued and
(subject to the terms of the Partnership Agreement) fully paid
and non-assessable limited partner interests in the Partnership
and will be entitled to the benefits of the Partnership
Agreement; the issuance of the Preferred Securities is not
subject to preemptive or other similar rights; there are no
provisions in the Partnership Agreement the inclusion of which,
subject to the terms and conditions therein, or, assuming that
holders of the Preferred Securities, as limited partners of the
Partnership, take no action other than actions permitted by the
Partnership Agreement, the exercise of which, in accordance with
the terms and conditions therein, would cause holders of the
Preferred Securities, as limited partners of the Partnership, to
be deemed to be participating in the control of the business of
the Partnership; and the Preferred Securities will conform to the
description thereof contained in the Prospectus.
(l) The Indenture has been duly qualified under the
Trust Indenture Act, has been duly authorized by the Company and,
at the Closing Date, will have been duly executed and delivered
by the Company, and assuming due authorization, execution and
delivery of the Indenture by the Debenture Trustee, will
constitute a valid and binding instrument of the Company,
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law); and the Indenture will conform
to the description thereof contained in the Prospectus.
(m) The Debentures have been duly authorized and, on
the Closing Date, will have been duly executed by the Company
and, when authenticated in the manner provided for in the
Indenture and delivered against payment therefor by the
Partnership as described in the Prospectus, will constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law)
and will be entitled to the benefits of the Indenture; and the
Debentures will conform to the description thereof contained in
the Prospectus.
(n) Neither the Company nor any of its subsidiaries
has sustained since the date of the most recent audited financial
statements included in the Prospectus any material loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth in the Prospectus; and, since the
respective dates as of which information is given in the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a
prospective material adverse change, in the business, property or
financial condition of the Company and its subsidiaries taken as
a whole, otherwise than as set forth in the Prospectus.
(o) The issuance and sale by the Company of the
Company Securities and the execution, delivery and performance by
the Company of the Indenture, this Underwriting Agreement, the
Partnership Agreement and the Guarantee Agreement, and the
consummation of the transactions herein and therein contemplated,
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, the
Company's Credit Facilities Agreement dated December 17, 1996, as
amended, arranged by ABN AMRO Bank N.V., Bank of America
International Limited and Union Bank of Switzerland (the "Old
Acquisition Debt Agreement"), the Company's Restated Credit
Facilities Agreement dated December 17, 1996, as amended
including by way of a Restatement Agreement to be dated November
17, 1997, arranged by ABN AMRO Bank N.V. and Union Bank of
Switzerland (the "New Acquisition Debt Agreement" and, together
with the Old Acquisition Debt Agreement, the "Acquisition Debt
Agreements"), or any other indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company or the Significant Subsidiaries are a party or by which
the Company or the Significant Subsidiaries are bound or to which
any of the property or assets of the Company or the Significant
Subsidiaries are subject, nor will such action result in any
violation of the provisions of the Memorandum and Articles of
Association of the Company or the Significant Subsidiaries, each
as amended, or any statute, rule, regulation or other law, or any
order or judgment, of any court or governmental agency or body
having jurisdiction over the Company or the Significant
Subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required
for the formation of the Partnership, the issue and sale of the
Securities or the consummation by the Partnership or the Company
of the transactions contemplated by this Underwriting Agreement,
the Indenture, the Partnership Agreement or the Guarantee
Agreement except such as have been, or will be prior to the
Closing Date, obtained under the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Trust
Indenture Act and the Public Utility Holding Company Act of 1935,
as amended (the "1935 Act"), and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or blue sky laws in connection
with the purchase and distribution of the Preferred Securities by
the Underwriters.
(p) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares in the
capital of the Company have been duly and validly authorized and
issued, are fully paid or credited as fully paid with no further
amounts payable by the holders in respect thereof and are owned
by direct or indirect subsidiaries of Entergy Corporation; and
all of the issued shares in the capital of each subsidiary of the
Company (including, without limitation, London Electricity plc)
have been duly and validly authorized and issued, are fully paid
or credited as fully paid with no further amounts payable by the
holders in respect thereof and, except as otherwise set forth in
the Prospectus, are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(q) Neither the Company nor any of the Significant
Subsidiaries is in violation of its Memorandum and Articles of
Association, as amended, or is in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which
the Company or the Significant Subsidiaries is a party or by
which any of them is bound or to which any of their respective
properties or assets is subject.
(r) Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or the Significant Subsidiaries is a party or of which
any property of the Company or the Significant Subsidiaries is
the subject that, if determined adversely to the Company or the
Significant Subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a
whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated.
(s) The Company, London Electricity plc and the other
Significant Subsidiaries are entitled to the exemption from the
1935 Act provided by Sections 33(a)(1) and (c)(1) thereof.
(t) The independent certified public accountants,
Coopers & Lybrand L.L.P., who have audited the financial
statements included in the Registration Statement and the
Prospectus are independent public accountants as required by the
Securities Act and the rules and regulations of the Commission
thereunder.
(u) The financial statements, together with the
related schedules and notes, included in the Registration
Statement and the Prospectus, present fairly the consolidated
financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the
basis stated in the Registration Statement and the Prospectus at
the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as disclosed therein; the other financial and statistical
information and data included in the Registration Statement and
the Prospectus are accurately presented and prepared on a basis
consistent with such financial statements and the books and
records of the Company and its subsidiaries; and the pro forma
financial statements included in the Registration Statement and
the Prospectus comply in all material respects with Article 11 of
Regulation S-X under the Securities Act.
(v) Neither the Company nor the Partnership is, and
upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus, will be, an "investment company" or
a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(w) The Partnership is not in violation of its
Certificate of Limited Partnership dated as of August 4, 1997
filed with the State of Delaware on August 4, 1997, as amended,
or the Partnership Agreement; the execution, delivery and
performance by the Partnership of its obligations under this
Underwriting Agreement and the Preferred Securities will not
result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
the Partnership is now a party.
(x) Except as set forth in or contemplated by the
Prospectus, each of the Company and the Significant Subsidiaries
possesses adequate franchises, licenses, permits and other rights
to conduct its respective business and operations as now
conducted, without any known conflicts with the rights of others
that could have an adverse effect on the Company and the
Significant Subsidiaries.
(y) No labor dispute with the employees of the Company
or the Significant Subsidiaries exists or, to the knowledge of
the Company, is imminent, and the Company does not have knowledge
of any existing or imminent labor disturbance by the employees of
any of the principal customers or contractors of the Company or
the Significant Subsidiaries, which, in either case, may
reasonably be expected to result in a material adverse effect on
the financial condition of the Company and its subsidiaries taken
as a whole.
(z) Each of the Company and the Significant
Subsidiaries has good and marketable title to all real property
and other properties owned by the Company and the Significant
Subsidiaries (other than properties which are not material to the
financial condition of the Company and its subsidiaries taken as
whole or the conduct of the business of the Company and the
Significant Subsidiaries), in each case, free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Registration Statement and the Prospectus or (b)
do not, singly or in the aggregate, materially adversely affect
the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the
Company and the Significant Subsidiaries; and all of the leases
and subleases material to the business of the Company and the
Significant Subsidiaries and under which the Company and the
Significant Subsidiaries hold properties described in the
Registration Statement and the Prospectus are in full force and
effect, and the Company has no notice of any material claim of
any sort that has been asserted by anyone adverse to the rights
of the Company or the Significant Subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning
the rights of the Company or the Significant Subsidiaries to the
continued possession of the leased or subleased premises under
any such lease or sublease.
(aa) Except as described in the Registration Statement
and the Prospectus and except such matters as would not, singly
or in the aggregate, result in a material adverse effect on the
financial condition of the Company and its subsidiaries, taken as
a whole, (A) the Company and the Significant Subsidiaries are not
in violation of any national, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human health,
the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and the Significant Subsidiaries have all
permits, authorizations and approvals required under any
applicable Environmental Laws and are in compliance with their
requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or the Significant
Subsidiaries and (D) there are no events or circumstances known
to the Company or the Significant Subsidiaries that may
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company or the Significant Subsidiaries relating to Hazardous
Materials or Environmental Laws.
(bb) The Company and its obligations under this
Underwriting Agreement, the Company Securities, the Partnership
Agreement, the Guarantee Agreement and the Indenture are subject
to civil and commercial actions, suits or proceedings and neither
it nor any of its properties, assets or revenues has, in the
United Kingdom or any political subdivision thereof or in the
United States or any political subdivision thereof, any right of
immunity from any legal action, suit or proceeding, from the
giving of any relief in any such legal action, suit or
proceeding, from setoff or counterclaim, from the jurisdiction of
any court, from service of process, attachment upon or prior to
judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for
the giving of any relief or for the enforcement of a judgment, in
any such jurisdiction, with respect to its obligations,
liabilities or any other matter under or arising out of or in
connection with the issuance of the Company Securities; and, to
the extent that the Company or the Significant Subsidiaries or
any of their respective properties, assets or revenues may have
or may hereafter become entitled to any such right of immunity in
any jurisdiction, the Company has effectively waived such right
and consented to such relief and enforcement pursuant to
Section 15 of this Underwriting Agreement; nothing in this clause
(bb) shall be deemed to waive any defense (other than any such
immunity) available to the Company.
(cc) The Company has the power to submit to the
jurisdiction of any federal or state court in the State of New
York, County of New York, and has the power to designate, appoint
and empower an agent for service of process in any legal action,
suit or proceeding based on or arising under this Underwriting
Agreement in any federal or state court in the State of New York,
County of New York.
(dd) Payments of principal and interest in respect of
the Debentures to persons outside the United Kingdom are not
subject under the laws of the United Kingdom or any political
subdivision thereof or therein to any withholding or similar
charges for or on account of taxation or otherwise.
(ee) No exchange control authorization or any other
authorization, approval, consent or license of any governmental
authority or agency of or in the United Kingdom is required for
the payment by the Company of any amounts in United States
dollars pursuant to the terms of the Debentures or the Guarantee
Agreement.
SECTION 4. Offering. The Offerors are advised by the
Representatives that the Underwriters propose to make a public
offering of their respective portions of the Preferred Securities
as soon after the effectiveness of this Underwriting Agreement as
in their judgment the Underwriters deem advisable. The Offerors
are further advised by the Representatives that the Preferred
Securities will be offered to the public at the initial public
offering price specified in the Prospectus.
