As filed with the Securities and Exchange Commission on May 13, 1996
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
ENTERGY LOUISIANA CAPITAL I
ENTERGY LOUISIANA, INC. ENTERGY LOUISIANA CAPITAL II
(Exact name of registrant as ENTERGY LOUISIANA CAPITAL III
specified in its charter) (Exact name of each registrant as
specified in Trust Agreements)
Louisiana
(State or other jurisdiction of Delaware
incorporation or organization) (State or other jurisdiction of
incorporation or organization
72-0245590 of each registrant)
(I.R.S. Employer Identification
Number) Each to be Applied for
(I.R.S. Employer Identification
639 Loyola Avenue Numbers)
New Orleans, Louisiana 70113
(504) 529-5262 c/o Entergy Louisiana, Inc.
(Address, including zip code, and 639 Loyola Avenue
telephone number, including New Orleans, Louisiana 70113
area code, of registrant's (504) 529-5262
principal executive offices) (Address, including zip code, and
telephone number, including area
code, of each registrants' principal
executive offices)
JOHN J. CORDARO WILLIAM J. REGAN, JR.
President Vice President and Treasurer
Entergy Louisiana, Inc. Entergy Louisiana, Inc.
639 Loyola Avenue 639 Loyola Avenue
New Orleans, Louisiana 70113 New Orleans, Louisiana 70113
504-576-5851 504-576-4308
LAURENCE M. HAMRIC, Esq. THOMAS J. IGOE, JR., Esq.
DENISE C. REDMANN, Esq. KEVIN STACEY, Esq.
Entergy Services, Inc. Reid & Priest LLP
639 Loyola Avenue 40 West 57th Street
New Orleans, Louisiana 70113 New York, New York 10019
504-576-2272 212-603-2000
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
<PAGE>
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective
when warranted by market conditions and other factors.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]__________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate Amount of
securities being registered registered per unit (1) offering price (1) registration fee
Entergy Louisiana, Inc.
Junior Subordinated
Deferrable Interest
Debentures.
Entergy Louisiana Capital I,
II and III Preferred
Securities..
Entergy Louisiana, Inc.
Guarantees with respect to
Entergy Louisiana Capital
I, II and III Preferred
Securities and Entergy
Louisiana, Inc. obligations
with respect to such
Preferred Securities under
a Corresponding Indenture,
Amended and Restated Trust
Agreements and Expense
Agreements
Total. $150,000,000 (2) 100% $150,000,000 (2) $51,725
</TABLE>
(1)Estimated solely for the purpose of computing the registration
fee.
(2)Such amount represents the principal amount of the Junior
Subordinated Deferrable Interest Debentures. Such amount also
represents the proposed maximum aggregate initial public offering
price of the Entergy Louisiana Capital I, II and III Preferred
Securities. No separate consideration will be received for any
Entergy Louisiana, Inc. Guarantees and other obligations.
__________________
The Registrants hereby amend this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrants shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until
this Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 10, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED ___________________
__________________________ Preferred Securities
ENTERGY LOUISIANA CAPITAL I
___% Cumulative Quarterly Income Preferred Securities, Series A
(QUIPSsm)*
(Liquidation preference $25 per preferred security)
Guaranteed to the extent the Series A Issuer has funds as set
forth herein by
ENTERGY LOUISIANA, INC.
The ___% Cumulative Quarterly Income Preferred Securities,
Series A (the "Series A Preferred Securities") offered hereby
represent undivided beneficial interests in the assets of Entergy
Louisiana Capital I, a trust created under the laws of the State
of Delaware (the "Series A Issuer"). Entergy Louisiana, Inc.
(formerly Louisiana Power & Light Company), a Louisiana
corporation (the "Company"), will be the owner of the beneficial
interests represented by common securities of the Series A Issuer
(the "Series A Common Securities"). The Bank of New York is the
Property Trustee of the Series A Issuer. The Series A Issuer
exists for the sole purpose of issuing the Series A Preferred
Securities and the Series A Common Securities and investing the
proceeds thereof in ___% Junior Subordinated Deferrable Interest
Debentures, Series A, Due _____ (the "Series A Debentures") to be
issued by the Company. The Series A Preferred Securities will
have a preference under certain circumstances with respect to
cash distributions and amounts payable on liquidation, redemption
or otherwise over the Series A Common Securities. See
"Description of Preferred Securities--Subordination of Common
Securities" in the accompanying Prospectus.
(Continued on next page)
__________
SEE "RISK FACTORS" BEGINNING ON PAGE S-___ HEREOF FOR CERTAIN
INFORMATION RELEVANT TO INVESTMENT IN THE SERIES A PREFERRED
SECURITIES.
___________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT
RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
__________
Proceeds to
Initial Underwritin the Series
Public g A
Offering Commission Issuer (2)
Price (1) (3)
Per Series A Preferred (2)
Security........
Total........... (2)
__________
(1) The Series A Issuer and the Company have agreed to
indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities
Act of 1933, as amended. See "Underwriting" .
(2) In view of the fact that the proceeds of the sale of the
Series A Preferred Securities will be used to purchase the
Series A Debentures, the Underwriting Agreement provides
that the Company will pay to the Underwriters, as
compensation ("Underwriters' Compensation") for their
arranging the investment therein of such proceeds, $_____
per Series A Preferred Security (or $ __ in the
aggregate). See "Underwriting" .
(3) Expenses of the offering, which are payable by the
Company, are estimated to be $________.
__________
The Series A Preferred Securities offered hereby are offered
severally by the Underwriters, as specified herein and subject to
receipt and acceptance by them and subject to their right to
reject any order in whole or in part. It is expected that
delivery of the Series A Preferred Securities will be made only
in book entry form through the facilities of The Depository Trust
Company in New York, New York on or about ___________, 1996,
against payment therefor in immediately available funds.
__________
*QUIPS is a servicemark of Goldman, Sachs & Co.
_________
Goldman, Sachs & Co.
The date of this Prospectus Supplement is _____________________.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed
with the Securities and Exchange Commission. These securities may not
be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This Prospectus Supplement
and the accompanying Prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under
the securities laws of any such State.
1(Continued from previous page)
Holders of the Series A Preferred Securities will be entitled to
receive preferential cumulative cash distributions accruing from the
date of original issuance and payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year, commencing
_____ , 1996, at the annual rate of ___% of the liquidation preference
of $25 per Series A Preferred Security ("Distributions"). The Company
has the right to defer the payment of interest on the Series A
Debentures at any time or from time to time for one or more periods
(each, an "Extension Period"), provided that such Extension Period,
together with all previous and further extensions thereof prior to its
termination, does not exceed 20 consecutive quarters and does not
extend beyond the maturity of the Series A Debentures. Upon the
termination of any such Extension Period and the payment of all
amounts then due, the Company may elect to begin a new Extension
Period subject to the requirements set forth herein. If interest
payments are so deferred, Distributions on the Series A Preferred
Securities will also be deferred and the Company will not be
permitted, subject to certain exceptions set forth herein, to declare
or pay any cash distributions with respect to the Company's capital
stock or debt securities that rank pari passu with or junior to the
Series A Debentures or make any guarantee payments with respect to the
foregoing. During an Extension Period, interest on the Series A
Debentures will continue to accrue (and the Series A Preferred
Securities will accumulate additional Distributions thereon at the
rate of ___% per annum, compounded quarterly), and holders of Series A
Preferred Securities will be required to accrue interest income for
United States Federal income tax purposes. See "Certain Terms of the
Series A Debentures--Option to Extend Interest Payment Period" and
"Certain United States Federal Income Tax Considerations--Potential
Extension of Interest Payment Period and Original Issue Discount".
The Company has, through the Series A Guarantee, the Series A
Trust Agreement, the Series A Debentures, the Corresponding Indenture
and the Series A Expense Agreement (each as defined herein), taken
together, fully, irrevocably and unconditionally guaranteed all of the
Series A Issuer's obligations under the Series A Preferred Securities.
The Series A Guarantee of the Company guarantees the payment of
Distributions and payments on liquidation of the Series A Issuer or
redemption of the Series A Preferred Securities as set forth below, in
each case out of funds held by the Series A Issuer, to the extent
described herein (the "Series A Guarantee"). See "Description of
Guarantees" in the accompanying Prospectus. If the Company does not
make interest payments on the Series A Debentures held by the Series A
Issuer, the Series A Issuer will have insufficient funds to pay
Distributions on the Series A Preferred Securities. The Series A
Guarantee does not cover payment of Distributions when the Series A
Issuer does not have sufficient funds to pay such Distributions.The
obligations of the Company under the Series A Guarantee are
subordinate and junior in right of payment to all Senior Debt (as
defined in "Description of Junior Subordinated Debentures--
Subordination" in the accompanying Prospectus) of the Company.
The Series A Preferred Securities are subject to mandatory
redemption, in whole or in part, upon repayment of the Series A
Debentures at maturity or their earlier redemption in an amount equal
to the amount of related Series A Debentures maturing or being
redeemed at a redemption price equal to the aggregate liquidation
preference of such Series A Preferred Securities plus accumulated and
unpaid Distributions thereon to the date of redemption. The Series A
Debentures are redeemable prior to maturity at the option of the
Company (i) on or after ___________________, 2001, in whole at any
time or in part from time to time, at a redemption price equal to the
accrued and unpaid interest on the Series A Debentures so redeemed to
the date fixed for redemption plus 100% of the principal amount
thereof, or (ii) at any time, in whole (but not in part), upon the
occurrence and continuation of a Special Event (as defined herein), at
a redemption price equal to the accrued and unpaid interest on the
Series A Debentures so redeemed to the date fixed for redemption plus
100% of the principal amount thereof, in each case subject to the
further conditions described under "Description of Junior Subordinated
Debentures--Redemption" and "Description of Corresponding Junior
Subordinated Debentures--Optional Redemption" in the accompanying
Prospectus.
The Series A Debentures are subordinate and junior in right of
payment to all Senior Debt of the Company. As of March 31, 1996, the
Company had approximately $1.6 billion of Senior Debt outstanding.
The terms of the Series A Debentures place no limitation on the amount
of Senior Debt that may be incurred by the Company. See "Description
of Junior Subordinated Debentures--Subordination" in the accompanying
Prospectus.
In the event of the liquidation of the Series A Issuer, the
holders of the Series A Preferred Securities will be entitled to
receive a liquidation preference of $25 per Series A Preferred
Security plus accumulated and unpaid Distributions thereon to the date
of payment, which may be in the form of a distribution of such amount
in Series A Debentures, subject to certain limitations. See
"Description of Preferred Securities--Liquidation Distribution Upon
Termination" in the accompanying Prospectus.
Application has been made to list the Series A Preferred
Securities on the New York Stock Exchange (the "NYSE"). If the Series
A Debentures are distributed to the holders of Series A Preferred
Securities upon the liquidation of the Series A Issuer, the Company
will use its best efforts to list the Series A Debentures on the NYSE
or such other stock exchanges, if any, on which the Series A Preferred
Securities are then listed.
The Series A Preferred Securities will be represented by one or
more global certificates registered in the name of The Depository
Trust Company ("DTC") or its nominee. Beneficial interests in the
Series A Preferred Securities will be shown on, and transfers thereof
will be effected only through, records maintained by participants in
DTC. Except as described in the accompanying Prospectus, Series A
Preferred Securities in certificated form will not be issued in
exchange for the global certificates. See "Description of Preferred
Securities--Book-Entry Issuance" in the accompanying Prospectus.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT
OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF
THE SERIES A PREFERRED SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE
EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
__________________________
The following information supplements, and to the extent is
inconsistent with, replaces, the information contained in the
accompanying Prospectus, and should be read in conjunction therewith.
As used herein, (i) the "Corresponding Indenture" means the Indenture
for Unsecured Subordinated Debt Securities relating to Trust
Securities, as the same may be amended and supplemented from time to
time, dated as of June 1, 1996, between the Company and The Bank of
New York, as Corresponding Debenture Trustee, pursuant to which the
Series A Debentures will be issued, and (ii) the "Series A Trust
Agreement" means the Amended and Restated Trust Agreement, dated as of
________________, 1996, among the Company, as Depositor, The Bank of
New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee, and the Administrative Trustees named therein. Each
of the other capitalized terms used in this Prospectus Supplement has
the meaning set forth in this Prospectus Supplement or in the
accompanying Prospectus.
RISK FACTORS
Prospective purchasers of the Series A Preferred Securities should
carefully review the information contained elsewhere in this
Prospectus Supplement and in the accompanying Prospectus and should
particularly consider the following matters.
Ranking of Subordinated Obligations Under the Series A Guarantee and
the Series A Debentures
The obligations of the Company under the Series A Guarantee issued
by the Company for the benefit of the holders of Series A Preferred
Securities are unsecured and rank subordinate and junior in right of
payment to all Senior Debt of the Company. The obligations of the
Company under the Series A Debentures are subordinate and junior in
right of payment to all such Senior Debt. At March 31, 1996, Senior
Debt of the Company aggregated approximately $1.6 billion. None of
the Corresponding Indenture, the Series A Guarantee or the Series A
Trust Agreement place any limitation on the amount of secured or
unsecured debt, including Senior Debt, that may be incurred by the
Company. See "Description of Guarantees--Status of the Guarantees"
and "Description of Junior Subordinated Debentures--Subordination" in
the accompanying Prospectus.
The ability of the Series A Issuer to pay amounts due on the
Series A Preferred Securities is solely dependent upon the Company
making payments on the Series A Debentures as and when required.
Option to Extend Interest Payment Period; Tax Consequences; Potential
Market Volatility During Extension Period
The Company has the right under the Corresponding Indenture to
defer the payment of interest on the Series A Debentures at any time
or from time to time for one or more Extension Periods, each of which,
together with all previous and further extensions of such Extension
Period prior to its termination, does not exceed 20 consecutive
quarters and does not extend beyond the maturity of the Series A
Debentures. As a consequence of any such election, quarterly
Distributions on the Series A Preferred Securities would be deferred
(but would continue to accumulate additional Distributions thereon at
the rate of ___% per annum, compounded quarterly) by the Series A
Issuer during any such Extension Period. In the event that the
Company exercises this right, during any such Extension Period, the
Company may not (i) 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 (ii) make any
payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities (including other Junior
Subordinated Debentures ) that rank pari passu with or junior in
interest to the Series A Debentures or make any guarantee payments
with respect to the foregoing (other than (a) dividends or
distributions in shares of capital stock of the Company and (b)
payments under any Guarantee). Upon the termination of any Extension
Period and the payment of all amounts then due, the Company may elect
to begin a new Extension Period, subject to the above requirements.
Consequently, there could be multiple Extension Periods of varying
lengths throughout the term of the Series A Debentures. See "Certain
Terms of the Series A Preferred Securities--Distributions" and
"Certain Terms of the Series A Debentures--Option to Extend Interest
Payment Period".
Should an Extension Period occur, a holder of Series A Preferred
Securities will continue to accrue interest income in respect of its
pro rata share of the Series A Debentures held by the Series A Issuer
for United States Federal income tax purposes. As a result, a holder
of Series A Preferred Securities will include such interest in gross
income for United States Federal income tax purposes in advance of the
receipt of cash, and will not receive the cash related to such income
from the Series A Issuer if the holder disposes of the Series A
Preferred Securities prior to the record date for the payment of
Distributions. See "Certain United States Federal Income Tax
Considerations--Potential Extension of Interest Payment Period and
Original Issue Discount" and "--Sale, Exchange and Redemption of the
Series A Preferred Securities".
The Company has no current intention of exercising its right to
defer payments of interest by extending the interest payment period on
the Series A Debentures. However, should the Company elect to
exercise such right in the future, the market price of the Series A
Preferred Securities is likely to be affected. A holder that disposes
of its Series A Preferred Securities during an Extension Period,
therefore, might not receive the same return on its investment as a
holder that continues to hold its Series A Preferred Securities. In
addition, as a result of the existence of the Company's right to defer
interest payments, the market price of the Series A Preferred
Securities (which represent a preferred undivided beneficial interest
in the Series A Debentures) may be more volatile than other securities
on which original issue discount accrues that do not have such rights.
Special Event Redemption or Distribution
Upon the occurrence and continuation of a Special Event, as
described in "Description of Preferred Securities--Redemption--Special
Event Redemption or Distribution" in the accompanying Prospectus, the
Company has the right to (i) redeem the Series A Debentures in whole
(but not in part) and therefore cause a mandatory redemption of the
Series A Preferred Securities and Series A Common Securities at a
redemption price equal to the accrued and unpaid interest on the
Series A Debentures so redeemed to the date fixed for redemption plus
100% of the principal amount thereof, within 90 days following the
occurrence of such Special Event, or (ii) terminate the Series A
Issuer and, after satisfaction of creditors of the Series A Issuer, if
any, as provided by applicable law, cause the Series A Debentures to
be distributed to the holders of the Series A Preferred Securities and
Series A Common Securities in liquidation of the Series A Issuer. If
at any time the Series A Issuer is not or will not be taxed as a
grantor trust but a Tax Event (as defined in "Description of Preferred
Securities--Redemption--Special Event Redemption or Distribution" in
the accompanying Prospectus) in respect of the Series A Preferred
Securities has not occurred, the Company has the right to terminate
the Series A Issuer and, after satisfaction of creditors of the Series
A Issuer, if any, as provided by applicable law, cause the Series A
Debentures to be distributed to the holders of the Series A Preferred
Securities in liquidation of the Series A Issuer. See "Description of
Preferred Securities--Redemption--Special Event Redemption or
Distribution" in the accompanying Prospectus.
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the
"Bill"), the revenue portion of President Clinton's budget proposal,
was released. The Bill would, among other things, generally deny
interest deductions for interest on an instrument issued by a
corporation that has a maximum weighted average maturity of more than
40 years. The Bill would also generally treat as equity an
instrument, issued by a corporation, that has a maximum term of more
than 20 years and that is not shown as indebtedness on the separate
balance sheet of the issuer or, where the instrument is issued to a
related party (other than a corporation), where the holder or some
other related party issues a related instrument that is not shown as
indebtedness on the issuer's consolidated balance sheet.The above-
described provisions were proposed to be effective generally for
instruments issued on or after December 7, 1995. If either provision
were to apply to the Series A Debentures, the Company would be unable
to deduct interest on the Series A Debentures. However, on March 29,
1996, the Chairmen of the Senate Finance and House Ways and Means
Committees issued a joint statement to the effect that it was their
intention that the effective date of the President's legislative
proposals, if adopted, would be no earlier than the date of
appropriate Congressional action.There can be no assurance, however,
that current or future legislative proposals or final legislation will
not affect the ability of the Company to deduct interest on the Series
A Debentures. If legislation were enacted limiting, in whole or in
part, the deductibility by the Company of interest on the Series A
Debentures for United States Federal income tax purposes, such
enactment could give rise to a Tax Event or a Debenture Tax Event. A
Tax Event would permit the Company to cause a redemption of the Series
A Preferred Securities or a distribution of such Series A Debentures
in liquidation of the Series A Issuer, as described more fully under
"Description of Preferred Securities--Redemption--Special Event
Redemption or Distribution" in the accompanying Prospectus. A
Debenture Tax Event would permit the Company to redeem the Series A
Debentures, as described more fully under "Description of
Corresponding Junior Subordinated Debentures--Optional Redemption" and
"Description of Junior Subordinated Debentures--Redemption" in the
accompanying Prospectus.
There can be no assurance as to the market prices for Series A
Preferred Securities or Series A Debentures that may be distributed in
exchange for Series A Preferred Securities if a termination or
liquidation of the Series A Issuer were to occur. Accordingly, the
Series A Preferred Securities that an investor may purchase, whether
pursuant to the offer made hereby or in the secondary market, or the
Series A Debentures that a holder of Series A Preferred Securities may
receive on termination or liquidation of the Series A Issuer, may
trade at a discount to the price that the investor paid to purchase
the Series A Preferred Securities offered hereby. Because holders of
Series A Preferred Securities may receive Series A Debentures upon the
occurrence of a Special Event, prospective purchasers of Series A
Preferred Securities are also making an investment decision with
regard to the Series A Debentures and should carefully review all the
information regarding the Series A Debentures contained herein. See
"Description of Preferred Securities--Redemption--Special Event
Redemption or Distribution" and "Description of Corresponding Junior
Subordinated Debentures--General" in the accompanying Prospectus.
Rights under the Series A Guarantee
The Series A Guarantee will be qualified as an indenture under the
Trust Indenture Act. The Bank of New York will act as Guarantee
Trustee for the purposes of compliance with the Trust Indenture Act
and will hold the Series A Guarantee for the benefit of the holders of
the Series A Preferred Securities. The Bank of New York will also act
as Debenture Trustee for the Series A Debentures and as Property
Trustee under the Series A Trust Agreement. The Bank of New York
(Delaware) will act as Delaware Trustee under the Series A Trust
Agreement. The Series A Guarantee guarantees to the holders of the
Series A Preferred Securities the following payments, to the extent
not paid by the Series A Issuer: (i) any accumulated and unpaid
Distributions required to be paid on the Series A Preferred
Securities, to the extent that the Series A Issuer has funds on hand
available therefor, (ii) the redemption price with respect to any
Series A Preferred Securities called for redemption to the extent that
the Series A Issuer has funds on hand available therefor, and (iii)
upon a voluntary or involuntary dissolution, winding up or liquidation
of the Series A Issuer (unless the Series A Debentures are distributed
to holders of the Series A Preferred Securities), the lesser of (a)
the aggregate of the liquidation preference amount and all accumulated
and unpaid Distributions to the date of payment and (b) the amount of
assets of the Series A Issuer remaining available for distribution to
holders of the Series A Preferred Securities. The holders of not less
than a majority in aggregate liquidation preference amount of the
Series A 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 the Series A Guarantee or to
direct the exercise of any trust power conferred upon the Guarantee
Trustee under the Series A Guarantee. Any holder of the Series A
Preferred Securities may institute a legal proceeding directly against
the Company to enforce its rights under the Series A Guarantee without
first instituting a legal proceeding against the Series A Issuer, the
Guarantee Trustee or any other person or entity. If the Company were
to default on its obligation to pay amounts payable under the Series A
Debentures, the Series A Issuer would lack funds for the payment of
Distributions or amounts payable on redemption of the Series A
Preferred Securities or otherwise, and, in such event, holders of the
Series A Preferred Securities would not be able to rely upon the
Series A Guarantee for payment of such amounts. If the Property
Trustee fails to enforce its rights under the Series A Debentures or
the Series A Trust Agreement, a holder of Series A Preferred
Securities may institute a legal proceeding directly against the
Company to enforce the Property Trustee's rights under the Series A
Debentures or the Series A Trust Agreement, to the fullest extent
permitted by law, without first instituting any legal proceeding
against the Property Trustee or any other person or entity.
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 aggregate
liquidation preference amount of the Series A Preferred Securities of
such holder on or after the due dates specified in the Series A
Debentures. See "Description of Guarantees" and "Description of
Corresponding Junior Subordinated Debentures" in the accompanying
Prospectus. The Series A Trust Agreement provides that each holder of
Series A Preferred Securities, by acceptance thereof, agrees to the
provisions of the Series A Guarantee and the Corresponding Indenture.
Limited Voting Rights
Holders of Series A Preferred Securities will generally have
limited voting rights relating only to the modification of the Series
A Preferred Securities and the dissolution, winding-up or termination
of the Series A Issuer. Holders of Series A Preferred Securities will
not be entitled to vote to appoint, remove or replace the Property
Trustee or the Delaware Trustee, which voting rights are vested
exclusively in the holder of the Series A Common Securities except
upon the occurrence of certain events described herein. The
Administrative Trustees and the Company may amend the Series A Trust
Agreement to ensure that the Series A Issuer will be classified for
United States Federal income tax purposes as a grantor trust without
the consent of holders, unless such action adversely affects in any
material respect the interests of holders. See "Description of
Preferred Securities--Voting Rights; Amendment of Trust Agreement" and
"--Removal of Issuer Trustees" in the accompanying Prospectus.
Trading Characteristics of Series A Preferred Securities
Application will be made to list the Series A Preferred Securities
on the NYSE. If approved for listing, the Series A Preferred
Securities may trade at a price that does not fully reflect the value
of accrued but unpaid interest with respect to the underlying Series A
Debentures. A holder of Series A Preferred Securities who disposes of
its Series A Preferred Securities between record dates for payments of
Distributions will nevertheless be required to include accrued but
unpaid interest on the Series A Debentures through the date of
disposition in income as ordinary income and to add such amount to its
adjusted tax basis in its Series A Preferred Securities disposed of.
Such holder will recognize a capital loss to the extent that the
selling price (which may not fully reflect the value of accrued but
unpaid interest) is less than its adjusted tax basis (which will
include accrued but unpaid interest). Subject to certain limited
exceptions, capital losses cannot be applied to offset ordinary income
for United States Federal income tax purposes. See "Certain United
States Federal Income Tax Considerations--Sale, Exchange and
Redemption of the Series A Preferred Securities".
ENTERGY LOUISIANA CAPITAL I
Entergy Louisiana Capital I is a statutory business trust created
under Delaware law pursuant to (i) a trust agreement executed by the
Company, as depositor of the Series A Issuer, the Property Trustee,
the Delaware Trustee, and an Administrative Trustee who is an officer
of the Company and (ii) the filing of a certificate of trust with the
Delaware Secretary of State. Such trust agreement will be amended and
restated in its entirety substantially in the form of the Series A
Trust Agreement filed as an exhibit to the Registration Statement of
which this Prospectus Supplement is a part. The Series A Trust
Agreement will be qualified as an indenture under the Trust Indenture
Act. The Series A Issuer's business and affairs will be conducted by
five Issuer Trustees: The Bank of New York, as Property Trustee, The
Bank of New York (Delaware), as Delaware Trustee, and three individual
Administrative Trustees who are employees or officers of or affiliated
with the Company. The Series A Issuer exists for the exclusive
purposes of (i) issuing and selling the Series A Preferred Securities
and Series A Common Securities, (ii) using the proceeds from the sale
of such securities to acquire Series A Debentures issued by the
Company and (iii) engaging in only those other activities necessary,
convenient or incidental thereto. Accordingly, the Series A
Debentures will be the sole assets of the Series A Issuer, and
payments under the Series A Debentures will be the sole revenue of the
Series A Issuer. All of the Series A Common Securities will be owned
by the Company. The Series A Common Securities will rank pari passu,
and payments will be made thereon pro rata, with the Series A
Preferred Securities, except that upon the occurrence and continuance
of a Debenture Event of Default, the rights of the Company as holder
of the Series A Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption or otherwise
will be subordinated to the rights of the holders of the Series A
Preferred Securities. See "Description of Preferred
Securities--Subordination of Common Securities" in the accompanying
Prospectus. The Company will acquire Series A Common Securities
having an aggregate liquidation amount equal to 3% of the total
capital of the Series A Issuer. The Series A Issuer has a term of
approximately 54 years, but may terminate earlier as provided in the
Series A Trust Agreement. The principal executive office of the
Series A Issuer is 639 Loyola Avenue, New Orleans, LA 70113,
Attention: Treasurer, and its telephone number is (504) 576-4308.
See "The Issuers" in the accompanying Prospectus.
USE OF PROCEEDS
All of the proceeds from the sale of the Series A Preferred
Securities will be invested by the Series A Issuer in Series A
Debentures. The Company intends to use the proceeds from the sale of
such Series A Debentures to redeem shares of its preferred stock as
follows: [ ].
__________________
<PAGE>
SELECTED FINANCIAL INFORMATION
(Dollars in Thousands)
The selected financial information of the Company set forth below
has been derived from and should be read in conjunction with the
financial statements and other financial information contained in the
Incorporated Documents.
<TABLE>
<CAPTION>
For the Twelve Months Ended
December 31
<S> <C> <C> <C> <C> <C> <C>
March 31,
1996 1995 1994 1993 1992 1991
Income Statement Data: --------- --------- --------- --------- --------- ---------
Operating Revenues $1,739,180 $1,674,87 $1,710,415 $1,731,541 $1,553,745 $1,528,934
Operating Income 335,590 5 343,120 321,612 318,280 332,496
Interest Expense (net) 133,364 332,269 133,977 135,209 140,628 167,291
Net Income 206,005 134,885 213,839 188,808 182,989 166,572
Ratio of Earnings to 201,537
Fixed Charges 3.26 2.91 3.06 2.79 2.40
3.18
</TABLE>
CAPITALIZATION
(Dollars in Thousands)
The following table sets forth the consolidated capitalization of
the Company as of March 31, 1996. The following data is qualified in
its entirety by the financial statements of the Company and other
information contained elsewhere in this Prospectus Supplement and the
accompanying Prospectus or incorporated herein or therein by
reference.
<TABLE>
<CAPTION>
As of March 31, 1996
Actual
<S> <C> <C>
Balance Sheet Data: Amount Percent
Capitalization:
Common Stock and Paid-in Capital $1,084,020 38.9
Retained Earnings 57,564 2.1
Total Common Shareholder's Equity 1,141,584 41.0
Preferred Stock (without sinking fund) 160,500 5.8
Preferred Stock (with sinking fund) 92,509 3.3
Company Obligated Mandatorily
Redeemable Preferred Securities
of Subsidiary Trust (1) - -
First Mortgage Bonds (2) 614,907 22.1
Other Long-Term Debt (2) 774,376 27.8
Total Capitalization $2,783,876 100.0
</TABLE>
(1) As described herein, all of the assets of the Series A Issuer
will be $_____ million of the Series A Debentures. The Company
owns all of the Series A Common Securities of the Series A Issuer.
(2) Excludes current maturities of First Mortgage Bonds and Other Long-
Term Debt that totaled $111 million and $257,900, respectively.
CERTAIN TERMS OF THE SERIES A PREFERRED SECURITIES
General
The following summary of certain terms and provisions of the
Series A Preferred Securities supplements, and, to the extent
inconsistent with, replaces, the description of the terms and
provisions of the Preferred Securities set forth in the accompanying
Prospectus under the heading "Description of Preferred Securities", to
which description reference is hereby made. This summary of certain
terms and provisions of the Series A Preferred Securities does not
purport to be complete and is subject to, and qualified in its
entirety by reference to, the Series A Trust Agreement. The form of
the Series A Trust Agreement has been filed as an exhibit to the
Registration Statement of which this Prospectus Supplement and
accompanying Prospectus are a part.
Distributions
The Series A Preferred Securities represent undivided beneficial
interests in the assets of the Series A Issuer and Distributions on
each Series A Preferred Security will be payable at the annual rate of
___% of the stated liquidation preference amount of $25, payable
quarterly in arrears on March 31, June 30, September 30 and December
31 of each year. Distributions that are in arrears for more than one
quarter will accumulate additional Distributions thereon at the rate
per annum of _____% thereof, compounded quarterly ("Additional
Amounts"). The term "Distributions" as used herein shall include any
such Additional Amounts. Distributions will accumulate from
____________, 1996, the date of original issuance. The first
Distribution payment date for the Series A Preferred Securities will
be _______ __, 1996, and such Distribution will be cumulative from the
date of original issuance. The amount of Distributions payable for
any period will be computed on the basis of a 360-day year of twelve
30-day months. See "Description of Preferred Securities--
Distributions" in the accompanying Prospectus.
So long as no Debenture Event of Default under the Corresponding
Indenture has occurred and is continuing, the Company has the right
under the Corresponding Indenture to defer the payment of interest on
the Series A Debentures at any time and from time to time, for one or
more Extension Periods, each of which, together with all previous and
further extensions of such Extension Period prior to its termination,
does not exceed 20 consecutive quarters and does not extend beyond the
maturity of the Series A Debentures. As a consequence of any
election, quarterly Distributions on the Series A Preferred Securities
would be deferred (but would continue to accumulate additional
Distributions thereon at the rate of ___% per annum, compounded
quarterly) by the Series A Issuer during any such Extension Period.
In the event that the Company exercises this right, during any such
Extension Period, the Company may not (i) 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 (ii) make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any debt securities (including
other Junior Subordinated Debentures) that rank pari passu with or
junior in interest to the Series A Debentures or make any guarantee
payments with respect to the foregoing (other than (a) dividends or
distributions in shares of capital stock of the Company and (b)
payments under any Guarantee). Upon the termination of any such
Extension Period and the payment of all amounts then due, the Company
may elect to begin a new Extension Period, subject to the above
requirements. See "Certain Terms of the Series A Debentures--Option
to Extend Interest Payment Period" and "Certain United States Federal
Income Tax Consequences--Potential Extension of Interest Payment
Period and Original Issue Discount".
The Company has no current intention of exercising its right to
defer payments of interest by extending the interest payment period on
the Series A Debentures.
Redemption
Upon the repayment or redemption, in whole or in part, of the
Series A Debentures, whether at maturity or upon earlier redemption as
provided in the Corresponding Indenture, the proceeds from such
repayment or redemption shall be applied by the Property Trustee to
redeem a Like Amount of the Series A Preferred Securities, upon not
less than 30 nor more than 60 days notice, at a Redemption Price equal
to the aggregate liquidation preference of such Series A Preferred
Securities plus accumulated and unpaid Distributions thereon to the
Redemption Date. See "Description of Preferred Securities--
Redemption" in the accompanying Prospectus and "Certain Terms of the
Series A Debentures--Redemption". The Company will have the right to
redeem the Series A Debentures (i) on or after ___________, 2001, in
whole at any time or in part from time to time, at a redemption price
equal to the accrued and unpaid interest on the Series A Debentures so
redeemed to the date fixed for redemption plus 100% of the principal
amount thereof, or (ii) at any time, in whole (but not in part), upon
the occurrence of a Special Event, at a redemption price equal to the
accrued and unpaid interest on the Series A Debentures so redeemed to
the date fixed for redemption plus 100% of the principal amount
thereof, in each case subject to the further conditions described
under "Description of Junior Subordinated Debentures--Redemption" and
"Description of Corresponding Junior Subordinated Debentures--Optional
Redemption" in the accompanying Prospectus.
Liquidation Value
The amount payable on the Series A Preferred Securities in the
event of any liquidation of the Series A Issuer is $25 per Series A
Preferred Security plus accumulated and unpaid Distributions, unless,
subject to certain exceptions, in connection with such liquidation,
the Series A Debentures are distributed to the holders of the Series A
Preferred Securities. See "Description of Preferred Securities--
Liquidation Distribution upon Termination" in the accompanying
Prospectus.
CERTAIN TERMS OF THE SERIES A DEBENTURES
General
The following summary of certain terms and provisions of the
Series A Debentures supplements, and to the extent inconsistent with,
replaces, the description of the terms and provisions of the
Corresponding Junior Subordinated Debentures set forth in the
accompanying Prospectus under the headings "Description of Junior
Subordinated Debentures" and "Description of Corresponding Junior
Subordinated Debentures", to which description reference is hereby
made. The summary of certain terms and provisions of the Series A
Debentures set forth below does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the
Corresponding Indenture. The Corresponding Indenture has been filed
as an exhibit to the Registration Statement of which this Prospectus
Supplement and accompanying Prospectus are a part.
Concurrently with the issuance of the Series A Preferred
Securities, the Series A Issuer will invest the proceeds thereof and
the consideration paid by the Company for the Series A Common
Securities in the Series A Debentures issued by the Company. The
Series A Debentures will bear interest at the annual rate of ____% of
the principal amount thereof, payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (each, an
"Interest Payment Date"), commencing _______ __, 1996, to the person
in whose name each Series A Debenture is registered, subject to
certain exceptions, at the close of business on the Business Day (as
defined in the Corresponding Indenture) next preceding such Interest
Payment Date. Each Series A Debenture will be held in the name of the
Series A Property Trustee in trust for the benefit of the holders of
the Series A Preferred Securities. The amount of interest payable for
any period will be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is
payable on the Series A Debentures 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 any 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 date such payment was
originally payable. Interest that is in arrears for more than one
quarter will bear the additional interest on the amount thereof (to
the extent permitted by law) at the rate per annum of ___% thereof,
compounded quarterly. The term "interest" as used herein shall
include quarterly interest payments, interest on quarterly interest
payments in arrears and Additional Interest, as applicable.
The Series A Debentures will be issued as a series of Junior
Subordinated Debentures under the Corresponding Indenture. The Series
A Debentures will mature on ____________, _____. The Series A
Debentures will be unsecured and will rank junior and be subordinate
in right of payment to all Senior Debt of the Company. The
Corresponding Indenture does not limit the incurrence or issuance of
other secured or unsecured debt of the Company, whether under the
Corresponding Indenture, any other indenture that the Company may
enter into in the future or otherwise. See "Description of Junior
Subordinated Debentures--Subordination" in the accompanying
Prospectus.
Option to Extend Interest Payment Period
So long as no Debenture Event of Default under the Corresponding
Indenture has occurred and is continuing, the Company has the right
under the Corresponding Indenture at any time during the term of the
Series A Debentures to defer the payment of interest at any time or
from time to time for one or more Extension Periods, each of which,
together with all previous and further extensions of such Extensions
Period prior to its termination, does not exceed 20 consecutive
quarters and does not extend beyond the maturity of the Series A
Debentures. At the end of such Extension Period, the Company must pay
all interest then accrued and unpaid (together with interest thereon
at the annual rate of _____% to the extent permitted by applicable
law). During an Extension Period, interest will continue to accrue
and holders of Series A Debentures will be required to accrue interest
income for United States Federal income tax purposes. See "Certain
United States Federal Income Tax Considerations-Potential Extension of
Interest Payment Period and Original Issue Discount".
In the event that the Company exercises this right, during any
such Extension Period, the Company may not (i) 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 (ii) make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any debt securities (including
other Junior Subordinated Debentures) that rank pari passu with or
junior in interest to the Series A Debentures or make any guarantee
payments with respect to the foregoing (other than (a) dividends or
distributions in shares of capital stock of the Company and (b)
payments under any Guarantee).Upon the termination of any such
Extension Period and the payment of all amounts then due, the Company
may elect to begin a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company must give
the Property Trustee, the Administrative Trustees and the
Corresponding Debenture Trustee notice of its selection of such
Extension Period at least one Business Day prior to the earlier of (i)
the date the Distributions on the Series A Preferred Securities are
payable and (ii) the date the Administrative Trustees are required to
give notice to the NYSE or other applicable self-regulatory
organization or to holders of such Series A Preferred Securities of
the record date or the date such Distributions are payable, but in any
event not less than one Business Day prior to such record date. An
Administrative Trustee shall give notice of the Company's election to
begin such Extension Period to the holders of the Series A Preferred
Securities within five business days of the receipt of notice thereof.
See "Description of Junior Subordinated Debentures--Option to Extend
Interest Payment Period" in the accompanying Prospectus.