SECTION 5. Time and Place of Closing; Delivery to
Underwriters. Delivery of certificates for the Preferred
Securities and payment of the purchase price therefor by wire
transfer of immediately available funds shall be made at the
offices of Reid & Priest LLP, 40 West 57th Street, New York, New
York, at 10:00 A.M., New York time, on November 19, 1997, or at
such other time on the same or such other day as shall be agreed
upon by the Offerors and the Representatives, or as may be
established in accordance with Section 11 hereof. The hour and
date of such delivery and payment are herein called the "Closing
Date."
Certificates for the Preferred Securities shall be in
definitive form and registered in such names and in such
denominations as the Underwriters shall request not later than
two full business days prior to the Closing Date. The
certificates evidencing the Preferred Securities shall be
delivered to the Representatives through the facilities of The
Depository Trust Company in New York, New York for the account of
the Representatives with any transfer taxes payable in connection
with the transfer of the Preferred Securities duly paid, against
payment of the purchase price therefor.
On the Closing Date, the Company will pay, or cause to be
paid, the compensation payable at such time to the Underwriters
pursuant to Section 1 hereof by wire transfer in immediately
available funds to an account designated by Goldman, Sachs & Co.,
for the accounts of the several Underwriters.
SECTION 6. Covenants of the Offerors. Each of the
Offerors jointly and severally covenants and agrees with the
several Underwriters that:
(a) Not later than the Closing Date, the Offerors will
deliver to the Representatives a copy of the Registration
Statement in the form that it became effective or a conformed
copy thereof, certified by an officer of the Company to be in
such form.
(b) The Company will deliver to the Underwriters as
many copies of the Prospectus (and any amendments or supplements
thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant to
and in compliance with Rule 424(b) and will advise the
Representatives promptly of the issuance of any stop order under
the Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which either of
the Offerors shall have received notice. Each of the Offerors
will use its best efforts to prevent the issuance of any such
stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are
required by law to deliver a prospectus after this Underwriting
Agreement has become effective, if any event relating to or
affecting the Company or the Partnership, or of which the Company
or the Partnership shall be advised by the Representatives in
writing, shall occur which in the opinion of the Company should
be set forth in a supplement or amendment to the Prospectus in
order to make the Prospectus not misleading in the light of the
circumstances when it is delivered to a purchaser of the
Preferred Securities, the Company will amend or supplement the
Prospectus so that, as supplemented or amended, it will not
contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading. Unless such event
relates solely to the activities of the Underwriters (in which
case the Underwriters shall assume the expense of preparing any
such amendment or supplement), the expenses of complying with
this Section 6(d) shall be borne by the Company until the
expiration of nine months from the time of effectiveness of this
Underwriting Agreement, and such expenses shall be borne by the
Underwriters thereafter.
(e) The Company will, on behalf of the Partnership,
make generally available to the Partnership's security holders,
as soon as practicable, an earning statement (which need not be
audited) covering a period of at least twelve months beginning
after the "effective date of the registration statement" within
the meaning of Rule 158 under the Securities Act, which earning
statement shall be in such form, and be made generally available
to security holders in such a manner, as to meet the requirements
of the last paragraph of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Offerors will furnish such proper information as may be
lawfully required, and will otherwise cooperate in qualifying the
Preferred Securities and the Debentures for offer and sale, under
the blue sky laws of such jurisdictions as the Representatives
may reasonably designate, provided that the Offerors shall not be
required to qualify as a foreign corporation or dealer in
securities, to file any consents to service of process under the
laws of any jurisdiction, or to meet any other requirements
deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes incident to the performance of each
Offeror's obligations under this Underwriting Agreement
including, but not limited to, (i) the preparation and filing of
the Registration Statement and any post-effective amendment
thereto, (ii) the printing, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters,
(iii) legal counsel relating to the qualification of the
Preferred Securities and the Debentures under the blue sky laws
of various jurisdictions, in an amount not to exceed $12,500,
(iv) the printing and delivery to the Underwriters of reasonable
quantities of copies of the Registration Statement, the
preliminary (or any supplemental) blue sky survey, any
Preliminary Prospectus and the Prospectus and any amendment or
supplement thereto, except as otherwise provided in paragraph (d)
of this Section 6, (v) the rating of the Preferred Securities and
the Debentures by one or more nationally recognized statistical
rating agencies, (vi) filings or other notices (if any) with or
to, as the case may be, the National Association of Securities
Dealers, Inc. (the "NASD") in connection with its review of the
terms of the offering, and (vii) the listing of the Preferred
Securities on the New York Stock Exchange (the "NYSE"), the
listing of the Debentures on the Luxembourg Stock Exchange and
the registration of the Preferred Securities and, if the
Preferred Securities are exchanged for Debentures, the Debentures
under the Exchange Act in accordance with Section 6(i) hereof.
Except as provided above, the Company shall not be required to
pay any expenses of the Underwriters, except that, if this
Underwriting Agreement shall be terminated in accordance with the
provisions of Section 7, 8 or 12 hereof, the Company will
reimburse the Underwriters for (A) the reasonable fees and
expenses of Counsel for the Underwriters, whose fees and expenses
the Underwriters agree to pay in any other event, and (B)
reasonable out-of-pocket expenses incurred in contemplation of
the performance of this Underwriting Agreement. The Company
shall not in any event be liable to the Underwriters for damages
on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell,
contract to sell or otherwise dispose of any limited partner
interests in the Partnership, or any preferred stock or any other
securities of the Partnership or the Company that are
substantially similar to the Preferred Securities, including any
guarantee of such securities, or any securities convertible into
or exchangeable for or that represent the right to receive
limited partner interests, preferred stock or any such
substantially similar securities of either the Partnership or the
Company, except for the Preferred Securities and the Guarantee,
without the consent of the Representatives until the earlier to
occur of (i) thirty (30) days after the Closing Date and (ii) the
date of the termination of the trading restrictions on the
Preferred Securities, as determined by the Underwriters. The
Representatives agree to notify the Offerors of such termination
if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause
the Preferred Securities to be duly authorized for listing on the
NYSE, subject to notice of issuance, and to be registered under
the Exchange Act and to cause the Debentures to be listed on the
Luxembourg Stock Exchange; if the Preferred Securities are
exchanged for Debentures, the Company will use its best efforts
to have the Debentures listed on the exchange or other
organization on which the Preferred Securities were then listed,
and to have the Debentures registered under the Exchange Act.
(j) If the Company elects to rely upon Rule 462(b)
under the Securities Act, the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with
Rule 462(b) under the Securities Act and pay the applicable fees
in accordance with Rule 111 under the Securities Act by the
earlier of (i) 10:00 p.m., New York City time, on the date of the
Prospectus, and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2) under the Securities Act.
SECTION 7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the
Preferred Securities shall be subject to the accuracy on the date
hereof and on the Closing Date of the representations and
warranties made herein on the part of the Offerors and of any
certificates furnished by the Offerors on the Closing Date and to
the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b)
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Offerors and the
Representatives.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Offerors or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of the Company and the General Partner,
to the effect that no such stop order has been or is in effect
and that no proceedings for such purpose are pending before or,
to the knowledge of the Company or the Partnership, as the case
may be, threatened by the Commission.
(c) At the Closing Date, there shall have been issued
and there shall be in full force and effect an order of the
Commission under the 1935 Act authorizing the issuance and sale
of the Securities.
(d) At the Closing Date, the Underwriters shall have
received from Linklaters and Paines and Reid & Priest LLP,
opinions, dated the Closing Date, substantially in the forms set
forth in Exhibits A and B hereto, respectively, (i) with such
changes therein as may be agreed upon by the Offerors and the
Representatives, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus shall be supplemented
after being furnished to the Underwriters for use in offering the
Preferred Securities, with changes therein to reflect such
supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Richards, Layton & Finger, P.A., special Delaware
counsel for the Company and the Partnership, an opinion, dated
the Closing Date, substantially in the form set forth in Exhibit
C hereto (i) with such changes therein as may be agreed upon by
the Offerors and the Representatives, with the approval of
Counsel for the Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for use in
offering the Preferred Securities, with changes therein to
reflect such supplementation.
(f) At the Closing Date, the Underwriters shall have
received from Counsel for the Underwriters, an opinion, dated the
Closing Date, substantially in the form set forth in Exhibit D
hereto, with such changes therein as may be necessary to reflect
any supplementation of the Prospectus prior to the Closing Date.
(g) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Coopers & Lybrand L.L.P., the Company's independent certified
public accountants (the "Accountants"), a letter or letters dated
the date hereof and addressed to the Underwriters to the effect
that (i) they are independent certified public accountants with
respect to the Company and its consolidated subsidiaries within
the meaning of the Securities Act and the applicable published
rules and regulations thereunder; (ii) in their opinion, the
financial statements and financial statement schedules examined
by them and included in the Prospectus comply as to form in all
material respects with the applicable accounting requirements of
the Securities Act and the Exchange Act and the applicable
published rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included in the Prospectus, a reading of the latest
available interim unaudited financial statements of the Company,
the minutes of the meetings of the Board of Directors of the
Company, any duly authorized committee thereof, if any, and the
stockholders of the Company, since December 31, 1996 to a
specified date not more than five days prior to the date of such
letter, and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an
examination made in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter
and, accordingly, that the Accountants make no representations as
to the sufficiency of such procedures for the purposes of the
Underwriters), nothing has come to their attention which caused
them to believe that, to the extent applicable, (A) the unaudited
financial statements of the Company and its consolidated
subsidiaries (if any) included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Securities Act and the related published
rules and regulations thereunder; (B) any material modifications
should be made to said unaudited financial statements for them to
be in conformity with generally accepted accounting principles;
and (C) at a specified date not more than five days prior to the
date of the letter, there was any change in the capital stock or
long-term debt of the Company, or decrease in its net assets, in
each case as compared with amounts shown in the most recent
balance sheet included in the Prospectus, except in all instances
for changes or decreases which the Prospectus discloses have
occurred or may occur or for changes or decreases as set forth in
such letter, identifying the same and specifying the amount
thereof; (iv) on the basis of a reading of the unaudited pro
forma financial statements included in the Prospectus, carrying
out certain specified procedures, inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in such pro forma financial statements, nothing came to
their attention that caused them to believe that such pro forma
financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule 11-
02 of Regulation S-X or that such pro forma adjustments have not
been properly applied to such historical amounts in the
compilation of such pro forma financial statements; (v) in their
opinion, certain summary and selected financial data included in
the Prospectus have been properly extracted and agreed to the
audited financial statements of the Company for the years ended
March 31, 1993, 1994, 1995 and 1996; and (vi) stating that they
have compared specific dollar amounts, percentages of revenues
and earnings and other financial information pertaining to the
Company set forth in the Prospectus to the extent that such
amounts, numbers, percentages and information may be derived from
the general accounting records of the Company, and excluding any
questions requiring an interpretation by legal counsel, with the
results obtained from the application of specified readings,
inquiries and other appropriate procedures (which procedures do
not constitute an examination in accordance with generally
accepted auditing standards) set forth in the letter, and found
them to be in agreement.
(h) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that (i) the
representations and warranties of the Company contained herein
are true and correct, and (ii) the Company has performed and
complied with all agreements and conditions in this Underwriting
Agreement to be performed or complied with by the Company at or
prior to the Closing Date.
(i) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
General Partner, to the effect that (i) the representations and
warranties of the Partnership contained herein are true and
correct, (ii) the Partnership has performed and complied with all
agreements and conditions in this Underwriting Agreement to be
performed or complied with by the Partnership at or prior to the
Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the
Partnership and there has not been any material transaction
entered into by the Partnership, other than transactions in the
ordinary course of business, in each case other than as referred
to in, or contemplated by, the Prospectus, as it may then be
amended or supplemented.
(j) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Partnership Agreement,
the Guarantee Agreement and the Indenture.
(k) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(g) hereof except with respect to the
statements contained in clause (v) of such Section 7(g).
(l) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company or the Partnership that, in the reasonable opinion of
the Representatives, materially impairs the investment quality of
the Preferred Securities.
(m) On or prior to the Closing Date, the Underwriters
shall have received from the Company evidence reasonably
satisfactory to Goldman, Sachs & Co. that Moody's Investors
Service, Inc. ("Moody's") and Standard & Poor's Ratings Group
("S&P") have publicly assigned to the Preferred Securities
ratings of baa3 and BB+, respectively, which ratings shall be in
full force and effect on the Closing Date.
(n) Between the date hereof and the Closing Date
neither Moody's nor S&P shall have lowered its rating of any of
London Electricity's outstanding debt securities in any respect.
(o) On or prior to the Closing Date, (i) the Preferred
Securities shall have been duly listed, subject to notice of
issuance, on the NYSE, (ii) the Debentures shall have been listed
on the Luxembourg Stock Exchange and (iii) the Company's
registration statement on Form 8-A relating to the Preferred
Securities shall have become effective under the Exchange Act.
(p) All legal matters in connection with the issuance
and sale of the Preferred Securities shall be satisfactory in
form and substance to Counsel for the Underwriters.
(q) The Offerors will furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7 shall
not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Offerors. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Obligations of the Offerors. The
obligations of the Offerors hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(b) At the Closing Date, there shall have been issued
and there shall be in full force and effect an order of the
Commission under the 1935 Act authorizing the issuance and sale
of the Securities.
In case the conditions specified in this Section 8 shall not
have been fulfilled, this Underwriting Agreement may be
terminated by the Offerors upon notice thereof to the
Representatives. Any such termination shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Offerors shall, jointly and severally, indemnify,
defend and hold harmless each Underwriter and each person who
controls each Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against
any and all losses, claims, damages or liabilities, joint or
several, to which each Underwriter or any or all of them may
become subject under the Securities Act or any other statute or
common law and shall reimburse each Underwriter and any such
controlling person for any legal or other expenses (including to
the extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon
an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, as amended or
supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, or in the
Prospectus, as each may be amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this
paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission
was made in reliance upon and in conformity with information
furnished herein or in writing to the Offerors by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement, any Preliminary Prospectus or the
Prospectus or any amendment or supplement to any thereof or
arising out of, or based upon, statements in or omissions from
the Form T-1s; and provided further, that the indemnity agreement
contained in this subsection shall not inure to the benefit of
any Underwriter or to the benefit of any person controlling any
Underwriter on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale of the
Preferred Securities to any person in respect of any Preliminary
Prospectus or the Prospectus as supplemented or amended,
furnished by any Underwriter to a person to whom any of the
Preferred Securities were sold (excluding in both cases, however,
any document then incorporated by reference therein), insofar as
such indemnity relates to any untrue or misleading statement or
omission made in any Preliminary Prospectus or the Prospectus but
eliminated or remedied prior to the consummation of such sale in
the Prospectus, or any amendment or supplement thereto furnished
on a timely basis by the Offerors to the Underwriters pursuant to
Section 6(d) hereof, respectively, unless a copy of the
Prospectus (in the case of such a statement or omission made in
any Preliminary Prospectus) or such amendment or supplement (in
the case of such a statement or omission made in the Prospectus)
(excluding, however, any document then incorporated by reference
in the Prospectus or such amendment or supplement) is furnished
by such Underwriter to such person (i) with or prior to the
written confirmation of the sale involved or (ii) as soon as
available after such written confirmation (if it is made
available to the Underwriters prior to settlement of such sale).
(b) The Company shall indemnify, defend and hold
harmless the Partnership against any and all losses, claims,
damages or liabilities that may become due from the Partnership
under Section 9(a) hereof.
(c) Each Underwriter shall indemnify, defend and hold
harmless the Offerors, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus or in the
Prospectus, as each may be amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
in each case, if, but only if, such statement or omission was
made in reliance upon and in conformity with information
furnished herein or in writing to the Offerors by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement, any Preliminary Prospectus or the
Prospectus, or any amendment or supplement thereto.
(d) In case any action shall be brought, based upon
the Registration Statement, any Preliminary Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment)).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party and any person
controlling any indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(e) If the indemnification provided for under
subsections (a), (b), (c) or (d) in this Section 9 is unavailable
to any extent to an indemnified party in respect of any losses,
claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Offerors and the
Underwriters from the offering of the Preferred Securities 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 Offerors on the one
hand and of the Underwriters on the other 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 Offerors
on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total proceeds from the
offering (after deducting underwriting discounts and commissions
but before deducting expenses) to the Offerors bear to the total
underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Offerors on
the one hand and of the Underwriters 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 Offerors or by any of the
Underwriters and such parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9(e)
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. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(e), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Preferred
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(e) are several in
proportion to their respective underwriting obligations and not
joint. The obligations of the Company under this Section 9 shall
be in addition to any liability which the Company may otherwise
have.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Offerors contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Offerors or its directors or officers, or any of
the other persons referred to in Section 9 hereof and (ii)
acceptance of and payment for the Preferred Securities and (b)
the indemnity and contribution agreements contained in Section 9
shall remain operative and in full force and effect regardless of
any termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If any Underwriter
shall fail or refuse (otherwise than for some reason sufficient
to justify, in accordance with the terms hereof, the cancellation
or termination of its obligations hereunder) to purchase and pay
for the Preferred Securities that it has agreed to purchase and
pay for hereunder, and the number of Preferred Securities that
such defaulting Underwriter agreed but failed or refused to
purchase is not more than one-tenth of the number of the
Preferred Securities, the other Underwriters shall be obligated
to purchase the Preferred Securities that such defaulting
Underwriter agreed but failed or refused to purchase; provided
that in no event shall the number of Preferred Securities that
any Underwriter has agreed to purchase pursuant to Schedule I
hereof be increased pursuant to this Section 11 by an amount in
excess of one-ninth of such number of Preferred Securities
without written consent of such Underwriter. If any Underwriter
shall fail or refuse to purchase Preferred Securities and the
number of Preferred Securities with respect to which such default
occurs is more than one-tenth of the number of the Preferred
Securities, the Offerors shall have the right (a) to require the
non-defaulting Underwriters to purchase and pay for the
respective number of Preferred Securities that it had severally
agreed to purchase hereunder, and, in addition, the number of
Preferred Securities that the defaulting Underwriter shall have
so failed to purchase up to an amount thereof equal to one-ninth
of the respective number of Preferred Securities that such non-
defaulting Underwriters have otherwise agreed to purchase
hereunder, and/or (b) to procure one or more others, members of
the NASD (or, if not members of the NASD, who are foreign banks,
dealers or institutions not registered under the Exchange Act and
who agree in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
number of Preferred Securities that such defaulting Underwriter
had agreed to purchase, or that portion thereof that the
remaining Underwriters shall not be obligated to purchase
pursuant to the foregoing clause (a). In the event the Offerors
shall exercise its rights under clause (a) and/or (b) above, the
Offerors shall give written notice thereof to the Representatives
within 24 hours (excluding any Saturday, Sunday, or legal
holiday) of the time when the Offerors learn of the failure or
refusal of any Underwriter to purchase and pay for its respective
number of Preferred Securities, and thereupon the Closing Date
shall be postponed for such period, not exceeding three business
days, as the Offerors shall determine. In the event the Offerors
shall be entitled to but shall not elect (within the time period
specified above) to exercise its rights under clause (a) and/or
(b), the Offerors shall be deemed to have elected to terminate
this Underwriting Agreement. In the absence of such election by
the Offerors, this Underwriting Agreement will, unless otherwise
agreed by the Offerors and the non-defaulting Underwriters,
terminate without liability on the part of any non-defaulting
party except as otherwise provided in paragraph (g) of Section 6
and in Section 10. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
SECTION 12. Termination. This Underwriting Agreement
shall be subject to termination by notice given by written notice
from the Representatives to the Offerors if (a) after the
execution and delivery of this Underwriting Agreement and prior
to the Closing Date (i) trading of the Preferred Securities or
trading in securities generally shall have been suspended or
materially limited on the NYSE by The New York Stock Exchange,
Inc., the Commission or other governmental authority or on The
London Stock Exchange Limited (the "London Stock Exchange"), (ii)
minimum or maximum ranges for prices shall have been generally
established on the NYSE by The New York Stock Exchange, Inc., the
Commission or other governmental authority or on the London Stock
Exchange, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal
or New York State authorities, (iv) a change or development
involving a prospective change in United Kingdom taxation
materially adversely affecting the Company, the Debentures or the
Guarantee, or (v) there shall have occurred any outbreak or
escalation of hostilities or any calamity or crisis that, in the
judgment of the Representatives, is material and adverse and (b)
in the case of any of the events specified in clauses (a)(i)
through (v), such event singly or together with any other such
event makes it, in the reasonable judgment of the
Representatives, impracticable to market the Preferred
Securities. This Underwriting Agreement shall also be subject to
termination, upon notice by the Representatives as provided
above, if, in the judgment of the Representatives, the subject
matter of any amendment or supplement (prepared by the Offerors)
to the Prospectus (except for information relating solely to the
manner of public offering of the Preferred Securities or to the
activity of the Underwriters or to the terms of any series of
securities of the Offerors other than the Preferred Securities)
filed or issued after the effectiveness of this Underwriting
Agreement by the Offerors shall have materially impaired the
marketability of the Preferred Securities. Any termination
hereof, pursuant to this Section 12, shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 13. Consent to Jurisdiction; Appointment of Agent
to Accept Service of Process.