Redemption
The Series A Debentures are redeemable prior to maturity at the
option of the Company (i) on or after ________, 2001, in whole at any
time or in part from time to time, at a redemption price equal to the
accrued and unpaid interest on the Series A Debentures so redeemed to
the date fixed for redemption plus 100% of the principal amount
thereof, or (ii) at any time, in whole (but not in part), upon the
occurrence of a Special Event, at a redemption price equal to the
accrued and unpaid interest on the Series A Debentures so redeemed to
the date fixed for redemption plus 100% of the principal amount
thereof, in each case subject to the further conditions described
under "Description of Junior Subordinated Debentures--Redemption" and
"Description of Corresponding Junior Subordinated Debentures--Optional
Redemption" in the accompanying Prospectus.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary describes certain United States Federal
income tax consequences relevant to the purchase, ownership and
disposition of the Series A Preferred Securities as of the date hereof
and represents the opinion of Reid & Priest LLP, counsel to the
Company, insofar as it relates to matters of law or legal conclusions.
Except where noted, it deals only with Series A Preferred Securities
held as capital assets and does not deal with special situations, such
as those of dealers in securities or currencies, financial
institutions, life insurance companies, persons holding Series A
Preferred Securities as part of a hedging or conversion transaction or
a straddle, United States Holders (as defined herein) whose
"functional currency" is not the United States dollar, or persons who
are not United States Holders. In addition, this discussion does not
address the tax consequences to persons who purchase Series A
Preferred Securities other than pursuant to their initial issuance and
distribution. Furthermore, the discussion below is based upon the
provisions of the Internal Revenue Code of 1986, as amended, and
regulations, rulings and judicial decisions thereunder as of the date
hereof, and such authorities may be repealed, revoked or modified at
any time so as to result in United States Federal income tax
consequences different from those discussed below. These authorities
are subject to various interpretations and it is therefore possible
that the United States Federal income tax treatment of the Series A
Preferred Securities may differ from the treatment described below.
PROSPECTIVE PURCHASERS OF SERIES A PREFERRED SECURITIES,
INCLUDING PERSONS WHO ARE NOT UNITED STATES HOLDERS AND PERSONS WHO
PURCHASE SERIES A PREFERRED SECURITIES IN THE SECONDARY MARKET, ARE
ADVISED TO CONSULT WITH THEIR TAX ADVISORS AS TO THE UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF SERIES A PREFERRED SECURITIES IN LIGHT OF THEIR
PARTICULAR CIRCUMSTANCES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR
OTHER TAX LAWS.
United States Holders
As used herein, a "United States Holder" means a Series A
Preferred Security holder that is a citizen or a resident of the
United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust the income of which is
subject to United States Federal income taxation regardless of its
source.
Classification of Entergy Louisiana Capital I
Reid & Priest LLP, counsel to the Company and the Series A
Issuer, is of the opinion that, under current law and assuming full
compliance with the terms of the Corresponding Indenture and the
instruments establishing the Series A Issuer (and certain other
documents), the Series A Issuer will be classified as a "grantor
trust" for United States Federal income tax purposes and will not be
classified as an association taxable as a corporation. Each United
States Holder will be treated as owning an undivided beneficial
interest in the Series A Debentures. Accordingly, each United States
Holder will be required to include in its gross income interest (in
the form of original issue discount ("OID")) accrued with respect to
its allocable share of Series A Debentures as described below. No
amount included in income with respect to the Series A Preferred
Securities will be eligible for the dividends received deduction.
Investors should be aware that the opinion of Reid & Priest LLP is not
binding on the Internal Revenue Service (the "IRS") or the courts.
Classification of the Series A Debentures
Based on the advice of its counsel, the Company believes and
intends to take the position that the Series A Debentures will
constitute indebtedness for United States Federal income tax purposes.
No assurance can be given that such position will not be challenged by
the IRS, or, if challenged, that such challenge will not be
successful. By purchasing and accepting Series A Preferred
Securities, each holder thereof covenants to treat the Series A
Debentures as indebtedness and the Series A Preferred Securities as
evidence of an indirect beneficial ownership in the Series A
Debentures. The remainder of this discussion assumes that the Series
A Debentures will be classified as indebtedness of the Company for
United States Federal income tax purposes.
Possible Tax Law Changes
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the
"Bill"), the revenue portion of President Clinton's budget proposal,
was released. The Bill would, among other things, generally deny
interest deductions for interest on an instrument issued by a
corporation that has a maximum weighted average maturity of more than
40 years. The Bill would also generally treat as equity an
instrument, issued by a corporation, that has a maximum term of more
than 20 years and that is not shown as indebtedness on the separate
balance sheet of the issuer or, where the instrument is issued to a
related party (other than a corporation), where the holder or some
other related party issues a related instrument that is not shown as
indebtedness on the issuer's consolidated balance sheet.The above-
described provisions were proposed to be effective generally for
instruments issued on or after December 7, 1995. If either provision
were to apply to the Series A Debentures, the Company would be unable
to deduct interest on the Series A Debentures. However, on March 29,
1996, the Chairmen of the Senate Finance and House Ways and Means
Committees issued a joint statement to the effect that it was their
intention that the effective date of the President's legislative
proposals, if adopted, will be no earlier than the date of appropriate
Congressional action.There can be no assurance, however, that current
or future legislative proposals or final legislation will not affect
the ability of the Company to deduct interest on the Series A
Debentures. If legislation were enacted limiting, in whole or in
part, the deductibility by the Company of interest on the Series A
Debentures for United States Federal income tax purposes, such
enactment could give rise to a Tax Event or a Debenture Tax Event.A
Tax Event would permit the Company to cause a redemption of the Series
A Preferred Securities or a distribution of such Series A Debentures
in liquidation of the Series A Issuer, as described more fully under
"Description of Preferred Securities--Redemption-Special Event
Redemption or Distribution". A Debenture Tax Event would permit the
Company to redeem the Series A Debentures, as described more fully
under "Description of Corresponding Junior Subordinated Debentures--
Optional Redemption" and "Description of Junior Subordinated
Debentures--Redemption" in the accompanying Prospectus.
Potential Extension of Interest Payment Period and Original Issue
Discount
Under the terms of the Series A Debentures, the Company has the
option to defer payments of interest for up to 20 consecutive
quarterly interest payment periods and to pay as a lump sum at the end
of such period all of the interest that has accrued during such
period. During any such Extension Period, Distributions on the Series
A Preferred Securities will also be deferred. Because of this option
to extend the interest payment periods, the Series A Debentures will
be treated as having been issued with OID for United States Federal
income tax purposes. As a result, United States Holders will be
required to accrue interest income (in the form of OID) on an economic
accrual basis even if they use the cash method of accounting. In the
event of an Extension Period, a United States Holder will be required
to continue to include OID in income notwithstanding that the Series A
Issuer will not make any Distribution on the Series A Preferred
Securities during such Extension Period. As a result, any United
States Holder who disposes of Series A Preferred Securities prior to
the record date for the payment of Distributions following such
Extension Period will include interest in gross income but will not
receive any Distributions related thereto from the Series A Issuer.
The tax basis of a Series A Preferred Security will be increased by
the amount of any OID that is included in income, and will be
decreased when and if Distributions are subsequently received from the
Series A Issuer by such holders.
Receipt of Series A Debentures or Cash Upon Liquidation of the Series
A Issuer
Under certain circumstances, as described under the caption
"Description of Preferred Securities--Redemption-Special Event
Redemption or Distribution" in the accompanying Prospectus, Series A
Debentures may be distributed to holders of Series A Preferred
Securities in exchange for the Series A Preferred Securities and in
liquidation of the Series A Issuer. Under current law, for United
States Federal income tax purposes, if the Series A Issuer is treated
as a grantor trust at the time of distribution, such distribution
would be treated as a non-taxable event to each United States Holder,
and each United States Holder would receive an aggregate tax basis in
the Series A Debentures equal to such Holder's aggregate tax basis in
its Series A Preferred Securities. A United States Holder's holding
period for the Series A Debentures received in liquidation of the
Series A Issuer would include the period during which such holder held
the Series A Preferred Securities.
Under certain circumstances, as described under the caption
"Description of Preferred Securities--Redemption" in the accompanying
Prospectus, the Series A Debentures may be redeemed for cash and the
proceeds of such redemption distributed to holders of Series A
Preferred Securities in redemption of the Series A Preferred
Securities. Under current law, such a redemption would, for United
States Federal income tax purposes, constitute a taxable disposition
of the Series A Preferred Securities, and a United States Holder would
recognize gain or loss as if such holder had sold such redeemed Series
A Preferred Securities. See "Sale, Exchange and Redemption of the
Series A Preferred Securities" below.
Sale, Exchange and Redemption of the Series A Preferred Securities
Upon the sale, exchange or redemption of Series A Preferred
Securities, a United States Holder will recognize gain or loss equal
to the difference between the amount realized upon the sale, exchange
or redemption and such holder's adjusted tax basis in the Series A
Preferred Securities. A United States Holder's adjusted tax basis
will, in general, be the issue price of the Series A Preferred
Securities, increased by the OID previously included in income by the
United States Holder and reduced by any Distributions on the Series A
Preferred Securities. Such gain or loss will be capital gain or loss
and will be long-term capital gain or loss if at the time of sale,
exchange or redemption, the Series A Preferred Securities have been
held for more than one year. Under current law, net capital gains of
individuals are, under certain circumstances, taxed at lower rates
than items of ordinary income. The deductibility of capital losses is
subject to limitations.
Information Reporting and Backup Withholding
Subject to the qualification discussed below, income on the
Series A Preferred Securities will be reported to holders on Form
1099, which should be mailed to such holders by January 31 following
each calendar year.
The Series A Issuer will be obligated to report annually to Cede
& Co., as holder of record of the Series A Preferred Securities, the
OID related to the Series A Debentures that accrued during the year.
The Series A Issuer currently intends to report such information on
Form 1099 prior to January 31 following each calendar year. The
Underwriters have indicated to the Series A Issuer that, to the extent
that they hold Series A Preferred Securities as nominees for
beneficial holders, they currently expect to report the OID that
accrued during the calendar year on such Series A Preferred Securities
to such beneficial holders on Form 1099 by January 31 following each
calendar year. Under current law, holders of Series A Preferred
Securities who hold as nominees for beneficial holders will not have
any obligation to report information regarding the beneficial holders
to the Series A Issuer. The Series A Issuer, moreover, will not have
any obligation to report to beneficial holders who are not also record
holders. Thus, beneficial holders of Series A Preferred Securities
who hold their Series A Preferred Securities through the Underwriters
will receive Forms 1099 reflecting the income on their Series A
Preferred Securities from such Underwriters rather than from the
Series A Issuer.
Payments made in respect of, and proceeds from the sale of,
Series A Preferred Securities (or Series A Debentures distributed to
holders of Series A Preferred Securities) may be subject to "backup"
withholding tax of 31% unless the holder complies with certain
identification requirements or if such holder has previously failed to
report in full dividend and interest income. Any withheld amounts
will be allowed as a refund or a credit against the holder's United
States Federal income tax liability, provided the required information
is provided to the IRS.
These information reporting and backup withholding tax rules are
subject to temporary Treasury Regulations. Accordingly, the
application of such rules to the Series A Preferred Securities could
be changed.
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement,
the Company and the Series A Issuer have agreed that the Series A
Issuer will sell to each of the Underwriters named below (for whom
Goldman, Sachs & Co., __________________________ and
_________________________ are acting as Representatives) and each of
the Underwriters has severally agreed to purchase from the Series A
Issuer the respective number of Series A Preferred Securities set
forth opposite its name below:
Number of
Series A
Preferred
Underwriters Securities
Goldman, Sachs & Co.
Subject to the terms and conditions of the Underwriting Agreement,
the Underwriters are committed to take and pay for all such Series A
Preferred Securities offered hereby, if any are taken.
The Underwriters propose to offer the Series A Preferred
Securities in part directly to the public at the initial public
offering price set forth on the cover page of this Prospectus
Supplement, and in part to certain securities dealers at such price
less a concession of $_______ per Series A Preferred Security. The
Underwriters may allow, and such dealers may reallow, a concession not
in excess of $_______ per Series A Preferred Security to certain
brokers and dealers. After the Series A Preferred Securities are
released for sale to the public, the offering price and other selling
terms may from time to time be varied by the Representatives.
In view of the fact that the proceeds from the sale of the Series
A Preferred Securities will be used to purchase the Series A
Debentures, the Underwriting Agreement provides that the Company will
pay as Underwriters' Compensation for the Underwriters arranging the
investment therein of such proceeds an amount of $ _______ per Series
A Preferred Security for the accounts of the several Underwriters.
The Company and the Series A Issuer have agreed, during the period
beginning from the date of the Underwriting Agreement and continuing
to and including the earlier of (i) the termination of trading
restrictions on the Series A Preferred Securities, as determined by
the Underwriters, and (ii) 30 days after the closing date, not to
offer, sell, contract to sell or otherwise dispose of any Series A
Preferred Securities, any other beneficial interests in the assets of
the Series A Issuer, or any preferred securities or any other
securities of the Series A Issuer or the Company that are
substantially similar to the Series A Preferred Securities, including
any guarantee of such securities, or any securities convertible into
or exchangeable for or that represent the right to receive securities,
preferred securities or any such substantially similar securities of
either the Series A Issuer or the Company, without the prior written
consent of the Representatives.
The Company and the Series A Issuer have agreed to indemnify the
several Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933, as amended.
Prior to this offering, there has been no public market for the
Series A Preferred Securities. Application will be made to list the
Series A Preferred Securities on the NYSE. In order to meet one of
the requirements for listing the Series A Preferred Securities on the
NYSE, the Underwriters will undertake to sell lots of 100 or more
Series A Preferred Securities to a minimum of 400 beneficial holders.
Trading of the Series A Preferred Securities on the NYSE is expected
to commence within a seven-day period after the initial delivery of
the Series A Preferred Securities. The Representatives have advised
the Company that they intend to make a market in the Series A
Preferred Securities prior to commencement of trading on the NYSE, but
are not obligated to do so and may discontinue any such market making
at any time without notice.
Certain of the Underwriters or their affiliates have provided from
time to time, and expect to provide in the future, investment or
commercial banking services to the Company and its affiliates, for
which such Underwriters or their affiliates have received or will
receive customary fees and commissions.
EXPERTS
The Company's balance sheets as of December 31, 1995 and 1994 and
the statements of income, retained earnings, and cash flows and the
related financial statement schedule for each of the two years ended
December 31, 1995, incorporated by reference in the Prospectus
accompanying this Prospectus Supplement, have been incorporated by
reference therein in reliance on the reports of Coopers & Lybrand
L.L.P., independent accountants, given on the authority of that firm
as experts in accounting and auditing.
The statements of income, retained earnings, and cash flows and
the related financial statement schedule for the year ended December
31, 1993, incorporated in the Prospectus accompanying this Prospectus
Supplement by reference to the Company's Annual Report on Form 10-K
for the year ended December 31, 1995, have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports dated
February 11, 1994, also incorporated by reference therein and have
been so included in reliance upon the reports of such firm given upon
their authority as experts in accounting and auditing.
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the
Series A Preferred Securities, the enforceability of the Series A
Trust Agreement and the creation of the Series A Issuer are being
passed upon by Richards, Layton & Finger, P.A., special Delaware
counsel to the Company and the Series A Issuer. The validity of the
Series A Guarantee and the Series A Debentures will be passed upon for
the Company by Denise C. Redmann, Senior Counsel -- Corporate and
Securities of Entergy Services, Inc. and by Reid & Priest LLP, New
York counsel to the Company. Matters pertaining to New York law will
be passed upon by Reid & Priest LLP, New York counsel to the Company,
and matters pertaining to Louisiana law will be passed upon by Denise
C. Redmann, Senior Attorney - Corporate and Securities of Entergy
Services, Inc., Louisiana counsel to the Company. Certain legal
matters will be passed upon for the Underwriters by Winthrop, Stimson,
Putnam & Roberts, New York, New York. Certain matters relating to
United States Federal income tax considerations are being passed upon
by Reid & Priest LLP, special counsel to the Company and the Series A
Issuer.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 10, 1996
P R O S P E C T U S
$150,000,000
ENTERGY LOUISIANA CAPITAL I
ENTERGY LOUISIANA CAPITAL II
ENTERGY LOUISIANA, INC. ENTERGY LOUISIANA CAPITAL III
Junior Subordinated Deferrable Preferred Securities guaranteed
Interest Debentures to the extent the Issuer has
funds as set forth herein by
ENTERGY LOUISIANA, INC.
Entergy Louisiana, Inc. (formerly Louisiana Power & Light
Company), a Louisiana corporation (the "Company"), may from time to
time offer in one or more series or issuances its junior subordinated
deferrable interest debentures (the "Junior Subordinated Debentures").
The Junior Subordinated Debentures will be unsecured and subordinate
and junior in right of payment to Senior Debt (as defined in
"Description of Junior Subordinated Debentures -- Subordination") of
the Company. If provided in an accompanying Prospectus Supplement,
the Company will have the right to defer payments of interest on any
series of Junior Subordinated Debentures by extending the interest
payment period thereon at any time or from time to time for such
number of consecutive interest payment periods (which shall not extend
beyond the maturity of the Junior Subordinated Debentures) with
respect to each deferral period as may be specified in such Prospectus
Supplement (each, an "Extension Period"). See "Description of Junior
Subordinated Debentures -- Option to Extend Interest Payments".
Entergy Louisiana Capital I, Entergy Louisiana Capital II and
Entergy Louisiana Capital III, each a statutory business trust created
under the laws of the State of Delaware (each, an "Issuer", and
collectively, the "Issuers"), may severally offer, from time to time,
its respective preferred securities (the "Preferred Securities")
representing preferred undivided beneficial interests in the assets of
each Issuer. The Company will be the owner of the common securities
(the "Common Securities") representing common undivided beneficial
interests in the assets of each Issuer. The payment of periodic cash
distributions ("Distributions") with respect to the Preferred
Securities of each Issuer and payments on liquidation or redemption
with respect to such Preferred Securities, in each case out of funds
held by such Issuer, are each irrevocably guaranteed by the Company to
the extent described herein (each, a "Guarantee", and collectively,
the "Guarantees"). See "Description of Guarantees". The obligations
of the Company under each Guarantee will be subordinate and junior in
right of payment to all Senior Debt of the Company. Concurrently with
the issuance by an Issuer of its Preferred Securities, such Issuer
will invest the proceeds thereof and any contributions made in respect
of the Common Securities in a corresponding series of the Company's
Junior Subordinated Debentures (the "Corresponding Junior Subordinated
Debentures") with terms corresponding to the terms of that Issuer's
Preferred Securities. The Corresponding Junior Subordinated
Debentures will be the sole assets of each Issuer, and payments under
the Corresponding Junior Subordinated Debentures will be the only
revenue of each Issuer. Upon the occurrence of certain events as
described herein and in an accompanying Prospectus Supplement, the
Company may redeem the Corresponding Junior Subordinated Debentures or
may terminate each Issuer and, after satisfaction of creditors of each
Issuer, if any, as required by applicable law, cause the Corresponding
Junior Subordinated Debentures to be distributed to the holders of
Preferred Securities in liquidation of their interest in such Issuer.
See "Description of Preferred Securities -- Liquidation Distribution
Upon Termination".
Holders of the Preferred Securities will be entitled to receive
preferential cumulative Distributions accruing from the date of
original issuance and payable periodically as specified in an
accompanying Prospectus Supplement. If provided in an accompanying
Prospectus Supplement, the Company will have the right to defer
payments of interest on any series of Corresponding Junior
Subordinated Debentures by extending the interest payment period
thereon at any time or from time to time for one or more Extension
Periods (which shall not extend beyond the maturity of the
Corresponding Junior Subordinated Debentures). If interest payments
are so deferred, Distributions on the corresponding series of
Preferred Securities will also be deferred and the Company will not be
permitted, subject to certain exceptions set forth herein, to declare
or pay any cash distributions with respect to the Company's capital
stock or debt securities that rank pari passu with or junior to the
Corresponding Junior Subordinated Debentures or make any guarantee
payments with respect to the foregoing. During an Extension Period,
Distributions will continue to accumulate (and the Preferred
Securities will accumulate additional Distributions thereon at the
rate per annum set forth in the related Prospectus Supplement). See
"Description of Preferred Securities -- Distributions".
The Junior Subordinated Debentures and Preferred Securities may
be offered in amounts, at prices and on terms to be determined at the
time of offering provided, however, that the aggregate initial public
offering price of all Junior Subordinated Debentures (other than
Corresponding Junior Subordinated Debentures) and Preferred Securities
(including the Corresponding Junior Subordinated Debentures) issued
pursuant to the Registration Statement of which this Prospectus forms
a part shall not exceed $150,000,000. Certain specific terms of the
Junior Subordinated Debentures or Preferred Securities in respect of
which this Prospectus is being delivered will be described in an
accompanying Prospectus Supplement, including without limitation and
where applicable and to the extent not set forth herein, (a) in the
case of Junior Subordinated Debentures, the specific designation,
aggregate principal amount, denominations, maturity, interest payment
dates, interest rate (which may be fixed or variable) or method of
calculating interest, applicable Extension Period or interest deferral
terms, if any, place or places where principal, premium, if any, and
interest, if any, will be payable, any terms of redemption, any
sinking fund provisions, terms for any conversion or exchange into
other securities, initial offering or purchase price, methods of
distribution and any other special terms, and (b) in the case of
Preferred Securities, the identity of the Issuer, specific title,
aggregate amount, stated liquidation preference, number of securities,
Distribution rate, applicable Extension Period or Distribution
deferral terms, if any, place or places where Distributions will be
payable, any terms of redemption, initial offering or purchase price,
methods of distribution and any other special terms.
An accompanying Prospectus Supplement also will contain
information, as applicable, about certain United States Federal income
tax considerations relating to the Junior Subordinated Debentures or
Preferred Securities.
The Junior Subordinated Debentures and Preferred Securities may
be sold to or through underwriters, through dealers, remarketing firms
or agents involved in the sale of Junior Subordinated Debentures or
Preferred Securities in respect of which this Prospectus is being
delivered and any applicable fee, commission or discount arrangements
with them will be set forth in an accompanying Prospectus Supplement.
Such Prospectus Supplement will state whether the Junior Subordinated
Debentures or Preferred Securities will be listed on any national
securities exchange. If the Junior Subordinated Debentures or
Preferred Securities are not listed on any national securities
exchange, there can be no assurance that there will be a secondary
market for the Junior Subordinated Debentures or Preferred Securities.
This Prospectus may not be used to consummate sales of Junior
Subordinated Debentures or Preferred Securities unless accompanied by
a Prospectus Supplement.
__________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1996.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements
and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549 and at the
regional offices of the Commission located at 7 World Trade
Center, 13th Floor, Suite 1300, New York, New York 10048 and
Suite 1400, Citicorp Center, 14th Floor, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material can also be
obtained at prescribed rates by writing to the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549. In addition, such reports, proxy
statements and other information concerning the Company can be
inspected at the offices of The New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005 (the "NYSE").
The Company and the Issuers have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments
and exhibits thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities offered hereby. This Prospectus does
not contain all the information set forth in the Registration
Statement and the exhibits thereto, certain portions of which
have been omitted as permitted by the rules and regulations of
the Commission. For further information with respect to the
Company, the Issuers and the securities offered hereby, reference
is made to the Registration Statement and the exhibits and the
financial statements, notes and schedules filed as a part thereof
or incorporated by reference therein, which may be inspected at
the public reference facilities of the Commission, at the
addresses set forth above. Statements made in this Prospectus
concerning the contents of any documents referred to herein are
not necessarily complete, and in each instance are qualified in
all respects by reference to the copy of such document filed as
an exhibit to the Registration Statement.
No separate financial statements of any Issuer have been
included herein. The Company and the Issuers do not consider
that such financial statements would be material to holders of
the Preferred Securities because each Issuer is a newly formed
special purpose entity, has no operating history or independent
operations and is not engaged in and does not propose to engage
in any activity other than its holding, as trust assets, the
Corresponding Junior Subordinated Debentures of the Company and
its issuance of the Preferred and Common Securities. The Issuers
intend not to file separate reports under the Exchange Act but
must apply for and be granted relief by the Commission to avoid
the requirement to file such reports. See "The Issuers",
"Description of Preferred Securities", "Description of
Guarantees" and "Description of Corresponding Junior Subordinated
Debentures".
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission are incorporated into this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the year
ended December 31, 1995.
2. The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996.
In addition, each document or report filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date hereof and prior to the termination of the
offering described herein shall be deemed to be incorporated by
reference into this Prospectus and to be a part of this
Prospectus from the date of filing of such document (such
documents, and the documents enumerated above, being herein
referred to as "Incorporated Documents"). Any statement
contained herein, or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of the
Registration Statement and this Prospectus to the extent that a
statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
The Company will provide without charge to any person to whom
this Prospectus is delivered, on the written or oral request of
such person, a copy of any or all of the foregoing documents
incorporated by reference herein (other than exhibits not
specifically incorporated by reference into the texts of such
documents). Requests for such documents should be directed to:
Christopher T. Screen, P.O. Box 61000, New Orleans, Louisiana
70161, telephone: (504) 576-4212.
THE COMPANY
Entergy Louisiana, Inc. (formerly Louisiana Power & Light
Company) was incorporated under the laws of the State of
Louisiana on October 15, 1974 and is the successor by merger to a
predecessor Louisiana Power & Light Company, which was
incorporated under the laws of the State of Florida in 1927. The
merger became effective on February 28, 1975. The Company's
principal executive offices are located at 639 Loyola Avenue, New
Orleans, Louisiana 70113. Its telephone number is 504-529-5262.
The Company is an electric public utility company with
substantially all of its operations in the State of Louisiana.All
of the outstanding common stock of the Company is owned by
Entergy Corporation ("Entergy"), a Delaware corporation.Entergy
is a registered public utility holding company under the Public
Utility Holding Company Act of 1935, as amended (the "Holding
Company Act"). The Company, Entergy Arkansas, Inc., Entergy Gulf
States, Inc., Entergy Mississippi, Inc. and Entergy New Orleans,
Inc. are operating electric utility subsidiaries of Entergy.
Entergy also owns, among other things, all of the common stock of
System Energy Resources, Inc., a generating company, Entergy
Operations, Inc., a nuclear management services company,
CitiPower Ltd., a retail electric distribution company serving
Melbourne, Australia and surrounding suburbs and Entergy Power,
Inc., through which Entergy provides wholesale electricity to
other utilities.
The Company, Entergy Arkansas, Inc., Entergy Mississippi,
Inc. and Entergy New Orleans, Inc. own all of the capital stock
of System Fuels, Inc., a special purpose company which implements
and/or maintains certain programs for the procurement, delivery
and storage of fuel supplies for certain Entergy subsidiaries,
including the Company.
The foregoing information relating to the Company does not
purport to be comprehensive and should be read together with the
financial statements and other information contained in the
Incorporated Documents.
THE ISSUERS
Each Issuer is a statutory business trust created under
Delaware law pursuant to (i) a trust agreement executed by the
Company, as depositor of each Issuer, the Property Trustee and
the Delaware Trustee (each as defined herein) and an
Administrative Trustee (as defined herein) of each Issuer and
(ii) the filing of a certificate of trust with the Delaware
Secretary of State. Each trust agreement will be amended and
restated in its entirety (each, as so amended and restated, a
"Trust Agreement" and collectively, the "Trust Agreements")
substantially in the forms filed as exhibits to the Registration
Statement of which this Prospectus forms a part. Each Trust
Agreement will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
Each Issuer exists for the exclusive purposes of (i) issuing and
selling its Preferred Securities and Common Securities, (ii)
using the proceeds from the sale of such Preferred Securities and
Common Securities to acquire the related series of Corresponding
Junior Subordinated Debentures and (iii) engaging in only those
other activities necessary, convenient or incidental thereto.
Accordingly, the Corresponding Junior Subordinated Debentures
will be the sole assets of each Issuer, and payments under the
Corresponding Junior Subordinated Debentures will be the sole
source of revenue of each Issuer.
All of the Common Securities will be owned by the Company.
The Common Securities of an Issuer will rank pari passu, and
payments will be made thereon pro rata, with the Preferred
Securities of such Issuer, except that upon the occurrence and
continuance of a Debenture Event of Default, the rights of the
Company as holder of the Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption or
otherwise will be subordinated to the rights of the holders of
the Preferred Securities of such Issuer. See "Description of
Preferred Securities--Subordination of Common Securities". The
Company will acquire Common Securities in an aggregate
liquidation amount equal to not less than 3% of the total capital
of each Issuer.
Unless otherwise specified in the applicable Prospectus
Supplement, each Issuer has a term of approximately 54 years, but
may terminate earlier as provided in the applicable Trust
Agreement. Each Issuer's business and affairs are conducted by
its trustees, each appointed by the Company as holder of the
Common Securities: The Bank of New York, as the Property Trustee
(the "Property Trustee") and The Bank of New York (Delaware), as
the Delaware Trustee (the "Delaware Trustee"), and three
individual trustees (the "Administrative Trustees") who are
employees or officers of or affiliated with the Company
(collectively, the "Issuer Trustees"). The Bank of New York, as
Property Trustee, will act as sole indenture trustee under each
Trust Agreement for purposes of compliance with the Trust
Indenture Act. The Bank of New York will also act as Guarantee
Trustee under the Guarantees, and Corresponding Debenture Trustee
under the Corresponding Indenture (each as defined herein). See
"Description of Guarantees" and "Description of Junior
Subordinated Debentures". The holder of the Common Securities,
or the holders of a majority in liquidation preference of the
Preferred Securities, if a Debenture Event of Default has
occurred and is continuing, will be entitled to appoint, remove
or replace the Property Trustee and/or the Delaware Trustee. In
no event will the holders of the Preferred Securities have the
right to vote to appoint, remove or replace the Administrative
Trustees; such voting rights are vested exclusively in the holder
of the Common Securities. The duties and obligations of each
Issuer Trustee are governed by the applicable Trust Agreement.
The Company will pay all fees and expenses related to each Issuer
and the offering of the Preferred Securities and will pay,
directly or indirectly, all ongoing costs, expenses and
liabilities of each Issuer. The principal executive office of
each Issuer is 639 Loyola Avenue, New Orleans, Louisiana 70113,
Attention: Treasurer, and its telephone number is (504) 576-
4308.
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus
Supplement, the Company intends to use the proceeds from the sale
of the Junior Subordinated Debentures (including Corresponding
Junior Subordinated Debentures issued to the Issuers in
connection with the investment by the Issuers of all of the
proceeds from the sale of Preferred Securities) for general
corporate purposes, including working capital, capital
expenditures, refinancing of debt, including outstanding
commercial paper and other short term bank indebtedness, the
redemption of outstanding series of preferred stock, the
satisfaction of other obligations or for such other purposes as
may be specified in the applicable Prospectus Supplement. Except
as otherwise set forth in the applicable Prospectus Supplement,
all of the proceeds from the sale of Preferred Securities will be
invested by the Issuers in Junior Subordinated Debentures to be
issued by the Company. A more detailed description of the use of
proceeds of any specific offering shall be set forth in the
Prospectus Supplement pertaining to such offering.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued in one or
more series under the Indenture for Unsecured Subordinated Debt
Securities, dated as of June 1, 1996 (the "Indenture") between
the Company and The Bank of New York, as debenture trustee (the
"Debenture Trustee"). The Corresponding Junior Subordinated
Debentures are to be issued in one or more series of Junior
Subordinated Debentures under the Indenture for Unsecured
Subordinated Debt Securities relating to Trust Securities dated
as of June 1, 1996 (the "Corresponding Indenture") between the
Company and The Bank of New York, as corresponding debenture
trustee (the "Corresponding Debenture Trustee"). This summary of
certain terms and provisions of the Junior Subordinated
Debentures and the Indenture does not purport to be complete and
is subject to, and is qualified in its entirety by reference to
the Indenture, the form of which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part, and
to the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Except as otherwise provided herein, this
summary of certain terms and provisions of Junior Subordinated
Debentures and the Indenture is also applicable to the
Corresponding Junior Subordinated Debentures and the
Corresponding Indenture. For additional terms and provisions
applicable only to the Corresponding Junior Subordinated
Debentures, see "Description of Corresponding Junior Subordinated
Debentures". Whenever particular defined terms of the Indenture
(as supplemented or amended from time to time) are referred to
herein or in a Prospectus Supplement, such defined terms are
incorporated herein or therein by reference.
General
Each series of Junior Subordinated Debentures will rank pari
passu with all other series of Junior Subordinated Debentures,
will be unsecured and subordinate and junior in right of payment
to the extent and in the manner set forth in the Indenture to all
Senior Debt (as defined below) of the Company. See
"Subordination". Except as otherwise provided in the applicable
Prospectus Supplement, the Indenture does not limit the
incurrence or issuance of other secured or unsecured debt of the
Company, whether under the Indenture, any other indenture that
the Company may enter into in the future or otherwise. See
"Subordination" and the Prospectus Supplement relating to any
offering of Preferred Securities or Junior Subordinated
Debentures.
The Junior Subordinated Debentures will be issuable in one or
more series pursuant to an indenture supplemental to the
Indenture or a resolution of the Board of Directors or an
Officer's Certificate.
The applicable Prospectus Supplement or Prospectus
Supplements will describe the following terms of the Junior
Subordinated Debentures: (1) the title of the Junior Subordinated
Debentures; (2) any limit upon the aggregate principal amount of
the Junior Subordinated Debentures; (3) the date or dates on
which the principal of the Junior Subordinated Debentures is
payable or the method of determination thereof; (4) the rate or
rates, if any, or the method by which such rate or rates shall be
determined, at which the Junior Subordinated Debentures shall
bear interest, if any, the date or dates from which any such
interest will accrue, the Interest Payment Dates on which any
such interest shall be payable, the right, if any, of the Company
to defer or extend an Interest Payment Date, and the Regular
Record Date for any interest payable on any Interest Payment Date
and the person or persons to whom interest on such Junior
Subordinated Debentures shall be payable on any Interest Payment
Date, if other than the persons in whose names such Junior
Subordinated Debentures are registered at the close of business
on the Regular Record Date for such interest; (5) the place or
places where, subject to the terms of the Indenture as described
below under "Payment and Paying Agents", the principal of and
premium, if any, and interest on the Junior Subordinated
Debentures will be payable and where, subject to the terms of the
Indenture as described below under "Denominations, Registration
and Transfer", the Junior Subordinated Debentures may be
presented for registration of transfer or exchange and the place
or places where notices and demands to or upon the Company in
respect of the Junior Subordinated Debentures and the Indenture
may be served; the Security Registrar and Paying Agents for such
Junior Subordinated Debentures and, if such is the case, that the
principal of such Junior Subordinated Debentures shall be payable
without presentation or surrender thereof; (6) any period or
periods within, or date or dates on, which, the price or prices
at which and the terms and conditions upon which Junior
Subordinated Debentures may be redeemed, in whole or in part, at
the option of the Company; (7) the obligation or obligations, if
any, of the Company to redeem or purchase any of the Junior
Subordinated Debentures pursuant to any sinking fund or other
analogous mandatory redemption provisions or at the option of
holder thereof, and the period or periods within which, the price
or prices at which, and the terms and conditions upon which the
Junior Subordinated Debentures shall be redeemed or purchased, in
whole or in part, pursuant to such obligation, and applicable
exceptions to the requirements of a notice of redemption in the
case of mandatory redemption or redemption at the option of the
holder; (8) the denominations in which any Junior Subordinated
Debentures shall be issuable if other than denominations of
$1,000 and any integral multiple thereof (in the case of
Corresponding Junior Subordinated Debentures, the denominations
in which any Corresponding Junior Subordinated Debentures shall
be issuable if other than denominations of $25 and any integral
multiple thereof); (9) if other than in U.S. Dollars, the
currency or currencies (including composite currencies) in which
the principal of and premium, if any and interest, if any, on the
Junior Subordinated Debentures shall be payable; (10) if the
principal of or any premium or interest on any of the Junior
Subordinated Debentures is to be payable, at the election of the
Company or the holder thereof, in a coin or currency other than
in which such Junior Subordinated Debentures are stated to be
payable, the period or periods within which and the terms and
conditions upon which, such election is to be made; (11) if the
principal of or premium or interest on such Junior Subordinated
Debentures 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 methods by which such amount shall be
determined, and the period or periods within which, and the terms
and conditions upon which, any such election is to be made;
(12) if the amount payable in respect of principal of or any
premium or interest on any of such Junior Subordinated Debentures
may be determined with reference to an index or other fact
ascertainable outside the Indenture, the manner in which such
amounts are determined; (13) if other than the principal amount
thereof, the portion of the principal amount of Junior
Subordinated Debentures that shall be payable upon declaration of
acceleration of the Maturity thereof; (14) any additions to the
Events of Default or covenants of the Company with respect to the
Junior Subordinated Debentures; (15) the terms, if any, pursuant
to which the Junior Subordinated Debentures may be converted into
or exchanged for shares of capital stock or other securities of
the Company or any other Person; (16) the obligations or
instruments, if any, which shall be considered to be Government
Obligations in respect of the Junior Subordinated Debentures
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
Junior Subordinated Debentures after such satisfaction and
discharge thereof; (17) if the Junior Subordinated Debentures are
to be issued in global form, any limitations on the rights of the
holder or holders of such Junior Subordinated Debentures to
transfer or exchange the same or to obtain the registration of
transfer thereof, any limitations of the rights of the holder or
holders thereof to obtain certificates therefor in definitive
form in lieu of a temporary Global Security and any and all other
matters incidental to such Junior Subordinated Debentures; (18)
if such Junior Subordinated Debentures are to be issuable as
bearer securities; (19) any limitations on the rights of the
holders of the Junior Subordinated Debentures to transfer or
exchange such Junior Subordinated Debentures or to obtain the
registration of transfer thereof, and if a service charge will be
made for the registration of transfer or exchange of the Junior
Subordinated Debentures, the amount or terms thereof; (20) any
exceptions to the provisions governing payments due on legal
holidays or any variations in the definition of Business Day with
respect of such Junior Subordinated Debentures; (21) in the case
of Corresponding Junior Subordinated Debentures, the designation
of the Issuer to which Corresponding Junior Subordinated
Debentures are to be issued; and (22) any other terms of the
Junior Subordinated Debentures not inconsistent with the
provisions of the Indenture.
Junior Subordinated Debentures may be sold at a substantial
discount below their stated principal amount, bearing no interest
or interest at a rate which at the time of issuance is below
market rates. Certain Federal income tax consequences and
special considerations applicable to any such Junior Subordinated
Debentures will be described in the applicable Prospectus
Supplement.
If the purchase price of any of the Junior Subordinated
Debentures is payable in one or more foreign currencies or
currency units or if any Junior Subordinated Debentures are
denominated in one or more foreign currencies or currency units
or if the principal of, premium, if any, or interest, if any, on
any Junior Subordinated Debentures is payable in one or more
foreign currencies or currency units, the restrictions,
elections, certain Federal income tax considerations, specific
terms and other information with respect to such issue of Junior
Subordinated Debentures and such foreign currency or currency
units will be set forth in the applicable Prospectus Supplement.
If any index is used to determine the amount of payments of
principal of, premium, if any, or interest on any series of
Junior Subordinated Debentures, special Federal income tax,
accounting and other considerations applicable thereto will be
described in the applicable Prospectus Supplement.
Denominations, Registration and Transfer
Unless otherwise specified in the applicable Prospectus
Supplement, the Junior Subordinated Debentures will be issuable
only in registered form without coupons in denominations of
$1,000 and any integral multiple thereof ($25 in the case of
Corresponding Junior Subordinated Debentures). Junior
Subordinated Debentures of any series will be exchangeable for
other Junior Subordinated Debentures of the same series, of any
authorized denominations, and of like tenor and aggregate
principal amount.
Subject to the terms of the Indenture and the limitations
applicable to Global Junior Subordinated Debentures, Junior
Subordinated Debentures may be presented for exchange as provided
above, and may be presented for registration of transfer (with
the form of transfer endorsed thereon, or a satisfactory written
instrument of transfer, duly executed), at the office of the
appropriate Securities Registrar or at the office of any transfer
agent designated by the Company for such purpose with respect to
any series of Junior Subordinated Debentures and referred to in
the applicable Prospectus Supplement, without service charge, but
the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
If the applicable Prospectus Supplement refers to any transfer
agents (in addition to the Securities Registrar) initially
designated by the Company with respect to any series of Junior
Subordinated Debentures, the Company may at any time rescind the
designation of any such transfer agent or approve a change in the
location through which any such transfer agent acts, provided
that the Company maintains a transfer agent in each Place of
Payment for such series. The Company may at any time designate
additional transfer agents with respect to any series of Junior
Subordinated Debentures.
In the event of any redemption, the Company shall not be
required to (i) issue, register the transfer of or exchange
Junior Subordinated Debentures of any series during a period
beginning at the opening of business 15 days before the day of
selection for redemption of Junior Subordinated Debentures of
that series and ending at the close of business on the day of
mailing of the relevant notice of redemption or (ii) register the
transfer or exchange of any Junior Subordinated Debentures so
selected for redemption, except, in the case of any Junior
Subordinated Debentures being redeemed in part, any portion
thereof not to be redeemed.
Global Junior Subordinated Debentures
The Junior Subordinated Debentures of a series may be issued
in whole or in part in the form of one or more global securities
("Global Junior Subordinated Debentures") that will be deposited
with, or on behalf of, a depositary (the "Depositary") identified
in the Prospectus Supplement relating to such series. Global
Junior Subordinated Debentures may be issued only in fully
registered form and in either temporary or permanent form.
Unless and until it is exchanged in whole or in part for the
individual Junior Subordinated Debentures represented thereby, a
Global Junior Subordinated Debenture may not be transferred
except as a whole by the Depositary for such Global Junior
Subordinated Debenture to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee
of such Depositary or by the Depositary or any nominee to a
successor Depositary or any nominee of such successor.
The specific terms of the depositary arrangement with respect
to a series of Junior Subordinated Debentures will be described
in the Prospectus Supplement relating to such series. The
Company anticipates that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a Global Junior Subordinated Debenture,
and the deposit of such Global Junior Subordinated Debenture with
or on behalf of the Depositary, the Depositary for such Global
Junior Subordinated Debenture or its nominee will credit on its
book-entry registration and transfer system, the respective
principal amounts of the individual Junior Subordinated
Debentures represented by such Global Junior Subordinated
Debenture to the accounts of persons that have accounts with such
Depositary ("Participants"). Such accounts shall be designated
by the dealers, underwriters or agents with respect to such
Junior Subordinated Debentures or by the Company if such Junior
Subordinated Debentures are offered and sold directly by the
Company. Ownership of beneficial interests in a Global Junior
Subordinated Debenture will be limited to Participants or persons
that may hold interests through Participants. Ownership of
beneficial interests in such Global Junior Subordinated Debenture
will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable
Depositary or its nominee (with respect to interests of
Participants) and the records of Participants (with respect to
interests of persons who hold through Participants). The laws of
some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer
beneficial interests in a Global Junior Subordinated Debenture.
So long as the Depositary for a Global Junior Subordinated
Debenture, or its nominee, is the registered owner of such Global
Junior Subordinated Debenture, such Depositary or such nominee,
as the case may be, will be considered the sole owner or holder
of the Junior Subordinated Debentures represented by such Global
Junior Subordinated Debenture for all purposes under the
Indenture governing such Junior Subordinated Debentures. Except
as provided below, owners of beneficial interests in a Global
Junior Subordinated Debenture will not be entitled to have any of
the individual Junior Subordinated Debentures of the series
represented by such Global Junior Subordinated Debenture
registered in their names, will not receive or be entitled to
receive physical delivery of any such Junior Subordinated
Debentures of such series in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest
on individual Junior Subordinated Debentures represented by a
Global Junior Subordinated Debenture registered in the name of a
Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the
Global Junior Subordinated Debenture representing such Junior
Subordinated Debentures. None of the Company, the Debenture
Trustee, any Paying Agent, or the Securities Registrar for such
Junior Subordinated Debentures will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interest of the Global
Junior Subordinated Debenture for such Junior Subordinated
Debentures or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of
Junior Subordinated Debentures or its nominee, upon receipt of
any payment of principal, premium or interest in respect of a
permanent Global Junior Subordinated Debenture representing any
of such Junior Subordinated Debentures, immediately will credit
Participants' accounts with payments in amounts proportionate to
their respective beneficial interest in the principal amount of
such Global Junior Subordinated Debenture for such Junior
Subordinated Debentures as shown on the records of such
Depositary or its nominee. The Company also expects that
payments by Participants to owners of beneficial interests in
such Global Junior Subordinated Debenture held through such
Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for
the accounts of customers in bearer form or registered in "street
name." Such payments will be the responsibility of such
Participants.
Unless otherwise specified in the applicable Prospectus
Supplement, if a Depositary for a series of Junior Subordinated
Debentures is at any time unwilling, unable or ineligible to
continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue
individual Junior Subordinated Debentures of such series in
exchange for the Global Junior Subordinated Debenture
representing such series of Junior Subordinated Debentures. In
addition, the Company may at any time and in its sole discretion,
subject to any limitations described in the Prospectus Supplement
relating to such Junior Subordinated Debentures, determine not to
have any Junior Subordinated Debentures of such series
represented by one or more Global Junior Subordinated Debentures
and, in such event, will issue individual Junior Subordinated
Debentures of such series in exchange for the Global Junior
Subordinated Debenture or Securities representing such series of
Junior Subordinated Debentures. Further, if the Company so
specifies with respect to the Junior Subordinated Debentures of a
series, an owner of a beneficial interest in a Global Junior
Subordinated Debenture representing Junior Subordinated
Debentures of such series may, on terms acceptable to the
Company, the Debenture Trustee and the Depositary for such Global
Junior Subordinated Debenture, receive individual Junior
Subordinated Debentures of such series in exchange for such
beneficial interests, subject to any limitations described in the
Prospectus Supplement relating to such Junior Subordinated
Debentures. In any such instance, an owner of a beneficial
interest in a Global Junior Subordinated Debenture will be
entitled to physical delivery of individual Junior Subordinated
Debentures of the series represented by such Global Junior
Subordinated Debenture equal in principal amount to such
beneficial interest and to have such Junior Subordinated
Debentures registered in its name. Individual Junior
Subordinated Debentures of such series so issued will be issued
in denominations, unless otherwise specified by the Company, of
$1,000 and integral multiples thereof ($25 in the case of
Corresponding Junior Subordinated Debentures).
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of (and premium, if any) and any
interest on Junior Subordinated Debentures will be made at the
office of the Debenture Trustee in The City of New York or at the
office of such Paying Agent or Paying Agents as the Company may
designate from time to time in the applicable Prospectus
Supplement. Unless otherwise indicated in the applicable
Prospectus Supplement, payment of any interest on Junior
Subordinated Debentures will be made to the Person in whose name
such Junior Subordinated Debenture is registered at the close of
business on the Regular Record Date for such interest, except in
the case of Defaulted Interest. The Company may at any time
designate additional Paying Agents or rescind the designation of
any Paying Agent; however the Company will at all times be
required to maintain a Paying Agent in each Place of Payment for
each series of Junior Subordinated Debentures.
Any moneys deposited with the Debenture 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 on any Junior
Subordinated Debenture and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become
due and payable shall, at the request of the Company, be repaid
to the Company and the holder of such Junior Subordinated
Debenture shall thereafter look, as a general unsecured creditor,
only to the Company for payment thereof.
Redemption
Unless otherwise indicated in the applicable Prospectus
Supplement, Junior Subordinated Debentures will not be subject to
any sinking fund and will not be redeemable prior to their Stated
Maturity except as described below.
Except as otherwise specified in the applicable Prospectus
Supplement, if a Debenture Tax Event (as defined below) in
respect of a series of Junior Subordinated Debentures shall occur
and be continuing, the Company may, at its option, redeem such
series of Junior Subordinated Debentures in whole (but not in
part) on any date within 90 days of the occurrence of such
Debenture Tax Event, at a redemption price equal to 100% of the
principal amount of such Junior Subordinated Debentures then
outstanding plus accrued and unpaid interest to the date fixed
for redemption.
"Debenture Tax Event" means the receipt by 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 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 such pronouncement or
decision is announced on or after the date of issuance of the
applicable series of Junior Subordinated Debentures under the
Indenture, there is more than an insubstantial risk that interest
payable by the Company on such series of Junior Subordinated
Debentures is not, or within 90 days of the date thereof, will
not be, deductible, in whole or in part, for United States
Federal income tax purposes.
Notice of any redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each holder
of Junior Subordinated Debentures to be redeemed at his
registered address. Unless the Company defaults in payment of
the redemption price, on and after the redemption date interest
ceases to accrue on such Junior Subordinated Debentures or
portions thereof called for redemption.
Option to Extend Interest Payment Period
If provided in the applicable Prospectus Supplement, the
Company shall have the right at any time or from time to time
during the term of any series of Junior Subordinated Debentures
to defer the payment of interest for such number of consecutive
interest payment periods with respect to each deferred period as
may be specified in the applicable Prospectus Supplement (each,
an "Extension Period"), subject to the terms, conditions and
covenants, if any, specified in such Prospectus Supplement,
provided that such Extension Period may not extend beyond the
maturity of the Junior Subordinated Debentures. Certain United
States Federal income tax consequences and special considerations
applicable to any such Junior Subordinated Debentures will be
described in the applicable Prospectus Supplement.
In the event that the Company exercises this right, during
any such Extension Period the Company may not, and may not permit
any subsidiary of the Company to, (i) 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 (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt
securities that rank pari passu with or junior in interest to the
Junior Subordinated Debentures or make any guarantee payments
with respect to the foregoing (other than (a) dividends or
distributions in shares of capital stock of the Company and (b)
payments under Guarantee).
Modification of Indenture
Without the consent of any holder of Junior Subordinated
Debentures, the Company and the Debenture Trustee may enter into
one or more supplemental indentures for any of the following
purposes: (a) to evidence the assumption by any permitted
successor to the Company of the covenants of the Company in the
Indenture and in the Junior Subordinated Debentures; or (b) to
add one or more covenants of the Company or other provisions for
the benefit of the holders of outstanding Junior Subordinated
Debentures or to surrender any right or power conferred upon the
Company by the Indenture; or (c) to add any additional Debenture
Events of Default with respect to outstanding Junior Subordinated
Debentures; or (d) to change or eliminate any provision of the
Indenture or to add any new provision to the Indenture, provided
that if such change, elimination or addition will adversely
affect the interests of the holders of Junior Subordinated
Debentures of any series in any material respect, such change,
elimination or addition will become effective with respect to
such series only (1) when the consent of the holders of Junior
Subordinated Debentures of such series has been obtained in
accordance with the Indenture, or (2) when no Junior Subordinated
Debentures of such series remain outstanding under the Indenture;
or (e) to provide collateral security for all but not part of the
Junior Subordinated Debentures; or (f) to establish the form or
terms of Junior Subordinated Debentures of any other series as
permitted by the Indenture; 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 of a successor Debenture
Trustee under the Indenture with respect to the Junior
Subordinated Debentures of one or more series and to add to or
change any of the provisions of the Indenture as shall be
necessary to provide for or to facilitate the administration of
the trusts under the Indenture by more than one trustee; or
(i) to provide for the procedures required to permit the
utilization of a noncertificated system of registration for the
Junior Subordinated Debentures of all or any series; or (j) to
change any place where (1) the principal of and premium, if any,
and interest, if any, on all or any series of Junior Subordinated
Debentures shall be payable, (2) all or any series of Junior
Subordinated Debentures may be surrendered for registration of
transfer or exchange and (3) notices and demands to or upon the
Company in respect of Junior Subordinated Debentures and the
Indenture may be served; or (k) to cure any ambiguity or
inconsistency or to add or change any other provisions with
respect to matters and questions arising under the Indenture,
provided such changes or additions shall not adversely affect the
interests of the holders of Junior Subordinated Debentures of any
series in any material respect. The Indenture contains
provisions permitting the Company and the Debenture Trustee, with
the consent of the holders of not less than a majority in
principal amount of each outstanding series of Junior
Subordinated Debentures affected, to modify the Indenture in a
manner affecting the rights of the holders of such series of the
Junior Subordinated Debentures; provided, that no such
modification may, without the consent of the holder of each
outstanding Junior Subordinated Debenture so affected, (i) change
the Stated Maturity of any series of Junior Subordinated
Debentures, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon (except
such extension as is contemplated thereby), (ii) reduce the
percentage of principal amount of Junior Subordinated Debentures
of any series, the holders of which are required to consent to
any such modification of the Indenture, or (iii) modify certain
of the provisions of the Indenture relating to supplemental
indentures, waivers of certain covenants and waivers of past
defaults with respect to the Junior Subordinated Debentures of
any series, without the consent of the holder of each outstanding
Junior Subordinated Debentures affected thereby, provided that,
in the case of Corresponding Junior Subordinated Debentures, so
long as any of the corresponding series of Preferred Securities
remain outstanding, no such modification may be made that
adversely affects the holders of such Preferred Securities, and
no termination of the Indenture may occur, and no waiver of any
Debenture Event of Default or compliance with any covenant under
the Indenture may be effective, without the prior consent of the
holders of at least a majority of the aggregate liquidation
preference amount of such Preferred Securities unless and until
the principal of the Corresponding Junior Subordinated Debentures
and all accrued and unpaid interest thereon have been paid in
full and certain other conditions are satisfied.
Debenture Events of Default
The Indenture provides that any one or more of the following
described events with respect to a series of Junior Subordinated
Debentures that has occurred and is continuing constitutes a
"Debenture Event of Default" with respect to such series of
Junior Subordinated Debentures:
(i) failure for 60 days to pay any interest on such
series of the Junior Subordinated Debentures, when due and
payable (subject to the deferral of any interest payments in
the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on
such series of Junior Subordinated Debentures when due and
payable; or
(iii) failure to perform, or breach of, any covenant or
warranty of the Company contained in the Indenture for 60
days after written notice to the Company from the Debenture
Trustee or to the Company and the Debenture Trustee by the
holders of at least 33% in principal amount of such series of
outstanding Junior Subordinated Debentures as provided in the
Indenture; or
(iv) certain events in bankruptcy, insolvency or
reorganization of the Company, or
(v) any other Event of Default specified with respect to
the Junior Subordinated Debentures.
If a Debenture Event of Default due to the default in
payment of principal of, or interest on, any series of Junior
Subordinated Debentures or due to the default in the performance
or breach of any other covenant or warranty of the Company
applicable to the Junior Subordinated Debentures of such series
but not applicable to all series occurs and is continuing, then
either the Debenture Trustee or the holders of not less than 33%
in aggregate principal amount of the outstanding Junior
Subordinated Debentures of such series may declare the principal
of all of the Junior Subordinated Debentures of such series and
interest accrued thereon to be due and payable immediately
(subject to the subordination provisions of the Indenture). If a
Debenture Event of Default due to the default in the performance
of any other covenants or agreements in the Indenture applicable
to all outstanding Junior Subordinated Debentures or due to
certain events of bankruptcy, insolvency or reorganization of the
Company has occurred and is continuing, either the Debenture
Trustee or the holders of not less than 33% in aggregate
principal amount of all outstanding Junior Subordinated
Debentures, considered as one class, and not the holders of the
Junior Subordinated Debentures of any one of such series may make
such declaration of acceleration (subject to the subordination
provisions of the Indenture).
At any time after such a declaration of acceleration with
respect to the Junior Subordinated Debentures of any series has
been made and before a judgment or decree for payment of the
money due has been obtained, the Debenture Event or Events of
Default giving rise to such declaration of acceleration will,
without further act, be deemed to have been waived, and such
declaration and its consequences will, without further act, be
deemed to have been rescinded and annulled, if
(a) the Company has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(1) all overdue interest on all Junior Subordinated
Debentures of such series;
(2) the principal of and premium, if any, on any
Junior Subordinated Debentures of such series which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Junior Subordinated Debentures;
(3) interest upon overdue interest at the rate or
rates prescribed therefor in such Junior Subordinated Debentures,
to the extent that payment of such interest is lawful; and
(4) all amounts due to the Debenture Trustee under the
Indenture;
(b) any other Event or Events of Default with respect to
Junior Subordinated Debentures of such series, other than the
nonpayment of the principal of the Junior Subordinated Debentures
of such series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in the
Indenture.
The holders of a majority in aggregate principal amount of
the Junior Subordinated Debentures of all series then outstanding
may waive compliance by the Company with certain restrictive
provisions of the Indenture. The holders of a majority in
outstanding principal amount of the Junior Subordinated
Debentures of any series may, on behalf of the holders of all the
Junior Subordinated Debentures of such series, waive any past
default under the Indenture with respect to such series, except a
default in the payment of principal or interest (unless such
default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a
default in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of
the holder of each outstanding Junior Subordinated Debenture of
such series affected. With respect to the Corresponding Junior
Subordinated Debentures held by an Issuer, such Issuer may not
waive compliance by the Company with certain restrictive
provisions of the Corresponding Indenture or waive any past
defaults thereunder without the consent of a majority in
aggregate liquidation preference amount of the outstanding
Preferred Securities issued by such Issuer.
The Company is required to file annually with the Debenture
Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it
under the Indenture.
In case a Debenture Event of Default shall occur and be
continuing as to a series of Corresponding Junior Subordinated
Debentures, the Property Trustee will have the right to declare
the principal of and the interest on such Corresponding Junior
Subordinated Debentures and any other amounts payable under the
Corresponding Indenture, to be forthwith due and payable and to
enforce its other rights as a creditor with respect to such
Corresponding Junior Subordinated Debentures. If the Property
Trustee fails to enforce its rights with respect to the
Corresponding Junior Subordinated Debentures, or the related
Trust Agreement, a holder of Preferred Securities may institute a
proceeding directly against the Company to enforce the Property
Trustee's rights with respect to the Corresponding Junior
Subordinated Debentures or such Trust Agreement, to the fullest
extent permitted by law, without first instituting any legal
proceeding against the Property Trustee or any other person. See
"Description of Preferred Securities--Voting Rights; Amendment of
Trust Agreement". Notwithstanding the foregoing, a holder of
Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of principal of or interest
on the Corresponding Junior Subordinated Debentures having a
principal amount equal to the aggregate liquidation preference
amount of the Preferred Securities of such holder on or after the
due dates specified in the Junior Subordinated Debentures. See
"Description of Guarantees" and "Description of Corresponding
Junior Subordinated Debentures".
Consolidation, Merger, Sale of Assets and Other Transactions
The Indenture provides that the Company shall not consolidate
with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to
any person, unless (i) in case the Company consolidates with or
merges into another corporation or conveys or transfers its
properties and assets substantially as an entirety to any person,
the successor corporation is organized under the laws of the
United States or any State or the District of Columbia, and such
successor corporation expressly assumes the Company's obligations
on all Junior Subordinated Debentures issued under the Indenture;
(ii) immediately after giving effect thereto, no Debenture Event
of Default, and no event which, after notice or lapse of time or
both, would become a Debenture Event of Default, shall have
occurred and be continuing; and (iii) certain other conditions as
prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders
of the Junior Subordinated Debentures protection in the event of
a highly leveraged or other transaction involving the Company
that may adversely affect holders of the Junior Subordinated
Debentures.
Satisfaction And Discharge
The principal amount of any series of Junior Subordinated
Debentures issued under the Indenture will be deemed to have been
paid for purposes of the Indenture and the entire indebtedness of
the Company in respect thereof will be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Debenture Trustee or any Paying Agent, in
trust: (a) money in an amount which will be sufficient, or
(b) in the case of a deposit made prior to the maturity of the
Junior Subordinated Debentures, Government Obligations (as
defined herein), which do 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 Debenture Trustee, will be sufficient, or (c) a
combination of (a) and (b) which will be sufficient, to pay when
due the principal of and premium, if any, and interest, if any,
due and to become due on the Junior Subordinated Debentures of
such series that are outstanding. For this purpose, Government
Obligations, include direct obligations of, or obligations
unconditionally guaranteed by, the United States of America
entitled to the benefit of the full faith and credit thereof and
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in such obligations or in
any specific interest or principal payments due in respect
thereof.
It is possible that for federal income tax purposes any
deposit contemplated in the preceding paragraph could be treated
as a taxable exchange of the Junior Subordinated Debentures
outstanding for an issue of obligations of a trust or a direct
interest in the cash and securities held in trust. In that case,
holders of the Junior Subordinated Debentures outstanding would
recognize a gain or loss for federal income tax purposes, as if
their share of trust obligations or the cash or securities
deposited, as the case may be, had actually been received by them
in exchange for their Junior Subordinated Debentures. In
addition, such holders thereafter would be required to include in
income a share of the income, gain or loss of the trust. The
amount so required to be included in income could be different
from the amount that would be includable in the absence of such
deposit. Prospective investors are urged to consult their own
tax advisors as to the specific consequences to them of such
deposit.
Conversion or Exchange
If so indicated in the applicable Prospectus Supplement, the
Junior Subordinated Debentures of any series may be convertible
or exchangeable into other securities. The specific terms on
which Junior Subordinated Debentures of any series may be so
converted or exchanged will be set forth in the applicable
Prospectus Supplement. Such terms may include provisions for
conversion or exchange, either mandatory, at the option of the
holder, or at the option of the Company, in which case the number
of shares of Preferred Securities or other securities to be
received by the holders of Junior Subordinated Debentures would
be calculated as of a time and in the manner stated in the
applicable Prospectus Supplement.
Subordination
In the Indenture, the Company has covenanted and agreed that
any Junior Subordinated Debentures issued thereunder will be
subordinate and junior in right of payment to all Senior Debt to
the extent provided in the Indenture. Upon any payment or
distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the
benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in
connection with any insolvency or bankruptcy proceeding of the
Company, the holders of Senior Debt will first be entitled to
receive payment in full of principal of (and premium, if any) and
interest, if any, on such Senior Debt before the holders of
Junior Subordinated Debentures or, in the case of Corresponding
Junior Subordinated Debentures, the Property Trustee on behalf of
the holders, will be entitled to receive or retain any payment in
respect of the principal of (and premium, if any) or interest, if
any, on the Junior Subordinated Debentures.
In the event of the acceleration of the maturity of any
Junior Subordinated Debentures, the holders of all Senior Debt
outstanding at the time of such acceleration will first be
entitled to receive payment in full of all amounts due thereon
(including any amounts due upon acceleration) before the holders
of Junior Subordinated Debentures will be entitled to receive any
payment upon the principal of (or premium, if any) or interest,
if any, on the Junior Subordinated Debentures.
No payments on account of principal (or premium, if any) or
interest, if any, in respect of the Junior Subordinated
Debentures may be made if there shall have occurred and be
continuing a default in any payment with respect to Senior Debt,
or an event of default with respect to any Senior Debt resulting
in the acceleration of the maturity thereof remaining uncured.
The term Senior Debt is defined in the Indenture to mean all
obligations (other than non-recourse obligations and the
indebtedness issued under the Indenture) of, or guaranteed or
assumed by, the Company for borrowed money, including both senior
and subordinated indebtedness for borrowed money (other than the
Junior Subordinated Debentures), 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 the Indenture
or subsequently incurred by the Company unless, in the case of
any particular indebtedness, 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 Junior Subordinated
Debentures; provided that the Company's obligations under any
Guarantee shall not be deemed to be Senior Debt.
The Indenture places no limitation on the amount of
additional Senior Debt that may be incurred by the Company. The
Company expects from time to time to incur additional
indebtedness constituting Senior Debt.
Governing Law
The Indenture and the Junior Subordinated Debentures will be
governed by and construed in accordance with the laws of the
State of New York.
Information Concerning the Debenture Trustee
The Debenture Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an
indenture trustee under the Trust Indenture Act. Subject to such
provisions, the Debenture Trustee is under no obligation to
exercise any of the powers vested in it by the Indenture at the
request of any holder of Junior Subordinated Debentures, unless
offered reasonable indemnity by such holder against the costs,
expenses and liabilities which might be incurred thereby. The
Debenture Trustee is not required to expend or risk its own funds
or otherwise incur personal financial liability in the
performance of its duties if the Debenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably
assured to it.
DESCRIPTION OF PREFERRED SECURITIES
Pursuant to the terms of the Trust Agreement for each Issuer,
the Issuer Trustees on behalf of such Issuer will issue the
Preferred Securities and the Common Securities. The Preferred
Securities of a particular issue will represent preferred
undivided beneficial interests in the assets of the related
Issuer and the holders thereof will be entitled to a preference
in certain circumstances with respect to Distributions and
amounts payable on redemption or liquidation over the Common
Securities of such Issuer, as well as other benefits as described
in the corresponding Trust Agreement. This summary of certain
provisions of each Trust Agreement does not purport to be
complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of each Trust Agreement,
including the definitions therein of certain terms, and the Trust
Indenture Act. Wherever particular defined terms of the Trust
Agreement are referred to, such defined terms are incorporated
herein by reference. The form of the Trust Agreement has been
filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Each of the Issuers is a legally
separate entity and the assets of one are not available to
satisfy the obligations of any of the others.
General
The Preferred Securities of an Issuer will rank pari passu,
and payments will be made thereon pro rata, with the Common
Securities of that Issuer except as described under "--
Subordination of Common Securities". Legal title to the
Corresponding Junior Subordinated Debentures will be held by the
Property Trustee in trust for the benefit of the holders of the
related Preferred Securities and Common Securities. Each
Guarantee Agreement executed by the Company for the benefit of
the holders of an Issuer's Preferred Securities (each, a
"Guarantee") will be a guarantee on a subordinated basis with
respect to the related Preferred Securities but will not
guarantee payment of Distributions or amounts payable on
redemption or liquidation of such Preferred Securities when the
related Issuer does not have funds on hand available to make such
payments. See "Description of Guarantees".
Distributions
Each Issuer's Preferred Securities represent preferred
undivided beneficial interests in the assets of such Issuer, and
the Distributions on each Preferred Security will be payable at a
rate specified in the Prospectus Supplement for such Preferred
Securities. The amount of Distributions payable for any period
will be computed on the basis of a 360-day year of twelve 30-day
months unless otherwise specified in the applicable Prospectus
Supplement. Distributions that are in arrears may bear interest
on the amount thereof at the rate per annum if and as specified
in the applicable Prospectus Supplement ("Additional Amounts").
The term "Distributions" as used herein includes any Additional
Amounts unless otherwise stated.
Distributions on the Preferred Securities will be cumulative,
will accumulate from the date of original issuance and will be
payable on such dates as specified in the applicable Prospectus
Supplement. In the event that any date on which Distributions
are payable on the Preferred Securities is not a Business Day (as
defined below), payment of the Distribution 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 to any such
delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be
made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date (each date on
which Distributions are payable in accordance with the foregoing,
a "Distribution Date"). A "Business Day" shall mean any day
other than a Saturday or a Sunday, or a day on which banking
institutions in The City of New York are authorized or required
by law or executive order to remain closed or a day on which the
corporate trust office of the Property Trustee or the
Corresponding Debenture Trustee is closed for business.
If provided in the applicable Prospectus Supplement, the
Company has the right under the Corresponding Indenture to defer
the payment of interest on any series of the Corresponding Junior
Subordinated Debentures at any time or from time to time for one
or more Extension Periods, subject to the terms, conditions and
covenants, if any, specified in the applicable Prospectus
Supplement, provided that such Extension Period may not extend
beyond the maturity of the Corresponding Junior Subordinated
Debentures. As a consequence of any such deferral, Distributions
on the corresponding Preferred Securities would be deferred (but
would continue to accumulate additional Distributions thereon at
the rate per annum set forth in the Prospectus Supplement for
such Preferred Securities) by the Issuer of such Preferred
Securities during any such Extension Period. In the event that
the Company exercises this right, during such Extension Period
the Company may not (i) 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 (ii) make any payment of principal, interest or premium,
if any, on or repay, repurchase or redeem any debt securities
that rank pari passu with or junior in interest to the
Corresponding Junior Subordinated Debentures or make any
guarantee payments with respect to the foregoing (other than (a)
dividends or distributions in shares of capital stock of the
Company and (b) payments under any Guarantee).
It is anticipated that the revenue of each Issuer available
for distribution to holders of its Preferred Securities will be
limited to payments under the Corresponding Junior Subordinated
Debentures in which the Issuer will invest the proceeds from the
issuance and sale of its Preferred Securities and its Common
Securities. See "Description of Corresponding Junior
Subordinated Debentures". If the Company does not make interest
payments on such Corresponding Junior Subordinated Debentures,
the Property Trustee will not have funds available to pay
Distributions on the corresponding Preferred Securities. The
payment of Distributions (if and to the extent the Issuer has
funds available for the payment of such Distributions and cash
sufficient to make such payments) is guaranteed on a limited
basis as set forth herein under "Description of Guarantees".
Distributions on the Preferred Securities will be payable to
the holders thereof as they appear on the register of such Issuer
on the relevant record dates, which, as long as the Preferred
Securities remain in book-entry form, will be one Business Day
prior to the relevant Distribution Date. Subject to any
applicable laws and regulations and the provisions of the
applicable Trust Agreement, each such payment will be made as
described under "--Book-Entry Issuance". In the event any
Preferred Securities are not in book-entry form, the relevant
record date for such Preferred Securities shall be the date 15
days prior to the relevant Distribution Date.
Redemption
Mandatory Redemption. Upon the repayment or redemption, in
whole or in part, of any Corresponding Junior Subordinated
Debentures, whether at maturity or upon earlier redemption as
provided in the Corresponding Indenture, the proceeds from such
repayment or redemption shall be applied by the Property Trustee
to redeem a Like Amount (as defined below) of the Corresponding
Preferred Securities and Common Securities, upon not less than 30
nor more than 60 days notice prior to the date fixed for
repayment or redemption (the "Redemption Date"), at a redemption
price equal to the aggregate liquidation preference amount of
such Preferred Securities plus accumulated and unpaid
Distributions thereon to the Redemption Date and the related
amount of the premium, if any, paid by the Company upon the
concurrent redemption of such Corresponding Junior Subordinated
Debentures (the "Redemption Price"). See "Description of
Corresponding Junior Subordinated Debentures--Optional
Redemption". If less than all of any series of Corresponding
Junior Subordinated Debentures are to be repaid or redeemed on a
Redemption Date, then the proceeds from such repayment or
redemption shall be allocated to the redemption pro rata of the
Preferred Securities and the Common Securities. The amount of
premium, if any, paid by the Company upon the redemption of all
or any part of any series of any Corresponding Junior
Subordinated Debentures to be repaid or redeemed on a Redemption
Date shall be allocated to the redemption pro rata of the
Preferred Securities and the Common Securities.
The Company will have the right to redeem any series of
Corresponding Junior Subordinated Debentures (i) in whole at any
time or in part from time to time, subject to the conditions
described under "Description of Corresponding Junior Subordinated
Debentures--Optional Redemption", or (ii) at any time, in whole
(but not in part), upon the occurrence of a Tax Event or an
Investment Company Event (each as defined below, a "Special
Event") and subject to the further conditions described under
"Description of Corresponding Junior Subordinated Debentures--
Optional Redemption", or (iii) as may be otherwise specified in
the applicable Prospectus Supplement.
Special Event Redemption or Distribution. Except as
otherwise specified in the applicable Prospectus Supplement, if a
Special Event in respect of a series of Preferred Securities and
Common Securities shall occur and be continuing, the Company has
the right to (i) redeem the Corresponding Junior Subordinated
Debentures in whole (but not in part) and therefore cause a
mandatory redemption of such Preferred Securities and Common
Securities in whole (but not in part) at the Redemption Price
within 90 days following the occurrence of such Special Event, or
(ii) terminate the related Issuer and, after satisfaction of
creditors of the Trust, if any, as provided by applicable law,
cause such Corresponding Junior Subordinated Debentures to be
distributed to the holders of such Preferred Securities and
Common Securities in liquidation of such Issuer. If at any time
an Issuer is not or will not be taxed as a grantor trust but a
Tax Event in respect of the related Preferred Securities has not
occurred, the Company has the right to terminate such Issuer and,
after satisfaction of creditors of the Trust, if any, as provided
by applicable law, cause the Corresponding Junior Subordinated
Debentures to be distributed to the holders of the Preferred
Securities in liquidation of such Issuer. If the Company does
not elect either option (i) or (ii) above, the applicable series
of Preferred Securities will remain outstanding and, in the event
a Tax Event has occurred and is continuing, Additional Interest
(as described below) will be payable on the Corresponding Junior
Subordinated Debentures.
"Tax Event" means the receipt by an Issuer 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 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 such pronouncement or
decision is announced on or after the date of issuance of the
series of Preferred Securities by such Issuer under the related
Trust Agreement, there is more than an insubstantial risk that
(i) such Issuer is, or will be within 90 days of the date
thereof, subject to United States Federal income tax with respect
to income received or accrued on the corresponding series of
Corresponding Junior Subordinated Debentures, (ii) interest
payable by the Company on such series of Corresponding Junior
Subordinated Debentures is not, or within 90 days of the date
thereof, will not be, deductible, in whole or in part, for United
States Federal income tax purposes, or (iii) such Issuer 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 (a "Change in 1940 Act Law") to
the effect that the an Issuer is or will be considered an
"investment company" that is required to be registered under the
Investment Company Act of 1940, as amended (the "Investment
Company Act"), which Change in 1940 Act Law becomes effective on
or after the date of original issuance of the series of Preferred
Securities issued by such Issuer.
"Like Amount" means (i) with respect to a redemption of any
series of Preferred Securities, Preferred Securities and Common
Securities of such series having a Liquidation Preference Amount
(as defined below) equal to that portion of the principal amount
of Corresponding Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Corresponding
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Preferred Securities and Common
Securities. "Liquidation Preference Amount" means the stated
amount of $25 per Preferred Security and Common Security.
After the liquidation date fixed for any distribution of
Corresponding Junior Subordinated Debentures for any series of
Preferred Securities (i) such series of Preferred Securities will
no longer be deemed to be outstanding, (ii) The Depository Trust
Company ("DTC") or its nominee, as the record holder of such
series of Preferred Securities, will receive a registered global
certificate or certificates representing the Corresponding Junior
Subordinated Debentures to be delivered upon such distribution
and (iii) any certificates representing such series of Preferred
Securities not held by DTC or its nominee will be deemed to
represent the Corresponding Junior Subordinated Debentures having
a principal amount equal to the stated liquidation preference of
such series of Preferred Securities, and bearing accrued and
unpaid interest in an amount equal to the accrued and unpaid
Distributions on such series of Preferred Securities until such
certificates are presented to the Administrative Trustees or
their agent for transfer or reissuance.
There can be no assurance as to the market prices for the
Preferred Securities or the Corresponding Junior Subordinated
Debentures that may be distributed in exchange for Preferred
Securities if a dissolution and liquidation of an Issuer were to
occur. Accordingly, the Preferred Securities that an investor
may purchase, or the Corresponding Junior Subordinated Debentures
that the investor may receive on dissolution and liquidation of
an Issuer, may trade at a discount to the price that the investor
paid to purchase the Preferred Securities offered hereby.
Redemption Procedures
Preferred Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the applicable proceeds
from the contemporaneous redemption of the Corresponding Junior
Subordinated Debentures. Redemptions of the Preferred Securities
shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the related Issuer has
funds on hand available for the payment of such Redemption Price.
See also "--Subordination of Common Securities".
If an Issuer gives a notice of redemption in respect of its
Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, to the extent funds are available, the
Property Trustee will deposit irrevocably with DTC funds
sufficient to pay the applicable Redemption Price and will give
DTC irrevocable instructions and authority to pay the Redemption
Price to the holders of such Preferred Securities. See
"--Book-Entry Issuance". If such Preferred Securities are no
longer in book-entry form, the Issuer, to the extent funds are
available, will irrevocably deposit with the paying agent for
such 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 Preferred Securities. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any
Preferred Securities called for redemption shall be payable to
the holders of such Preferred Securities on the relevant record
dates for the related Distribution 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 Preferred Securities so called for redemption will cease,
except the right of the holders of such Preferred Securities to
receive the Redemption Price, but without interest on such
Redemption Price, and such Preferred Securities will cease to be
outstanding. In the event that any date fixed for redemption of
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 calendar year, such payment
will be made on the immediately preceding Business Day. In the
event that payment of the Redemption Price in respect of
Preferred Securities called for redemption is improperly withheld
or refused and not paid either by the Issuer or by the Company
pursuant to the related Guarantee as described under "Description
of Guarantees", Distributions on such Preferred Securities will
continue to accrue at the then applicable rate, from the
Redemption Date originally established by the Issuer for such
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,
United States Federal securities law), the Company or its
subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or
by private agreement.
Payment of the Redemption Price on the Preferred Securities
and any distribution of Corresponding Junior Subordinated
Debentures to holders of Preferred Securities shall be made to
the applicable recordholders thereof as they appear on the
register for such Preferred Securities on the relevant record
date, which shall be one Business Day prior to the relevant
Redemption Date or liquidation date, as applicable; provided,
however, that in the event that any Preferred Securities are not
in book-entry form, the relevant record date for such Preferred
Securities shall be the date 15 days prior to the Redemption Date
or liquidation date, as applicable.