(a) The Company agrees (i) that any legal action, suit or
proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in connection
with this Underwriting Agreement may be brought in any federal or
state court in the State of New York, County of New York, and
(ii) to file such consents with such authorities as may be
required to irrevocably evidence such agreement.
(b) The Company agrees to designate a designee, appointee
and agent in The City of New York satisfactory to the
Underwriters for the purpose of consenting and agreeing to the
service of any and all legal process, summons, notices and
documents in any such action, suit or proceeding against the
Company, by serving a copy thereof upon the relevant agent for
service of process referred to in this Section 13 (whether or not
the appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such
service) with a copy to the Company as provided in Section 18.
The Company agrees that the failure of any such designee,
appointee and agent to give any notice of such service to it
shall not impair or affect in any way the validity of such
service. Nothing herein shall in any way be deemed to limit the
ability of the holders of the Preferred Securities or the
Debentures, the Underwriters and the other persons referred to in
Section 9 to serve any such legal process, summons, notices and
documents in any other manner permitted by applicable law or to
obtain jurisdiction over the Company, or bring actions, suits or
proceedings against it in such other jurisdictions, and in such
manner, as may be permitted by applicable law. The Company
irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have
to the laying of venue of any of the aforesaid actions, suits or
proceedings arising out of or in connection with this
Underwriting Agreement brought in the federal courts located in
The City of New York or the courts of the State of New York
located in The City of New York and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in
any such court that any such action, suit or proceeding brought
in any such court has been brought in an inconvenient forum.
(c) The provisions of this Section 13 shall survive any
termination of this Underwriting Agreement, in whole or in part.
SECTION 14. Foreign Taxes. All payments by the Company to
the Underwriters hereunder shall be made free and clear of, and
without deduction or withholding for or on account of, any and
all present and future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by
the United Kingdom, any political subdivision thereof, or any
other jurisdiction in which the Company has a branch or an office
from which payment is made or deemed to be made, excluding
(i) any such tax imposed by reason of any Underwriter having some
connection with any such jurisdiction other than its
participation as an Underwriter hereunder, and (ii) any income or
franchise tax on the overall net income of any Underwriter
imposed by the United States or by the State of New York or any
political subdivision of the United States or of the State of New
York (all such non-excluded taxes, "Foreign Taxes"). If the
Company is prevented by operation of law or otherwise from
paying, causing to be paid or remitting that portion of amounts
payable hereunder represented by Foreign Taxes withheld or
deducted, then amounts payable under this Underwriting Agreement
shall, to the extent permitted by law, be increased to such
amount as is necessary to yield and remit to such Underwriter an
amount that, after deduction of all Foreign Taxes (including all
Foreign Taxes payable on such increased payments), equals the
amount that would have been payable if no Foreign Taxes applied.
SECTION 15. Waiver of Immunities. To the extent that the
Company or any of its properties, assets or revenues may have or
may hereafter become entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise,
from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the
jurisdiction of any court, from service or process, from
attachment upon or prior to judgment, from attachment in aid of
execution of judgment, or from execution of judgment, or other
legal process or proceeding for the giving of any relief or for
the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its
obligations, liabilities or any other matter under or arising out
of or in connection with the Company Securities, the Partnership
Agreement, the Guarantee Agreement, the Indenture or this
Underwriting Agreement, the Company hereby irrevocably and
unconditionally waives and agrees not to plead or claim any such
immunity and consents to such relief and enforcement. Nothing in
this Section 15 shall be deemed to waive any defense (other than
any such immunity) available to the Company.
SECTION 16. Judgment Currency. Each of the parties hereto
agrees to indemnify each other party hereto, and its controlling
persons, officers and directors referred to in Section 9, against
any loss incurred by any such indemnified party as a result of
any judgment or order being given or made for any amount due
hereunder and such judgment or order being expressed and paid in
a currency (the "Judgment Currency") other than United States
dollars and as a result of any variation as between (i) the rate
of exchange at which the United States dollar amount is converted
into the Judgment Currency for the purpose of such judgment or
order, and (ii) the rate of exchange at which any such
indemnified party is able to purchase United States dollars on
the business day next succeeding the date of such judgment, with
the amount of the Judgment Currency actually received by any such
indemnified party. If, alternatively, any such indemnified party
receives a profit as a result of such currency conversion, it
will return any such profits to the party or parties from whom
indemnification could have been sought under this Section 16
(after taking into account any taxes or other costs arising in
connection with such conversion and repayment). The foregoing
indemnity shall constitute a separate and independent obligation
of the parties hereto, and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid.
The term "rate of exchange" shall include any premiums and costs
of exchange payable in connection with the purchase of, or
conversion into, United States dollars.
SECTION 17. Miscellaneous. THE RIGHTS AND DUTIES OF THE
PARTIES TO THIS UNDERWRITING AGREEMENT SHALL, PURSUANT TO NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. This Underwriting Agreement shall
become effective when a fully executed copy thereof is delivered
to the Offerors and to the Representatives. This Underwriting
Agreement may be executed in any number of separate counterparts,
each of which, when so executed and delivered, shall be deemed to
be an original and all of which, taken together, shall constitute
but one and the same agreement. This Underwriting Agreement
shall inure to the benefit of each of the Offerors, the
Underwriters and, with respect to the provisions of Section 9,
each director, officer and other person referred to in Section 9,
and their respective successors. Should any part of this
Underwriting Agreement for any reason be declared invalid, such
declaration shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and
effect as if this Underwriting Agreement had been executed with
the invalid portion thereof eliminated. Nothing herein is
intended or shall be construed to give to any other person, firm
or corporation any legal or equitable right, remedy or claim
under or in respect of any provision in this Underwriting
Agreement. The term "successor" as used in this Underwriting
Agreement shall not include any purchaser, as such purchaser, of
any Preferred Securities from the Underwriters.
SECTION 18. Notices. All communications hereunder shall be
in writing and, if to the Underwriters, shall be mailed or
delivered to Goldman, Sachs & Co. at the address set forth at the
beginning of this Underwriting Agreement (to the attention of its
General Counsel) or, if to the Offerors, shall be mailed or
delivered to it at 639 Loyola Avenue, New Orleans, Louisiana
70113, Attention: William J. Regan, Jr., or, if to Entergy
Services, Inc., shall be mailed or delivered to it at 639 Loyola
Avenue, New Orleans, Louisiana 70113, Attention: Vice President
and Treasurer.
SECTION 19. Covenant of the Underwriters. Each Underwriter
acknowledges and agrees that (a) it has not offered and sold and
prior to the date six months after the Closing Date will not
offer or sell the Preferred Securities or the Debentures to
persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their businesses or otherwise in circumstances that have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995, (b) it has complied and will comply,
with all applicable provisions of the Financial Services Act 1986
with respect to anything done by it in relation to the Preferred
Securities and the Debentures offered by the Prospectus in, from
or otherwise involving the United Kingdom and (c) it has only
issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue
of the Preferred Securities and the Debentures to a person who
is of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or
is a person to whom such document may otherwise lawfully be
issued or passed on.
If the foregoing is in accordance with your
understanding, please sign and return to us counterparts of this
Underwriting Agreement, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this Underwriting Agreement
and such acceptance hereof, shall constitute a binding agreement
among each of the Underwriters, the Company and the Partnership.
It is understood that your acceptance of this Underwriting
Agreement on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company
and the Partnership for examination upon request, but without
warranty on the part of the Representatives as to the authority
of the signers thereof.
Very truly yours,
Entergy London Investments plc
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Treasurer
Entergy London Capital, L.P.
By: Entergy London Investments plc,
as General Partner
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Treasurer
Accepted as of the date first above written:
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
As representatives of the other several
Underwriters named in Schedule I hereto
By: /s/ Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
<PAGE>
SCHEDULE I
Entergy London Capital, L.P.
8 5/8% Cumulative Quarterly Income Preferred Securities, Series A
Number of
Underwriter Preferred Securities
Goldman, Sachs & Co. 1,300,000
Bear, Stearns & Co. Inc. 1,295,000
Lehman Brothers Inc. 1,295,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 1,295,000
Morgan Stanley & Co. Incorporated 1,295,000
Prudential Securities Incorporated 1,295,000
Smith Barney Inc. 1,295,000
ABN AMRO Chicago Corporation 125,000
BT Alex. Brown Incorporated 125,000
SBC Warburg Dillon Read Inc. 125,000
Donaldson, Lufkin & Jenrette Securities Corporation 125,000
A.G. Edwards & Sons, Inc. 125,000
EVEREN Securities, Inc. 125,000
Legg Mason Wood Walker, Incorporated 125,000
Morgan Keegan & Company, Inc. 125,000
CIBC Oppenheimer Corp. 125,000
Stephens Inc. 125,000
Advest, Inc. 60,000
Robert W. Baird & Co. Incorporated 60,000
J.C. Bradford & Co. 60,000
Cowen & Company 60,000
Crowell, Weedon & Co. 60,000
Dain Bosworth Incorporated 60,000
Doley Securities, Inc. 60,000
Fahnestock & Co. Inc. 60,000
J.J.B. Hilliard, W.L. Lyons, Inc. 60,000
Interstate/Johnson Lane Corporation 60,000
Janney Montgomery Scott Inc. 60,000
McDonald & Company Securities, Inc. 60,000
McGinn, Smith & Co., Inc. 60,000
The Ohio Company 60,000
Piper Jaffray Inc. 60,000
Principal Financial Securities, Inc. 60,000
Pryor, McClendon, Counts & Co., Inc. 60,000
Rauscher Pierce Refsnes, Inc. 60,000
Raymond James & Associates, Inc. 60,000
The Robinson-Humphrey Company, LLC 60,000
Roney & Co., L.L.C. 60,000
Sterne, Agee & Leach, Inc. 60,000
Sutro & Co. Incorporated 60,000
Trilon International Inc. 60,000
Tucker Anthony Incorporated 60,000
U.S. Clearing Corp. 60,000
Wedbush Morgan Securities Inc. 60,000
Wheat, First Securities, Inc. 60,000
----------
Total 12,000,000
==========
<PAGE>
EXHIBIT A
[Letterhead of Linklaters & Paines]
[_________ __],
1997
Entergy Power Capital, L.P.