If less than all of the Preferred Securities and Common
Securities issued by an Issuer are to be redeemed on a Redemption
Date, then the aggregate Liquidation Preference Amount of such
Preferred Securities and Common Securities to be redeemed shall
be allocated pro rata among the Preferred Securities and the
Common Securities. The particular Preferred Securities to be
redeemed shall be selected on a pro rata basis not more than 60
days prior to the Redemption Date by the Property Trustee from
the outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for
redemption of portions (equal to $25 or an integral multiple of
$25 in excess thereof) of the Liquidation Preference Amount of
Preferred Securities of a denomination larger than $25. The
Property Trustee shall promptly notify the transfer agent and
registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Preference Amount thereof
to be redeemed. For all purposes of each Trust Agreement, unless
the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part,
to the portion of the aggregate Liquidation Preference Amount of
Preferred Securities which has been or is to be redeemed.
Subordination of Common Securities
Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, each Issuer's
Preferred Securities and Common Securities, as applicable, shall
be made pro rata based on the Liquidation Preference Amount of
such Preferred Securities and Common Securities; provided,
however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default shall have occurred and be continuing,
no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any of the Issuer's
Common Securities, and no other payment on account of the
redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all of the Issuer's outstanding
Preferred Securities for all Distribution periods terminating on
or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all of the
Issuer's outstanding Preferred Securities, shall have been made
or provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on,
or Redemption Price of, the Issuer's Preferred Securities then
due and payable.
In the case of any Event of Default resulting from a
Debenture Event of Default, the Company, as holder of such
Issuer's Common Securities, will be deemed to have waived any
right to act with respect to any such Event of Default under the
related Trust Agreement until the effect of all such Events of
Default with respect to such Preferred Securities have been
cured, waived or otherwise eliminated. Until any such Events of
Default under such Trust Agreement with respect to such Preferred
Securities have been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the holders of
such Preferred Securities and not on behalf of the Company as
holder of the related Issuer's Common Securities, and only the
holders of such Preferred Securities will have the right to
direct the Property Trustee to act on their behalf.
Liquidation Distribution upon Termination
Pursuant to each Trust Agreement, each Issuer shall
automatically terminate upon expiration of its term and shall be
terminated on the first to occur of: (i) the occurrence of
certain events of bankruptcy, dissolution or liquidation of the
Company; (ii) the distribution of a Like Amount of the
Corresponding Junior Subordinated Debentures to the holders of
its Preferred Securities and Common Securities following the
occurrence of a Special Event or in the event such Issuer is not
or will not be taxed as a grantor trust but a Tax Event has not
occurred; (iii) the redemption of all of such Issuer's Preferred
Securities; and (iv) an order for the termination of such Issuer
shall have been entered by a court of competent jurisdiction.
If an early termination occurs as described in clause (i),
(ii) or (iv) above, such Issuer shall be liquidated by the Issuer
Trustees as expeditiously as the Issuer Trustees determine to be
possible by distributing, after satisfaction of liabilities to
creditors of such Issuer, if any, as provided by applicable law,
to the holders of such Preferred Securities and Common Securities
a Like Amount of the Corresponding Junior Subordinated
Debentures, unless such distribution is determined by the
Property Trustee not to be practical, in which event such holders
will be entitled to receive out of the assets of such Issuer
available for distribution to holders, after satisfaction of
liabilities to creditors of such Issuer, if any, as provided by
applicable law, an amount equal to, in the case of holders of
Preferred Securities, the aggregate of the Liquidation Preference
Amount plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution").
If such Liquidation Distribution can be paid only in part because
such Issuer has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable
directly by such Issuer on its Preferred Securities shall be paid
on a pro rata basis. The holder(s) of such Issuer's Common
Securities will be entitled to receive distributions upon any
such liquidation pro rata with the holders of its Preferred
Securities, except that if a Debenture Event of Default has
occurred and is continuing, the Preferred Securities shall have a
priority over the Common Securities. A supplemental indenture
may provide that if an early termination occurs as described in
clause (iv) above, the Corresponding Junior Subordinated
Debentures may be subject to optional redemption in whole (but
not in part).
Events of Default; Notice
Any one of the following events constitutes an "Event of
Default" under each Trust Agreement (an "Event of Default") with
respect to the Preferred Securities issued thereunder (whatever
the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(i) the occurrence of a Debenture Event of Default under
the Corresponding Indenture (see "Description of Junior
Subordinated Debentures--Debenture Events of Default"); or
(ii) default by the Issuer in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(iii) default by the Issuer in the payment of any
Redemption Price of any Preferred Security or Common Security
when it becomes due and payable; or
(iv) default in the performance, or breach, in any
material respect, of any covenant or warranty of the Issuer
Trustees in such Trust Agreement (other than a covenant or
warranty a default in the performance of which or the breach
of which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60
days after there has been given, by registered or certified
mail, to the defaulting Issuer Trustee or Trustees by the
holders of at least 10% in aggregate Liquidation Preference
Amount of the outstanding Preferred Securities of the
applicable Issuer, a written notice specifying such default
or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" under such Trust
Agreement; or
(v) the occurrence of certain events of bankruptcy with
respect to the Issuer.
Within five Business Days after the occurrence of any Event
of Default known to the Property Trustee, the Property Trustee
shall transmit notice of such Event of Default to the holders of
such Issuer's Preferred Securities, the Administrative Trustees
and the Company, as depositor, unless such Event of Default shall
have been cured or waived. The Company, as depositor, and the
Administrative Trustees are required to file annually with the
Property Trustee a certificate as to whether or not they are in
compliance with all the conditions and covenants applicable to
them under the Trust Agreement.
If a Debenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a preference over
the Common Securities upon termination of each Issuer as
described above. See "--Liquidation Distribution Upon
Termination".
Removal of Issuer Trustees
Unless a Debenture Event of Default shall have occurred and
be continuing, any Issuer Trustee may be removed at any time by
the holder of the Common Securities. If a Debenture Event of
Default has occurred and is continuing, the Property Trustee and
the Delaware Trustee may be removed at such time by the holders
of a majority in liquidation preference amount of the outstanding
Preferred Securities. In no event will the holders of the
Preferred Securities have the right to vote to appoint, remove or
replace the Administrative Trustees, which voting rights are
vested exclusively in the Company as the holder of the Common
Securities. No resignation or removal of an Issuer Trustee and
no appointment of a successor trustee shall be effective until
the acceptance of appointment by the successor trustee in
accordance with the provisions of the Trust Agreement.
Co-trustees and Separate Property Trustee
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Company, as the holder of the Common
Securities, and the Property Trustee shall have the power to
appoint one or more persons either to act as a co-trustee,
jointly with the Property Trustee, of all or any part of such
Trust Property, or to act as separate trustee of any such
property, in either case with such powers as may be provided in
the instrument of appointment, and to vest in such person or
persons in such capacity any property, title, right or power
deemed necessary or desirable, subject to the provisions of the
Trust Agreement. In case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
Merger or Consolidation of Issuer Trustees
Any entity into which the Property Trustee, the Delaware
Trustee or any Administrative Trustee that is not a natural
person may be merged or converted or with which it may be
consolidated, or any entity resulting from any merger, conversion
or consolidation to which such Trustee shall be a party, or any
entity succeeding to all or substantially all the corporate trust
business of such Trustee, shall be the successor of such Trustee
under any Trust Agreement, provided such entity shall be
otherwise qualified and eligible.
Mergers, Consolidations, Amalgamations or Replacements of the
Issuers
An Issuer may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any
corporation or other body, except as described below. An Issuer
may, at the request of the Company, with the consent of the
Administrative Trustees and without the consent of the holders of
the related Preferred Securities, merge with or into,
consolidate, amalgamate, or be replaced by a trust organized as
such under the laws of any State; provided, that (i) such
successor entity either (a) expressly assumes all of the
obligations of such Issuer with respect to such Preferred
Securities or (b) substitutes for such Preferred Securities other
securities (the "Successor Securities") so long as the Successor
Securities rank the same as such Preferred Securities rank in
priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee
as the holder of the related Corresponding Junior Subordinated
Debentures, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other
organization on which such Preferred Securities are then listed,
if any, (iv) such merger, consolidation, amalgamation or
replacement does not cause such Preferred Securities (including
any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of
such Preferred Securities (including any Successor Securities) in
any material respect, (vi) such successor entity has a purpose
substantially identical to that of such Issuer, (vii) prior to
such merger, consolidation, amalgamation or replacement, the
Company has received an opinion from independent counsel to such
Issuer experienced in such matters to the effect that (a) such
merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the
holders of such Preferred Securities (including any Successor
Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation or replacement, neither such
Issuer nor such successor entity will be required to register as
an investment company under the Investment Company Act and (viii)
the Company or any permitted successor or assignee owns all of
the related Common Securities of such successor entity and
guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the
related Guarantee. Notwithstanding the foregoing, an Issuer
shall not, except with the consent of holders of 100% in
liquidation preference amount of such Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by
any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause
such Issuer or the successor entity to be classified as other
than a grantor trust for United States Federal income tax
purposes.
Voting Rights; Amendment of Trust Agreement
Except as provided below and under "Description of Guarantees-
- -Amendments and Assignment" and as otherwise required by law and
each Trust Agreement, the holders of the Preferred Securities
will have no voting rights.
Each Trust Agreement may be amended from time to time by the
Company and the Administrative Trustees, without the consent of
the holders of the Preferred Securities (i) to cure any
ambiguity, correct or supplement any provisions in such Trust
Agreement which may be inconsistent with any other provision, or
to make any other provisions with respect to matters or questions
arising under such Trust Agreement, which shall not be
inconsistent with the other provisions of such Trust Agreement,
or (ii) to modify, eliminate or add to any provisions of such
Trust Agreement to such extent as shall be necessary to ensure
that such Issuer will be classified for United States Federal
income tax purposes as a grantor trust at all times that any of
its Preferred Securities and Common Securities are outstanding or
to ensure that such Issuer will not be required to register as an
"investment company" under the Investment Company Act; provided,
however, that in the case of clause (ii), such action shall not
adversely affect in any material respect the interests of any
holder of such Preferred Securities or Common Securities, and, in
the case of clause (i), any amendments of such Trust Agreement
shall become effective when notice thereof is given to the
holders of Preferred Securities and Common Securities. Each
Trust Agreement may be amended by the Administrative Trustees and
the Company with (i) the consent of holders representing not less
than a majority (based upon liquidation preference amounts) of
the related outstanding Preferred Securities and Common
Securities and (ii) receipt by the Issuer Trustees of an opinion
of counsel to the effect that such amendment or the exercise of
any power granted to the Issuer Trustees in accordance with such
amendment will not affect such Issuer's status as a grantor trust
for United States Federal income tax purposes or such Issuer's
exemption from status of an "investment company" under the
Investment Company Act, provided that without the consent of each
holder of such Preferred Securities and Common Securities, such
Trust Agreement may not be amended to (i) change the amount or
timing of any Distribution on such Preferred Securities and
Common Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of such Preferred
Securities and Common Securities as of a specified date or (ii)
restrict the right of a holder of such Preferred Securities and
Common Securities to institute suit for the enforcement of any
such payment on or after such date.
So long as any Corresponding Junior Subordinated Debentures
are held by the Property Trustee, the Issuer Trustees shall not
(i) direct the time, method and place of conducting any
proceeding for any remedy available to the Corresponding
Debenture Trustee, or executing any trust or power conferred on
the Property Trustee with respect to such Corresponding Junior
Subordinated Debentures, (ii) waive any past default that is
waiveable under Section 813 of the Corresponding Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Corresponding Junior Subordinated Debentures
shall be due and payable or (iv) consent to any amendment,
modification or termination of the Corresponding Indenture or
such Corresponding Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the
prior approval of the holders of a majority in aggregate
liquidation preference amount of all related outstanding
Preferred Securities; provided, however, that where a consent
under the Corresponding Indenture would require the consent of
each holder of Corresponding Junior Subordinated Debentures
affected thereby, no such consent shall be given by the Property
Trustee without the prior consent of each holder of the
corresponding Preferred Securities. The Issuer Trustees shall
not revoke any action previously authorized or approved by a vote
of the Preferred Securities except by subsequent vote of the
holders of the Preferred Securities. The Property Trustee shall
notify all holders of any series of Preferred Securities of any
notice of default with respect to the related Corresponding
Junior Subordinated Debentures. In addition to obtaining the
foregoing approvals of the holders of such Preferred Securities,
prior to taking any of the foregoing actions, the Issuer Trustees
shall obtain an opinion of counsel experienced in such matters to
the effect that the related Issuer will not be classified as an
association taxable as a corporation for United States Federal
income tax purposes on account of such action.
If the Property Trustee fails to enforce its rights under the
Corresponding Junior Subordinated Debentures or the related Trust
Agreement, a holder of Preferred Securities may institute a legal
proceeding directly against the Company to enforce the Property
Trustee's rights the Corresponding Junior Subordinated Debentures
or such Trust Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against the
Property Trustee or any other person. Notwithstanding the
foregoing, a holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such holder
of principal of or interest on the Corresponding Junior
Subordinated Debentures having a principal amount equal to the
aggregate liquidation preference amount of the Preferred
Securities of such holder on or after the due dates specified in
the Junior Subordinated Debentures. See "Description of
Guarantees" and "Description of Corresponding Junior Subordinated
Debentures".
Any required approval of holders of one or more series of
Preferred Securities may be given at a meeting of holders of such
Preferred Securities convened for such purpose or pursuant to
written consent. The Property Trustee will cause a notice of any
meeting at which holders of such 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 such Preferred Securities in the manner set
forth in each Trust Agreement.
No vote or consent of the holders of Preferred Securities
will be required for an Issuer to redeem and cancel its Preferred
Securities in accordance with the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are owned
by the Company, the Issuer Trustees or any affiliate of the
Company or any Issuer Trustees, shall, for purposes of such vote
or consent, be treated as if they were not outstanding.
Payment and Paying Agency
Payments in respect of the Preferred Securities shall be made
to DTC, which shall credit the relevant accounts at DTC on the
applicable Distribution Dates or, if any Issuer's Preferred
Securities are not held by DTC, such payments shall be made by
check mailed to the address of the holder entitled thereto as
such address shall appear on the Securities Register. Unless
otherwise specified in the applicable Prospectus Supplement, the
paying agent (the "Paying Agent") shall initially be the Property
Trustee and any co-paying agent chosen by the Property Trustee
and acceptable to the Administrative Trustees and the Company.
The Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Property Trustee and the
Company. In the event that the Property Trustee shall no longer
be the Paying Agent, the Administrative Trustees shall appoint a
successor to act as Paying Agent (which shall be a bank or trust
company acceptable to the Administrative Trustees and the
Company).
Book-Entry Issuance
DTC will act as securities depositary for all of the
Preferred Securities. The Preferred Securities will be issued
only as fully-registered securities registered in the name of
Cede & Co. (DTC's nominee). One or more fully-registered global
certificates will be issued for the Preferred Securities of each
Issuer, representing the aggregate total number of such Issuer's
Preferred Securities, and will be deposited with DTC.
DTC is a limited purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning
of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other
organizations ("Direct Participants"). DTC is owned by a number
of its Direct Participants and by the NYSE, the American Stock
Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to
others such as securities brokers and dealers, banks and trust
companies that clear through or maintain custodial relationships
with Direct Participants, either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchases of Preferred Securities within the DTC system must
be made by or through Direct Participants, which will receive a
credit for the Preferred Securities on DTC's records. The
ownership interest of each actual purchaser of each Preferred
Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners
will not receive written confirmation from DTC of their
purchases, but Beneficial Owners are expected to receive written
confirmations providing details of the transactions, as well as
periodic statements of their holdings, from the Direct or
Indirect Participants through which the Beneficial Owners
purchased Preferred Securities. Transfers of ownership interests
in the Preferred Securities are to be accomplished by entries
made on the books of Participants acting on behalf of Beneficial
Owners. Beneficial Owners will not receive certificates
representing their ownership interests in Preferred Securities,
except in the event that use of the book-entry system for the
Preferred Securities of such Issuer is discontinued.
To facilitate subsequent transfers, all of the Preferred
Securities deposited by the Participants with DTC are registered
in the name of DTC's nominee, Cede & Co. The deposit of
Preferred Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has
no knowledge of the actual Beneficial Owners of the Preferred
Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Preferred Securities are
credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to
Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. as the
registered holder of the Preferred Securities. If less than all
of an Issuer's Preferred Securities are being redeemed, DTC's
current practice is to determine by lot the amount of the
interest of each Direct Participant to be redeemed.
Although voting with respect to the Preferred Securities is
limited to the holders of record of the Preferred Securities, in
those instances in which a vote is required, neither DTC nor Cede
& Co. will itself consent or vote with respect to Preferred
Securities. Under its usual procedures, DTC would mail an
omnibus proxy (the "Omnibus Proxy") to the relevant Issuer as
soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts such Preferred Securities are
credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Distribution payments on the Preferred Securities will be
made to DTC. DTC's practice is to credit Direct Participants'
accounts on the relevant payment date in accordance with their
respective holdings shown on DTC's records unless DTC has reason
to believe that it will not receive payments on such payment
date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices and
will be the responsibility of such Participant and not of DTC,
the Property Trustee, the Issuer thereof or the Company, subject
to any statutory or regulatory requirements as may be in effect
from time to time. Payment of Distributions to DTC is the
responsibility of the relevant Issuer, disbursement of such
payments to Direct Participants is the responsibility of DTC, and
disbursements of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities
depositary with respect to any of the Preferred Securities at any
time by giving reasonable notice to the relevant Issuer and the
Company. In the event that a successor securities depositary is
not obtained, definitive Preferred Security certificates
representing such Preferred Securities are required to be printed
and delivered. The Company, at its option, may decide to
discontinue use of the system of book-entry transfers through DTC
(or a successor depositary).In any such event, definitive
certificates for such Issuer's Preferred Securities will be
printed and delivered.
The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Issuers
and the Company believe to be accurate, but the Issuers and the
Company assume no responsibility for the accuracy thereof.
Neither the Issuers nor the Company has any responsibility for
the performance by DTC or its Participants of their respective
obligations as described herein or under the rules and procedures
governing their respective operations.
Registrar and Transfer Agent
Unless otherwise specified in the applicable Prospectus
Supplement, the Property Trustee will act as registrar and
transfer agent for the Preferred Securities.
Registration of transfers of Preferred Securities will be
effected without charge by or on behalf of each Issuer, but upon
payment of any tax or other governmental charges that may be
imposed in connection with any transfer or exchange. The Issuers
will not be required to register or cause to be registered the
transfer of their Preferred Securities after such Preferred
Securities have been called for redemption.
Information Concerning the Property Trustee
The Property Trustee, other than during the occurrence and
continuance of an Event of Default, undertakes to perform only
such duties as are specifically set forth in each Trust Agreement
and, after such Event of Default, must exercise the same degree
of care and skill as a prudent person would exercise or use in
the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to
exercise any of the powers vested in it by the applicable Trust
Agreement at the request of any holder of Preferred Securities
unless it is offered reasonable indemnity against the costs,
expenses and liabilities that might be incurred thereby. If no
Event of Default has occurred and is continuing and the Property
Trustee is required to decide between alternative causes of
action, construe ambiguous provisions in a Trust Agreement or is
unsure of the application of any provision of the applicable
Trust Agreement, and the matter is not one on which holders of
Preferred Securities are entitled under such Trust Agreement to
vote, then the Property Trustee shall take such action as is
directed by the Company and if not so directed, shall take such
action as it deems advisable and in the best interests of the
holders of the Preferred Securities and the Common Securities and
will have no liability except for its own bad faith, negligence
or willful misconduct.
Miscellaneous
The Administrative Trustees are authorized and directed to
conduct the affairs of and to operate the Issuers in such a way
that no Issuer will be deemed to be an "investment company"
required to be registered under the Investment Company Act or
taxed as a corporation for United States Federal income tax
purposes and so that the Corresponding Junior Subordinated
Debentures will be treated as indebtedness of the Company for
United States Federal income tax purposes. In this connection,
the Company and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the
certificate of trust of each Issuer or each Trust Agreement, that
the Company and the Administrative Trustees determine in their
discretion to be necessary or desirable for such purposes, as
long as such action does not materially adversely affect the
interests of the holders of the related Preferred Securities.
Holders of the Preferred Securities have no preemptive or
similar rights.
No Issuer may borrow money or issue debt or mortgage or
pledge any of its assets.
DESCRIPTION OF GUARANTEES
Each Guarantee will be executed and delivered by the Company
concurrently with the issuance by each Issuer of its Preferred
Securities for the benefit of the holders from time to time of
such Preferred Securities. The Bank of New York will act as
indenture trustee (the "Guarantee Trustee") under each Guarantee
for the purposes of compliance with the Trust Indenture Act and
each Guarantee will be qualified as an Indenture under the Trust
Indenture Act. This summary of certain provisions of the
Guarantees does not purport to be complete and is subject to, and
qualified in its entirety by reference to, all of the provisions
of each Guarantee Agreement, including the definitions therein of
certain terms, and the Trust Indenture Act. The form of each
Guarantee has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. Reference in
this summary to Preferred Securities means that Issuer's
Preferred Securities to which a Guarantee relates. The Guarantee
Trustee will hold each Guarantee for the benefit of the holders
of the related Issuer's Preferred Securities.
General
The Company will irrevocably agree to pay in full on a
subordinated basis, to the extent set forth herein, the Guarantee
Payments (as defined below) to the holders of the Preferred
Securities, as and when due, regardless of any defense, right of
set-off or counterclaim that the related Issuer of such Preferred
Securities may have or assert other than the defense of payment.
The following payments with respect to the Preferred Securities,
to the extent not paid by or on behalf of the related Issuer (the
"Guarantee Payments"), will be subject to the Guarantee: (i) any
accumulated and unpaid Distributions required to be paid on such
Preferred Securities, to the extent that such Issuer has funds on
hand available therefor, (ii) the Redemption Price with respect
to any Preferred Securities called for redemption to the extent
that such Issuer has funds on hand available therefor, or (iii)
upon a voluntary or involuntary dissolution, winding up or
liquidation of such Issuer (unless the Corresponding Junior
Subordinated Debentures are distributed to holders of such
Preferred Securities), the lesser of (a) the Liquidation
Distribution and (b) the amount of assets of such Issuer
remaining available for distribution to holders of Preferred
Securities. The Company's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the
Company to the holders of the applicable Preferred Securities or
by causing the related Issuer to pay such amounts to such
holders.
Each Guarantee will be an irrevocable guarantee on a
subordinated basis of the related Issuer's obligations under the
Preferred Securities, but will apply only to the extent that such
related Issuer has funds sufficient to make such payments, and is
not a guarantee of collection.
If the Company does not make interest payments on the
Corresponding Junior Subordinated Debentures held by an Issuer,
it is expected that such Issuer will not pay Distributions on the
related Preferred Securities and will not have funds available
therefor. Each Guarantee will rank subordinate and junior in
right of payment to all Senior Debt. See "--Status of
Guarantees". Except as otherwise provided in the applicable
Prospectus Supplement, none of the Guarantees will limit the
incurrence or issuance of other secured or unsecured debt of the
Company, whether under the Corresponding Indenture, any other
indenture that the Company may enter into in the future or
otherwise. See the Prospectus Supplement relating to any
offering of Preferred Securities.
The Company has, through the Guarantees, the Trust
Agreements, the Corresponding Junior Subordinated Debentures, the
Corresponding Indenture and the Expense Agreements, taken
together, fully, irrevocably and unconditionally guaranteed all
of the Issuers' obligations under the Preferred Securities. No
single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee.
It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional
guarantee of the Issuers' obligations under the Preferred
Securities. See "Relationship Among the Preferred Securities,
the Corresponding Junior Subordinated Debentures and the
Guarantees--General".
Status of the Guarantees
Each Guarantee will constitute an unsecured obligation of the
Company and will rank subordinate and junior in right of payment
to all Senior Debt.
Each Guarantee will rank pari passu with all other Guarantees
issued by the Company. Each Guarantee will constitute a
guarantee of payment and not of collection (i.e., the guaranteed
party may institute a legal proceeding directly against the
guarantor to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or
entity). Each Guarantee will be held for the benefit of the
holders of the related Preferred Securities. Each Guarantee will
not be discharged except by payment of the related Guarantee
Payments in full to the extent not paid by the related Issuer or
upon distribution to the holders of the related Preferred
Securities of the related Corresponding Junior Subordinated
Debentures. None of the Guarantees places a limitation on the
amount of additional Senior Debt that may be incurred by the
Company. The Company expects from time to time to incur
additional indebtedness constituting Senior Debt.
Amendments and Assignment
Except with respect to any changes that do not materially
adversely affect the rights of holders of the related Preferred
Securities (in which case no vote will be required), no Guarantee
may be amended without the prior approval of the holders of not
less than a majority of the aggregate Liquidation Preference
Amount of such outstanding Preferred Securities. The manner of
obtaining any such approval is set forth under "Description of
Preferred Securities--Voting Rights; Amendment of Trust
Agreement". All guarantees and agreements contained in each
Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Company and shall inure to the benefit
of the holders of the related Preferred Securities then
outstanding.
Events of Default
An event of default under each Guarantee will occur upon the
failure of the Company to perform any of its payment or other
obligations thereunder. The holders of not less than a majority
in aggregate Liquidation Preference Amount of the related
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 such Guarantee or to
direct the exercise of any trust or power conferred upon the
Guarantee Trustee under such Guarantee.
Any holder of the related Preferred Securities may institute
a legal proceeding directly against the Company to enforce its
rights under such Guarantee without first instituting a legal
proceeding against the related Issuer, the Guarantee Trustee or
any other person or entity.
The Company, as guarantor, is required to file annually with
the Guarantee Trustee a certificate as to whether or not the
Company is in compliance with all the conditions and covenants
applicable to it under the Guarantees.
Information Concerning the Guarantee Trustee
The Guarantee Trustee, other than during the occurrence and
continuance of a default by the Company in performance of any
Guarantee, undertakes to perform only such duties as are
specifically set forth in each Guarantee and, after default with
respect to any Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision,
the Guarantee Trustee is under no obligation to exercise any of
the powers vested in it by any Guarantee at the request of any
holder of any Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities
that might be incurred thereby.
Termination of the Guarantees
Each Guarantee will terminate and be of no further force and
effect upon full payment of the Redemption Price of the related
Preferred Securities, upon full payment of the amounts payable
upon liquidation of the related Issuer or upon distribution of
related Corresponding Junior Subordinated Debentures to the
holders of the related Preferred Securities. Each Guarantee will
continue to be effective or will be reinstated, as the case may
be, if at any time any holder of the related Preferred Securities
must restore payment of any sums paid under such Preferred
Securities or such Guarantee.
Governing Law
Each Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
The Expense Agreements
Pursuant to the Expense Agreements entered into by the
Company under the Trust Agreements (the "Expense Agreements"),
the Company will irrevocably and unconditionally guarantee to
each person or entity to whom each Issuer becomes indebted or
liable, the full payment of any costs, expenses or liabilities of
such Issuer, other than obligations of such Issuer to pay to the
holders of the related Preferred Securities or other similar
interests in such Issuer the amounts due such holders pursuant to
the terms of such Preferred Securities or such other similar
interests, as the case may be.
DESCRIPTION OF CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
The Corresponding Junior Subordinated Debentures are to be
issued in one or more series of Junior Subordinated Debentures
under the Corresponding Indenture with terms corresponding to the
terms of the related Preferred Securities. For a summary of
certain terms and provisions of Junior Subordinated Debentures
that, except where noted, pertains in all respects to the
Corresponding Junior Subordinated Debentures, see "Description of
Junior Subordinated Debentures". This summary of certain
additional terms and provisions of the Corresponding Junior
Subordinated Debentures and the Corresponding Indenture pertains
only to the Corresponding Junior Subordinated Debentures and does
not purport to be complete and is subject to, and is qualified in
its entirety by reference to the Corresponding Indenture, the
form of which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, and to the Trust
Indenture Act. Whenever particular defined terms of the
Corresponding Indenture (as supplemented or amended from time to
time) are referred to herein or in a Prospectus Supplement, such
defined terms are incorporated herein or therein by reference.
General
Concurrently with the issuance of each Issuer's Preferred
Securities, the Issuer will invest the proceeds thereof and the
consideration paid by the Company for the Common Securities in a
series of Corresponding Junior Subordinated Debentures issued by
the Company to the Issuer. Each series of Corresponding Junior
Subordinated Debentures will be in the principal amount equal to
the aggregate stated Liquidation Preference Amount of the related
Preferred Securities plus the Company's concurrent investment in
the Common Securities and will rank pari passu with all other
series of Junior Subordinated Debentures. The Corresponding
Junior Subordinated Debentures will be unsecured and subordinate
and junior in right of payment to the extent and in the manner
set forth in the Corresponding Indenture to all Senior Debt of
the Company. See "Description of Junior Subordinated
Debentures--Subordination" and the Prospectus Supplement relating
to any offering of Preferred Securities.
Optional Redemption
Unless otherwise specified in the applicable Prospectus
Supplement, the Company may, at its option, redeem the
Corresponding Junior Subordinated Debentures of any series on any
Interest Payment Date with respect thereto, in whole at any time
or in part from time to time. Except as otherwise set forth in
the applicable Prospectus Supplement, the redemption price for
any Corresponding Junior Subordinated Debentures so redeemed
shall be equal to 100% of the principal amount of such
Corresponding Junior Subordinated Debentures then outstanding
plus accrued and unpaid interest to the date fixed for
redemption. See "Description of Junior Subordinated
Debentures--Redemption".
If a Special Event in respect of an Issuer or a Debenture Tax
Event shall occur and be continuing, the Company may, at its
option, redeem the Corresponding Junior Subordinated Debentures
at any time within 90 days of the occurrence of such Special
Event or Debenture Tax Event, in whole but not in part, subject
to the provisions of the Corresponding Indenture. The redemption
price for any Corresponding Junior Subordinated Debentures shall
be equal to 100% of the principal amount of such Corresponding
Junior Subordinated Debentures then outstanding plus accrued and
unpaid interest to the date fixed for redemption.
For so long as the applicable Issuer is the holder of all the
outstanding series of Corresponding Junior Subordinated
Debentures, the proceeds of any such redemption will be used by
the Issuer to redeem the related Preferred Securities in
accordance with their terms. The Company may not redeem less
than all of Corresponding Junior Subordinated Debentures unless
all accrued and unpaid interest if any, has been paid in full on
all outstanding Corresponding Junior Subordinated Debentures for
all interest periods terminating on or prior to the Redemption
Date.
Certain Covenants of the Company
The Company will covenant in the Corresponding Indenture as
to each series of Corresponding Junior Subordinated Debentures,
that so long as any Preferred Securities remain outstanding, if
the Issuer which issued such Preferred Securities shall be
required to pay, with respect to its income derived from the
interest payments on the Corresponding Junior Subordinated
Debentures 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, or any other taxing
authority, then, in any such case, the Company will pay as
interest on such series such Additional Interest as may be
necessary in order that the net amounts received and retained by
such Issuer after the payment of such taxes, duties, assessments
or governmental charges shall result in such Issuer's having such
funds as it would have had in the absence of the payment of such
taxes, duties, assessments or governmental charges.
The Company will also covenant, as to each series of
Corresponding Junior Subordinated Debentures, (i) to maintain
directly or indirectly 100% ownership of the Common Securities of
the Issuer to which Corresponding Junior Subordinated Debentures
have been issued, provided that certain successors which are
permitted pursuant to the Corresponding Indenture may succeed to
the Company's ownership of the Common Securities, (ii) not to
voluntarily terminate, wind-up or liquidate any Issuer, except
(a) in connection with a distribution of Corresponding Junior
Subordinated Debentures to the holders of the Preferred
Securities in liquidation of such Issuer, or (b) in connection
with certain mergers, consolidations or amalgamations permitted
by the related Trust Agreement, (iii) to remain the sole
depositor under the related Trust Agreement of such Issuer and
timely perform in all material respects all of its duties as
depositor of such Issuer, and (iv) to use its reasonable efforts,
consistent with the terms and provisions of the related Trust
Agreement, to cause such Issuer to remain a business trust and
not to be classified as an association taxable as a corporation
for United States Federal income tax purposes.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE CORRESPONDING JUNIOR SUBORDINATED DEBENTURES AND THE
GUARANTEES
As long as payments of interest and other payments are made
when due on each series of Corresponding Junior Subordinated
Debentures, such payments will be sufficient to cover Distribu
tions and other payments due on the corresponding Preferred
Securities, primarily because (i) the aggregate principal amount
of each series of Corresponding Junior Subordinated Debentures
will be equal to the sum of the aggregate Liquidation Preference
Amount of the corresponding Preferred Securities and
corresponding Common Securities; (ii) the interest rate and
interest and other payment dates on each series of Corresponding
Junior Subordinated Debentures will match the Distribution rate
and Distribution and other payment dates for the corresponding
Preferred Securities; (iii) the Company shall pay for all and any
costs, expenses and liabilities of the related Issuer except such
Issuer's obligations to holders of its Preferred Securities under
such Preferred Securities; and (iv) each Trust Agreement further
provides that such Issuer will not engage in any activity that is
not consistent with the limited purposes of such Issuer.
Payments of Distributions and other amounts due on the
Preferred Securities (to the extent the Issuer has funds
available for the payment of such Distributions) are irrevocably
guaranteed by the Company as and to the extent set forth under
"Description of Guarantees". Taken together, the Company's
obligations under each series of Corresponding Junior
Subordinated Debentures, the Corresponding Indenture, the related
Trust Agreement, the related Expense Agreement, and the related
Guarantee provide a full, irrevocable and unconditional guarantee
of payments of distributions and other amounts due on the related
series of Preferred Securities. No single document standing
alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of
providing a full, irrevocable and unconditional guarantee of the
Issuer's obligations under the Preferred Securities. If and to
the extent that the Company does not make payments on any series
of Corresponding Junior Subordinated Debentures, such Issuer will
not pay Distributions or other amounts due on its Preferred
Securities.
Notwithstanding anything to the contrary in the Corresponding
Indenture, the Company has the right to set-off any payment it is
otherwise required to make thereunder with and to the extent the
Company has theretofore made, or is concurrently on the date of
such payment making, a payment under the related Guarantee.
A holder of any related Preferred Security may institute a
legal proceeding directly against the Company to enforce its
rights under the related Guarantee without first instituting a
legal proceeding against the Guarantee Trustee, the related
Issuer or any other person or entity.
Each Issuer's Preferred Securities evidence the rights of the
holders thereof to the benefits of such Issuer, and each Issuer
exists for the sole purpose of issuing its Preferred Securities
and Common Securities and investing the proceeds thereof in
Corresponding Junior Subordinated Debentures. A principal
difference between the rights of a holder of a Preferred Security
and a holder of a Corresponding Junior Subordinated Debenture is
that a holder of a Corresponding Junior Subordinated Debenture
will accrue, and (subject to the permissible extension of the
interest period) is entitled to receive, interest on the
principal amount of Corresponding Junior Subordinated Debentures
held, while a holder of Preferred Securities is only entitled to
receive Distributions if and to the extent the related Issuer has
funds available for the payment of such Distributions.
Upon any voluntary or involuntary termination, winding-up or
liquidation of any Issuer involving the liquidation of the
Corresponding Junior Subordinated Debentures, after satisfaction
of creditors of such Issuer, if any, as provided by applicable
law, the holders of Preferred Securities will be entitled to
receive, out of assets held by such Issuer, the Liquidation
Distribution in cash. See "Description of Preferred Securities--
Liquidation Distribution Upon Termination". Upon any voluntary
or involuntary liquidation or bankruptcy of the Company, the
Property Trustee, as holder of the Corresponding Junior
Subordinated Debentures, would be a subordinated creditor of the
Company, subordinated in right of payment to all Senior Debt, but
entitled to receive payment in full of principal and interest,
before any stockholders of the Company receive payments or
distributions. Since the Company is the guarantor under each
Guarantee and has agreed to pay for all costs, expenses and
liabilities of each Issuer (other than the Issuer's obligations
to the holders of its Preferred Securities), the positions of a
holder of such Preferred Securities and a holder of such
Corresponding Junior Subordinated Debentures relative to other
creditors and to stockholders of the Company in the event of
liquidation or bankruptcy of the Company would be substantially
the same.
A default or event of default under any Senior Debt would not
constitute a default or Event of Default under the Corresponding
Indenture. However, in the event of payment defaults under, or
acceleration of, Senior Debt, the subordination provisions of the
Corresponding Indenture provide that no payments may be made in
respect of the Corresponding Junior Subordinated Debentures until
such Senior Debt has been paid in full or any payment default
thereunder has been cured or waived. Failure to make required
payments on any series of Corresponding Junior Subordinated
Debentures would constitute an event of default under the
Corresponding Indenture.
PLAN OF DISTRIBUTION
The Junior Subordinated Debentures and the Preferred
Securities may be sold in a public offering to or through
underwriters or dealers designated from time to time. The
Company and each Issuer may sell their respective Junior
Subordinated Debentures and Preferred Securities as soon as
practicable after effectiveness of the Registration Statement of
which this Prospectus is a part. The names of any underwriters
or dealers involved in the sale of the Junior Subordinated
Debentures and Preferred Securities in respect of which this
Prospectus is delivered, the amount or number of Junior
Subordinated Debentures and Preferred Securities to be purchased
by any such underwriters and any applicable commissions or
discounts will be set forth in the Prospectus Supplement.
Underwriters may offer and sell Junior Subordinated
Debentures and Preferred Securities at a fixed price or prices,
which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. In connection
with the sale of Preferred Securities, underwriters may be deemed
to have received compensation from the Company and/or the
applicable Issuer in the form of underwriting discounts or
commissions and may also receive commissions. Underwriters may
sell Junior Subordinated Debentures and Preferred Securities to
or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the
underwriters.
Any underwriting compensation paid by the Company and/or the
applicable Issuer to underwriters in connection with the offering
of Junior Subordinated Debentures and Preferred Securities, and
any discounts, concessions or commissions allowed by such
underwriters to participating dealers, will be set forth in a
Prospectus Supplement. Underwriters and dealers participating in
the distribution of Junior Subordinated Debentures and Preferred
Securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them
on resale of such Junior Subordinated Debentures and Preferred
Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. Underwriters and dealers
may be entitled, under agreement with the Company and the
applicable Issuer, to indemnification against and contribution
toward certain civil liabilities, including liabilities under the
Securities Act, and to reimbursement by the Company for certain
expenses.
In connection with the offering of the Preferred Securities
of any Issuer, such Issuer may grant to the underwriters an
option to purchase additional Preferred Securities to cover
over-allotments, if any, at the initial public offering price
(with an additional underwriting commission), as may be set forth
in the accompanying Prospectus Supplement. If such Issuer grants
any over-allotment option, the terms of such over-allotment
option will be set forth in the Prospectus Supplement for such
Preferred Securities.
Underwriters and dealers may engage in transactions with, or
perform services for, the Company and/or the applicable Issuer
and/or any of their affiliates in the ordinary course of
business.
The Junior Subordinated Debentures and the Preferred
Securities will be a new issue of securities and will have no
established trading market. Any underwriters to whom Junior
Subordinated Debentures and Preferred Securities are sold for
public offering and sale may make a market in such Junior
Subordinated Debentures and Preferred Securities, but such
underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. Such Junior
Subordinated Debentures and Preferred Securities may or may not
be listed on a national securities exchange. No assurance can be
given as to the liquidity of or the existence of trading markets
for any Junior Subordinated Debentures or Preferred Securities.
No person has been authorized to give
any information or to make any
representation not contained in this
Prospectus Supplement or the _____ Preferred Securities
Prospectus, and, if given or made,
such information or representation
must not be relied upon as having been ENTERGY LOUISIANA
authorized by the Company, the Series
A Issuer or any other person. This CAPITAL I
Prospectus Supplement and the
Prospectus do not constitute an offer
to sell or a solicitation of any offer _____%
to buy any of the securities offered
hereby in any jurisdiction to any Cumulative Quarterly
person to whom it is unlawful to make Income Preferred Securities,
such offer in such jurisdiction. Series A (QUIPSsm)
Neither the delivery of this
Prospectus Supplement and Prospectus Guaranteed to the extent the
nor any sale made hereunder shall, Series A Issuer has funds as
under any circumstances, create any set forth herein by
implication that there has been no
change in the affairs of the Company ENTERGY LOUISIANA, INC.
since the date of this Prospectus
Supplement or that the information
contained herein is correct as of any
time subsequent to the date of such
information.
TABLE OF CONTENTS
Prospectus Supplement
Risk Factors....................... ____________________
Entergy Louisiana Capital I........
Use of PROSPECTUS SUPPLEMENT
Proceeds.............................
Selected Financial ____________________
Information..........................
Goldman, Sachs & Co.
Capitalization.......................
Certain Terms of the Series A ____________________
Preferred Securities
Certain Terms of the Series A ____________________
Debentures
Certain United States Federal Income
Tax
Considerations....................... Representatives of the
Underwriters
Underwriting.........................
Experts..............................
Legal
Opinions.............................
Prospectus
Available
Information..........................
Incorporation of Certain Documents by
Reference.
The Company........................
The Issuers........................
Use of
Proceeds.............................
Description of Junior Subordinated
Debentures......
Description of Preferred
Securities..........................
Description of
Guarantees..........................
Description of Corresponding Junior
Subordinated
Debentures...........................
Relationship Among the Preferred
Securities, the Corresponding
Junior
Subordinated Debentures and the
Guarantees.......
Plan of Distribution..............
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
<TABLE>
<CAPTION>
Item 14. Other Expenses of Issuance and Distribution.
<S> <C> <C>
Each
Initial Additional
Sale Sale
Filing Fees_Securities and Exchange
Commission:
Registration Statement $ 51,725 $
*Rating Agencies' fees 25,000 25,000
*Trustees' fees 6,000 3,000
*Fees of Company's Counsel:
Richards, Layton & Finger, P.A........ 35,000 20,000
Reid & Priest LLP 50,000 30,000
*Fees of Entergy Services, Inc. 35,000 25,000
*Accounting fees 12,000 6,000
*Printing and engraving costs 40,000 25,000
*Miscellaneous expenses (including Blue-Sky 20,000 15,000
expenses)
*Total Expenses $274,725 $149,000
___________________
*Estimated
</TABLE>
Item 15. Indemnification of Directors and Officers.
The Company has insurance covering its expenditures which
might arise in connection with its lawful indemnification of its
directors and officers for certain of their liabilities and
expenses. Directors and officers of the Company also have
insurance which insures them against certain other liabilities
and expenses. The corporation laws of Louisiana permit
indemnification of directors and officers in a variety of
circumstances, which may include liabilities under the Securities
Act of 1933, as amended (the "Securities Act"), and under the
Company's Restated and Amended Articles of Incorporation, its
officers and directors may generally be indemnified to the full
extent of such laws.
Item 16. Exhibits.
1.01 Form of Underwriting Agreement relating to Junior
Subordinated Debentures.
1.02 Form of Underwriting Agreement relating to Preferred
Securities.
**4.01 Amended and Restated Articles of Incorporation of the
Company and amendments thereto through April 22, 1996
(filed as Exhibit 3(c) to Form 10-Q for the quarter ended
March 31, 1996 in 1-8474).
**4.02 By-Laws of the Company as amended effective January 23,
1984, and as presently in effect (filed as Exhibit A-4 in
70-6962).
4.03 Form of Indenture for Unsecured Subordinated Debt
Securities, dated as of June 1, 1996, between the Company
and The Bank of New York as Debenture Trustee.
4.04 Form of Indenture for Unsecured Subordinated Debt
Securities relating to Trust Securities, dated as of June
1,1996, between the Company and The Bank of New York, as
Corresponding Debenture Trustee.
4.05 Certificate of Trust of Entergy Louisiana Capital I.
4.06 Trust Agreement of Entergy Louisiana Capital I.
4.07 Certificate of Trust of Entergy Louisiana Capital II.
4.08 Trust Agreement of Entergy Louisiana Capital II.
4.09 Certificate of Trust of Entergy Louisiana Capital III.
4.10 Trust Agreement of Entergy Louisiana Capital III.
4.11 Form of Amended and Restated Trust Agreement for Entergy
Louisiana Capital I.
4.12 Form of Preferred Security Certificate for Entergy
Louisiana Capital I (included as Exhibit E of Exhibit 4.11
hereto).
4.13 Form of Guarantee Agreement in respect of Entergy
Louisiana Capital I.
4.14 Form of Amended and Restated Trust Agreement for Entergy
Louisiana Capital II.
4.15 Form of Preferred Security Certificate for Entergy
Louisiana Capital II (included as Exhibit E of Exhibit
4.14 hereto).
4.16 Form of Guarantee Agreement in respect of Entergy
Louisiana Capital II.
4.17 Form of Amended and Restated Trust Agreement for Entergy
Louisiana Capital III.
4.18 Form of Preferred Security Certificate for Entergy
Louisiana Capital III (included as Exhibit E of Exhibit
4.17 hereto).
4.19 Form of Guarantee Agreement in respect of Entergy
Louisiana Capital III.
5.01 Opinion of Denise C. Redmann, Senior Attorney - Corporate
and Securities of Entergy Services, Inc., relating to the
validity of the Junior Subordinated Debentures and the
Guarantees.
5.02 Opinion of Richards, Layton & Finger, P.A., special
Delaware counsel, relating to the validity of the
Preferred Securities of Entergy Louisiana Capital I.
5.03 Opinion of Richards, Layton & Finger, P.A., special
Delaware counsel, relating to the validity of the
Preferred Securities of Entergy Louisiana Capital II.
5.04 Opinion of Richards, Layton & Finger, P.A., special
Delaware counsel, relating to the validity of the
Preferred Securities of Entergy Louisiana Capital III.
5.05 Opinion of Reid & Priest LLP, relating to the validity of
the Junior Subordinated Debentures and the Guarantees.
8.01 Opinion of Reid & Priest LLP, as to United States tax
matters (included in Exhibit 5.05 hereto).
12.01 Statement Re: Computation of Ratio of Earnings to Fixed
Charges (filed as Exhibit 99(c) to Form 10-Q for the
quarter ended March 31, 1996 in 1-8474).
23.01 Consent of Coopers & Lybrand L.L.P.
23.02 Consent of Deloitte & Touche LLP.
23.03 Consent of Denise C. Redmann, Senior Attorney - Corporate
and Securities of Entergy Services, Inc. (included in
Exhibit 5.01 hereto).
23.04 Consent of Richards, Layton & Finger, P.A., special
Delaware counsel (included in Exhibit 5.02 hereto).
23.05 Consent of Richards, Layton & Finger, P.A., special
Delaware counsel (included in Exhibit 5.03 hereto).
23.06 Consent of Richards, Layton & Finger, P.A., special
Delaware counsel (included in Exhibit 5.04 hereto).
23.07 Consent of Reid & Priest LLP (included in Exhibit 5.05
hereto).
24.01 Powers of Attorney of certain officers and directors of
the Company.(Filed herewith.)
25.01 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Trustee for the Indenture
for Unsecured Subordinated Debt Securities.
25.02 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Trustee for the Indenture
for Unsecured Debt Securities relating to Preferred
Securities.
25.03 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Property Trustee for the
Amended and Restated Trust Agreement of Entergy Louisiana
Capital I.
25.04 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Guarantee Trustee for the
Guarantee for Entergy Louisiana Capital I.
25.05 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Property Trustee for the
Amended and Restated Trust Agreement of Entergy Louisiana
Capital II.
25.06 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Guarantee Trustee for the
Guarantee for Entergy Louisiana Capital II.
25.07 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Property Trustee for the
Amended and Restated Trust Agreement of Entergy Louisiana
Capital III.
25.08 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Guarantee Trustee for the
Guarantee for Entergy Louisiana Capital III.
__________
**Incorporated by reference herein.
Item 17. Undertakings.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement;
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
registration statement or any material change to such information
in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above
do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
registrants pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act, each filing of the registrants' annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(5) That, for purposes of determining any liability under
the Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the registrants pursuant to Rule 424(b) (1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(6) That, for the purpose of determining any liability
under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(7) To provide to the underwriters at the closing specified
in the underwriting agreements certificates in such denominations
and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
(8) That, insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrants pursuant to
the foregoing provisions, or otherwise, the registrants have been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrants of expenses incurred or paid
by a director, officer or controlling person of the registrants
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrants
will, unless in the opinion of their counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by them is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
EXHIBIT 24.01
POWER OF ATTORNEY
Each director and/or officer of the registrant whose
signature appears below hereby appoints Gerald D. McInvale,
William J. Regan, Jr., Laurence M. Hamric and Denise C. Redmann,
and each of them severally, as his attorney-in-fact to sign in
his name and behalf, in any and all capacities stated below, and
to file with the Securities and Exchange Commission, any and all
amendments, including post-effective amendments, to this
registration statement, and the registrants hereby also appoint
each such named person as their attorney-in-fact with like
authority to sign and file any such amendments in their name and
behalf.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New Orleans, State of
Louisiana, on the 10th day of May, 1996.
ENTERGY LOUISIANA, INC.
By /S/John J. Cordaro
John J. Cordaro
President
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
/s/Edwin Lupberger Chairman of the Board, May 10, 1996
Edwin Lupberger Chief Executive Officer
and Director
(Principal Executive
Officer)
/s/Gerald D. McInvale Executive Vice President May 10, 1996
Gerald D. McInvale Chief Financial Officer,
and Director
(Principal Financial
Officer)
/s/Louis E. Buck, Jr. Vice President and May 10, 1996
Louis E. Buck, Jr. Chief Accounting Officer
(Principal Accounting
Officer)
/s/Michael B. Bemis Director May 10, 1996
Michael B. Bemis
/s/Jerry L. Maulden Director May 10, 1996
Jerry L. Maulden
/s/Donald C. Hintz Director May 10, 1996
Donald C. Hintz
/s/Jerry D. Jackson Director May 10, 1996
Jerry D. Jackson
/s/John J. Cordaro Director May 10, 1996
John J. Cordaro
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the registrants, Entergy Louisiana Capital I,
Entergy Louisiana Capital II and Entergy Louisiana Capital III,
each certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New
Orleans, State of Louisiana, on the 10th day of May, 1996.
Entergy Louisiana Capital I
By: Entergy Louisiana, Inc., as depositor
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
Entergy Louisiana Capital II
By: Entergy Louisiana, Inc., as depositor
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
Entergy Louisiana Capital III
By: Entergy Louisiana, Inc., as depositor
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
Exhibit 1.01
Entergy Louisiana, Inc.
$_____________
___% Junior Subordinated Deferrable Interest Debentures, Series _
UNDERWRITING AGREEMENT
_______ __, ____
[Representatives]
As Representatives of the several
Underwriters named in Schedule I hereto
c/o [Lead Manager]
[Address]
Ladies & Gentlemen:
The undersigned, Entergy Louisiana, Inc., a Louisiana
corporation (the "Company"), 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"), an aggregate of $___________ principal amount
of the Company's ___% Junior Subordinated Deferrable Interest
Debentures, Series _ (the "Debentures"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters and each Underwriter
shall purchase from the Company at the time and place herein
specified, severally and not jointly, the respective principal
amounts of the Debentures set forth opposite the name of such
Underwriter in Schedule I attached hereto at ____% of the
principal amount of the Debentures [plus accrued interest thereon
from _____ __, ____ to the Closing Date (as defined herein)].
SECTION 2. Description of Debentures. The Debentures
shall be issued under and pursuant to a Trust Indenture dated as
of ________ __, ____ between the Company and _____________, as
Trustee (the "Trustee"), as supplemented by a supplemental
indenture, resolutions of the Board of Directors of the Company
or certificate of an officer of the Company relating to the
Debentures (any such supplemental indenture, resolution or
certificate being hereinafter referred to as the "Supplemental
Indenture"). Said Indenture, as supplemented and as it will be
further supplemented by the Supplemental Indenture is hereinafter
referred to as the "Indenture". The Debentures, the Indenture
and the Supplemental Indenture shall have the terms and
provisions described in the Prospectus (as defined herein),
provided that subsequent to the date hereof and prior to the
Closing Date the form of the Indenture and the form of the
Supplemental Indenture may be amended by mutual agreement between
the Company and the Underwriters.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to the several
Underwriters, and covenants and agrees with the several
Underwriters, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Louisiana 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.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 333-______) for the registration of
$_______________ aggregate offering price of the Company's
securities, including the Debentures, under the Securities Act of
1933, as amended (the "Securities Act") (all of which securities
remain unsold), and such registration statement has become
effective. The Company qualifies for use of Form S-3 for the
registration of the Debentures. The prospectus forming a part of
the registration statement, at the time such registration
statement (or the most recent amendment thereto filed prior to
the time of effectiveness of this Underwriting Agreement) became
effective, including all documents incorporated by reference
therein at that time pursuant to Item 12 of Form S-3, is
hereinafter referred to as the "Basic Prospectus". In the event
that (i) the Basic Prospectus shall have been amended, revised or
supplemented (but excluding any amendments, revisions or
supplements to the Basic Prospectus relating solely to securities
other than the Debentures) prior to the time of effectiveness of
the Underwriting Agreement, including without limitation by any
preliminary prospectus supplement relating to the Debentures, or
(ii) the Company shall have filed documents pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the time the registration
statement became effective and prior to the time of effectiveness
of this Underwriting Agreement (but excluding documents
incorporated therein by reference relating solely to securities
other than the Debentures), which documents are deemed to be
incorporated by reference in the Basic Prospectus pursuant to
Item 12 of Form S-3, the term "Basic Prospectus" as used herein
shall also mean such prospectus as so amended, revised or
supplemented and reflecting such incorporation by reference. The
Registration Statement in the form in which it became effective
and as it may have been amended by all amendments thereto as of
the time of effectiveness of this Underwriting Agreement
(including, for these purposes, as an amendment any document
incorporated by reference in the Basic Prospectus), and the Basic
Prospectus as it shall be supplemented to reflect the terms of
the offering and sale of the Debentures by a prospectus
supplement (a "Prospectus Supplement") to be filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b)
under the Securities Act ("Rule 424(b)"), are hereinafter
referred to as the "Registration Statement" and the "Prospectus,"
respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus (except any amendment
or supplement relating solely to securities other than the
Debentures), and (ii) between the time of effectiveness of this
Underwriting Agreement and the Closing Date, the Company will not
file any document that is to be incorporated by reference in, or
any supplement to, the Basic Prospectus, in either case, 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. For purposes of this Underwriting
Agreement, any document that is filed with the Commission after
the time of effectiveness of this Underwriting Agreement and is
incorporated by reference in the Prospectus (except documents
incorporated by reference relating solely to securities other
than the Debentures) pursuant to Item 12 of Form S-3 shall be
deemed a supplement to the Prospectus.
(d) The Registration Statement, in the form in which
it became effective, and the Indenture, at such time, fully
complied, and the Prospectus, when delivered to the Underwriters
for their use in making confirmations of sales of the Debentures
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. The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, on the date first
filed with the Commission pursuant to the Exchange Act, fully
complied or will fully comply in all material respects with the
applicable provisions of the Exchange 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 later of (i) the date the Registration Statement was
declared effective by the Commission under the Securities Act and
(ii) the date that the Company's most recent Annual Report on
Form 10-K was filed with the Commission under the Exchange Act
(the date described in either clause (i) or (ii) is hereinafter
referred to as the "Effective Date"), the Registration Statement
did not, and on the date that any post-effective amendment to the
Registration Statement became or becomes effective (but excluding
any post-effective amendment relating solely to securities other
than the Debentures), the Registration Statement, as amended by
any such post-effective amendment, did not or will not, as the
case may be, contain an 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 the Prospectus is delivered to the Underwriters for their
use in making confirmations of sales of the Debentures 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 and, on said dates and at
such times, the documents then incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, when read together
with the Prospectus, or the Prospectus, as it may then be amended
or supplemented, will not contain an 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 (d) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company 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
statement of eligibility on Form T-1 of the Trustee, as it may be
amended, filed as an exhibit to the Registration Statement (the
"Form T-1").
(e) The issuance and sale of the Debentures and the
fulfillment of the terms of this Underwriting Agreement and the
Indenture 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 or other agreement or instrument to which
the Company is now a party.
(f) Except as set forth or contemplated in the
Prospectus, as it may then be amended or supplemented, the
Company possesses adequate franchises, licenses, permits, and
other rights to conduct its business and operations as now
conducted, without any known conflicts with the rights of others
that could have a adverse effect on the Company.
SECTION 4. Offering. The Company is advised by the
Representatives that the Underwriters propose to make a public
offering of their respective portions of the Debentures as soon
after the effectiveness of this Underwriting Agreement as in
their judgment the Underwriters deem advisable. The Company is
further advised by the Representatives that the Debentures will
be offered to the public at the initial public offering price
specified in the Prospectus Supplement [plus accrued interest
thereon, if any, from ________ __, ____ to the Closing Date].
SECTION 5. Time and Place of Closing; Delivery to
Underwriters. Delivery of the Debentures 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
________ __, ____, or at such other time on the same or such
other day as shall be agreed upon by the Company 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."
The Debentures shall be delivered to the Underwriters
in book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the
Debentures shall be in the form of one or more typewritten bonds
in fully registered form, in the aggregate principal amount of
the Debentures, and registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Company agrees to
make the Debentures available to the Representatives for checking
not later than 2:30 P.M., New York time, on the last business day
preceding the Closing Date at such place as may be agreed upon
among the Representatives and the Company, or at such other time
and/or date as may be agreed upon among the Representatives and
the Company.
SECTION 6. Covenants of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Representatives a copy of the Registration
Statement relating to the Debentures as originally filed with the
Commission, and of all amendments or supplements thereto relating
to the Debentures, or a conformed copy thereof, certified by an
officer of the Company to be in the form filed.
(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 the Company
shall have received notice. The Company 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 of which the Company shall be advised
by the Representatives in writing, shall occur which in the
Company's opinion 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 Debentures, the Company will amend or
supplement the Prospectus by either (i) preparing and filing with
the Commission and furnishing to the Underwriters a reasonable
number of copies of a supplement or supplements or an amendment
or amendments to the Prospectus, or (ii) making an appropriate
filing pursuant to Section 13, 14 or 15(d) of the Exchange Act
which will supplement or amend 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 make generally available to its
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 Company will furnish such proper information as may be
lawfully required, and will otherwise cooperate in qualifying the
Debentures for offer and sale, under the blue sky laws of such
jurisdictions as the Representatives may reasonably designate,
provided that the Company 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 Company to be unduly
burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes (except transfer taxes) in
connection with (i) the preparation and filing of the
Registration Statement and any post-effective amendment thereto,
(ii) the printing, issuance and delivery of the Debentures and
the preparation, execution, printing and recordation of the
Indenture or the Supplemental Indenture, (iii) legal counsel
relating to the qualification of the Debentures under the blue
sky laws of various jurisdictions, in an amount not to exceed
$6,000, (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 supplement relating to the Debentures 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 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
Debentures on the New York Stock Exchange (the "NYSE") and the
registration thereof 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, in an aggregate amount not
exceeding $15,000, 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) The Company will not sell any additional
debentures without the consent of the Representatives until the
earlier to occur of (i) the Closing Date and (ii) the date of the
termination of the fixed price offering restrictions applicable
to the Underwriters. The Representatives agree to notify the
Company of such termination if it occurs prior to the Closing
Date.
(i) The Company will use its best efforts to cause the
Debentures to be duly authorized for listing on the NYSE, subject
to notice of issuance, and to be registered under the Exchange
Act.
SECTION 7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Debentures
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 Company and of any certificates furnished by the Company 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 Company 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 Company 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, 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, threatened by the Commission.
(c) At the Closing Date, there shall have been issued
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Debentures, an
order of the Commission under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"), authorizing the
issuance and sale of the Debentures on the terms set forth in, or
contemplated by, this Underwriting Agreement, the Indenture, the
Supplemental Indenture and the Prospectus.
(d) At the Closing Date, the Underwriters shall have
received from ____________________, Esq., _________________ of
Entergy Services, Inc., 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 Company 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
Debentures, with changes therein to reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Winthrop, Stimson, Putnam & Roberts, Counsel for
the Underwriters, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit C hereto, with
such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) 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 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 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 or incorporated by
reference 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 or incorporated by reference 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, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 199_ 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
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange 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
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses
have occurred or may occur, for declarations of dividends, for
the repayment or redemption of long-term debt, for the
amortization of premium or discount on long-term debt, for the
redemption or purchase of preferred stock for sinking fund
purposes, for any increases in long-term debt in respect of
previously issued pollution control, solid waste disposal or
industrial development revenue bonds, or for changes or decreases
as set forth in such letter, identifying the same and specifying
the amount thereof; and (iv) stating that they have compared
specific dollar amounts, percentages of revenues and earnings and
other financial information pertaining to the Company (x) set
forth in the Prospectus and (y) set forth in documents filed by
the Company pursuant to Sections 13, 14 or 15(d) of the Exchange
Act as specified in Exhibit D hereto, in each case, 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.
[(g) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter dated the date hereof and
addressed to the Underwriters with respect to certain financial
information contained in the Prospectus, as mutually agreed to by
the Underwriters and the Company.]
(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, (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 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 Company
and there has not been any material transaction entered into by
the Company, 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.
(i) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Indenture and the
Supplemental Indenture.
(j) 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(f) hereof.
(k) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company that, in the reasonable opinion of the
Representatives, materially impairs the investment quality of the
Debentures.
(l) Between the date hereof and the Closing Date
neither Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Group shall have lowered its rating of any of the
Company's outstanding debt securities in any respect.
(m) On or prior to the Closing Date, Moody's Investors
Service, Inc. and Standard & Poor's Ratings Group shall have
publicly assigned to the Debentures ratings of ___ and ___,
respectively, which ratings shall be in full force and effect on
the Closing Date.
(n) On or prior to the Closing Date, (i) the
Debentures shall have been duly listed, subject to notice of
issuance, on the NYSE and (ii) the Company's registration
statement on Form 8-A relating to the Debentures shall have
become effective under the Exchange Act.
(o) All legal matters in connection with the issuance
and sale of the Debentures shall be satisfactory in form and
substance to Counsel for the Underwriters.
(p) The Company 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
Company. 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 Company's Obligations. The
obligations of the Company 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) There shall have been issued and, at the Closing
Date, there shall be in full force and effect an order of the
Commission under the 1935 Act authorizing the issuance and sale
of the Debentures on the terms set forth in, or contemplated by,
this Underwriting Agreement, the Indenture, the Supplemental
Indenture and the Prospectus.
In case any of the conditions specified in this Section
8 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Company 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 Company shall 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 the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)), 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
Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)) 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-1; 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 Debentures to any person in respect of the Basic
Prospectus or the Prospectus as supplemented or amended,
furnished by any Underwriter to a person to whom any of the
Debentures were sold (excluding in both cases, however, any
document then incorporated or deemed incorporated by reference
therein), insofar as such indemnity relates to any untrue or
misleading statement or omission made in the Basic 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 Company 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 the Basic Prospectus) or such amendment or
supplement (in the case of such a statement or omission made in
the Prospectus) (excluding, however, any amendment or supplement
to the Basic Prospectus relating solely to securities other than
the Debentures and any document then incorporated or deemed
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) Each Underwriter shall indemnify, defend and hold
harmless the Company, 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 the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b)) or in the Prospectus, as
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
Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with or transmitted for filing to the Commission pursuant to Rule
424(b)) or the Prospectus, or any amendment or supplement
thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic 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.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable 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 Company and the Underwriters from the offering of
the Debentures or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company
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 Company 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
Company 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 Company 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 Company 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 Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(d) 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(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Debentures
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(d) are several in
proportion to their respective underwriting obligations and not
joint.
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
Company 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 Company 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 Debentures 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 principal amount of Debentures that it
has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Debentures that such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of the Debentures, the
other Underwriters shall be obligated to purchase the Debentures
that such defaulting Underwriter agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Debentures 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 principal amount of
Debentures without written consent of such Underwriter. If any
Underwriter shall fail or refuse to purchase Debentures and the
aggregate principal amount of Debentures with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of the Debentures, the Company shall have the
right (a) to require the non-defaulting Underwriters to purchase
and pay for the respective principal amount of Debentures that it
had severally agreed to purchase hereunder, and, in addition, the
principal amount of Debentures that the defaulting Underwriter
shall have so failed to purchase up to a principal amount thereof
equal to one-ninth of the respective principal amount of
Debentures 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 principal amount of Debentures 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
Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the
Representatives within 24 hours (excluding any Saturday, Sunday,
or legal holiday) of the time when the Company learns of the
failure or refusal of any Underwriter to purchase and pay for its
respective principal amount of Debentures, and thereupon the
Closing Date shall be postponed for such period, not exceeding
three business days, as the Company shall determine. In the
event the Company 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 Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence
of such election by the Company, this Underwriting Agreement
will, unless otherwise agreed by the Company 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 Company if (a) after the
execution and delivery of this Underwriting Agreement and prior
to the Closing Date (i) trading of the Debentures or trading in
securities generally shall have been suspended on the NYSE by The
New York Stock Exchange, Inc., the Commission or other
governmental authority, (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, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal
or New York State authorities, or (iv) 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 (iv), such event singly or together with
any other such event makes it, in the reasonable judgment of the
Representatives, impracticable to market the Debentures. 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 Company) to the
Prospectus (except for information relating solely to the manner
of public offering of the Debentures, to the activity of the
Underwriters or to the terms of any series of securities of the
Company other than the Debentures) filed or issued after the
effectiveness of this Underwriting Agreement by the Company shall
have materially impaired the marketability of the Debentures.
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. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL 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 Company 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 Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons 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 Debentures from the
Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to [Lead Manager] at the address set forth at the
beginning of this Underwriting Agreement (to the attention of its
General Counsel) or, if to the Company, shall be mailed or
delivered to it at 639 Loyola Avenue, New Orleans, Louisiana
70113, Attention: Treasurer, or, if to Entergy Services, Inc.,
shall be mailed or delivered to it at 639 Loyola Avenue, New
Orleans, Louisiana 70113, Attention: Treasurer.
<PAGE>
Very truly yours,
Entergy Louisiana, Inc.
By:
Name:
Title:
Accepted as of the date first above written:
[Representatives]
By: [Lead Manager]
By:
Name:
Title:
As Representatives of the other several
Underwriters named in Schedule I hereto
<PAGE>
SCHEDULE I
Entergy Louisiana, Inc.
___% Junior Subordinated Deferrable Interest Debentures, Series _
Name Amount
Total $________________
<PAGE>
EXHIBIT A
[Letterhead of Entergy Services, Inc.]
________ __, _____
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
I, together with Reid & Priest LLP, of New York, New
York, have acted as counsel for Entergy Louisiana, Inc. (the
"Company") in connection with the issuance and sale to the
several Underwriters pursuant to the Underwriting Agreement,
effective ________ __, ____ (the "Underwriting Agreement"),
between the Company and you, as the Representatives of the
several Underwriters, of $________ in aggregate principal amount
of its % Junior Subordinated Deferrable Interest Debentures,
Series _ (the "Debentures"), issued pursuant to a Trust Indenture
dated as of _________ __, ____ between the Company and _________,
as Trustee (the "Trustee") as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto,
including the _______ Supplemental Indenture, dated as of ______
__, ____ (the Indenture as so amended and supplemented being
hereinafter referred to as the "Indenture"). This opinion is
rendered to you at the request of the Company. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
In my capacity as such counsel, I have either
participated in the preparation of or have examined and am
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
Prospectus filed under the Securities Act; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Debentures by the Company and the
execution and delivery by the Company of the Indenture and the
Underwriting Agreement; and (f) the proceedings before and the
order entered by the Commission under the 1935 Act relating to
the issuance and sale of the Debentures by the Company. I have
also examined or caused to be examined such other documents and
have satisfied myself as to such other matters as I have deemed
necessary in order to render this opinion. I have not examined
the Debentures, except a specimen thereof, and I have relied upon
a certificate of the Trustee as to the authentication and
delivery thereof.
In my examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me
as originals, the legal capacity of natural persons and the
conformity with the originals of all documents submitted to me as
copies. In making my examination of documents and instruments
executed or to be executed by persons other than the Company, I
have assumed that each such other person had the requisite power
and authority to enter into and perform fully its obligations
thereunder, the due authorization by each such other person for
the execution, delivery and performance thereof by such person,
and the due execution and delivery by or on behalf of such person
of each such document and instrument. In the case of any such
other person that is not a natural person, I have also assumed,
insofar as it is relevant to the opinions set forth below, that
each such other person is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which such
other person was created, and is duly qualified and in good
standing in each other jurisdiction where the failure to be so
qualified could reasonably be expected to have a material effect
upon the ability of such other person to execute, deliver and/or
perform such other person's obligations under any such document
or instrument. I have further assumed that each document,
instrument, agreement, record and certificate reviewed by me for
purposes of rendering the opinions expressed below has not been
amended by oral agreement, conduct or course of dealing of the
parties thereto, although I have no knowledge of any facts or
circumstances that could give rise to such amendment.
As to questions of fact material to the opinions
expressed herein, I have relied upon certificates and
representations of officers of the Company (including but not
limited to those contained in the Underwriting Agreement, the
Indenture and certificates delivered at the closing of the sale
of the Debentures) and appropriate public officials without
independent verification of such matters except as otherwise
described herein.
Whenever my opinions herein with respect to the
existence or absence of facts are stated to be to my knowledge or
awareness, I intend to signify that no information has come to my
attention or the attention of any other attorneys acting for or
on behalf of the Company or any of its affiliates that have
participated in the negotiation of the transactions contemplated
by the Underwriting Agreement and the Indenture, in the
preparation of the Registration Statement and the Prospectus or
in the preparation of this opinion letter that would give me, or
them, actual knowledge that would contradict such opinions.
However, except to the extent necessary in order to give the
opinions hereinafter expressed, neither I nor they have
undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to
knowledge of the existence or absence of such facts (except to
the extent necessary in order to give the opinions hereinafter
expressed) should be assumed.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, I am of the opinion that:
(1) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Louisiana, has due corporate power and authority to conduct the
business that it is described as conducting in the Prospectus and
to own and operate the properties owned and operated by it in
such business and is duly qualified to conduct such business in
the State of Louisiana.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, 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), and is qualified under the Trust Indenture Act, and
no proceedings to suspend such qualification have been instituted
or, to my knowledge, threatened by the Commission.
(3) The statements made in the Prospectus under the
captions "__________________________________" and "Description of
Junior Subordinated Debentures" 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) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and are legal, valid and binding obligations of the
Company enforceable 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.
(5) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(6) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement (a) will
not violate any provision of the Company's Restated Articles of
Incorporation or By-laws, as amended, (b) 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 of the assets of the Company pursuant to
the provisions of, any mortgage, indenture, contract, agreement
or other undertaking known to me (having made due inquiry with
respect thereto) to which the Company is a party or which
purports to be binding upon the Company or upon any of its
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of my
knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except
that various consents of, and filings with, governmental
authorities 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 any jurisdiction).
(7) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which I do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1, upon
which I 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, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange 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; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act, and, to the best
of my 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.
(8) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Debentures; to the best of my knowledge, said order is in
full force and effect; no further approval, authorization,
consent or other order of any governmental body (other than
orders of the Commission under the Securities Act and the
Exchange 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 Debentures by the Company pursuant to the
Underwriting Agreement; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance by the Company of its
obligations with respect to the Debentures or under the Indenture
and the Underwriting Agreement.
In connection with the preparation by the Company of
the Registration Statement and the Prospectus, I have had
discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
examined certain of the financial statements included or
incorporated by reference in the Registration Statement. My
examination of the Registration Statement and the Prospectus and
such discussions did not disclose to me any information which
gives me 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, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424(b) 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. I do not express any opinion or belief as to the
financial statements or other financial or statistical data
included or incorporated by reference in the Registration
Statement or the Prospectus, as to the Form T-1 or as to the
information contained in the Prospectus under the caption and
"Description of the Preferred Securities -- Book-entry Issuance."
I have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on my authority, and I believe such information
to be correct. I have examined the opinions of even date
herewith rendered to you by Reid & Priest LLP and Winthrop,
Stimson, Putnam & Roberts, and concur in the conclusions
expressed therein insofar as they involve questions of Louisiana
law.
I am a member of the Louisiana Bar and do not hold
myself out as an expert on the laws of any other state. As to
all matters of New York law, I have relied, with your approval,
upon the opinion of even date herewith addressed to you by Reid &
Priest LLP of New York, New York.
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 my prior written
consent, except that Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts may rely on this opinion as to all matters of
Louisiana law in rendering their opinions required to be
delivered under the Underwriting Agreement.
Very truly yours,
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
___________ __, ____
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
We, together with _____________________, Esq.,
_____________________ of Entergy Services, Inc., have acted as
counsel for Entergy Louisiana, Inc. (the "Company") in connection
with the issuance and sale to the several Underwriters pursuant
to the Underwriting Agreement, effective ________ __, ____ (the
"Underwriting Agreement"), between the Company and you, as
Representatives of the several Underwriters, of $________ in
aggregate principal amount of its % Junior Subordinated
Deferrable Interest Debentures, Series _ (the "Debentures"),
issued pursuant to a Trust Indenture dated as of _________ __,
____ between the Company and _________, as Trustee (the
"Trustee") as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the _______ Supplemental Indenture, dated as of ______ __, ____
(the Indenture as so amended and supplemented being hereinafter
referred to as the "Indenture"). This opinion is rendered to you
at the request of the Company. 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 Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
Prospectus filed under the Securities Act; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Bonds by the Company and the execution
and delivery by the Company of the Indenture and the Underwriting
Agreement; and (f) the proceedings before and the order entered
by the Commission under the 1935 Act relating to the issuance and
sale of the Debentures by the Company. 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
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) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, 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), and is duly qualified under the Trust Indenture Act,
and no proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the Commission.
(2) The statements made in the Prospectus under the
captions "__________________________________" and "Description of
Junior Subordinated Debentures" 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.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and are legal, valid and binding obligations of the
Company enforceable 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.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1, 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, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange 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; 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.
(6) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Debentures; 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 (other than
orders of the Commission under the Securities Act and the
Exchange 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 Debentures by the Company pursuant to the
Underwriting Agreement; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance by the Company of its
obligations with respect to the Debentures or under the Indenture
and the Underwriting Agreement.
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 information included or incorporated by reference 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 (2) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company, and with the independent certified public
accountants of the Company who examined certain of the financial
statements included or incorporated by reference 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, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) 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 or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, as to
the Form T-1 or as to the information contained in the Prospectus
Supplement under the caption "Description of the Preferred
Securities -- Book-entry Issuance."
We have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. As to all matters of Louisiana law, we have, with your
consent, relied upon the opinion of even date herewith of
__________________, Esq., __________________ of Entergy Services,
Inc., counsel for the Company. 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, except that _________________________, Esq.,
__________________ of Entergy Services, Inc. may rely on this
opinion as to all matters of New York law in rendering his/her
opinion required to be delivered under the Underwriting
Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_________ __, ____
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
We have acted as counsel for the several Underwriters
of $_________ in aggregate principal amount of the % Junior
Subordinated Deferrable Interest Debentures, Series _ (the
"Debentures"), issued by Entergy Louisiana, Inc. (the "Company")
under a Trust Indenture dated as of _________ __, ____ between
the Company and _________, as Trustee (the "Trustee") as
heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto, including the _____
Supplemental Indenture, dated as of ______ __, ____ (the
Indenture as so amended and supplemented being hereinafter
referred to as the "Indenture"), pursuant to the agreement
between you, as the Representatives of the several Underwriters,
and the Company effective ________ __, ____ (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
______________________, Esq., ____________________ of Entergy
Services, Inc., counsel for the Company, as to the matters
covered in such opinion relating to Louisiana 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 examined such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon
representations of the Company and statements in the Registration
Statement hereinafter mentioned. In such examination, we have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, and the correctness of all statements of fact
contained in all such original or copied documents. We have not
examined the Debentures except a specimen thereof, and we have
relied upon a certificate of the Trustee as to the authentication
and delivery thereof. 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 Indenture has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered, is a legal, valid and binding instrument
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, to the best of our knowledge, the Indenture is
qualified under the Trust Indenture Act, and no proceedings to
suspend such qualification have been instituted or threatened by
the Commission.
(2) The statements made in the Prospectus under the
captions "__________________________________" and "Description of
Junior Subordinated Debentures" 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.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable 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 are entitled to the
benefits provided by the Indenture.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) An appropriate order has been issued by the
Commission under the 1935 Act authorizing the issuance and sale
of the Debentures, 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
(other than orders of the Commission under the Securities Act and
the Exchange 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 Debentures by the Company pursuant to
the Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1, 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, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange 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; 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 information included or incorporated by reference
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 (2) hereof. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we had discussions with certain officers,
employees and representatives of the Company and Entergy Services
Inc., with counsel for the Company and with your representatives.
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, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424(b) 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 or statistical data
included or incorporated by reference in the Registration
Statement or Prospectus, as to the Form T-1 or as to the
information contained in the Prospectus Supplement under the
caption "Description of the Preferred Securities -- Book-entry
Issuance."
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
<PAGE>
EXHIBIT D
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
Exhibit 1.02
_______________ Preferred Securities
Entergy Louisiana Capital I
__% Cumulative Quarterly Income Preferred Securities, Series A
("QUIPS"_)
(Liquidation preference $25.00 per preferred security)
Guaranteed to the extent Entergy Louisiana Capital I
has funds as set forth herein by
Entergy Louisiana, Inc.