639 Loyola Avenue
New Orleans
Louisiana 70113
USA (the "Partnership")
Entergy London Investments plc
Templar House
81-87 High Holborn
London
WC1V 6NU (the "Company")
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004 USA
Entergy London Capital, L.P.
% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation preference $25 per preferred security)
fully and unconditionally guaranteed by Entergy London
Investments plc
1 We have acted as English legal advisers to the
Partnership and the Company in connection with the issue
and sale by the Partnership to the several Underwriters
pursuant to the Underwriting Agreement, dated November
1997 (the "Underwriting Agreement") among the Company, the
Partnership and the representatives of the several
Underwriters of 12,000,000 % Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25
per preferred security) (the "Preferred Securities"),
guaranteed to the extent the Partnership has funds by the
Company. This opinion is delivered to you at the request
of the Company and the Partnership and is delivered
pursuant to section 7(d) of the Underwriting Agreement.
Expressions defined in the Underwriting Agreement have the
same meanings when used in this opinion except where
otherwise defined herein.
2 This opinion is limited to English law as currently
applied by the English Courts and is given on the basis
that it will be governed by and construed in accordance
with English law. We express no opinion on matters of
United States federal or state law or the laws of any
other jurisdiction.
3 For the purposes of this opinion we have examined and
relied upon copies of the documents listed and, where
appropriate, defined in the Schedule to this letter and
any other documents we have deemed appropriate. We have
assumed that:-
3.1(except in the case of the Company) all relevant
documents are within the capacity and powers of, and have
been validly authorised by, each party and (in the case of
each party) that those documents have been or (in the case
of the Preferred Securities and Debentures) will be
validly executed and delivered by the relevant party in
the same form as examined by us for the purpose of this
opinion;
3.2each of the Principal Agreements (as defined in
paragraph 4.1 below) and the Preferred Securities and
Debentures is valid and binding on and (without detracting
from the exception in assumption 3.1 above) enforceable
against each party under the law to which it is expressed
to be subject;
3.3words and phrases used in the Principal Agreements, the
Preferred Securities, the Debentures, the Registration
Statement and the Prospectus filed under the Securities
Act have the same meanings and effect as they would if
those documents were governed by English law and there is
no provision of any law (other than English law) which
would affect anything in this opinion;
3.4the Underwriters have complied and will comply with all
applicable provisions of the Financial Services Act 1986
with respect to anything done or to be done by them in
relation to the Preferred Securities or the Debentures in,
from or otherwise involving the United Kingdom (including
Section 3 (carrying on investment business) 56
(unsolicited calls) and 57 (investment advertisements));
3.5all copy documents examined by us for the purpose of
this opinion conform to the originals;
3.6no Principal Agreement nor any Preferred Security or
Debenture has been amended, supplemented or terminated;
3.7the copies of the Memorandum and Articles of
Association of each of the Company and the Significant
Subsidiaries (as defined below) examined by us for the
purpose of this opinion are complete and up-to-date;
3.8the Minutes of which copies have been examined by us
for the purpose of this opinion are a true record of the
proceedings described therein of duly convened,
constituted and quorate meetings of the Board of Directors
of the Company and that the resolutions set out in those
Minutes and in the Written Consents were duly passed and
remain in full force and effect without modification; and
3.9all documents submitted to us as originals are
authentic and all signatures are genuine and are those of
persons authorised by the relevant resolutions to execute
(or, as the case may be, witness the execution of) the
relevant document on behalf of the Company.
4 Based on and subject to the foregoing and subject to
the exceptions and qualifications mentioned below and to
any matters not disclosed to us, we are of the following
opinion:-
4.1The Company has been duly incorporated as a public
limited company under the laws of England and Wales and
has the necessary corporate power and authority under its
Memorandum and Articles of Association to conduct the
business that it is described in the Prospectus as
conducting, to own and operate properties owned and
operated by it in such business, to issue the Company
Securities, to enter into and perform its obligations
under the Underwriting Agreement, the Agreement of Limited
Partnership (as amended and restated) (the "Partnership
Agreement"), the Indenture, the Guarantee Agreement,
(together the "Principal Agreements") and the Company
Securities, to make the capital contribution to the
Partnership as General Partner.
4.2A search made on 1997 at the Companies Registration
Office in London revealed no order or resolution for the
winding up of the Company or of London Electricity plc,
London Electricity Services Limited, the London Power
Company Limited or London Electricity Enterprises Limited
(together, the "Significant Subsidiaries") and no notice
of appointment in respect of the Company or of its
Significant Subsidiaries of a liquidator, receiver,
administrative receiver or administrator. It should be
noted that such a search is not capable of revealing
whether or not a petition for winding up or administration
has been presented in a County Court or District Registry
or in the High Court of Justice, and that notice of a
winding up or administration order made or winding up
resolution passed or of the appointment of a receiver or
administrative receiver may not be filed at the Companies
Registration Office immediately;
4.3London Electricity plc and each of the other
Significant Subsidiaries has been duly incorporated as a
public limited company or private company limited by
shares under the laws of England and Wales, has the
necessary corporate power and authority under its
Memorandum and Articles of Association, as amended, to
conduct the business that it is described in the
Prospectus as conducting and to own and operate the
properties owned and operated by it in such business.
4.4The Partnership Agreement, the Indenture and the
Guarantee Agreement have been, insofar as English law is
concerned, duly authorised, executed and delivered by the
Company; the Underwriting Agreement has been, insofar as
English law is concerned, duly authorised, executed and
delivered by the Company for itself and as General Partner
under the Partnership Agreement.
4.5Insofar as English law is concerned, the Debentures
have been duly authorised and, when authenticated in the
manner provided for in the Indenture and delivered against
payment therefor as described in the Prospectus, will have
been duly executed, issued and delivered by the Company.
4.6No consent, approval, authorisation or order of any
governmental or regulatory agency in Great Britain is
required (i) for the formation of the Partnership or the
capital contribution of the Company to the Partnership, as
General Partner of the partnership; (ii) for the execution
and delivery by the Company of the Principal Agreements;
(iii) to permit the issue and sale of the Securities or
the performance by the Partnership of its obligations with
respect to the Preferred Securities or (iv) to permit the
performance by the Company of its obligations with respect
to the Principal Agreements.
4.7The Company has duly authorised the capital
contribution to the Partnership made by the Company as
General Partner and, insofar as English law is concerned,
has taken all necessary action to make such capital
contribution.
4.8Neither the issue, offering and sale by the Company of
the Company Securities in the manner contemplated by the
Underwriting Agreement and by the Prospectus nor the
execution and delivery by the Company of any of the
Principal Agreements nor the performance by the Company of
its obligations under any of the Principal Agreements will
conflict with or result in a breach or violation of (i)
the Memorandum of Association or Articles of Association
of the Company or the Significant Subsidiaries or (ii) any
law, rule or regulation of any governmental or other
regulatory authority in Great Britain applicable to the
Company or the Significant Subsidiaries or (iii) the
provision of any licence granted to London Electricity plc
under the Electricity Act 1984.
4.9Except as set forth in or contemplated by the
Prospectus, London Electricity plc possesses adequate
franchises, licences, permits and other rights required
under the Electricity Act 1984 to conduct its businesses
of distribution and supply of electricity as set forth in
the Prospectus the absence of which could have a material
adverse effect on the Company and the Significant
Subsidiaries.
4.10 The statements under the captions "Business - UK
Environmental Regulation," "Business - UK and EU
Competition Law" and "The Electric Utility Industry in
Great Britain" in the Prospectus, in each case insofar as
such statements purport to summarise orders, statutes,
laws, rules or regulations, or other legal matters,
involving English law or relating to the Great Britain
electric utility industry, constitute fair and accurate
summaries of such matters in all material respects.
4.11 The statements under the caption "Certain Income
Tax Considerations - UK Income Tax Consideration" in the
Prospectus constitute a fair and accurate summary of the
matters addressed therein in all material respects.
4.12 The English Courts will recognise and give effect
to the choice of the laws of the State of New York ("New
York law") as the law governing the Principal Agreements
(except the Partnership Agreement) and the Debentures. The
validity and binding nature of the obligations contained
in the Principal Agreements (except the Partnership
Agreement) and the Debentures are governed by and
construed in accordance with New York law.
4.13 The English Courts will recognise and give effect
to the choice of law of the State of Delaware ("Delaware
law") as the law governing the Partnership Agreement. The
validity and binding nature of the obligations contained
in the Partnership Agreement are governed by and construed
in accordance with Delaware law.
4.14 On the assumption that the Underwriting Agreement,
the Indenture, the Guarantee Agreement and the Company
Securities create valid and binding obligations of the
parties under New York law and the Partnership Agreement
creates valid and binding obligations of the parties under
Delaware law, English law will not prevent any provisions
of the Underwriting Agreement, the Indenture, the
Guarantee Agreement, the Company Securities and the
Partnership Agreement from being valid and binding
obligations of the Company, subject to all limitations
resulting from bankruptcy, insolvency, liquidation,
receivership, administration, re-organisation of the
Company and similar laws of general application relating
to or affecting the rights of creditors applicable to the
Company.