UNDERWRITING AGREEMENT
_______ __, ____
Goldman, Sachs & Co.
[Representatives]
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 Louisiana Capital I (the
"Trust"), a statutory business trust created under the Business
Trust Act (the "Delaware Act") of the State of Delaware (Title
12, Chapter 38 of the Delaware Code, 12 Del. C Section 3801 et
seq.), 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"), an
aggregate of ______________ ___% Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25.00 per
preferred security) of the Trust, representing undivided
beneficial interests in the assets of the Trust (the "Preferred
Securities"), as follows:
__________________________
_ QUIPS is a service mark of Goldman, Sachs & Co.
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Trust shall issue
and sell to each of the Underwriters and each Underwriter shall
purchase from the Trust at the time and place herein specified,
severally and not jointly, the respective numbers of the
Preferred Securities set forth opposite the name of such
Underwriter in Schedule I attached hereto at a purchase price of
$25.00 per Preferred Security.
The Company agrees to issue the Company Securities (as
defined herein) concurrently with the issue and sale of the
Preferred Securities as contemplated herein. The Company hereby
guarantees the timely performance by the Trust of its obligations
under this Section 1. The Trust agrees to purchase the
Debentures (as defined herein) with the proceeds of, together
with the proceeds from the sale by the Trust to the Company of
the Common Securities (as defined herein), and concurrently with,
the issue and sale of the Preferred Securities.
Because the proceeds of the sale of the Preferred
Securities, together with the proceeds from the sale by the Trust
to the Company of the Common Securities, 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 $_____ per Preferred Security (or $________ in the
aggregate).
SECTION 2. Description of Preferred Securities. The
Preferred Securities will be guaranteed by Entergy Louisiana,
Inc., a Louisiana corporation (the "Company" and, together with
the Trust, 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
Preferred Securities Guarantee Agreement (the "Guarantee
Agreement"), dated as of _____ __, ____, between the Company and
_______________, as trustee (the "Guarantee Trustee"). Under an
agreement as to expenses and liabilities between the Company and
the Trust, pursuant to the Trust Agreement (as defined herein),
dated as of ________ __, ____ (the "Expense Agreement"), the
Company will irrevocably and unconditionally guarantee to each
person or entity to whom the Trust becomes indebted or liable the
full payment of any costs, expenses or liabilities of the Trust,
subject to certain exceptions therein.
The proceeds from the sale of the Preferred Securities
will be combined with the proceeds from the sale by the Trust to
the Company of its common securities representing undivided
beneficial interests in the assets of the Trust (the "Common
Securities" and, together with the Preferred Securities, the
"Trust Securities"), and will be used by the Trust to purchase
$___________ aggregate principal amount ___% Junior Subordinated
Deferrable Interest Debentures, Series A, Due ______ __, ____
issued by the Company (the "Debentures" and, together with the
Guarantee, the "Company Securities"). The Trust Securities will
be issued pursuant to the Amended and Restated Trust Agreement of
the Trust, dated as of _______ __, ____ (the "Trust Agreement"),
among the Company, as depositor, the Administrative Trustees (as
defined herein), The Bank of New York, as property trustee (the
"Property Trustee"), The Bank of New York (Delaware), as Delaware
trustee (the "Delaware Trustee"), and the holders from time to
time of undivided beneficial interests in the assets of the
Trust. The Debentures will be issued pursuant to an Indenture,
dated as of _______ __, ____ (the "Indenture"), between the
Company and The Bank of New York, as trustee (the "Corresponding
Debenture Trustee"). The Preferred Securities, the Debentures
and the Guarantee 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 organized and validly existing
as a corporation in good standing under the laws of the State of
Louisiana 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 Trust Agreement, the Indenture, the
Guarantee Agreement, the Expense Agreement and the Company
Securities and to purchase, own, and hold the Common Securities
issued by the Trust and to consummate the transactions herein and
therein contemplated.
(b) The Trust has been duly created and is validly
existing as a business trust in good standing under the Delaware
Act, has the power and authority to own its property and to
conduct its business as described in the Prospectus, to issue and
sell the Trust Securities, and to enter into and perform its
obligations under this Underwriting Agreement and the Trust
Securities and to consummate the transactions herein
contemplated; the Trust 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 Trust; the Trust has
conducted and will conduct no business other than the
transactions contemplated by this Underwriting Agreement and
described in the Prospectus; the Trust 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 Trust is not and will not be
classified as an association taxable as a corporation for United
States federal income tax purposes; the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(c) The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 333-______) for the registration of
$150,000,000 aggregate offering price of the Company's and the
Trust's securities, including the Securities, under the
Securities Act of 1933, as amended (the "Securities Act") (all of
which securities remain unsold), and such registration statement
has become effective. The Offerors qualify for use of Form S-3
for the registration of the Securities. The prospectus forming a
part of the registration statement, at the time such registration
statement (or the most recent amendment thereto filed prior to
the time of effectiveness of this Underwriting Agreement) became
effective, including all documents incorporated by reference
therein at that time pursuant to Item 12 of Form S-3, is
hereinafter referred to as the "Basic Prospectus". In the event
that (i) the Basic Prospectus shall have been amended, revised or
supplemented (but excluding any amendments, revisions or
supplements to the Basic Prospectus relating solely to securities
other than the Securities) prior to the time of effectiveness of
the Underwriting Agreement, including without limitation by any
preliminary prospectus supplement relating to the Securities, or
(ii) the Company shall have filed documents pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the time the registration
statement became effective and prior to the time of effectiveness
of this Underwriting Agreement (but excluding documents
incorporated therein by reference relating solely to securities
other than the Securities), which documents are deemed to be
incorporated by reference in the Basic Prospectus pursuant to
Item 12 of Form S-3, the term "Basic Prospectus" as used herein
shall also mean such prospectus as so amended, revised or
supplemented and reflecting such incorporation by reference. The
Registration Statement in the form in which it became effective
and as it may have been amended by all amendments thereto as of
the time of effectiveness of this Underwriting Agreement
(including, for these purposes, as an amendment any document
incorporated by reference in the Basic Prospectus), and the Basic
Prospectus as it shall be supplemented to reflect the terms of
the offering and sale of the Preferred Securities and the
Debentures by a prospectus supplement (a "Prospectus Supplement")
to be filed with, or transmitted for filing to, the Commission
pursuant to Rule 424(b) under the Securities Act ("Rule 424(b)"),
are hereinafter referred to as the "Registration Statement" and
the "Prospectus," respectively.
(d) (i) 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 (except
any amendment or supplement relating solely to securities other
than the Securities), and (ii) between the time of effectiveness
of this Underwriting Agreement and the Closing Date, the Company
will not file any document that is to be incorporated by
reference in, or any supplement to, the Basic Prospectus, in
either case, 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. For
purposes of this Underwriting Agreement, any document that is
filed with the Commission after the time of effectiveness of this
Underwriting Agreement and is incorporated by reference in the
Prospectus (except documents incorporated by reference relating
solely to securities other than the Securities) pursuant to Item
12 of Form S-3 shall be deemed a supplement to the Prospectus.
(e) The Registration Statement, in the form in which
it became effective, and the Indenture, the Trust Agreement and
the Guarantee Agreement, at such time, 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.
The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, on the date first filed with the
Commission pursuant to the Exchange Act, fully complied or will
fully comply in all material respects with the applicable
provisions of the Exchange 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
later of (i) the date the Registration Statement was declared
effective by the Commission under the Securities Act and (ii) the
date that the Company's most recent Annual Report on Form 10-K
was filed with the Commission under the Exchange Act (the date
described in either clause (i) or (ii) is hereinafter referred to
as the "Effective Date"), the Registration Statement did not, and
on the date that any post-effective amendment to the Registration
Statement became or becomes effective (but excluding any post-
effective amendment relating solely to securities other than the
Securities), the Registration Statement, as amended by any such
post-effective amendment, did not or will not, as the case may
be, contain an 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 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 and, on said dates and at
such times, the documents then incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, when read together
with the Prospectus, or the Prospectus, as it may then be amended
or supplemented, will not contain an 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 (e) 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 Property Trustee,
the Delaware Trustee, the Guarantee Trustee and the Corresponding
Debenture Trustee, respectively, as they may be amended, filed as
exhibits to the Registration Statement (the "Form T-1s").
(f) The Common Securities have been duly authorized by
the Trust and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Registration
Statement and Prospectus, will be validly issued undivided
beneficial interests in the assets of the Trust, and will be
entitled to the benefits of the Trust Agreement; the issuance of
the Common Securities is not subject to preemptive or other
similar rights; at the Closing Date, all of the issued and
outstanding Common Securities of the Trust will be, directly
owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; the Common
Securities will conform to the description thereof contained in
the Prospectus.
(g) This Agreement has been duly authorized, executed
and delivered by each of the Trust and the Company.
(h) The Trust 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 each of the Administrative Trustees,
and assuming due authorization, execution and delivery of the
Trust Agreement by the Property Trustee and the Delaware Trustee,
will constitute a valid and binding obligation of the Company and
the Administrative Trustees, enforceable against the Company and
the Administrative Trustees 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); the Trust Agreement will conform to the description
thereof in the Prospectus.
(i) The Guarantee Agreement has been duly qualified
under the Trust Indenture Act, and the Guarantee Agreement 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 obligation 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); the Guarantee and the Guarantee Agreement will conform to
the descriptions thereof contained in the Prospectus.
(j) The Preferred Securities have been duly authorized
by the Trust and, when issued and delivered against payment
therefor in accordance with the provisions of this Agreement and
the Trust Agreement, will be validly issued and (subject to the
terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust, and
will be entitled to the benefits of the Trust Agreement; the
issuance of the Preferred Securities is not subject to preemptive
or other similar rights; holders of Preferred Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware; the
Preferred Securities will conform to the description thereof
contained in the Prospectus.
(k) 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 Corresponding Debenture Trustee,
will constitute a valid and binding agreement 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); the Indenture will conform to
the description thereof contained in the Prospectus.
(l) 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 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; the Debentures will conform to the
description thereof contained in the Prospectus.
(m) The Expense Agreement has been duly authorized by
the Company and, at the Closing Date, will have been duly
executed and delivered by the Company, and will constitute a
valid and binding agreement 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); the Expense Agreement will conform to the description
thereof contained in the Prospectus.
(n) ___________, ______________ and ___________, as
administrative trustees (the "Administrative Trustees") of the
Trust, are employees of the Company and have been duly authorized
by the Company to execute and deliver the Trust Agreement.
(o) The Trust is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(p) The Trust is not in violation of its Certificate
of Trust filed with the State of Delaware on April __, 1996; the
execution, delivery and performance by the Company and the Trust
of their respective obligations under this Underwriting
Agreement, the Trust Agreement, the Trust Securities, the
Indenture, the Guarantee Agreement, the Company Securities and
the Expense Agreement 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 or other agreement or
instrument to which the Company or the Trust is now a party.
(q) Except as set forth or contemplated in the
Prospectus, as it may then be amended or supplemented, the
Company 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.
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 Supplement.
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 ________ __, ____, 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 ("DTC") 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 commission payable at such time to the Underwriters
pursuant to Section 1 hereof by wire transfer in immediately
available funds to 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 Company will
deliver to the Representatives a copy of the Registration
Statement relating to the Securities as originally filed with the
Commission, and of all amendments or supplements thereto relating
to the Securities, or a conformed copy thereof, certified by an
officer of the Company to be in the form filed.
(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 Trust, or of which the Company or
the Trust 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 by either (i) preparing and filing with the Commission
and furnishing to the Underwriters a reasonable number of copies
of a supplement or supplements or an amendment or amendments to
the Prospectus, or (ii) making an appropriate filing pursuant to
Section 13, 14 or 15(d) of the Exchange Act which will supplement
or amend 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 Trust, make
generally available to the Trust'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 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 $6,000, (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 supplement relating
to the Preferred Securities 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 and, if applicable, the Debentures on the
New York Stock Exchange (the "NYSE") and the registration thereof
under the Exchange Act in accordance with Sections 6(i) and 6(j)
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, in an aggregate amount not
exceeding $15,000, 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 Preferred
Securities, any other beneficial interests in the assets of the
Trust, or any preferred securities or any other securities of the
Trust 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 securities, preferred securities
or any such substantially similar securities of either the Trust
or the Company, 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; 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.
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 an authorized
representative of the Trust, 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 Trust, 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, to the extent
legally required for the issuance and sale of the Securities, an
order of the Commission under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"), authorizing the
issuance and sale of the Securities on the terms set forth in, or
contemplated by, this Underwriting Agreement, the Indenture, the
Trust Agreement, the Guarantee Agreement and the Prospectus.
(d) At the Closing Date, the Underwriters shall have
received from Denise C. Redmann, Esq., Senior Counsel --
Corporate and Securities of Entergy Services, Inc., 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, special Delaware counsel
to the Offerors, 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 Winthrop, Stimson, Putnam & Roberts, 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) At the Closing Date, the Underwriters shall have
received from _____________, counsel for the [Property Trustee
and the Guarantee Trustee], an opinion, dated the Closing Date,
covering such matters as the Underwriters or Counsel for the
Underwriters shall reasonably request relating to the Trust
Agreement and the Guarantee Agreement.
(h) 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 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 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 or incorporated by
reference 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 or incorporated by reference 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, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 199_ 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
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange 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
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses
have occurred or may occur, for declarations of dividends, for
the repayment or redemption of long-term debt, for the
amortization of premium or discount on long-term debt, for the
redemption or purchase of preferred stock for sinking fund
purposes, for any increases in long-term debt in respect of
previously issued pollution control, solid waste disposal or
industrial development revenue bonds, or for changes or decreases
as set forth in such letter, identifying the same and specifying
the amount thereof; and (iv) stating that they have compared
specific dollar amounts, percentages of revenues and earnings and
other financial information pertaining to the Company (x) set
forth in the Prospectus and (y) set forth in documents filed by
the Company pursuant to Sections 13, 14 or 15(d) of the Exchange
Act as specified in Exhibit E hereto, in each case, 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.
[(i) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter dated the date hereof and
addressed to the Underwriters with respect to certain financial
information contained in the Prospectus, as mutually agreed to by
the Underwriters and the Offerors.]
(j) 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, (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 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 Company
and there has not been any material transaction entered into by
the Company, 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.
(k) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by an
authorized representative of the Trust, to the effect that (i)
the representations and warranties of the Trust contained herein
are true and correct, (ii) the Trust has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Trust 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 Trust and
there has not been any material transaction entered into by the
Trust, 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.
(l) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Trust Agreement, the
Guarantee Agreement, the Expense Agreement and the Indenture.
(m) 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(h) hereof.
(n) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company or the Trust that, in the reasonable opinion of the
Representatives, materially impairs the investment quality of the
Preferred Securities.
(o) Between the date hereof and the Closing Date
neither Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Group shall have lowered its rating of any of the
Company's outstanding debt securities in any respect.
(p) On or prior to the Closing Date, Moody's Investors
Service, Inc. and Standard & Poor's Ratings Group shall have
publicly assigned to the Preferred Securities ratings of ___ and
___, respectively, which ratings shall be in full force and
effect on the Closing Date.
(q) On or prior to the Closing Date, (i) the Preferred
Securities shall have been duly listed, subject to notice of
issuance, on the NYSE and (ii) the Company's registration
statement on Form 8-A relating to the Preferred Securities shall
have become effective under the Exchange Act.
(r) 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.
(s) 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) There shall have been issued and, at the Closing
Date, 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 on the terms set forth in, or contemplated by,
this Underwriting Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement and the Prospectus.
In case any of 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 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 the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)), 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, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)) 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
the Basic 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 or deemed incorporated by
reference therein), insofar as such indemnity relates to any
untrue or misleading statement or omission made in the Basic
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 the Basic Prospectus) or
such amendment or supplement (in the case of such a statement or
omission made in the Prospectus) (excluding, however, any
amendment or supplement to the Basic Prospectus relating solely
to securities other than the Securities and any document then
incorporated or deemed 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 agrees to indemnify the Trust against
any and all losses, claims, damages or liabilities that may
become due from the Trust 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 the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b)) or in the Prospectus, as
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, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with or transmitted for filing to the Commission pursuant to Rule
424(b)) or the Prospectus, or any amendment or supplement
thereto.
(d) In case any action shall be brought, based upon
the Registration Statement, the Basic 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 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.
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 aggregate amount of
Preferred Securities that such defaulting Underwriter agreed but
failed or refused to purchase is not more than one-tenth of the
aggregate amount 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 amount
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
amount of Preferred Securities without written consent of such
Underwriter. If any Underwriter shall fail or refuse to purchase
Preferred Securities and the aggregate amount of Preferred
Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of the Preferred Securities,
the Offerors shall have the right (a) to require the non-
defaulting Underwriters to purchase and pay for the respective
aggregate amount of Preferred Securities that it had severally
agreed to purchase hereunder, and, in addition, the aggregate
amount of Preferred Securities that the defaulting Underwriter
shall have so failed to purchase up to an aggregate amount
thereof equal to one-ninth of the respective aggregate amount 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 aggregate amount 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 aggregate
amount 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 on the
NYSE by The New York Stock Exchange, Inc., the Commission or
other governmental authority, (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, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) 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 (iv), 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, 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. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL 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 persons 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 14. 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: Treasurer, or, if to Entergy Services, Inc.,
shall be mailed or delivered to it at 639 Loyola Avenue, New
Orleans, Louisiana 70113, Attention: Treasurer.
<PAGE>
Very truly yours,
Entergy Louisiana, Inc.
By:
Name:
Title:
Entergy Louisiana Capital I
By:
Title:
By:
Title:
Accepted as of the date first above written:
Goldman, Sachs & Co.
[Representatives]
By: Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
As Representatives of the other several
Underwriters named in Schedule I hereto
<PAGE>
SCHEDULE I
Entergy Louisiana Capital I
___% Cumulative Quarterly Income Preferred Securities, Series A
Name Amount
Total ________________
<PAGE>
EXHIBIT A
[Letterhead of Entergy Services, Inc.]
________ __, _____
Goldman, Sachs & Co.
[Representatives]
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, NY 10004
Ladies and Gentlemen:
I, together with Reid & Priest LLP, of New York, New
York, and Richards, Layton & Finger, Wilmington, Delaware, have
acted as counsel for Entergy Louisiana, Inc. (the "Company") and
Entergy Louisiana Capital I, a statutory business trust organized
under the laws of the State of Delaware (the "Trust"), in
connection with the issuance and sale to the several Underwriters
pursuant to the Underwriting Agreement, effective ________ __,
____ (the "Underwriting Agreement"), among the Company, the Trust
and you, as the Representatives of the several Underwriters, of
an aggregate of % Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25 per
preferred security) of the Trust (the "Preferred Securities").
This opinion is rendered to you at the request of the Company and
the Trust. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In my capacity as such counsel, I have either
participated in the preparation of or have examined and am
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Trust Agreement; (e) the
Guarantee Agreement; (f) the Guarantee; (g) the Expense
Agreement; (h) the Registration Statement and Prospectus filed
under the Securities Act; (i) 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 Trust
Agreement, the Expense Agreement and the Guarantee Agreement; and
(j) the proceedings before and the order entered by the
Commission under the 1935 Act relating to the issuance and sale
of the Securities. I have also examined or caused to be examined
such other documents and have satisfied myself as to such other
matters as I have deemed necessary in order to render this
opinion. I have not examined the Debentures, except a specimen
thereof, and I have relied upon a certificate of the
Corresponding Debenture Trustee as to the authentication and
delivery thereof.
In my examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me
as originals, the legal capacity of natural persons and the
conformity with the originals of all documents submitted to me as
copies. In making my examination of documents and instruments
executed or to be executed by persons other than the Company and
the Trust, I have assumed that each such other person had the
requisite power and authority to enter into and perform fully its
obligations thereunder, the due authorization by each such other
person for the execution, delivery and performance thereof by
such person, and the due execution and delivery by or on behalf
of such person of each such document and instrument. In the case
of any such other person that is not a natural person, I have
also assumed, insofar as it is relevant to the opinions set forth
below, that each such other person is duly organized, validly
existing and in good standing under the laws of the jurisdiction
in which such other person was created, and is duly qualified and
in good standing in each other jurisdiction where the failure to
be so qualified could reasonably be expected to have a material
effect upon the ability of such other person to execute, deliver
and/or perform such other person's obligations under any such
document or instrument. I have further assumed that each
document, instrument, agreement, record and certificate reviewed
by me for purposes of rendering the opinions expressed below has
not been amended by oral agreement, conduct or course of dealing
of the parties thereto, although I have no knowledge of any facts
or circumstances that could give rise to such amendment.
As to questions of fact material to the opinions
expressed herein, I have relied upon certificates and
representations of officers of the Company and the Trust
(including but not limited to those contained in the Underwriting
Agreement, the Indenture, the Trust Agreement, the Expense
Agreement, the Guarantee Agreement and the Guarantee and
certificates delivered at the closing of the sale of the
Preferred Securities) and appropriate public officials without
independent verification of such matters except as otherwise
described herein.
Whenever my opinions herein with respect to the
existence or absence of facts are stated to be to my knowledge or
awareness, I intend to signify that no information has come to my
attention or the attention of any other attorneys acting for or
on behalf of the Company or the Trust or any of its affiliates
that have participated in the negotiation of the transactions
contemplated by the Underwriting Agreement, the Indenture, the
Trust Agreement, the Expense Agreement, the Guarantee Agreement
and the Guarantee, in the preparation of the Registration
Statement and the Prospectus or in the preparation of this
opinion letter that would give me, or them, actual knowledge that
would contradict such opinions. However, except to the extent
necessary in order to give the opinions hereinafter expressed,
neither I nor they have undertaken any independent investigation
to determine the existence or absence of such facts, and no
inference as to knowledge of the existence or absence of such
facts (except to the extent necessary in order to give the
opinions hereinafter expressed) should be assumed.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, I am of the opinion that:
(1) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Louisiana, has due corporate power and authority to conduct the
business that it is described as conducting in the Prospectus, 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 the Underwriting Agreement, the
Trust Agreement, the Indenture, the Expense Agreement, the
Guarantee Agreement and the Company Securities, to purchase, own,
and hold the Common Securities issued by the Trust and to
consummate the transactions therein contemplated, and is duly
qualified to conduct such business in the State of Louisiana.
(2) The statements made in the Prospectus under the
captions "Risk Factors", "Entergy Louisiana Capital I", "Certain
Terms of the Series A Preferred Securities", "Certain Terms of
the Series A Debentures", "The Issuers", "Description of Junior
Subordinated Debentures", "Description of Preferred Securities",
"Description of Guarantees", "Description of Corresponding Junior
Subordinated Debentures" and "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures and
the Guarantees" 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.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and are legal, valid and binding obligations of the
Company enforceable 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.
(4) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, 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), and is qualified under the Trust Indenture Act, and
no proceedings to suspend such qualification have been instituted
or, to my knowledge, threatened by the Commission.
(5) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, 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), and is qualified under the Trust
Indenture Act, and no proceedings to suspend such qualification
have been instituted or, to my knowledge, threatened by the
Commission.
(6) The Underwriting Agreement, the Trust Agreement
and the Expense Agreement have been duly authorized, executed and
delivered by the Company.
(7) The Trust Agreement is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to my knowledge,
threatened by the Commission.
(8) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement, the Guarantee Agreement and the
Guarantee (a) will not violate any provision of the Company's
Restated Articles of Incorporation or By-laws, as amended, (b)
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 of the
assets of the Company pursuant to the provisions of, any
mortgage, indenture, contract, agreement or other undertaking
known to me (having made due inquiry with respect thereto) to
which the Company is a party or which purports to be binding upon
the Company or upon any of its assets, and (c) will not violate
any provision of any law or regulation applicable to the Company
or, to the best of my knowledge (having made due inquiry with
respect thereto), any provision of any order, writ, judgment or
decree of any governmental instrumentality applicable to the
Company (except that various consents of, and filings with,
governmental authorities 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 any
jurisdiction).
(9) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which I do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) 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 I 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, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange 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; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act, and, to the best
of my 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.
(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 my knowledge, said order is in
full force and effect; no further approval, authorization,
consent or other order of any governmental body (other than
orders of the Commission under the Securities Act and the
Exchange 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; and no further approval,
authorization, consent or other order of any governmental body is
legally required to permit the performance by the Trust of its
obligations with respect to the Preferred Securities, or by the
Company of its obligations with respect to the Debentures or the
Guarantee or under the Indenture, the Underwriting Agreement, the
Trust Agreement, the Expense Agreement or the Guarantee
Agreement.
(11) All of the issued and outstanding Common
Securities of the Trust are owned of record by the Company.
In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, I
have had discussions with certain of the officers and
representatives of the Company and the Trust, with other counsel
for the Company and the Trust, and with the independent certified
public accountants of the Company who examined certain of the
financial statements included or incorporated by reference in the
Registration Statement. My examination of the Registration
Statement and the Prospectus and such discussions did not
disclose to me any information which gives me 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, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) 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. I do not express any
opinion or belief as to the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, as to
the Form T-1s or as to the information contained in the
Prospectus under the captions "Description of the Preferred
Securities -- Book-entry Issuance" and "Certain United States
Federal Income Tax Considerations."
I have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on my authority, and I believe such information
to be correct. I have examined the opinions of even date
herewith rendered to you by Reid & Priest LLP and Winthrop,
Stimson, Putnam & Roberts, and concur in the conclusions
expressed therein insofar as they involve questions of Louisiana
law.
I am a member of the Louisiana Bar and do not hold
myself out as an expert on the laws of any other state. As to
all matters of New York law, I have relied, with your approval,
upon the opinion of even date herewith addressed to you by Reid &
Priest LLP of New York, New York.
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 my prior written
consent, except that Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts may rely on this opinion as to all matters of
Louisiana law in rendering their opinions required to be
delivered under the Underwriting Agreement.
Very truly yours,
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
___________ __, ____
Goldman, Sachs & Co.
[Representatives]
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 Denise C. Redmann, Esq., Senior
Counsel--Corporate and Securities of Entergy Services, Inc., and
Richards, Layton & Finger, Wilmington, Delaware, have acted as
counsel for Entergy Louisiana, Inc. (the "Company") and Entergy
Louisiana Capital I, a statutory business trust organized under
the laws of the State of Delaware (the "Trust"), in connection
with the issuance and sale to the several Underwriters pursuant
to the Underwriting Agreement, effective ________ __, ____ (the
"Underwriting Agreement"), among the Company, the Trust and you,
as Representatives of the several Underwriters, of an aggregate
of ____________ % Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per preferred
security) of the Trust (the "Preferred Securities"). This opinion
is rendered to you at the request of the Company. 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 Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Trust Agreement; (e) the
Guarantee Agreement; (f) the Guarantee; (g) the Expense
Agreement; (h) the Registration Statement and Prospectus filed
under the Securities Act; (i) 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 Trust
Agreement, the Expense Agreement and the Guarantee Agreement; and
(i) 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
Corresponding 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) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, 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), and is duly qualified under the Trust Indenture Act,
and no proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the Commission.
(2) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and are legal, valid and binding obligations of the
Company enforceable 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) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, 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), and is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(4) The Expense Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company and 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).
(5) The Trust Agreement is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(6) The statements made in the Prospectus under the
captions "Risk Factors", "Entergy Louisiana Capital I", "Certain
Terms of the Series A Preferred Securities", "Certain Terms of
the Series A Debentures", "The Issuers", "Description of Junior
Subordinated Debentures", "Description of Preferred Securities",
"Description of Guarantees", "Description of Corresponding Junior
Subordinated Debentures" and "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures and
the Guarantees" 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.
(7) The statements made in the Prospectus under the
caption "Certain United States Federal 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.
(8) The Trust is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(9) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) 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, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange 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; 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.
(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 (other than
orders of the Commission under the Securities Act and the
Exchange 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; and no further approval,
authorization, consent or other order of any governmental body is
legally required to permit the performance by the Trust 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 Trust
Agreement, the Expense Agreement or the Guarantee Agreement.
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 Trust and information included or incorporated by
reference 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 (6) and
(7) above. In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, we
have had discussions with certain officers and representatives of
the Company and the Trust, with other counsel for the Company and
the Trust, and with the independent certified public accountants
of the Company who examined certain of the financial statements
included or incorporated by reference 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, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) 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 or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, as to
the Form T-1s or as to the information contained in the
Prospectus under the captions "Description of the Preferred
Securities -- Book-entry Issuance."
We have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. As to all matters of Louisiana law, we have, with your
consent, relied upon the opinion of even date herewith of Denise
C. Redmann, Esq., Senior Counsel--Corporate and Securities of
Entergy Services, Inc., counsel for the Company. 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, except that Denise C. Redmann, Esq., Senior Counsel--
Corporate and Securities of Entergy Services, Inc. may rely on
this opinion as to all matters of New York law in rendering her
opinion required to be delivered under the Underwriting
Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Richards, Layton & Finger]
___________ __, ____
Goldman, Sachs & Co.
[Representatives]
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 special Delaware counsel for Entergy
Louisiana, Inc., a Louisiana corporation (the "Company"), and
Entergy Louisiana Capital I, a Delaware business trust (the
"Trust"), in connection with the matters set forth herein. We
are furnishing this opinion to you at the request of the Company
and the Trust.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of executed and conformed counterparts, or copies
otherwise proved to our satisfaction, of the following:
(a) The Certificate of Trust of the Trust, dated
_______ __, ____ (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary
of State") on ____________ __, ____;
(b) The Trust Agreement of the Trust, dated as of
________ __, ____ between the Company and the trustees of the
Trust named therein;
(c) The Amended and Restated Trust Agreement of the
Trust, dated as of ________ __, ____, between the trustees of the
Trust named therein, the Company and the holders, from time to
time, of undivided beneficial interests in the assets of the
Trust (including the Certificate Evidencing Common Securities of
the Trust attached as Exhibit B thereto and the Certificate
Evidencing Preferred Securities of the Trust attached as Exhibit
D thereto) (collectively, the "Trust Agreement");
(d) The Underwriting Agreement, dated __________ __,
____ (the "Underwriting Agreement"), among the Trust, the Company
and you, as Representatives of the several Underwriters named in
Schedule I thereto;
(e) The Prospectus, dated _______ __, ____ (the
"Prospectus") and the Prospectus Supplement, dated ________ __,
____ (the "Prospectus Supplement"), relating to the ____%
Cumulative Quarterly Income Preferred Securities, Series A of the
Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust,
dated _________ __, ____, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined
are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above. In particular, we have not reviewed any
document (other than the documents listed in paragraph (a)
through (f) 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 Trust 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 Trust, and that the Trust 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
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
organization or formation, (iii) the legal capacity of natural
persons who are parties 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, the due authorization, execution and
delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is
to be issued by the Trust (each, a "Preferred Security Holder"
and collectively, 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 Trust Agreement, the Prospectus and the
Prospectus Supplement, (vii) the receipt by each Person to whom a
____% Common Security of the Trust representing common undivided
beneficial interests in the assets of the Trust (each, a "Common
Security" and collectively, the "Common Securities") is to be
issued by the Trust of a Common Securities Certificate for the
Common Security and the payment for the Common Security acquired
by it, in accordance with the Trust Agreement, the Prospectus and
the Prospectus Supplement, and (viii) that the Preferred
Securities and the Common Securities are issued and sold in
accordance with the Trust Agreement, the Prospectus and the
Prospectus Supplement. We have not participated in the
preparation of the Prospectus or the Prospectus Supplement and
assume no responsibility for their contents.
This opinion is limited to the laws of the State of
Delaware (including the securities laws of the State of
Delaware), and we have not considered and expound 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 which 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 Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required as of the date
hereof under the Delaware Business Trust Act with respect to the
creation and valid existence of the Trust as a business trust
have been made.
(2) Under the Trust Agreement and the Delaware
Business Trust Act, the Trust has the trust power and authority
(i) to own property and to conduct its business, all as described
in the Prospectus and the Prospectus Supplement, (ii) to issue
and sell Preferred Securities and Common Securities in accordance
with the Trust Agreement, the Prospectus and the Prospectus
Supplement, and (iii) to execute and deliver, and to perform its
obligations under, the Underwriting Agreement, the Preferred
Securities and the Common Securities, and to consummate the
transactions contemplated therein.
(3) Assuming that the Trust Agreement has been duly
authorized, executed and delivered by the parties thereto, the
Trust Agreement constitutes a valid and binding obligation of
each of the Company and the Administrative Trustees, and is
enforceable against the Company and each of the Administrative
Trustees, in accordance with its terms.
(4) The Common Securities have been duly authorized by
the Trust Agreement and are validly issued common undivided
beneficial interests in the assets of the Trust and entitled to
the benefits of the Trust Agreement.
(5) The Preferred Securities have been duly authorized
by the Trust Agreement and are validly issued and, subject to the
qualifications set forth in paragraph (6) below, fully paid and
nonassessable preferred undivided beneficial interests in the
assets of the Trust and entitled to the benefits of the Trust
Agreement.
(6) The Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated, pursuant to the Trust
Agreement, (i) to provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers
or exchanges of Preferred Securities certificates and the
issuance of replacement Preferred Securities certificates, and
(ii) to provide security or indemnity in connection with requests
of or directions to the Property Trustee to exercise its rights
and powers under the Trust Agreement.
(7) Under the Trust Agreement and the Delaware
Business Trust Act, the issuance of the Preferred Securities and
the Common Securities is not subject to preemptive rights.
(8) The issuance and sale by the Trust of the
Preferred Securities and the Common Securities, the execution,
delivery and performance by the Trust of the Underwriting
Agreement, and the consummation of the transactions contemplated
by the Underwriting Agreement, do not violate (a) the Certificate
or the Trust Agreement, or (b) any applicable Delaware law, rule
or regulation.
(9) Under the Trust Agreement and the Delaware
Business Trust Act, the issuance and sale by the Trust of the
Preferred Securities and the Common Securities, the execution and
delivery by the Trust of the Underwriting Agreement, and the
performance by the Trust of its obligations thereunder, have been
duly authorized by all necessary trust action on the part of the
Trust.
The opinion expressed in paragraph (3) above is
subject, as to enforcement, to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance
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.
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 them, in rendering their
opinion to you of even date herewith. Except as stated above,
without our prior written consent, this opinion may not be relied
upon by any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
<PAGE>
EXHIBIT D
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_________ __, ____
Goldman, Sachs & Co.
[Representatives]
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 an aggregate amount of % Cumulative Quarterly
Income Preferred Securities, Series A (liquidation preference $25
per preferred security) (the "Preferred Securities"), issued by
Entergy Louisiana Capital I, a statutory business trust organized
under the laws of the State of Delaware (the "Trust"), pursuant
to the agreement among you, as the Representatives of the several
Underwriters, Entergy Louisiana, Inc., a Louisiana corporation
(the "Company") and the Trust effective ________ __, ____ (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 (i)
an opinion of even date herewith addressed to you of Denise C.
Redmann, Esq., Senior Attorney -- Corporate and Securities of
Entergy Services, Inc., counsel for the Company and the Trust, as
to the matters covered in such opinion relating to Louisiana law
and (ii) an opinion of even date herewith addressed to you of
Richards, Layton & Finger, special Delaware counsel for the
Company and the Trust, as to the matters covered in such opinion
relating to Delaware law. We have reviewed said opinions and
believe that they are 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 examined such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon
representations of the Company and the Trust and statements in
the Registration Statement hereinafter mentioned. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals,
the conformity to the originals of the documents submitted to us
as certified or photostatic copies, and the correctness of all
statements of fact contained in all such original or copied
documents. We have not examined the certificates representing
the Preferred Securities or the Debentures except specimens
thereof, and we have relied upon a certificate of the paying
agent for the Preferred Securities as to the registration of the
Preferred Securities and upon a certificate of the Corresponding
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 Trust Agreement and are validly issued and fully paid and
nonassessable preferred undivided beneficial interests in the
assets of the Trust and entitled to the benefits of the Trust
Agreement. The holders of the Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
holders of the Preferred Securities may be obligated, pursuant to
the Trust Agreement, (i) to provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities certificates
and the issuance of replacement Preferred Securities
certificates, and (ii) to provide security or indemnity in
connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, 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, to the best of our knowledge, the Indenture is duly
qualified under the Trust Indenture Act, and no proceedings to
suspend such qualification have been instituted or threatened by
the Commission.
(3) The statements made in the Prospectus under the
captions "Certain Terms of the Series A Preferred Securities",
"Certain Terms of the Series A Debentures", "Description of
Junior Subordinated Debentures", "Description of Preferred
Securities", "Description of Guarantees", "Description of
Corresponding Junior Subordinated Debentures" and "Relationship
Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees" 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) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and are legal, valid and binding obligations of the
Company enforceable 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 are entitled to the benefits provided by the Indenture.
(5) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, 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, to the best of our knowledge, 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.
(6) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(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
(other than orders of the Commission under the Securities Act and
the Exchange 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 or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) 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, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange 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; 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 Trust and the information included or
incorporated by reference 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 Trust of the Registration Statement and the Prospectus, we
had discussions with certain officers, employees and
representatives of the Company, the Trust and Entergy Services
Inc., with counsel for the Company and the Trust, and with your
representatives. 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, at the time first filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b) 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 or statistical
data included or incorporated by reference in the Registration
Statement or Prospectus, as to the Form T-1s or as to the
information contained in the Prospectus under the captions
"Description of Preferred Securities -- Book-entry Issuance" and
"Certain United States Federal Income Tax Considerations."
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
<PAGE>
EXHIBIT E
ITEMS PURSUANT TO SECTION 7(h)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
Exhibit 4.03
__________________________________________
ENTERGY LOUISIANA, INC.
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of _____________ 1, 1996
__________________________________________
<PAGE>
ENTERGY LOUISIANA, INC.
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________ 1, 1996
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 ___________1, 1996, between ENTERGY
LOUISIANA, INC., a corporation duly organized and existing under the
laws of the State of Louisiana (herein called the "Company"), having
its principal office at 639 Loyola Avenue, New Orleans, Louisiana
70113, and , a
, having its principal corporate trust office at
, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery
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 series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. 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 refer
ence 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 princi
ples 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 account
ing 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 govern
mental 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 defined
in that Article.
"Act", when used with respect to any Holder of a Security,
has the meaning specified in Section 104.
"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,
except as may be otherwise specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, 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, performing 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 request
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
____________________________________
___________________________.
"corporation" means a corporation, association, company,
joint stock company or business trust.
"Defaulted Interest" has the meaning specified in Section
307.
"Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant
to Section 802. "Interest" with respect to a Discount Security means
interest, if any, borne by such Security at a Stated Interest Rate.
"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.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to
such Securities, as contemplated by Section 301.