4.15 A final and conclusive judgment against the
Company for a definite sum of money entered by a state or
federal court in the United States of America in any suit,
action or proceeding arising out of or in connection with
the Underwriting Agreement, the Indenture, the Guarantee
Agreement or the Partnership Agreement would normally be
enforced by the English Courts (although this is a matter
within such Courts' discretion), without re-examination or
re-litigation of the matters adjudicated upon, provided
that:-
(i) the judgment was not obtained by fraud;
(ii) the enforcement of the judgment would not be
contrary to English public policy or Section 5 of
the Protection of Trading Interests Act 1980;
(iii) the judgment was not given in a manner
contrary to the principles of natural justice (as
applied by the English Courts);
(iv) the judgment is not inconsistent with an
English judgment in respect of the same matter;
(v) the judgment is not for multiple damages or
amounts to a penalty under English law;
(vi) the proceedings before the state or federal
court in the United States of America were not of
a revenue nature (i.e. relating to taxation);
(vii) enforcement proceedings are instituted within
the limitation periods under the Limitation Act
1980;
(viii) the state or federal court in the United
States of America has jurisdiction over the
Company in accordance with the rules of English
law;
(ix) claims have not become subject to set-off or
counter claim; and
(x) the judgement of a court of the United States
or any part thereof did not predicate solely upon
the federal securities laws of the United States
as it is doubtful whether an English Court would
enforce such a judgement.
4.16 In relation to any action against the Company
under any of the Principal Agreements to which it is a
party or the Company Securities, an English Court might
assume jurisdiction on the basis that the Company (as
defendant) has its seat in England but an English Court
could decline jurisdiction or stay its proceedings in
relation to any dispute arising from the Principal
Agreements or the Company Securities:
(i) on the ground that proceedings involving the
same or a related issue are pending in a foreign
jurisdiction; or
(ii) on the ground of forum non conveniens, in
other words that a foreign forum is more
appropriate.
A plaintiff who is not resident in England or Wales may be
required by an English Court, on the application of the
defendant, to provide security for the defendant's costs.
4.17 Under English law and UK Inland Revenue practice
as applied and interpreted on the date hereof and on the
basis of the United Kingdom/United States Double Taxation
Treaty (the "Treaty") currently in force:
(a) no taxes, levies, imposts or charges of the United
Kingdom or any political subdivision or taxing authority
thereof or therein would be required to be deducted or
withheld (i) from any payment to a beneficial owner of the
Preferred Securities who is a resident of the United
States (who is not also a resident of the United Kingdom
and who does not have a permanent establishment or a fixed
base in the United Kingdom to which the Preferred
Securities are connected) (a "United States Holder"), made
(x) by the Partnership pursuant to the Preferred
Securities or (y) by the Company pursuant to the Guarantee
Agreement or (ii) from any payment by the Company in
respect of the Debentures, provided that, in respect of a
payment or in respect of quarterly amounts due on the
Debentures by the Company, the Debentures are in bearer
form and are quoted on a recognised stock exchange and
such payment is made by a non-United Kingdom paying agent
or by a United Kingdom paying agent in circumstances where
the Debentures are held in a recognised clearing system or
it is proved that the person who is the beneficial owner
of the Debentures and entitled to the payment (or the
person whose income the payment is deemed to be for United
Kingdom tax purposes) is not resident in the United
Kingdom; and provided further that, in respect of a
payment made by the Company to a United States Holder
pursuant to the Guarantee Agreement as regards the portion
of any such payment which represents income in respect of
the Preferred Securities:
(A) that portion is exempt from taxation in
the United Kingdom under Article 22 of the
Treaty ("Other Income");
(B) the United States Holder is entitled to
and has claimed the benefit of the Treaty in
respect of such payment; and
(C) the Company has received from the UK
Inland Revenue prior to the payment being made
a direction pursuant to the Treaty allowing
payment to be made without deduction of United
Kingdom tax;
if (B) or (C) above is not satisfied so that tax is
withheld by the Company, a person entitled to exemption
under the Treaty may claim repayment of such tax from the
UK Inland Revenue; and
(b) Provided that it is not and does not become resident
for United Kingdom tax purposes in the United Kingdom or
trade in the United Kingdom, the Partnership will not be
liable to United Kingdom income tax or corporation tax
(without prejudice to any deduction or withholding as
described in (a) above) with respect to Income accrued or
received on the Debentures.
5 Our reservations or qualifications are as follows:-
5.1We express no opinion as to whether the equitable
remedies of specific performance or injunctive relief
would be available in respect of any obligation of the
Company or the Partnership. Insofar as any obligation
under the Principal Agreements or the Company Securities
is to be performed in any jurisdiction other than England
and Wales, an English Court may have to have regard to the
law of that jurisdiction in relation to the manner of
performance and the steps to be taken in the event of
defective performance.
5.2The obligations of the Company under the Principal
Agreements and the Company Securities will be subject to
any law from time to time in force relating to liquidation
or administration or any other law or legal procedure
affecting generally the enforcement of creditors' rights.
5.3An English Court will not apply New York law or
Delaware law if:
(a) it is not pleaded and proved; or
(b) to do so would be contrary to the mandatory rules of
English law or manifestly incompatible with English
public policy.
5.4To the extent it relates to United Kingdom stamp
duties, any undertaking or indemnity given by the Company
or the Partnership may be void under section 117 of the
Stamp Act 1891. However, we note that under English law
and UK Inland Revenue practice as applied and interpreted
on the date hereof, no United Kingdom stamp duties are
payable in respect of the Principal Agreements or the
issue or transfer of the Preferred Securities or the
Debentures (whilst in bearer form) provided that no
transfer of Preferred Securities is executed in the United
Kingdom.
5.5An English Court may refuse to give effect to any
provision of an agreement which amounts to an indemnity in
respect of the costs of unsuccessful litigation brought
before an English Court or where the Court has itself made
an order for costs.
5.6Where obligations are to be performed in a jurisdiction
outside England, they may not be enforceable in England to
the extent that performance would be illegal under the
laws of that other jurisdiction.
5.7Any certificate, determination, notification, opinion
or the like might be held by English court not be
conclusive if it could be shown to have an unreasonable or
arbitrary basis or in the event of manifest error despite
any provision in the relevant agreements to the contrary.
5.8This opinion is given as at the date set out above. We
express no opinion as to effect that any further event, or
any act of the Company or a Significant Subsidiary, may
have on the matters referred to herein.
6 This opinion is addressed to you solely for your
benefit in connection with the issue of the Preferred
Securities and the Debentures. It is not to be transmitted
to anyone else nor is it to be relied upon by anyone or
for any other purpose or quoted or referred to in any
public document or filed with anyone without our express
consent.
Yours faithfully
LINKLATERS & PAINES
<PAGE>
Schedule
1 A certified copy of the Memorandum and Articles of
Association of the Company
2 Copies of the Memorandum and Articles of Association of
each of the Significant Subsidiaries
3 Copies of the Written Resolutions of the Board of
Directors of the Company dated 11 August 1997 and 10
November 1997 and Written Resolutions of a duly authorized
committee of the Board of Directors of the Company dated
10 November 1997
4 Searches in relation to the Company and each of the
Significant Subsidiaries obtained form the Companies
Registration Office on 19 November 1997
5 Form S-1 Registration Statement in the form in which it
became effective on 7 November 1997 relating to the
Preferred Securities (the "Registration Statement" and
"Prospectus")
6 Prospectus dated 12 November 1997 relating to the 8
5/8% Junior Subordinated Deferrable Interest Debentures,
Series A (the "Debentures") as submitted to the Luxembourg
Stock Exchange ("Luxembourg Prospectus")
7 Underwriting Agreement relating to the Preferred
Securities dated 12 November 1997 between the Company, the
Partnership and the several underwriters named therein
(the "Underwriters")
8 Indenture for Unsecured Subordinated Debt Securities
relating to the Preferred Securities dated 1 November 1997
between the Company and The Bank of New York, as Trustee
(the "Trustee") (the "Indenture")
9 Amended and Restated Limited Partnership Agreement of
Entergy London Capital, L.P. among the Company as General
Partner, William J. Regan, Jr. as the Initial Limited
Partner and such other persons who become partners as
provided therein (the "Partnership Agreement")
10 Guarantee Agreement dated 19 November 1997 between the
Company and the Trustee (the "Guarantee Agreement")
11 Form of Debenture.
12 Officer's Certificate of the Company dated 19 November
1997 establishing the terms of the Debentures (the
"Officer's Certificate")
13 Copy of the opinion of Richards, Layton & Finger, P.A.,
relating to the validity of the Preferred Securities
14 Copy of the opinion of Reid & Priest LLP, relating to
the validity of the Debentures and the Guarantee Agreement
15 Copy of the opinion of Reid & Priest LLP, as to United
States tax matters
16 Copies of the licences granted to London Electricity
plc under the Electricity Act 1984
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
[_______ __], 1997
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We, together with Linklaters & Paines, London, England,
and Richards, Layton & Finger, P.A., Wilmington, Delaware, have
acted as counsel for Entergy London Investments plc, a public
limited company incorporated under the laws of England and Wales
(the "Company"), and Entergy London Capital, L.P., a special
purpose limited partnership formed under the laws of the State of
Delaware (the "Partnership"), in connection with the issuance and
sale by the Partnership to the several Underwriters pursuant to
the Underwriting Agreement, effective [________ __], 1997 (the
"Underwriting Agreement"), among the Company, the Partnership and
you, as the representatives of the several Underwriters, of
12,000,000 [___]% Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per preferred
security) (the "Preferred Securities"), guaranteed to the extent
the Partnership has funds by the Company. This opinion is
rendered to you at the request of the Company and the
Partnership. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Underwriting Agreement; (b) the
Indenture; (c) the Partnership Agreement; (d) the Guarantee
Agreement; (e) the Registration Statement and Prospectus filed
under the Securities Act; (f) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Company Securities and the execution and delivery by the
Company of the Indenture, the Underwriting Agreement, the
Partnership Agreement, and the Guarantee Agreement; and (g) the
proceedings before and the order entered by the Commission under
the 1935 Act relating to the issuance and sale of the Securities.
We have also examined or caused to be examined such other
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to render this opinion. In
such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, and the conformity to the originals of the documents
submitted to us as certified or photostatic copies. We have not
examined the Debentures, except a specimen thereof, and we have
relied upon a certificate of the Debenture Trustee as to the
authentication and delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) Assuming that the Indenture has been duly
authorized, executed and delivered by the Company insofar as the
laws of England and Wales are concerned, the Indenture (except as
to Sections 115 and 116 thereof, upon which we do not pass) is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law).
(2) Assuming that the Debentures have been duly
authorized, executed, issued and delivered by the Company insofar
as the laws of England and Wales are concerned, the Debentures
are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and are entitled to the benefits
provided by the Indenture.
(3) Assuming that the Guarantee Agreement has been
duly authorized, executed and delivered by the Company insofar as
the laws of England and Wales are concerned, the Guarantee
Agreement (except as to Sections 8.08 and 8.09 thereof, upon
which we do not pass) is a legal, valid and binding instrument of
the Company enforceable against the Company in accordance with
its terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and by general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law).
(4) Each of the Indenture and the Guarantee Agreement
is duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualifications have been instituted
or, to our knowledge, threatened by the Commission.
(5) The statements made in the Prospectus under the
captions "Risk Factors", "Entergy London Capital", "Description
of the Preferred Securities", "Description of the Guarantee",
"Description of the Perpetual Junior Subordinated Debentures" and
"Relationship Among the Preferred Securities, the Perpetual
Junior Subordinated Debentures and the Guarantee" insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(6) The statements made in the Prospectus under the
caption "Certain Income Tax Considerations - US Income Tax
Considerations" constitute a fair and accurate summary of the
matters addressed therein, based upon current law and the
assumptions stated or referred to therein.
(7) Neither the Company nor the Partnership is, and
upon the issuance and sale of the Securities as contemplated by
the Underwriting Agreement and the application of the net
proceeds therefrom as described in the Prospectus, will be, an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of
1940, as amended.
(8) Except in each case as to the financial statements
and other financial data included therein, upon which we do not
pass, the Registration Statement, at the Effective Date, and the
Prospectus, as of its date, complied as to form in all material
respects with the applicable requirements of the Securities Act
and (except with respect to the Form T-1s, upon which we do not
pass) the Trust Indenture Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; and the Registration Statement has become, and on the
date hereof is, effective under the Securities Act and, to the
best of our knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings
for that purpose are pending or threatened under Section 8(d) of
the Securities Act.
(9) The Company, London Electricity plc and the other
Significant Subsidiaries are entitled to the exemption from the
1935 Act provided by Sections 33(a)(1) and (c)(1) thereof.
(10) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Securities; to the best of our knowledge, said order is in
full force and effect; no further approval, authorization,
consent or other order of any governmental body of the United
States or the State of New York (other than orders of the
Commission under the Securities Act, the Exchange Act and the
Trust Indenture Act, which have been duly obtained, or in
connection or compliance with the provisions of the securities or
blue sky laws of any jurisdiction) is legally required to form
the Partnership, or to permit the issuance and sale of the
Securities or the performance by the Partnership of its
obligations with respect to the Preferred Securities, or by the
Company of its obligations with respect to the Company Securities
or under the Indenture, the Underwriting Agreement, the
Partnership Agreement or the Guarantee Agreement.
(11) The issuance and sale by the Company of the
Company Securities and the execution, delivery and performance by
the Company of the Indenture, the Underwriting Agreement, the
Partnership Agreement and the Guarantee Agreement (a) will not
violate any provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in any assets of the Company,
the Significant Subsidiaries or Entergy UK Limited, Entergy UK
Finance Limited, Entergy London Holdings Limited and Entergy
London Limited (collectively, the "Company Affiliates") pursuant
to the provisions of, the New Acquisition Debt Agreement or any
other mortgage, indenture, contract, agreement or other
undertaking known to us (having made due inquiry with respect
thereto) to which either of the Company, the Significant
Subsidiaries or the Company Affiliates is a party or which
purports to be binding upon either of the Company, the
Significant Subsidiaries or the Company Affiliates or upon any of
their respective assets and (b) will not violate any provision of
any Federal law of the United States or any law of the State of
New York applicable to the Company or the Significant
Subsidiaries or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order, writ,
judgment or decree of any governmental instrumentality of the
United States or the State of New York applicable to the Company
or the Significant Subsidiaries (except that various consents of,
and filings with governmental authorities of the State of New
York may be required to be obtained or made, as the case may be,
in connection or compliance with the provisions of the securities
or blue-sky laws of the State of New York).
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and the Partnership and information included in the Registration
Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth
in paragraphs (5) and (6) above. In connection with the
preparation by the Company and the Partnership of the
Registration Statement and the Prospectus, we have had
discussions with certain officers and representatives of the
Company and its subsidiaries and the Partnership, with other
counsel for the Company and the Partnership, and with the
independent certified public accountants of the Company who
examined certain of the financial statements included in the
Registration Statement. Our examination of the Registration
Statement and the Prospectus and such discussions did not
disclose to us any information which gives us reason to believe
that the Registration Statement, at the Effective Date, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as
of its date and at the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial data included in
the Registration Statement or the Prospectus or as to the Form T-
1s.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other jurisdiction.
We have not examined into and are not passing upon matters
relating to the incorporation of the Company.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose, without our prior written
consent.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Richards, Layton & Finger, P.A.]
[________ __], 1997
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
As representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement
referred to below
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We have acted as special Delaware counsel for Entergy
London Investments plc, a public limited company incorporated
under the laws of England and Wales (the "Company"), and Entergy
London Capital, L.P., a Delaware limited partnership (the
"Partnership"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Limited Partnership of the
Partnership, dated as of August 4, 1997 (the "Original
Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on August 4,
1997;
(b) The Agreement of Limited Partnership of the
Partnership, dated as of August 4, 1997 (the "Original
Partnership Agreement"), between the Company, as general partner
of the Partnership (the "General Partner"), and William J. Regan,
Jr., as initial limited partner of the Partnership (the "Initial
Limited Partner);
(c) The Certificate of Amendment to the Original
Certificate, dated as of [________ __,] 1997 (the "Certificate of
Amendment"), as filed in the office of the Secretary of State on
[_________ __,] 1997 (the Original Certificate as amended by the
Certificate of Amendment being hereinafter referred to as the
"Certificate");
(d) Amendment No. 1 to the Original Partnership
Agreement, dated as of [________ __,] 1997, between the General
Partner and the Initial Limited Partner;
(e) The Amended and Restated Limited Partnership
Agreement of the Partnership, dated as of [________ __,] 1997
(including Annex A, Annex B and Exhibit I to Annex B thereto)
(the "Partnership Agreement"), among the General Partner, the
Initial Limited Partner and such Persons who become limited
partners of the Partnership;
(f) The Underwriting Agreement, dated [_______ __],
1997 (the "Underwriting Agreement"), among the Partnership, the
Company and you, as Representatives of the several underwriters
named in Schedule I to the Underwriting Agreement;
(g) The Prospectus, dated [__________ __], 1997 (the
"Prospectus"), relating to 12,000,000 [__]% Cumulative Quarterly
Income Preferred Securities, Series A, of the Partnership
representing limited partner interests in the Partnership (each,
a "Preferred Security" and collectively, the "Preferred
Securities"); and
(h) A Certificate of Good Standing for the
Partnership, dated [________ __], 1997, obtained from the
Secretary of State.
Capitalized terms used herein and not otherwise defined
are used as defined in the Partnership Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (h) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (h) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our
own, but rather have relied solely upon the foregoing documents,
the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Partnership Agreement constitutes the entire agreement among
the parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Partnership, and that the Partnership Agreement and the
Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph (1)
below, the due creation, due organization or due formation, as
the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of each natural person who is a party to
the documents examined by us, (iv) except to the extent provided
in paragraph (2) below, that each of the parties to the documents
examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents,
(v) except to the extent provided in paragraph (9) below, that
each of the parties to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Preferred Security is to be
issued by the Partnership (the "Preferred Security Holders") of a
Preferred Securities Certificate for the Preferred Security and
the payment for the Preferred Security acquired by it, in
accordance with the Partnership Agreement, and as described in
the Prospectus, (vii) that the Preferred Securities are issued
and sold to the Preferred Security Holders in accordance with the
Partnership Agreement, and as described in the Prospectus and
(viii) that the books and records of the Partnership set forth
all information required by the Partnership Agreement and the
Delaware Revised Uniform Limited Partnership Act (6 Del. C. 17-
101, et seq.) (the "Partnership Act"), including all information
with respect to all Persons to be admitted as partners of the
Partnership and their contributions to the Partnership. We have
not participated in the preparation of the Prospectus and assume
no responsibility for its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
(1) The Partnership has been duly formed and is
validly existing in good standing as a limited partnership under
the Partnership Act, and all filings required under the laws of
the State of Delaware with respect to the formation and valid
existence of the Partnership as a limited partnership have been
made.
(2) Under the Partnership Agreement and the
Partnership Act, the Partnership has the partnership power and
authority (i) to own property and conduct its business, all as
described in the Prospectus, (ii) to issue and sell the Preferred
Securities in accordance with the Partnership Agreement, and as
described in the Prospectus, and to perform its other obligations
under the Partnership Agreement, the Underwriting Agreement and
the Preferred Securities, (iii) to execute and deliver the
Underwriting Agreement, and (iv) to consummate the transactions
contemplated by the Underwriting Agreement.
(3) The Partnership Agreement constitutes a valid and
binding obligation of the Company and the General Partner, and is
enforceable against the General Partner, in accordance with its
terms.
(4) The Preferred Securities have been duly authorized
by the Partnership Agreement and are duly and validly issued and,
subject to the qualifications set forth in paragraph (5) below,
fully paid and nonassessable limited partner interests in the
Partnership.
(5) Assuming that the Preferred Security Holders, as
limited partners of the Partnership, do not participate in the
control of the business of the Partnership, the Preferred
Security Holders, as limited partners of the Partnership, will
have no liability in excess of their obligations to make payments
provided for in the Partnership Agreement and their share of the
Partnership's assets and undistributed profits (subject to the
obligation of a Preferred Security Holder to repay any funds
wrongfully distributed to it).
(6) There are no provisions in the Partnership
Agreement the inclusion of which, subject to the terms and
conditions therein, or, assuming that the Preferred Security
Holders, as limited partners of the Partnership, take no action
other than permitted by the Partnership Agreement, the exercise
of which, in accordance with the terms and conditions therein,
would cause the Preferred Security Holders, as limited partners
of the Partnership, to be deemed to be participating in the
control of the business of the Partnership.
(7) Under the Partnership Agreement and the
Partnership Act, the issuance of the Preferred Securities is not
subject to preemptive rights.
(8) The issuance and sale by the Partnership of the
Preferred Securities and the execution, delivery and performance
by the Partnership of the Underwriting Agreement and the
consummation of the transactions contemplated by the Underwriting
Agreement do not violate (a) the Certificate or the Partnership
Agreement or (b) any applicable Delaware law, rule or regulation.