"Event of Default" with respect to Securities of a particular
series has the meaning specified in Section 801.
"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 thereof, or any department, agency, authority or
other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by,
the United States 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.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"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 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 acceleration, 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 by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to Section
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
or Tranche, 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,
(x) 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 and each such Tranche, as the case may be,
determined without regard to this clause (x)) shall be
disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be pro
tected in relying upon any such request, demand, authori
zation, 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 re
garded 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;
(y) the principal amount of a Discount
Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802; and
(z) the principal amount of any Security which
is denominated in a currency other than Dollars or in a
composite currency that shall be deemed to be Outstanding
for such purposes shall be the amount of Dollars which
could have been purchased by the principal amount (or, in
the case of a Discount Security, the Dollar equivalent on
the date determined as set forth below of the amount
determined as provided in (y) above) of such currency or
composite currency evidenced by such Security, in each
such case certified to the Trustee in an Officer's
Certificate, based (i) on the average of the mean of the
buying and selling spot rates quoted by 3 banks which are
members of the New York Clearing House Association
selected by the Company in effect at 11:00 A.M. (New York
time) in The City of New York on the fifth Business Day
preceding any such determination or (ii) if on such fifth
Business Day it shall not be possible or practicable to
obtain such quotations from such 3 banks, on such other
quotations or alternative methods of determination which
shall be as consistent as practicable with the method set
forth in (i) above;
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.
"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.
"Periodic Offering" means an offering of Securities of a
series from time to time any or all of the specific terms of which
Securities, including without limitation the rate or rates of
interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"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, or Tranche thereof, 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 or Tranche 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.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursu
ant to this Indenture.
"Redemption Price", when used with respect to any Security 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.
"Required Currency" has the meaning specified in Section 311.
"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 authen
ticated 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.
"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 Interest Rate" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be made
under this Indenture by reference to the Stated Interest Rate on a
Security shall be made without regard to the effective interest
cost to the Company of such Security and without regard to the
Stated Interest Rate on, or the effective cost to the Company of,
any other indebtedness in respect of which the Company's
obligations are evidenced or secured in whole or in part by such
Security.
"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, acceleration,
purchase or extension).
"Tranche" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal
amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939, as amended. 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 there
after "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 102. 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, if requested by the Trustee, 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
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 103. 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 104. 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 (except as otherwise
contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities
held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(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 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, or any Tranche thereof,
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, or any Tranche thereof, 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 or Tranche.
(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 proportion of
the 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 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document pro
vided or permitted by this Indenture to be made upon, given or fur
nished 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:
Attention:
Telephone:
Telecopy:
If to the Company, to:
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
With a copy to:
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
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, telex or other direct written electronic means, on
the date of transmission, and if transmitted by registered mail,
on the date of receipt.
SECTION 106. 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 serv
ice 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 107. 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 108. 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 109. 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.
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 any Tranche thereof, or
in the Board Resolution or Officer's Certificate which establishes
the terms of the Securities of such series or Tranche, 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 with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, 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.
ARTICLE TWO
Security Forms
SECTION 201. 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 Section
301, 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 202. 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.
_________________________________
as Trustee
By:_____________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
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 the
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, or any Tranche thereof, 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 on which the principal of the
Securities of such series or any Tranche thereof, is 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, acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, 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 as
contemplated by Section 312; 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, or any Tranche thereof,
shall be payable, (2) registration of transfer of Securities
of such series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) notices and demands to or
upon the Company in respect of the Securities of such series,
or any Tranche thereof, 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, or
any Tranche thereof, 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, or any Tranche thereof, 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,
or any Tranche thereof, 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, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium,
if any, and interest, if any, on the Securities of such
series, or any Tranche thereof, 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, or any
Tranche thereof, 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
on the Securities of such series, or any Tranche thereof, 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, or any Tranche thereof, 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,
or any Tranche thereof, which shall be payable upon
declaration of 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, or any
Tranche thereof, 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, or any Tranche thereof, 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 Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof,
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, or any Tranche
thereof, 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, or any Tranche
thereof, 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, or any Tranche
thereof, 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, or any Tranche thereof, 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, or any Tranche thereof; and
(v) any other terms of the Securities of such series,
or any Tranche thereof, not inconsistent with the provisions
of this Indenture.
The Securities of each series, or any Tranche thereof,
shall be subordinated in the right of payment to Senior
Indebtedness as provided in Article Fifteen.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board
Resolution which establishes such series, or the Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that
the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by
the clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof,
the Securities of each series shall be issuable in denominations
of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof,
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. 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
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, either (i) establishing such terms or (ii) in the case
of Securities of a series subject to a Periodic Offering,
specifying procedures, acceptable to the Trustee, by which
such terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee, for
authentication and delivery pursuant to oral or electronic
instructions from the Company or any agent or agents thereof,
which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance
with the instrument or instruments delivered pursuant to
clause (a) above;
(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) that 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) that 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) that 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);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of such Securities (provided that such
Opinion of Counsel addresses the authentication and delivery of
all Securities of such series) and that in lieu of the opinions
described in clauses (ii) and (iii) above Counsel may opine that:
(x) when the terms of such Securities shall
have been established pursuant to a Company Order or
Orders or pursuant to such procedures (acceptable to the
Trustee) as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been
duly authorized by the Company and will have been
established in conformity with the provisions of this
Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or specified
procedures referred to in paragraph (x) above 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 the
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).
With respect to Securities of a series subject to a Peri
odic Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such
opinion or other documents have been superseded or revoked or
expire by their terms. In connection with the authentication and
delivery of Securities of a series subject to a Periodic Offering,
the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not
violate any rules, regulations or orders of any Governmental
Authority having jurisdiction over the Company.
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
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, or any Tranche
thereof, 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, or any Tranche
thereof, 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 sub
stantially in the form provided for herein executed by the Trustee
or its 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 delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered 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
delivered hereunder and shall never be entitled to the benefits
hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
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, or any Tranche
thereof, after the preparation of definitive Securities of such
series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche 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 deliver in exchange therefor
definitive Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same
series and Tranche and of like tenor authenticated and delivered
hereunder.
SECTION 305. 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 or any Tranche thereof and the registration of
transfer thereof. 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, or any Tranche
thereof, upon surrender for registration of transfer of any
Security of such series or Tranche at the office or agency of the
Company maintained pursuant to Section 602 in a Place of Payment
for such series or Tranche, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series and Tranche, 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, or any Tranche
thereof, any Security of such series or Tranche may be exchanged
at the option of the Holder, for one or more new Securities of the
same series and Tranche, 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 deliver, 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 sat
isfactory 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, or any Tranche
thereof, 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, or any Tranche thereof, during a period
of 15 days immediately preceding the date notice is to be given
identifying the serial numbers of the Securities of such series or
Tranche 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 306. 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
deliver in exchange therefor a new Security of the same series and
Tranche, 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
deliver, in lieu of any such destroyed, lost or stolen Security, a
new Security of the same series and Tranche, 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 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, 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.
Subject to Section 312, 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 Defaulted
Interest or shall make arrangements satisfactory to the
Trustee for such deposit 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 308. 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 309. 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, or any Tranche thereof, 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. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars or
in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to make
any payment of the principal thereof, or the premium or interest
thereon, shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency other than
the Required Currency, except to the extent that such tender or
recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such
tender or recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it considers appro
priate to exchange such currency for the Required Currency. The
costs and risks of any such exchange, including without limitation
the risks of delay and exchange rate fluctuation, shall be borne
by the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee be
liable therefor except in the case of its negligence or willful
misconduct.
SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the
Securities of any series hereunder, to extend interest payment
periods on all Securities of one or more series, or Tranches
thereof, 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 313. CUSIP Numbers.
The Company in issuing Securities of any series shall
use a "CUSIP" number and 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 FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. 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 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Security Registrar from the
Outstanding Securities of such series or Tranche 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 Tranche
or any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination larger than
the minimum authorized denomination for Securities of such series
or Tranche; 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, or any Tranche thereof, 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 404. 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 or
Tranche 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 405. 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 satis
fied, 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 406. 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, if the
Company or the Trustee so requires, 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 and Tranche, 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 FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, 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, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, 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 or Tranche in respect of
which it was made as provided for by the terms of such Securities.
SECTION 502. 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 or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche 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 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment
date for the Securities of any series, or any Tranche thereof, 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 or Tranche;
(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 or Tranche 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 succeeding mandatory sinking
fund payment for such series or Tranche 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 SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for
the Securities of each series, or any Tranche thereof, 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 any Tranche thereof, 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, or any Tranche thereof, 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 or Tranche, 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 603. 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, or any Tranche
thereof, 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, or any Tranche thereof,
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, or any Tranche thereof, 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 2 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 604. 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 605. 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 606. Annual Officer's Certificate as to Compliance.
Not later than September 15 in each year, commencing
September 15, 1996, 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 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant or restriction specified with respect to the Securities
of any series, or any Tranche thereof, 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 at least a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches 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 at least 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.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. 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, Eligible 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 or Tranche, 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 Eligible Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations so
deposited constitute Eligible 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 Eligible 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, or any Tranche thereof, 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 or Tranche.
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 Eligible Obli
gations, 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 Eligible Obligations shall have
been deposited as provided in this Section against, any tax, fee
or other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of
such Eligible 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 Eligible 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 702. 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 pro
vided 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 Eligible Obligations held by the Trustee pursuant
to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments on
any such Eligible 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, however, 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 Eligible Obligations, if not then needed for such purpose,
shall, to the extent practicable, be invested upon Company Request
and upon receipt of the documents referred to in clause (y) of
Section 701 in Eligible Obligations of the type described in
clause (b) in the first paragraph 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
Eligible 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 EIGHT
Events of Default; Remedies
SECTION 801. 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, on any Security of
such series within 60 days after the same becomes due and pay
able (whether or not payment is prohibited by the provisions
of Article Fifteen hereof); provided, however, that a valid
extension of the interest payment period by the Company as
contemplated in Section 312 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 when due and payable (whether
or not payment is prohibited by the provisions of Article
Fifteen hereof); 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 bank
ruptcy, 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 admis
sion 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 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be
continuing with respect to Securities of any series at the time
Outstanding, then in every such case the Trustee or the Holders of
not less than 33% in principal amount of the Outstanding
Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Discount Securities, such
portion of the principal amount of such Securities as may be
specified in the terms thereof as contemplated by Section 301) of
all of the Securities of such series to be due and payable imme
diately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon such declaration such principal
amount (or specified amount) shall become immediately due and pay
able (provided that the payment of principal of such Securities
shall remain subordinated to the extent provided in Article
Fifteen hereof); provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than
one series of Securities, the Trustee or the Holders of not less
than 33% in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders of the
Securities of any one of such series.
At any time after such a declaration of acceleration
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 acceleration 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 acceleration 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 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 acceleration, 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 803. 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 ef
fectual 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 804. 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, seques
trator 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 805. 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 806. 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 any surplus then remaining to
the Company, or to whomever may be lawfully entitled thereto.
SECTION 807. 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 not less than 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 808.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 312) interest, if
any, on such Security on the Stated Maturity or Maturities
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.
SECTION 809. 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 not less than 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
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) 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.
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 reason
able 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 NINE
The Trustee
SECTION 901. 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.
(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 902. 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 "de
fault" means any event which is, or after notice or lapse of time,
or both, would become, an Event of Default.
SECTION 903. 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 rely and shall be 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
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, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel 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 904. 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 correctness.
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 905. 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 906. 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 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation 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 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 hereunder or the
performance of its duties hereunder, including the 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 908. 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.
SECTION 909. 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.
(a) 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.
(b) 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.
(c) 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.
(d) 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 6 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 6 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.
(e) 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 succes
sor 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 6 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.
(f) 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).
(g) 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.
(a) 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.
(b) 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 provided 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 succes
sor 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.
(c) 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.
(d) 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 authenti
cated 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:
(a) 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;
(b) 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:
(a) 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;
(b) 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;
(c) 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;
(d) 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
(e) 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, or any
Tranche thereof, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series or Tranche issued
upon original issuance, 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 pub
lished. 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, or any Tranche thereof, shall be made pursuant to
this Section, the Securities of such series or Tranche 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.
________________________
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Officer
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 TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 15 and September 15 in
each year, commencing September 15, 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 1002. Reports by Trustee and Company.
Not later than ______________ in each year, commencing
_______________, the Trustee shall transmit to the Holders and the
Commission a report, dated as of the next preceding
_______________, 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 and the Commission, 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.
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.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. 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 be a
Person organized and existing under the laws of the United
States, any State thereof or the District of Columbia, and
shall expressly assume, by an indenture supplemental 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 per
formed or observed;
(b) immediately after giving effect to such transaction
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 1102. 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 TWELVE
Supplemental Indentures
SECTION 1201. 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 one or more specified Tranches thereof,
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 or Tranche 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 or Tranche only pursuant to the
provisions of Section 1202 hereof or when no Security of such
series or Tranche remains Outstanding; or
(e) to provide collateral security for the Securities;
or
(f) to establish the form or terms of Securities of any
series or Tranche 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 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 or Tranche of, the
Securities; 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, or any Tranche thereof, shall be
payable, (2) all or any series of Securities, or any Tranche
thereof, may be surrendered for registration of transfer, (3)
all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or
upon the Company in respect of all or any series of
Securities, or any Tranche thereof, 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 or Tranche 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 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a major
ity 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; 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 if the Securities of any series shall have been issued in more
than one Tranche and if the proposed supplemental indenture shall
directly affect the rights of the Holders of Securities of one or
more, but less than all, of such Tranches, then the consent only of
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches 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 312 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 reduce the amount of
the principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802, 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 any Tranche thereof,
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 conse
quences, 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
Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, or any Tranche thereof (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).
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 of one or more Tranches thereof, or which modifies
the rights of the Holders of Securities of such series or Tranches
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 or Tranche.
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 1203. 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 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article this Indenture shall be modified in accordance there
with, and such supplemental indenture shall form a part of this In
denture 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 1205. 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 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof,
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, or any
Tranche thereof, 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 or Tranche.
SECTION 1207. 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 THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, 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 or
Tranches.
SECTION 1302. 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, or any
Tranche or Tranches thereof, 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, or any Tranche or Tranches thereof, by the Company or
by the Holders of 33% in aggregate principal amount of all of
such series and Tranches, 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 and Tranches 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, or any Tranche or Tranches thereof, shall be
valid without notice if the Holders of all Outstanding
Securities of such series or Tranches 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 1303. 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, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, 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 or
Tranches by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any
series or Tranche 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 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches 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 and
Tranches; 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 and Tranches, considered as one class, the Persons entitled
to vote such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches, 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 and Tranches, 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 and Tranches 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 and
Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so lim
ited, any resolution with respect to any action 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 and Tranches,
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 and Tranches, 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 and
Tranches with respect to which such meeting shall have been held,
whether or not present or represented at the meeting.
SECTION 1305.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 chairman of 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 and Tranches 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 and
Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1,000 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 and
Tranches represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without further
notice.
SECTION 1306. 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 and Tranches with respect to which the
meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint 2 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 1307. 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 FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. 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 corporation (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 FIFTEEN
Subordination of Securities
SECTION 1501. 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, 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 1502. 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
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 Eligible
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 1503. 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 1504. 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. Upon the
payment in full of all Senior Indebtedness, 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 1505. 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 1506. 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 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 1507. 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.
SECTION 1508. 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 1509. 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; Termination.
Notwithstanding anything contained herein to the contrary,
other than as provided in the immediately succeeding sentence, all
the provisions of this Indenture shall be subject to the provisions
of this Article, so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary,
the provisions of this Article Fifteen shall be of no further effect,
and the Securities shall no longer be subordinated in right of
payment to the prior payment of Senior Indebtedness, if the Company
shall have delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed to be a
supplemental indenture for purposes of Article Twelve hereof.
_________________________
This instrument may be executed in any number of counter
parts, 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, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first
above written.
ENTERGY LOUISIANA, INC.
By:_________________________________
[SEAL]
ATTEST:
_______________________
______________________________, Trustee
By:_________________________________
[SEAL]
ATTEST:
_______________________
<PAGE>
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, ____, before me personally
came _________________, to me known, who, being by me duly sworn, did
depose and say that he is the _________________________ of Entergy
Louisiana, Inc., 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.
________________________________
Notary Public
[Notarial Seal]
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, ____, before me
personally came _________________, to me known, who, being by me duly
sworn, did depose and say that he is a _________________ of
______________________________, 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.
________________________________
Notary Public
[Notarial Seal]
Exhibit 4.04
__________________________________________
ENTERGY LOUISIANA, INC.
TO
THE BANK OF NEW YORK_____________________________
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities
relating to Trust Securities)
Dated as of __________ 1, 1996
__________________________________________
<PAGE>
ENTERGY LOUISIANA, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________ 1, 1996
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 ___________ 1, 1996,
between ENTERGY LOUISIANA, INC., a corporation duly
organized and existing under the laws of the State of
Louisiana (herein called the "Company"), having its
principal office at 639 Loyola Avenue, New Orleans,
Louisiana 70113, andPlease delete justification left code
when the Trustee is decided.THE BANK OF NEW
YORK_________________, corporation of the State of New
York____________________________, 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 delivery 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 ONE
Definitions and Other Provisions of General Application
SECTION 101. 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 admini
strative agency, regulatory authority or other govern
mental 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 defined 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) au
thorized 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, except as may be otherwise specified as
contemplated by Section 301.
"Commission" means the Securities and Exchange
Commission, 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, performing 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 request 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, New York, New
York 10286.__________________________________.
"corporation" means a corporation, association,
company, 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" has the meaning specified in
Section 801.
"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 principal 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 instruments which evidence a direct
ownership interest in obligations 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 Trust, for the benefit of the
holders of Preferred Securities issued by such Trust.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"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
acceleration, 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 by the
Trustee or delivered to the Trustee for
cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant
to Section 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 Secu
rities 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 re
garded 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.
"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 preferred trust
interests issued by a Trust or similar securities issued
by permitted successors to such Trust in accordance with
the Trust Agreement pertaining to such Trust.
"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
Security 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, 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 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,
acceleration, purchase or extension).
"Trust" means Louisiana Capital I, Louisiana
Capital II, each a statutory business trust created
under the laws of the State of Delaware, or any other
Trust designated pursuant to Section 301 hereof or any
permitted successor under the Trust Agreement pertaining
to such Trust.
"Trust Agreement" means the Amended and Restated
Trust Agreement, dated as of , 1996,
relating to Louisiana Capital I, the Amended and
Restated Trust Agreement, dated as of
_____________________, 1996, relating to Louisiana
Capital II or an Amended and Restated Trust Agreement
relating to a Trust designated pursuant to Section 301
hereof, in each case, among the Company, as Depositor,
the trustees named therein and several holders referred
to therein as they may be amended from time to time.
"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 102. 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, if
requested by the Trustee, 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 certificate 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 103. 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 104. 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 held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization,
direction, notice, 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 Com
pany 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 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
proportion of the 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 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization,
direction, notice, consent, election, waiver or 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:
Telephone:
Telecopy:
If to the Company, to:
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
With a copy to:
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
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, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. 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 107. 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 108. 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 109. 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 Property Trustee fails to
enforce its rights with respect to the Securities or
the related Trust Agreement, a holder of Preferred
Securities may institute a legal proceeding directly
against the Company to enforce the Property Trustee's
rights with respect to the Securities or such Trust
Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against
the Property Trustee or any other person or entity.
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.
ARTICLE TWO
Security Forms
SECTION 201. 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
Section 301, 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 202. 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.
_________________________________
as Trustee
By:_________________________
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. 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 Trust in exchange for
securities of the Company or to evidence loans by a
Trust of the proceeds of the issuance of Preferred
Securities of such Trust plus the amount deposited by
the Company with such Trust 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 on which the principal
of the Securities of such series is 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, acceleration, 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 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 premium, 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 interest, 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 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 Trust to which
Securities of such series are to be issued; and
(w) any other terms of the Securities of
such series not inconsistent with the provisions
of this Indenture.
All Securities of any one series shall be
substantially identical, except as to principal amount
and date of issue and except as may be set forth in the
terms of such series as contemplated above. The
Securities of each series shall be subordinated in
right of payment to Senior Indebtedness as provided in
Article Fifteen.
SECTION 302. 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 303. 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 established in conformity with the
provisions of this Indenture; 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 delivered
hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered
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
delivered hereunder and shall never be entitled to the
benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive
Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive 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 deliver 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 delivered
hereunder.
SECTION 305. 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. 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
deliver, 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 denomina
tions 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 deliver, 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 306. 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 deliver 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 Trustee (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 deliver, 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 307. 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.
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 Securities 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 proposed 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 Defaulted 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 308. 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 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, 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 and for any period shorter than a full month.
SECTION 311. Extension of Interest Payment.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods 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 Trust 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, 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 Trust after the payment
of such taxes, duties, assessments or governmental
charges shall result in such Trust's having such funds
as it would have had in the absence of the payment of
such taxes, duties, assessments or governmental
charges.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series which are redeemable
before their Stated Maturity 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 402. 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 Officer's Certificate evidencing compliance with
such restriction or condition.
SECTION 403. 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 Trustee 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 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided 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 405. 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 406. 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, if the Company or the Trustee so
requires, 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 FIVE
Sinking Funds
SECTION 501. 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 502. 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 503. 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 SIX
Covenants
SECTION 601. 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 602. 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 603. 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 604. 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 605. 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 606. Annual Officer's Certificate as to
Compliance.
Not later than September 15 in each year,
commencing September 15, 1996, 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 607. Waiver of Certain Covenants.
The Company may omit in any particular
instance to comply with any term, provision or
condition set forth in 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 at least 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
at least 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 Trust holds Securities
of any series, such Trust 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 at least a majority in aggregate
liquidation preference of the outstanding Preferred
Securities issued by such Trust affected, obtained as
provided in the Trust Agreement pertaining to such
Trust.
SECTION 608. Restriction on Payment of Dividends.
So long as any Preferred Securities of any
series remain outstanding, the Company shall not
declare or pay any dividend on, or redeem, purchase,
acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or make any
guarantee payments with respect to the foregoing (other
than payments under the Guarantee relating to such
Preferred Securities) if at such time (a) the Company
shall be in default with respect to its payment or
other obligations under the Guarantee relating to such
Preferred Securities, (b) there shall have occurred and
be continuing a payment default (whether before or
after expiration of any period of grace) or an Event of
Default hereunder or (c) the Company shall have elected
to extend any interest payment period as provided in
Section 311, and any such period, or any extension
thereof, shall be continuing.
SECTION 609. Maintenance of Trust Existence.
So long as Preferred Securities of any series
remain outstanding, the Company shall (i) maintain
direct or indirect ownership of all interests in the
Trust which issued such Preferred Securities, other
than such Preferred Securities, (ii) not voluntarily
(to the extent permitted by law) dissolve, liquidate or
wind up such Trust, except in connection with a
distribution of the Securities to the holders of the
Preferred Securities in liquidation of such Trust,
(iii) remain the sole Depositor under the Trust
Agreement (the "Depositor") of such Trust and timely
perform in all material respects all of its duties as
Depositor of such Trust, and (iv) use reasonable
efforts to cause such Trust to remain a business trust
and otherwise continue to be treated as a grantor trust
for Federal income tax purposes provided that any
permitted successor to the Company under this Indenture
may succeed to the Company's duties as Depositor of
such Trust; and provided further that the Company may
permit such Trust to consolidate or merge with or into
another business trust or other permitted successor
under the Trust Agreement pertaining to such Trust so
long as the Company agrees to comply with this Section
609 with respect to such successor business trust 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 Property Trustee fails to enforce its
rights with respect to the Securities or the related
Trust Agreement, a holder of Preferred Securities may
institute a legal proceeding directly against the
Company to enforce the Property Trustee's rights with
respect to the Securities or such Trust Agreement, to
the fullest extent permitted by law, without first
instituting any legal proceeding against the Property
Trustee or any other person or entity.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Defeasance.
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 Obli
gations, 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 702. 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 Sec
tions 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 703. 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, however, 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
practicable, 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 paragraph 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 EIGHT
Events of Default; Remedies
SECTION 801. 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 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 802. Acceleration of Maturity; 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 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 (considered as one class), and not the
Holders of the 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 the Indenture).
At any time after such a declaration of
acceleration 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 acceleration 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 acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest 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 nonpayment of the principal of Securities
of such series which shall have become due solely
by such declaration of acceleration, 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 803. 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 interest, 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 804. 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 805. 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 compensation, 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 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee 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 unpaid 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 807. Limitation on Suits.
No Holder shall have any right to institute
any proceeding, 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 not less than 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 808. 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
expressed in such Security (or, in the case of redemp
tion, 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. Any holder of related Preferred Securities
shall have the right to institute suit for the
enforcement of any such payment to such holder with
respect to Securities relating to such Preferred
Securities having a principal amount equal to the
aggregate liquidation preference amount of the related
Preferred Securities held by such holder.
SECTION 809. 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 here
under, 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 not less than 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
(a) in the payment of the principal of or
premium, if any, or interest, if any, on any
Security of such series, or
(b) 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 Trust holds the
Securities of any series, such Trust may not waive any
past default without the consent of at least a majority
in aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected,
obtained as provided in the Trust Agreement pertaining
to such Trust.
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 NINE
The Trustee
SECTION 901. 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.
(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 902. 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 903. 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 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, deben
ture, 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, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel 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 904. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities (except 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 correctness.
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 905. 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 906. 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 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation 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 hereunder 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 908. 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 Trust Agreement and the Guarantee
Agreement pertaining to each Trust 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 909. 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 corpora
tion 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.
(a) 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.
(b) 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.
(c) 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 so long
as any Preferred Securities remain outstanding, the
Trust which issued such Preferred Securities shall
not execute any Act to remove the Trustee without the
consent of the holders of a majority in aggregate
liquidation preference of Preferred Securities issued
by such Trust outstanding, obtained as provided in
the Trust Agreement pertaining to such Trust.
(d) 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.
(e) 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 ap
pointed 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.
(f) 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).
(g) 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.
(a) 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.
(b) 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 provided 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 succes
sor 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.
(c) 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.
(d) 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:
(a) 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;
(b) 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:
(a) 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;
(b) 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;
(c) 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;
(d) 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
(e) 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 pub
lished. 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 Authen
ticating 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 applicable 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.
________________________
As Trustee
By_____________________
As Authenticating
Agent
By_____________________
Authorized Officer
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 TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 1 and
September 15 in each year, commencing September 15, 1996,
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 1002. Reports by Trustee and Company.
Not later than _____________ in each year,
commencing ________________, the Trustee shall transmit to
the Holders and the Commission a report, dated as of the
next preceding _______________, 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 and the Commission, 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.
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.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. 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 Com
pany substantially as an entirety shall be a Person
organized and validly existing under the laws of the
United States, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture
supplemental 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 per
formed or observed;
(b) immediately after giving effect to such
transaction 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 1102. 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 TWELVE
Supplemental Indentures
SECTION 1201. 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 Indenture 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 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
noncertificated system of registration for all, or
any series of, the Securities; 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 1202. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than
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 in
denture, 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, how
ever, 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 pro
viso, in accordance with the requirements of Sections
911(b) and 1201(h).
Notwithstanding the foregoing, so long as any of the
Preferred Securities remain outstanding, the Trustee may
not consent to a supplemental indenture under this Section
1202 without the prior consent, obtained as provided in a
Trust Agreement pertaining to a Trust which issued such
Preferred Securities, of the holders of not less than a
majority in aggregate liquidation preference of all
Preferred Securities issued by such Trust 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 1203. 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 1204. 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 1205. 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 1206. 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 1207. 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 THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. 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 1302. 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 rep
resentatives 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 1303. 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 1304. 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 Securities 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 recon
vened. 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 presented 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 percentage, 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 1305. 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 Indenture, 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 chairman of 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 meeting, 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 1306. 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 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, 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 FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. 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 corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional pro
vision, 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 FIFTEEN
Subordination of Securities
SECTION 1501. 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 1502. 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 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 1503. 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 1504. 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 1505. 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 1506. 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 1507. 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.
SECTION 1508. 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 1509. 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;
Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be
of no further effect, and the Securities shall no longer
be subordinated in right of payment to the prior payment
of Senior Indebtedness, if the Company shall have
delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article
Twelve.
_________________________
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.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ENTERGY LOUISIANA, INC.
By:
ATTEST:
____________________________
_________________________________, Trustee
By:
ATTEST:
_____________________________
<PAGE>
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
On the _____ day of ___________, 1996, before me
personally came ____________________________, to me known,
who, being by me duly sworn, did depose and say that he is
the ________________ of Entergy Louisiana, Inc., 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.
Notary Public
Parish of Orleans, State of
Louisiana
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _________________, 1996,
before me personally came _____________________________,
to me known, who, being by me duly sworn, did depose and
say that he is a _____________________________ 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.
Notary Public, State of New York
Exhibit 4.05
CERTIFICATE OF TRUST
OF
ENTERGY LOUISIANA CAPITAL I
THIS CERTIFICATE OF TRUST of Entergy Louisiana Capital
I (the "Trust"), dated as of April , 1996 is being duly
executed and filed by the undersigned, as trustees, to form a
business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801, et seq.).
Name. The name of the business trust being formed
hereby is Entergy Louisiana Capital I.
Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the
State of Delaware are The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, New Castle County, Delaware.
Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE) WILLIAM J. REGAN, JR.,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By:____________________________ By:____________________________
Name: _____________________
Title: ______________________
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:____________________________
Name: Nancy Gill
Title: Assistant Treasurer
Exhibit 4.06
TRUST AGREEMENT
OF ENTERGY LOUISIANA CAPITAL I
This TRUST AGREEMENT of Entergy Louisiana Capital I (the
"Trust"), dated as of April __, 1996, among (i) Entergy Louisiana,
Inc., a Louisiana corporation (the "Depositor"), (ii) The Bank of
New York, a New York banking corporation, not in its individual
capacity but solely as trustee of the Trust, (iii) The Bank of New
York (Delaware), a Delaware banking corporation, not in its
individual capacity but solely as trustee of the Trust, and (iv)
William J. Regan, Jr., an individual employed by the Depositor, not
in his individual capacity but solely as trustee of the Trust (each
of such trustees in (ii), (iii) and (iv) a "Trustee" and
collectively, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
I. The trust created hereby shall be known as "Entergy
Louisiana Capital I", in which name the Trustees, or the Depositor
to the extent provided herein, may conduct the business of the
Trust, make and execute contracts, and sue and be sued.
II. The Depositor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor,
which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto
that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. 3801 et
seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in accordance with the
provisions of the Business Trust Act.
III. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and
substantially in the form to be included as an exhibit to the 1933
Act Registration Statement referred to below, to provide for the
contemplated operation of the Trust created hereby and the issuance
of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or
obligation hereunder or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to
obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise.
IV. The Depositor and the Trustees hereby authorize and
direct the Depositor (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) a Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-
effective amendments to the 1933 Act Registration Statement,
relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities of the Trust and certain other
securities and (b) a Registration Statement on Form 8-A (the "1934
Act Registration Statement") (including all pre-effective and post-
effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to file with the
New York Stock Exchange (the "Exchange") and execute on behalf of
the Trust a listing application and all other applications, state
ments, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be
listed on the Exchange and (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws of
such jurisdictions as the Depositor, on behalf of the Trust, may
deem necessary or desirable. In the event that any filing referred
to in clauses (i) and (ii) above is required by the rules and
regulations of the Commission, the Exchange or state securities or
blue sky laws, to be executed on behalf of the Trust by one or more
of the Trustees, each of the Trustees, in its or his capacity as
Trustee of the Trust, is hereby authorized and, to the extent so
required, directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being
understood that The Bank of New York and The Bank of New York
(Delaware), in their capacities as Trustees of the Trust,
respectively, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, the Exchange or state
securities or blue sky laws. In connection with all of the
foregoing, the Depositor and each Trustee, solely in its or his
capacity as Trustee of the Trust, hereby constitutes and appoints
William J. Regan, Jr., Steve McNeal and Frank Williford, and each
of them, as its or his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for the
Depositor or such Trustee or in the Depositor's or such Trustee's
name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to the 1933
Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and other
documents in connection therewith and in connection with the filing
of the 1933 Act Registration Statement and the 1934 Act
Registration Statement, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes
as the Depositor or such Trustee might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
V. This Trust Agreement may be executed in one or more
counterparts.
VI. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be
fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business
Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware, or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any Trustee at any time. The
Trustees may resign upon thirty days prior notice to Depositor.
This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard
to conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
ENTERGY LOUISIANA, INC.
as Depositor
By:_______________________________
Name:_________________________
Title:__________________________
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Trustee
By:_______________________________
Name:_________________________
Title:__________________________
THE BANK OF NEW YORK (DELAWARE),
not in its
individual capacity but
solely as Trustee
By:_______________________________
Name:_________________________
Title:__________________________
WILLIAM J. REGAN, JR., not in his individual
capacity but solely as Trustee
By:_______________________________
Exhibit 4.07
CERTIFICATE OF TRUST
OF
ENTERGY LOUISIANA CAPITAL II
THIS CERTIFICATE OF TRUST of Entergy Louisiana Capital
II (the "Trust"), dated as of April , 1996 is being duly
executed and filed by the undersigned, as trustees, to form a
business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801, et seq.).
Name. The name of the business trust being formed
hereby is Entergy Louisiana Capital II.
Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the
State of Delaware are The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, New Castle County, Delaware.
Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE) WILLIAM J. REGAN, JR.,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By:____________________________ By:____________________________
Name: _____________________
Title:______________________
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:____________________________
Name: Nancy Gill
Title: Assistant Treasurer
Exhibit 4.08
TRUST AGREEMENT
OF ENTERGY LOUISIANA CAPITAL II
This TRUST AGREEMENT of Entergy Louisiana Capital II (the
"Trust"), dated as of April __, 1996, among (i) Entergy Louisiana,
Inc., a Louisiana corporation (the "Depositor"), (ii) The Bank of New
York, a New York banking corporation, not in its individual capacity
but solely as trustee of the Trust, (iii) The Bank of New York
(Delaware), a Delaware banking corporation, not in its individual
capacity but solely as trustee of the Trust, and (iv) William J.
Regan, Jr., an individual employed by the Depositor, not in his
individual capacity but solely as trustee of the Trust (each of such
trustees in (ii), (iii) and (iv) a "Trustee" and collectively, the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
I. The trust created hereby shall be known as "Entergy
Louisiana Capital II", in which name the Trustees, or the Depositor
to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and sue and be sued.
II. The Depositor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustees hereby
declare that they will hold the trust estate in trust for the
Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title
12 of the Delaware Code, 12 Del. C. 3801 et seq. (the "Business
Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware
Secretary of State in accordance with the provisions of the Business
Trust Act.
III. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and
substantially in the form to be included as an exhibit to the 1933
Act Registration Statement referred to below, to provide for the
contemplated operation of the Trust created hereby and the issuance
of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or
obligation hereunder or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or
approvals required by applicable law or otherwise.
IV. The Depositor and the Trustees hereby authorize and direct
the Depositor (i) to file with the Securities and Exchange Commission
(the "Commission") and execute, in each case on behalf of the Trust,
(a) a Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments
to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration
Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange (the "Exchange") and execute on behalf of the Trust a
listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the
Exchange and (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable. In the event that any filing referred to in
clauses (i) and (ii) above is required by the rules and regulations
of the Commission, the Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by one or more of the Trustees,
each of the Trustees, in its or his capacity as Trustee of the Trust,
is hereby authorized and, to the extent so required, directed to join
in any such filing and to execute on behalf of the Trust any and all
of the foregoing, it being understood that The Bank of New York and
The Bank of New York (Delaware), in their capacities as Trustees of
the Trust, respectively, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the Exchange
or state securities or blue sky laws. In connection with all of the
foregoing, the Depositor and each Trustee, solely in its or his
capacity as Trustee of the Trust, hereby constitutes and appoints
William J. Regan, Jr., Steve McNeal and Frank Williford, and each of
them, as its or his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for the Depositor
or such Trustee or in the Depositor's or such Trustee's name, place
and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration
Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection
therewith and in connection with the filing of the 1933 Act
Registration Statement and the 1934 Act Registration Statement, with
the Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully
to all intents and purposes as the Depositor or such Trustee might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue
hereof.
V. This Trust Agreement may be executed in one or more
counterparts.
VI. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be
fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business Trust
Act, one Trustee shall either be a natural person who is a resident
of the State of Delaware, or, if not a natural person, an entity
which has its principal place of business in the State of Delaware
and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or
remove without cause any Trustee at any time. The Trustees may
resign upon thirty days prior notice to Depositor.
This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
ENTERGY LOUISIANA, INC.
as Depositor
By:_______________________________
Name: _________________________
Title:__________________________
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Trustee
By:_______________________________
Name: _________________________
Title:__________________________
THE BANK OF NEW YORK (DELAWARE),
not in its
individual capacity but
solely as Trustee
By:_______________________________
Name: _________________________
Title:__________________________
WILLIAM J. REGAN, JR., not in his individual
capacity but solely as Trustee
By:_______________________________
Exhibit 4.09
CERTIFICATE OF TRUST
OF
ENTERGY LOUISIANA CAPITAL III
THIS CERTIFICATE OF TRUST of Entergy Louisiana Capital
III (the "Trust"), dated as of April , 1996 is being duly
executed and filed by the undersigned, as trustees, to form a
business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801, et seq.).
Name. The name of the business trust being formed
hereby is Entergy Louisiana Capital III.
Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the
State of Delaware are The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, New Castle County, Delaware.
Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE) WILLIAM J. REGAN, JR.,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By:____________________________ By:____________________________
Name: _____________________
Title: ______________________
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:____________________________
Name: Nancy Gill
Title: Assistant Treasurer
Exhibit 4.10
TRUST AGREEMENT
OF ENTERGY LOUISIANA CAPITAL III
This TRUST AGREEMENT of Entergy Louisiana Capital III (the
"Trust"), dated as of April __, 1996, among (i) Entergy Louisiana,
Inc., a Louisiana corporation (the "Depositor"), (ii) The Bank of New
York, a New York banking corporation, not in its individual capacity
but solely as trustee of the Trust, (iii) The Bank of New York
(Delaware), a Delaware banking corporation, not in its individual
capacity but solely as trustee of the Trust, and (iv) William J.
Regan, Jr., an individual employed by the Depositor, not in his
individual capacity but solely as trustee of the Trust (each of such
trustees in (ii), (iii) and (iv) a "Trustee" and collectively, the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
I. The trust created hereby shall be known as "Entergy
Louisiana Capital III", in which name the Trustees, or the Depositor
to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and sue and be sued.