(9) Under the Partnership Agreement and the
Partnership Act, (i) the issuance and sale by the Partnership of
the Preferred Securities and the execution and delivery by the
Partnership of the Underwriting Agreement, and the performance by
the Partnership of its obligations thereunder, have been duly
authorized by all necessary partnership action on the part of the
Partnership and (ii) assuming the due authorization, execution
and delivery of the Underwriting Agreement by the General Partner
under the Partnership Agreement on behalf of the Partnership and
of the Preferred Certificates for the Preferred Securities by the
General Partner on behalf of the Partnership, the Underwriting
Agreement and the Preferred Certificates have been duly executed
and delivered by the Partnership.
The opinion expressed in paragraph (3) above is
subject, as to enforcement, to the effect upon the Partnership
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance
or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in
equity or at law) and (iii) the effect of applicable public
policy on the enforceability of provisions relating to
indemnification or contribution. In addition, in rendering the
opinion expressed in paragraph (3) above, we express no opinion
concerning Section 13.13 of the Partnership Agreement.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with the Underwriting
Agreement. We also consent to the reliance upon this opinion as
to matters of Delaware law by Winthrop, Stimson, Putnam &
Roberts, as if it were addressed to it, in rendering its opinion
to you of even date herewith. Except as stated above, without
our prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER, P.A.
<PAGE>
EXHIBIT D
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[_________ __], 1997
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We have acted as counsel for the several Underwriters
of 12,000,000 [___]% Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per preferred
security) (the "Preferred Securities"), issued by Entergy London
Capital, L.P., a special purpose limited partnership formed under
the laws of the State of Delaware (the "Partnership"), pursuant
to the agreement among you, as the representatives of the several
Underwriters, Entergy London Investments plc, a public limited
company incorporated under the laws of England and Wales (the
"Company"), and the Partnership effective [__________], 1997 (the
"Underwriting Agreement").
We are members of the New York Bar and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon an
opinion of even date herewith addressed to you of Richards,
Layton & Finger, P.A., special Delaware counsel for the Company
and the Partnership, as to the matters covered in such opinion
relating to Delaware law. We have reviewed said opinion and
believe that it is satisfactory. We have also reviewed the
opinion of Reid & Priest LLP required by Section 7(d) of the
Underwriting Agreement, and we believe said opinion to be
satisfactory.
We have also reviewed such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. We have also
reviewed, and have relied as to matters of fact material to this
opinion upon, the documents delivered to you at the closing of
the transactions contemplated by the Underwriting Agreement, and
we have reviewed such other documents and have satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to render this opinion. As to such matters of
fact material to this opinion, we have relied upon
representations and certifications of the Company and the
Partnership in such documents and in the Underwriting Agreement,
and upon statements in the Registration Statement. In such
review, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, the authenticity of the originals of such
documents and all documents submitted to us as originals and the
correctness of all statements of fact contained in all such
original documents. We have not examined the certificates
representing the Preferred Securities or the Debentures except in
each case for specimens thereof, and we have relied upon a
certificate of the General Partner as to the execution and
delivery of the Preferred Securities and a certificate of the
Debenture Trustee as to the authentication and delivery of the
Debentures. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Preferred Securities have been duly authorized
by the Partnership Agreement and are duly and validly issued and
fully paid and nonassessable limited partner interests in the
partnership. Assuming that the holders of the Preferred
Securities, as limited partners of the Partnership, do not
participate in the control of the business of the Partnership,
such holders will have no liability in excess of their
obligations to make payments provided for in the Partnership
Agreement and their share of the Partnership's assets and
undistributed profits (subject to the obligation of a holder of
Preferred Securities to repay any funds wrongfully distributed to
it).
(2) Assuming that the Indenture has been duly
authorized, executed and delivered by the Company insofar as the
laws of England and Wales are concerned, the Indenture (except as
to Sections 115 and 116 thereof, upon which we do not pass) is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and by an implied covenant of good faith and fair dealing.
(3) The statements made in the Prospectus under the
captions "Description of the Preferred Securities", "Description
of the Guarantee", "Description of the Perpetual Junior
Subordinated Debentures", "Relationship Among the Preferred
Securities, the Perpetual Junior Subordinated Debentures and the
Guarantee" and "Underwriting", insofar as they purport to
constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects.
(4) Assuming that the Debentures have been duly
authorized, executed, issued and delivered by the Company insofar
as the laws of England and Wales are concerned, the Debentures
are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or
at law), and by an implied covenant of good faith and fair
dealing, and the Debentures are entitled to the benefits provided
by the Indenture.
(5) Assuming that the Guarantee Agreement has been
duly authorized, executed and delivered by the Company insofar as
the laws of England and Wales are concerned, the Guarantee
Agreement (except as to Sections 8.08 and 8.09 thereof, upon
which we do not pass) is a legal, valid and binding instrument of
the Company enforceable against the Company in accordance with
its terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and by an implied covenant of
good faith and fair dealing.
(6) To the best of our knowledge, each of the
Indenture and the Guarantee Agreement is duly qualified under the
Trust Indenture Act and no proceedings to suspend such
qualification have been instituted or threatened by the
Commission.
(7) An appropriate order has been issued by the
Commission under the 1935 Act authorizing the issuance and sale
of the Securities, and to the best of our knowledge, such order
is in full force and effect; and no further approval,
authorization, consent or other order of any governmental body of
the United States or the State of New York (other than orders of
the Commission under the Securities Act, the Exchange Act and the
Trust Indenture Act, which have been duly obtained, or in
connection or compliance with the provisions of the securities or
blue sky laws of any jurisdiction) is legally required to permit
the issuance and sale of the Securities.
(8) Except in each case as to the financial statements
and other financial data included therein, upon which we do not
pass, the Registration Statement, at the Effective Date, and the
Prospectus, as of its date, complied as to form in all material
respects with the applicable requirements of the Securities Act
and (except with respect to the Form T-1s, upon which we do not
pass) the Trust Indenture Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; and, to the best of our knowledge, the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings
for that purpose are pending or threatened under Section 8(d) of
the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and the Partnership and the information included in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) hereof. In connection
with the preparation by the Company and the Partnership of the
Registration Statement and the Prospectus, we had discussions
with certain officers, employees and representatives of the
Company and its subsidiaries, the Partnership and Entergy
Services, Inc., with counsel for the Company and the Partnership,
with your representatives and with the independent certified
public accountants of the Company who examined certain of the
financial statements included in the Registration Statement. Our
review of the Registration Statement and the Prospectus, and such
discussions, did not disclose to us any information that gives us
reason to believe that the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, as of its date and at the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to the financial statements or other
financial data included in the Registration Statement or
Prospectus or as to the Form T-1s.
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
Exhibit F-1(a)
[Letterhead of Entergy Services, Inc.]
December 2, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration
("Application-Declaration") on Form U-1, as amended (File No.
70-9081), filed by Entergy London Investments plc, herein
referred to as the "Company") with the Securities and Exchange
Commission ("Commission") under the Public Utility Holding
Company Act of 1935, as amended, contemplating, among other
things, the issuance and sale by the Company, through a
special purpose subsidiary, of one or more new series of such
subsidiary's preferred securities, as well as the issuance
ands sale of such subsidiary's general partnership or voting
interests to the Company, the guarantee by the Company of such
subsidiary's payment obligations under said preferred
securities, and the investment of the proceeds from the
issuance and sale of such subsidiary's preferred securities
and the equity contrbution in junior subordinated deferrable
interest debentures of the Company (collectively, the
"Transactions"); (2) the Commission's order dated November 7,
1997 ("Order") permitting the Application-Declaration, as
amended, to become effective with respect to said
Transactions; and (3) the issuance and sale by the Company's
subsidiary, a Delaware limited partnership, Entergy London
Capital, L.P. (the "Partnership"), on November 19, 1997 of
12,000,000 85/8% Cumulative Quarterly Income Preferred
Securities, Series A ($300,000,000 in aggregate principal
amount) (the "Preferred Securities), and the issuance and sale
by the Partnership to the Company of the general partnership
interests in the Partnership for an aggregate purchase price
of $3,030,325 (the "General Partnership Interests"), the
execution and delivery by the Company of a guarantee of the
Partnership's payment obligations under the Preferred
Securities (the "Guarantee"), and the investment by the
Partnership of the proceeds from the issuance and sale of the
Preferred Securities and General Partnership Interests in
$303,030,325 aggregate principal amount of the Company's 85/8%
Junior Subordinated Deferrable Interest Debentures, Series A
(the "Debentures" and, collectively, with the Preferred
Securities and the General Partnership Interests, the
"Securities"), I advise you that in my opinion:
(a) (i) upon the adivce of legal counsel in
the United Kingdom, the Company is a public limited
company duly organized and validly existing under
the laws of England and Wales; and (ii) the
Partnership has been duly created and is validly
existing in good standing as a limited partnership
under the laws of the State of Delaware;
(b) the issuance and sale of the Securities
and the execution and delivery of the Guarantee have
been consummated in accordance with the Application-
Declaration, as amended, and the Order;
(c) all laws that relate or are applicable to
the participation by the Company and the Partnership
in the transactions described above (other than so-
called "blue sky" or similar laws, with respect to
which I express no opinion) have been complied with;
(d) (i) the Preferred Securities and the
General Partnership Interests have been validly
issued and are fully paid and nonassessable and the
holders thereof are entitlted to rights and
privileges appertaining thereto in the Partnership
instruments nad agreements defining such rights and
privileges; and (ii) the Guarantee and the
Debentures are valid and binding obligations of the
Company, each in accordance with their terms, except
as limited by bankruptcy, insolvency, reorganization
or other similar laws affecting enforcement of
mortgagees' and other creditors' rights;
(e) the Company has legally acquired all of
the general partnership interests in the Partnership
and the Partnership has legally acquired the
debentures; and
(f) the consummation of the issuance and sale
of the Preferred Securities and the Debentures and
of the execution and delivery of the Guarantee has
not violated the legal rights of the holders of any
securities issued by the Company or any associate
company thereof.
I am a member of the bars of the States of Texas and
Louisiana and the Commonwealth of Virginia and do not hold
myself out as an expert on the laws of any other state,
although I have made a study of the laws of the other states
insofar as they are involved in the conclusions stated herein
My consent is hereby given to the use of this
opinion as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Laurence M. Hamric
Laurence M. Hamric
General Attorney -
Corporate and Securities
Entergy Services, Inc.