II. The Depositor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustees hereby
declare that they will hold the trust estate in trust for the
Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title
12 of the Delaware Code, 12 Del. C. 3801 et seq. (the "Business
Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware
Secretary of State in accordance with the provisions of the Business
Trust Act.
III. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and
substantially in the form to be included as an exhibit to the 1933
Act Registration Statement referred to below, to provide for the
contemplated operation of the Trust created hereby and the issuance
of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or
obligation hereunder or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or
approvals required by applicable law or otherwise.
IV. The Depositor and the Trustees hereby authorize and direct
the Depositor (i) to file with the Securities and Exchange Commission
(the "Commission") and execute, in each case on behalf of the Trust,
(a) a Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments
to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration
Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange (the "Exchange") and execute on behalf of the Trust a
listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the
Exchange and (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable. In the event that any filing referred to in
clauses (i) and (ii) above is required by the rules and regulations
of the Commission, the Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by one or more of the Trustees,
each of the Trustees, in its or his capacity as Trustee of the Trust,
is hereby authorized and, to the extent so required, directed to join
in any such filing and to execute on behalf of the Trust any and all
of the foregoing, it being understood that The Bank of New York and
The Bank of New York (Delaware), in their capacities as Trustees of
the Trust, respectively, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the Exchange
or state securities or blue sky laws. In connection with all of the
foregoing, the Depositor and each Trustee, solely in its or his
capacity as Trustee of the Trust, hereby constitutes and appoints
William J. Regan, Jr., Steve McNeal and Frank Williford, and each of
them, as its or his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for the Depositor
or such Trustee or in the Depositor's or such Trustee's name, place
and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration
Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection
therewith and in connection with the filing of the 1933 Act
Registration Statement and the 1934 Act Registration Statement, with
the Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully
to all intents and purposes as the Depositor or such Trustee might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue
hereof.
V. This Trust Agreement may be executed in one or more
counterparts.
VI. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be
fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business Trust
Act, one Trustee shall either be a natural person who is a resident
of the State of Delaware, or, if not a natural person, an entity
which has its principal place of business in the State of Delaware
and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or
remove without cause any Trustee at any time. The Trustees may
resign upon thirty days prior notice to Depositor.
This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
ENTERGY LOUISIANA, INC.
as Depositor
By:_______________________________
Name: _________________________
Title: __________________________
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Trustee
By:_______________________________
Name: _________________________
Title: __________________________
THE BANK OF NEW YORK (DELAWARE),
not in its
individual capacity but
solely as Trustee
By:_______________________________
Name: _________________________
Title: __________________________
WILLIAM J. REGAN, JR., not in his individual
capacity but solely as Trustee
By:_______________________________
Exhibit 4.11
AMENDED AND RESTATED
TRUST AGREEMENT
between
ENTERGY LOUISIANA, INC., as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
[___________________],
[______________],
and
[_______________], as Trustees
Dated as of [_________] 1, 1996
<PAGE>
ENTERGY LOUISIANA CAPITAL I
Entergy Louisiana Capital I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) 8.07
(a)(2) 8.07
(a)(3) 8.09
(a)(4) Not Applicable
(b) 8.08
Section 311(a) 8.13
(b) 8.13
Section 312(a) 5.07
(b) 5.07
(c) 5.07
Section 313(a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 8.14(a)
(d) 8.14(a), 8.14(b)
Section 314(a) Not Applicable
(b) Not Applicable
(c)(1) Not Applicable
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) Not Applicable
Section 315(a) 8.01
(b) 8.02, 8.14(b)
(c) 8.01(a)
(d) 8.01, 8.03
(e) Not Applicable
Section 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) Not Applicable
Section 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.09
Section 318(a) 10.10
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[_______] 1, 1996, between (i) Entergy Louisiana, Inc., a
Louisiana corporation (the "Depositor"), (ii) The Bank of New
York, a banking corporation duly organized and existing under the
laws of New York, as trustee (the "Property Trustee" and, in its
separate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) The Bank of New York (Delaware), a banking
corporation duly organized under the laws of Delaware, as trustee
(the "Delaware Trustee") and (iv) [__________________],
[______________] and [______________], each an individual, as
trustee, and each of whose address is c/o Entergy Louisiana,
Inc., 639 Loyola Avenue, New Orleans, Louisiana 70113 (each, an
"Administrative Trustee" and collectively the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and [__________________], as the Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act by the entering
into of that certain Trust Agreement, dated as of April __, 1996
(the "Original Trust Agreement"), and by the execution by the
Property Trustee, the Delaware Trustee and [_________________],
as Administrative Trustee and filing with the Secretary of State
of the State of Delaware of the Certificate of Trust, dated April
__, 1996, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware
Trustee and [_________________], as Administrative Trustee,
desire to amend and restate the Original Trust Agreement in its
entirety as set forth herein to provide for, among other things,
(i) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Debentures, (ii) the issuance of
the Common Securities by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities by the Trust and (iv) the
appointment of additional Administrative Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other party and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE
Defined Terms
Section Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
all other terms used herein that are defined in
the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this Trust
Agreement; and
the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and/or a given period,
the amount of Additional Interest (as defined in the Subordinated
Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust created hereunder and not in their
individual capacities, or such trustee's successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"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.
"Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee sequestrator or
other similar official of such Person or of any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or of the
consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such
Person 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.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof and to be in
full force and effect on the date of such certification, and
delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of the Trust or the Trust's Affiliates; and (b) any Holder of
Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Issuer" means Entergy Louisiana, Inc., a
Louisiana corporation, in its capacity as issuer of the
Debentures.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, as
trustee under the Subordinated Indenture.
"Debentures" means the $[________] aggregate principal
amount of the Depositor's [___]% Junior Subordinated Debentures,
Series A, Due [____], issued pursuant to the Subordinated
Indenture.
"Definitive Preferred Securities Certificates" means
Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of any
Redemption Price, plus accumulated and unpaid
distributions of any Trust Security when it becomes due
and payable; or
(iv) default in the performance, or breach, in any
material respect of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is
specifically dealt with in clause (ii) or (iii), above)
and continuation of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Trust by the Holders of at least
10% in Liquidation Amount of the Outstanding Preferred
Securities 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; or
(v) the occurrence of a Bankruptcy Event with respect
to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c).
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partner, employee, representative or agent of any Trustee, or any
employee or agent of the Trust or its Affiliates.
"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 Trust 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 the date of original issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to
be contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities plus accumulated and
unpaid Distributions to the date of such payment and (ii)
Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"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
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust 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.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the
Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu
of which other Preferred Securities have been delivered
pursuant to this Trust Agreement, including pursuant to
Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Preferred Securities which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are
owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative
Trustee the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner
of a Preferred Securities Certificate as reflected in the records
of the Securities Depository or, if a Securities Depository
Participant is not the beneficial owner, then as reflected in the
records of a Person maintaining an account with such Securities
Depository (directly or indirectly), in accordance with the rules
of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee at The Bank of New York, or such other banking
institution as the Depositor shall select in its trust department
for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to
the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a quarterly income preferred
security representing an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having
rights provided therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as
provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any date
fixed for redemption of any Trust Security, the Liquidation
Amount of such Trust Security.
"Redemption Tax Opinion" has the meaning specified in
Section 9.04(d).
"Registrar" shall mean the registrar for the Preferred
Securities appointed by the Trust and shall be initially The Bank
of New York.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matter.
"Securities Depository" shall be The Depository Trust
Company.
"Securities Depository Participant" means an
institution which deposits securities with a Securities
Depository for holding thereby.
"Securities Register" shall mean the Securities
Register described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person shall be deemed to be a
beneficial owner within the meaning of the Delaware Business
Trust Act.
"Special Event" means either a Tax Event or an
Investment Company Event.
"Subordinated Indenture" means the Indenture, dated as
of [______] 1, 1996, between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to
time.
"Tax Event" means the receipt by the Trust of an
opinion of counsel (which may be counsel to the Depositor or an
affiliate but not an employee thereof and which must be
acceptable to the Property Trustee) 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 or any political
subdivision or taxing authority thereof or therein affecting
taxation, or as a result of any official administrative or
judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of
original issuance of the Preferred Securities under this Trust
Agreement, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject
to United States Federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by
the Depositor on the Debentures, is not, or within 90 days of the
date thereof, will not be, deductible, in whole or in part, for
United States Federal income tax purposes, or (iii) the Trust 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.
"Transfer Agent" shall mean one or more transfer agents
for the Preferred Securities appointed by the Trust and shall be
initially The Bank of New York.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities
or the Preferred Securities.
"Trust Securities Certificate" means any one of the
Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of [_____ __] , 1996, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE
Establishment of the Trust
Section Name. The Trust created hereby shall be
known as "Entergy Louisiana Capital I", in which name the
Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue
and be sued.
Section Office of the Delaware Trustee; Principal
Place of Business. The office of the Delaware Trustee in the
State of Delaware is White Clay Center, Route 273, Newark,
Delaware 19711, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Entergy Louisiana, Inc., 639 Loyola
Avenue, New Orleans, Louisiana 70113.
Section Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the
Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses
paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
Section Issuance of the Preferred Securities. On
[____ __], 1996 the Depositor and an Administrative Trustee, on
behalf of the Trust, both executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, one of the Administrative Trustees, on
behalf of the Trust in accordance with Section 5.02, executed
manually and delivered a Preferred Securities Certificate,
registered in the name of the nominee of The Depositary Trust
Company, having an aggregate Liquidation Amount of $[________].
Section Subscription and Purchase of Debentures;
Issuance of the Common Securities. Contemporaneously with the
execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee and having an aggregate principal
amount equal to $[________], and, in satisfaction of the purchase
price for such Debentures, (x) one of the Administrative
Trustees, on behalf of the Trust, shall execute and deliver to
the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of [_____] Common
Securities having an aggregate Liquidation Amount of $[_______],
and (y) the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $[________] representing the
proceeds from the sale of the Preferred Securities pursuant to
the Underwriting Agreement.
Section Declaration of Trust; Appointment of
Additional Administrative Trustees. The exclusive purposes
and functions of the Trust are (i) to issue Trust Securities
and invest the proceeds thereof in Debentures, and (ii) to
engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein. The Property Trustee
hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the
benefit of the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance
with applicable law with respect to accomplishing the purposes
of the Trust. Anything in this Trust Agreement to the
contrary notwithstanding the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrative Trustees set forth
herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust
Act.
Section Authorization to Enter into Certain
Transactions. The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section and Article VIII and in accordance with the following
provisions (A) and (B), the Trustees shall have the authority
to enter into all transactions and agreements determined by
the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under
this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
As among the Trustees, the Administrative Trustees
shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
the issuance and sale of the Trust Securities;
without the consent of any Person, to cause the
Trust to enter into and to execute, deliver and perform
on behalf of the Trust, the Expense Agreement, and such
agreements as may be necessary or desirable in
connection with the consummation of the Underwriting
Agreement (such execution to be by the Administrative
Trustees or any one of them);
to qualify the Trust to do business in any
jurisdiction as may be necessary or desirable;
the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined
by the Depositor and the registration of the Preferred
Securities under the Exchange Act, and the preparation
and filing of all periodic and other reports and other
documents pursuant to the foregoing;
the appointments of a Paying Agent, a Transfer
Agent and a Registrar in accordance with this Trust
Agreement (subject to Section 5.09);
registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the
Trust with respect to the following ministerial matters:
the establishment of the Payment Account;
the receipt of the Debentures;
the deposit of interest, principal and any other
payments made in respect of the Debentures in the
Payment Account;
the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
as provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and
the execution of the certificate of cancellation to be
prepared and filed by the Administrative Trustees with
the Secretary of State of the State of Delaware; and
the taking of any ministerial action incidental
to the foregoing as the Property Trustee may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustee set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the
Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders
of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the
rights of the Holder pursuant to the terms of this Trust
Agreement.
So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust)
shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby.
In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this
Trust Agreement, (ii) sell, assign, transfer, exchange,
pledge, set-off or otherwise dispose of any of the Trust
Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States Federal income tax purposes
and not as an association taxable as a corporation, (iv) incur
any indebtedness for borrowed money or (v) take or consent to
any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims
and demands of all Persons at any time claiming any Lien on
any of the Trust Property adverse to the interest of the Trust
or the Securityholders in their capacity as Securityholders.
In connection with the issue of the Preferred
Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect
on behalf of the Trust, the following (and any actions taken
by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and confirmed
in all respects):
to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
to determine the States in which to take
appropriate action to qualify or register for sale all
or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken
by or on behalf of the Trust, and advise the Trustees
of actions they must take on behalf of the Trust, and
prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such
States;
to prepare for filing by the Trust an application
to the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred
Securities and to file or cause the Administrative
Trustees to file thereafter with such exchange such
notifications and documents as may be necessary from
time to time to maintain such listing;
to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"),
including any amendments thereto;
to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may
be necessary or desirable in connection with the
consummation thereof;
to select the investment banker or bankers to act
as underwriters with respect to the offer and sale by
the Trust of Preferred Securities ("Offer") and
negotiate the terms of an Underwriting Agreement and
pricing agreement providing for the Offer; and
to take any other actions necessary or desirable
to carry out any of the foregoing activities.
Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so
that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment
Company Act of 1940, as amended, or classified other than as a
"grantor trust" for United States Federal income tax purposes
and not as an association taxable as a corporation and so that
the Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In
this connection, subject to the provisions of Section 10.03,
the Depositor and the Administrative Trustees are authorized
to take any action, not inconsistent with applicable law, the
certificate of trust filed with the Secretary of State of the
State of Delaware with respect to the Trust (as amended or
restated from time to time, the "Certificate of Trust") or
this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such
action does not materially adversely affect the interests of
the Holders of the Preferred Securities.
Section Assets of Trust. The assets of the Trust
shall consist of the Trust Property.
Section Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE
Payment Account
Section Payment Account.
On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustees and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect
to, the Debentures. Amounts held in the Payment Account shall
not be invested by the Property Trustee pending distribution
thereof.
ARTICLE
Distributions; Redemption
Section Distributions.
Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds
of the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except
in the event that the Depositor exercises its right to extend
the interest payment period for the Debentures pursuant to
Section 311 of the Subordinated Indenture, shall be payable
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on [_______ __], 1996.
If any date on which Distributions are otherwise payable on
the Trust Securities is not a Business Day, then the payment
of such Distribution shall 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 is in the next succeeding calendar year, payment
of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and
effect as if made on such date (each date on which
distributions are payable in accordance with this Section
4.01(a) a "Distribution Date").
Distributions payable on the Trust Securities
shall be fixed at a rate of [____]% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full quarterly period shall be
computed on the basis of twelve 30-day months and a 360-day
year and for any period shorter than a full month, on the
basis of the actual number of days elapsed. If the interest
payment period for the Debentures is extended pursuant to
Section 311 of the Subordinated Indenture, then Distributions
on the Preferred Securities will be deferred for the period
equal to the extension of the interest payment period for the
Debentures and the rate per annum at which Distributions on
the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such extended
interest payment period 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 during any
such extended interest payment period on the Debentures. The
amount of Distributions payable for any period shall include
the Additional Amounts, if any.
Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date
only to the extent that the Trust has funds available in the
Payment Account for the payment of such Distributions.
Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof
as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be 15 days
prior to the relevant Distribution Date.
Section Redemption.
On each Debenture Redemption Date and at the
maturity date for the Debentures (as defined in the
Subordinated Indenture), the Property Trustee will be required
to redeem a Like Amount of Trust Securities at the Redemption
Price plus accumulated and unpaid Distributions to the date of
such payment.
Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the Redemption
Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All
notices of redemption or liquidation shall state:
the Redemption Date;
the Redemption Price and the amount of
accumulated and unpaid Dividends to be paid on the
Redemption Date;
the CUSIP number;
if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities
to be redeemed; and
that on the Redemption Date the Redemption Price
plus accumulated and unpaid Distributions to the date
of such payment will become due and payable upon each
such Trust Security to be redeemed and that interest
thereon will cease to accrue on and after said date.
The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment with the proceeds from the contemporaneous redemption
of Debentures. Redemptions of the Trust Securities shall be
made and the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment shall be deemed
payable on each Redemption Date only to the extent that the
Trust has funds immediately available in the Payment Account
for such payment.
If the Property Trustee gives a notice of
redemption in respect of any Preferred Securities, then, by
12:00 noon, New York time, on the Redemption Date, subject to
Section 4.02(c), the Property Trustee shall irrevocably
deposit with the Paying Agent (or Securities Depository, in
the event the Preferred Securities are book-entry only) funds
sufficient to pay the applicable Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment to the Holders thereof upon surrender of their
Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the redemption
date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear
on the Securities Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited
as required, then on the Redemption Date, all rights of
Securityholders holding Trust Securities so called for
redemption will cease, except the right of such
Securityholders to receive the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment, but without interest thereon, and such Trust
Securities will cease to be outstanding. In the event that
any Redemption Date is not a Business Day, then payment of the
Redemption Price payable on such date plus accumulated and
unpaid Distributions to such date shall 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). In
the event that payment of the Redemption Price plus
accumulated and unpaid Distributions in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue, at the then applicable
rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption
Price plus accumulated and unpaid Distributions is actually
paid, in which case the actual payment date will be deemed the
date fixed for redemption for purposes of calculating the
Redemption Price plus accumulated and unpaid Distributions to
such date.
Payment of the Redemption Price on the Trust
Securities shall be made to the Holders thereof as they appear
on the Securities Register for the Trust Securities on the
relevant record date, which shall be the fifteenth day prior
to the Redemption Date.
If less than all the Outstanding Trust Securities
are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be
allocated 3% to the Common Securities and 97% to the Preferred
Securities. The particular Preferred Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by
such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for a
redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Securities of
a denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption
of Preferred Securities shall relate, in the case of any
Preferred Securities redeemed or to be redeemed only in part,
to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed.
Section Subordination of Common Securities.
Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price plus accumulated and
unpaid distributions of, the Trust Securities, as applicable,
shall be made pro rata based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date a Debenture Event of
Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable)
on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of
the Redemption Price plus accumulated and unpaid Distributions
the full amount of such Redemption Price plus accumulated and
unpaid Distributions on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions
(including Additional Amounts, if applicable) on, or
Redemption Price plus accumulated and unpaid Distributions of,
Preferred Securities then due and payable.
In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the
Holder of Common Securities will be deemed to have waived any
such Event of Default under this Trust Agreement until the
effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been
so cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and
only the Holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
Section Payment Procedures. Payments in respect of
the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities
are held by a Securities Depository, such Distributions shall be
made to the Securities Depository, which shall credit the
relevant Persons' accounts at such Securities Depository on the
applicable distribution dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually
agreed between the Administrative Trustees and the Holder of the
Common Securities.
Section Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the
Depositor's expense and direction, and file all United States
Federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this
regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) the Internal Revenue Service
Form 1041 (or any successor form) required to be filed in respect
of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each
Securityholder the related Internal Revenue Service Form 1099, or
any successor form or the information required to be provided on
such form. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States Federal
withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section Payments under Indenture. Any amount payable
hereunder to any Holder of Preferred Securities shall be reduced
by the amount of any corresponding payment such Holder has
directly received pursuant to Section 808 of the Subordinated
Indenture. Notwithstanding the provisions hereunder to the
contrary, Securityholders acknowledge that any Holder of
Preferred Securities that receives payment under Section 808 of
the Subordinated Indenture may receive amounts greater than the
amount such Holder may be entitled to receive pursuant to the
other provisions of this Trust Agreement.
ARTICLE
Trust Securities Certificates
Section Initial Ownership. Upon the creation of the
Trust by the contribution by the Depositor pursuant to Section
2.03 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section The Trust Securities Certificates. The Trust
Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. Subject to
Section 2.04 relating to the original issuance of the Preferred
Securities Certificate registered in the name of the nominee of
The Depository Trust Company, the Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee and, if executed
on behalf of the Trust by facsimile signature, countersigned by a
Transfer Agent or its agent. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the
time when such signatures shall have been affixed, authorized to
sign on behalf of the Trust and, if executed on behalf of the
Trust by facsimile signature, countersigned by a Transfer Agent
or its agent, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized
prior to the delivery of such Trust Securities Certificates or
did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Securityholder, and shall be entitled
to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.04 or
5.11.
Section Execution and Delivery of Trust Securities
Certificates. On the Closing Date, the Administrative Trustees
shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.04 and 2.05, to be
executed on behalf of the Trust, and in the case of Preferred
Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred
without negligence arising out of or in connection with any such
countersigning by it.
Section Registration of Transfer and Exchange of
Preferred Securities Certificates. The Registrar shall keep or
cause to be kept, at its principal corporate office, a Securities
Register in which, subject to such reasonable regulations as it
may prescribe, the Registrar shall provide for the registration
of Preferred Securities Certificates and the Common Securities
Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein
provided.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent
to countersign and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and a Transfer Agent
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Administrative
Trustees in accordance with customary practice. The Trust shall
not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange
any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a
Transfer Agent may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection
with any transfer or exchange of Preferred Securities
Certificates.
Section Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If any mutilated Trust Securities
Certificate shall be surrendered to a Transfer Agent, or if a
Transfer Agent shall receive evidence to its satisfaction of
the destruction, loss or theft of any Trust Securities
Certificate and there shall be delivered to the Transfer
Agent and the Administrative Trustees such security or
indemnity as may be required by them to save each of them and
the Depositor harmless, then in the absence of notice that
such Trust Securities Certificate shall have been acquired by
a bona fide purchaser, the Administrative Trustees, or any one
of them, on behalf of the Trust, shall execute by manual or
facsimile signature and, if execution on behalf of the Trust
is by facsimile signature, countersigned by a Transfer Agent;
and the Administrative Trustees, or any one of them, shall
make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of
any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Transfer Agent may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection
therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
Section Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration
of transfer, the Trustees and the Registrar shall be entitled to
treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of
such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither
the Trustees nor the Registrar shall be bound by any notice to
the contrary.
Section Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to
be furnished (x) to the Depositor, within 15 days after receipt
by any Administrative Trustee of a request therefor from the
Depositor in writing and (y) to the Property Trustee, promptly
after receipt by any Administrative Trustee of a request therefor
from the Property Trustee in writing in order to enable the
Property Trustee to discharge its obligations under this Trust
Agreement, a list, in such form as the Depositor or the Property
Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date. If Holders of
Trust Securities Certificates evidencing ownership at such time
and for the previous six months not less than 25% of the
outstanding aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the
applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the
Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current
list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section Maintenance of Office or Agency. The Company
shall or shall cause the Transfer Agent to maintain in the
Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Preferred Securities Certificates may
be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company or the Transfer Agent
in respect of the Trust Securities Certificates may be served.
The Company initially designates The Bank of New York at its
principal corporate trust office for such purposes. The Company
shall or shall cause the Transfer Agent to give prompt written
notice to the Depositor, the Property Trustee and to the
Securityholders of any change in any such office or agency.
Section Appointment of Paying Agent. The Paying
Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such
distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent if the
Administrative Trustee or any one of them determines in its sole
discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect.
The Paying Agent may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. The
Paying Agent shall be permitted to resign upon 30 days' written
notice to the Administrative Trustees and the Depositor. In the
event of the removal or resignation of the Paying Agent, the
Administrative Trustees shall appoint a successor that is
reasonably acceptable to the Property Trustee and the Depositor
to act as Paying Agent (which shall be a bank, trust company or
an Affiliate of the Depositor). The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the
Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it
for payment to the Securityholders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be
paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon resignation or
removal of a Paying Agent such Paying Agent shall also return all
funds in its possession to the Property Trustee. The provisions
of Sections 8.01, 8.03 and 8.06 shall apply to the Paying Agent
appointed hereunder, and the Paying Agent shall be bound by the
requirements with respect to paying agents of securities issued
pursuant to the Trust Indenture Act. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.
Section 0. Ownership of Common Securities by
Depositor. On the Closing Date and on each other date provided
for in Section 2.05, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Securities.
Any attempted transfer of the Common Securities shall be void.
The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE". Common Securities
Certificates representing the Common Securities shall be issued
to the Depositor in the form of a typewritten or definitive
Common Securities Certificate.
Section Definitive Preferred Securities Certificates.
Upon initial issuance of the Preferred Securities the Definitive
Preferred Securities Certificates shall be typewritten, printed,
lithographed or engraved or may be produced in any other manner
as is reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by the Administrative
Trustees, or any one of them. The Administrative Trustees, or
any one of them, shall execute on behalf of the Trust by manual
or facsimile signature, and, if executed by facsimile on behalf
of the Trust, countersigned by the Transfer Agent or its agent
the Definitive Preferred Securities Certificates initially in
accordance with the instructions of the Depositor. Neither the
Transfer Agent nor any of the Administrative Trustees 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.
Section Book-Entry System. Some or all of the
Preferred Securities may be registered in the name of the
Securities Depository or a nominee therefor, and held in the
custody of the Securities Depository. In such event, a single
certificate will be issued and delivered to the Securities
Depository for such Preferred Securities, in which case the
Owners of such Preferred Securities will not receive physical
delivery of certificates for Preferred Securities. Except as
provided herein, all transfers of beneficial ownership interests
in such Preferred Securities will be made by book-entry only, and
no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Securities
will receive, hold or deliver any certificate for Preferred
Securities. The Depositor, the Trustees and the Paying Agent
will recognize the Securities Depository or its nominee as the
Holder of Preferred Securities for all purposes, including
notices and voting.
The Administrative Trustees, at the direction and
expense of the Depositor, may from time to time appoint a
Securities Depository or a successor thereto and enter into a
letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Securities. Any Securities Depository shall be a Clearing
Agency.
The Depositor and the Trustees covenant and agree to
meet the requirements of a Securities Depository for the
Preferred Securities with respect to required notices and other
provisions of the letter of representations or agreement executed
with respect to such Preferred Securities.
Whenever the beneficial ownership of any Preferred
Securities is determined through the books of a Securities
Depository, the requirements in this Trust Agreement of holding,
delivering or transferring such Preferred Securities shall be
deemed modified with respect to such Preferred Securities to meet
the requirements of the Securities Depository with respect to
actions of the Trustees, the Depositor and the Paying Agent. Any
provisions hereof permitting or requiring delivery of such
Preferred Securities shall, while such Preferred Securities are
in a book-entry system, be satisfied by the notation on the books
of the Securities Depository in accordance with applicable state
law.
Section Rights of Securityholders. The legal title
to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Securityholders
against payment of the purchase price therefor will be fully paid
and nonassessable interests in the Trust.
ARTICLE
Acts of Securityholders; Meetings; Voting
Section Limitations on Voting Rights.
Except as provided in this Section 6.01, in
Section 10.03 and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in
the terms of the Trust Securities Certificates, be construed
so as to constitute the Securityholders from time to time as
partners or members of an association. If the Property
Trustee fails to enforce its rights under the Debentures or
this Trust Agreement, a Holder of Preferred Securities may
institute a legal proceeding directly against the Depositor to
enforce the Property Trustee's rights under the Debentures or
this Trust Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against the
Property Trustee or any other person. Notwithstanding the
foregoing, a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such
Holder directly of principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
preference amount of the Preferred Securities of such Holder
on or after the due dates specified in the Debentures.
So long as any Debentures are held by the Property
Trustee, the Trustees 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 such
Debentures, (ii) waive any past default which is waivable
under Section 813 of the Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of
the Subordinated Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining
the prior approval of the Holders of at least 66 2/3% of the
aggregate Liquidation Amount of the Outstanding Preferred
Securities; provided, however, that where a consent under the
Subordinated Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of
each holder of Preferred Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote
of the Preferred Securities, except pursuant to a subsequent
vote of the Preferred Securities. The Property Trustee shall
notify all Holders of the Preferred Securities of any notice
of default received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Property Trustee
shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such matters to the effect that the
Trust will be classified as a "grantor trust" and not as an
association taxable as a corporation for United States Federal
income tax purposes on account of such action.
If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would materially adversely affect the powers,
preferences or special rights of the Preferred Securities,
whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not
be effective except with the approval of the Holders of at
least 66 2/3 in Liquidation Amount of the Outstanding
Preferred Securities. No amendment to this Trust Agreement
may be made if, as a result of such amendment, the Trust would
not be classified as a "grantor trust" but as an association
taxable as a corporation for United States Federal income tax
purposes.
Section Notice of Meetings. Notice of all meetings
of the Holders of Preferred Securities, stating the time, place
and purpose of the meeting, shall be given by the Administrative
Trustees pursuant to Section 10.08 to each Holder of a Preferred
Security, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section Meetings of Holders of Preferred Securities.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter upon the written request of
the Holders of 25% of the then Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) and may, at any
time in their discretion, call a meeting of Holders of Preferred
Securities to vote on any matters as to which the Holders of
Preferred Securities are entitled to vote.
Holders of 50% of the then Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders.
If a quorum is present at a meeting, an affirmative
vote by the Holders of Preferred Securities present, in person or
by proxy, holding more than the lesser of (x) 66 2/3% of the then
Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) held by the Holders of then Outstanding
Preferred Securities present, either in person or by proxy, at
such meeting and (y) 50% of the Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) shall constitute
the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
Section Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
Section Proxies, etc. At any meeting of
Securityholders, any Securityholder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, or, if earlier, until eleven months after
it is sent and the burden of proving invalidity shall rest on the
challenger.
Section Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding more than a
majority of all Outstanding Trust Securities entitled to vote in
respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust
Agreement) shall consent to the action in writing (based upon
their aggregate Liquidation Amount).
Section Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any Distribution on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of Distribution or
other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
Section Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to the Administrative
Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in
the manner provided in this Section.
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 acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. 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. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved
by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust 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 Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
Section Inspection of Records. Subject to Section
5.07 concerning access to the list of Securityholders, upon
reasonable notice to the Administrative Trustees and the Property
Trustee, the other records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section Property [and Delaware] Trustee. The
Property [and Delaware] Trustee hereby represents and warrants
for the benefit of the Depositor and the Securityholders that:
the Property [and Delaware] Trustee is a banking
corporation or trust company duly organized, validly existing
and in good standing under the laws of the State of [New York]
[Delaware];
the Property [and Delaware] Trustee has full
corporate power, authority and legal right to execute, deliver
and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized,
executed and delivered by the Property [and Delaware] Trustee
and constitutes the valid and legally binding agreement of the
Property and Delaware] Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
the execution, delivery and performance by the
Property [and Delaware] Trustee of this Trust Agreement will
not violate, conflict with or constitute a breach of the
Property [and Delaware] Trustee's charter or by-laws; and
neither the authorization, execution or delivery
by the Property [and Delaware] Trustee of this Trust Agreement
nor the consummation of any of the transactions by the
Property [and Delaware] Trustee contemplated herein require
the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with
respect to any governmental authority or agency under any
existing Federal or [New York] [Delaware] law governing the
banking or trust powers of the Property Trustee.
[Section Delaware Trustee. The Delaware Trustee
represents and warrants for the benefit of the Depositor and the
Securityholders that:
the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware
Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate the
Delaware Trustee's charter or by-laws; and
neither the authorization, execution or delivery
by the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Delaware
Trustee contemplated herein require the consent or approval
of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental
authority or agency under any existing Federal or Delaware law
governing the banking or trust powers of the Delaware
Trustee.]
ARTICLE
The Trustees
Section Certain Duties and Responsibilities.
The duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case
of the Property Trustee, the Trust Indenture Act, and no
implied covenants or obligations shall be read into this Trust
Agreement against any of the Trustees. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require
any of the Trustees 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. Notwithstanding anything contained in this Trust
Agreement to the contrary, the duties and responsibilities of
the Property Trustee under this Trust Agreement shall be
subject to the protections, exculpations and limitations on
liability afforded to the Property Trustee under the
provisions of the Trust Indenture Act and, to the extent
applicable, Rule 3A-7 under the Investment Company Act of
1940, as amended, or any successor rule thereunder. Whether
or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be
subject to the provisions of this Section.
All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property
Trustee or Paying Agent to make payments in accordance with
the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income
and proceeds from the Trust Property to the extent available
for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any
other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in
the case of the Property Trustee, in the Trust Indenture Act.
All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property
in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement, the
Trust Indenture Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act of 1940, as
amended;
the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor. Money held by the
Property Trustee need not be segregated from other
funds held by it except in relation to the Payment
Account established by the Property Trustee pursuant to
this Trust Agreement and except to the extent otherwise
required by law; and
the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative
Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
Section Notice of Defaults. Within five Business
Days after the occurrence of any Event of Default, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of any default known to the Property
Trustee to the Securityholders and the Depositor, unless such
default shall have been cured or waived. 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 Certain Rights of Property Trustee. Subject
to the provisions of Section 8.01 and except as provided by law:
the Property Trustee may rely and shall be
protected in acting or refraining from acting in good
faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or
transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal,
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;
if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of
action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Property Trustee (unless other evidence be 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 Depositor or the
Administrative Trustees;
the Property 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;
the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by
this Trust Agreement at the request or direction of any
of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security or
indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying
with such request or direction;
the Property 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, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, unless
requested in writing to do so by one or more
Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Depositor personally or by agent or attorney;
the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property 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, provided that the Property Trustee
shall be responsible for its own negligence or
recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
the Property 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 Trust Agreement;
the Property Trustee shall not be charged with
knowledge of any default or Event of Default with
respect to the Trust Securities unless either (1) a
Responsible Officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or
(2) written notice of such default or Event of Default
shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder
of the Trust Securities;
no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
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 Property 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; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty;
no provision of this Trust Agreement shall
require the Property 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
Property 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
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument
(including any financing or continuation statement or
any tax or securities) (or any rerecording, refiling or
registration thereof);
the Property Trustee shall have the right at any
time to seek instructions concerning the administration
of this Trust Agreement from any court of competent
jurisdiction; and
whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder
the Property Trustee (i) may request instructions from
the Holders of the Trust Securities, which instructions
may only be given by the Holders of the same proportion
of Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the
terms of this Trust Agreement in respect of such
remedies, rights or actions, (ii) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and
(iii) shall be protected in acting in accordance with
such instructions.
Section Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part
thereof or as to the title of the Trust thereto or as to the
security afforded thereby or hereby, or as to the validity or
genuineness of any securities at any time pledged and deposited
with any Trustees hereunder, nor as to the validity or
sufficiency of this Trust Agreement or the Trust Securities. The
Trustees shall not be accountable for the use or application by
the Trust of the proceeds of the Trust Securities in accordance
with Section 2.05.
Section May Hold Securities. Except as provided in
the definition of the term "Outstanding" in Article I, any
Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such
other agent.
Section Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this
Trust Agreement, 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.
As security for the performance of the obligations of
the Depositor under this Section, each of the Trustees shall have
a lien prior to the Trust Securities upon all property and funds
held or collected by such Trustee as such, except funds held in
trust for the payment of Distributions on the Trust Securities.
The provisions of this Section shall survive the
termination of this Trust Agreement.
Section Certain Trustees Required; Eligibility.
There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall
be a Person that has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then
for the purposes of this Section, the combined capital and
surplus of such Person 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 Property Trustee
with respect to the Trust Securities 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 VIII.
There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust
Securities. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized
to bind such entity.
There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of
age and a resident of the State of Delaware or (ii) a legal
entity with its principal place of business in the State of
Delaware that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons
authorized to bind such entity.
Section Conflicting Interests.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Subordinated Indenture and the Guarantee
Agreement shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
Section Co-Trustees and Separate Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, at any time or times, for the purpose of
meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property may at
the time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, 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 Depositor does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming 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 Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed 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 Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property 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 Property
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.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join
with the Property Trustee in the execution, delivery, and
performance 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.
(4) 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.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 0. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (as the case
may be, the "Relevant Trustee") and no appointment of a successor
Relevant Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section
8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at any
time by Act of the Common Securityholder. If a Debenture Event
of Default shall have occurred and be continuing, the Relevant
Trustee may be removed at such time by Act of the Securityholders
of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Relevant Trustee shall
resign, be removed or become incapable of continuing to act as
the Relevant Trustee at a time when a Debenture Event of Default
shall have occurred and be continuing, the Preferred
Securityholders, by Act of the Preferred Securityholders of a
majority in Liquidation Amount of the Outstanding Preferred
Securities delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed by the Common Securityholders or the
Preferred Securityholders and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a
Securityholder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor
Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirements for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
Section Acceptance of Appointment by Successor. In
case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Trustee
shall execute and deliver an amendment hereto wherein each
successor Relevant 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 Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust and (2) shall add to or change any of
the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees of the same trust and that each
such Relevant Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or
removal of the retiring Relevant Trustee shall become effective
to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Relevant Trustee; but, on request of the Trust or
any successor Relevant Trustee such retiring Relevant Trustee
shall duly assign, transfer and deliver to such successor Trustee
all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee,
the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
Section Merger, Conversion, Consolidation or
Succession to Business. Any Person into which the Property
Trustee or the Delaware Trustee or any Administrative Trustee or
any Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
such Relevant Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties
hereto.
Section Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or
become a creditor of the Depositor or the Trust (or any other
obligor upon the Debentures or the Trust Securities), the
Property Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor).
Section Reports by Property Trustee. the
Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under
this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto. Such of those reports as are required to be
transmitted by the Property Trustee pursuant to Section 313(a)
of the Trust Indenture Act shall be so transmitted within 60
days after [________ __] of each year, commencing [_______
__], 199[_].
A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
Section Reports to the Property Trustee. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property 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.
Section Evidence of Compliance With Conditions
Precedent. Each of the Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) that
relate to any of the matters set forth in 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.
Section Number of Trustees.
The number of Trustees shall be five, provided
that Depositor, by written instrument may increase or decrease
the number of Administrative Trustees.
If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced
pursuant to Section 8.17(a), or if the number of Trustees is
increased pursuant to Section 8.17(a), a vacancy shall occur.
The vacancy shall be filled with a Trustee appointed in
accordance with Section 8.10.
The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties
of a Trustee shall not operate to annul the Trust. Whenever a
vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section Delegation of Power.
Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment
thereto filed with the Commission, or making any other
governmental filing; and
the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing
of such things and the execution of such instruments either in
the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as
set forth herein.
Section Fiduciary Duty.
To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this Trust
Agreement shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law
or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of
such Indemnified Person;
Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act:
whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person;
or
whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation 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, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, whenever
in this Trust Agreement an Indemnified Person is permitted or
required to make a decision
in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it reasonably
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other
Person; or
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 Trust Agreement
or by applicable law.
ARTICLE
Termination and Liquidation
Section Termination Upon Expiration Date. The Trust
shall automatically terminate on December 31, [____] (the
"Expiration Date") and the Trust Property shall be distributed in
accordance with Section 9.04.
Section Early Termination. Upon the first to occur
of any of the following events (such first occurrence, an "Early
Termination Event"):
the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the
Depositor;
the redemption of all of the Preferred
Securities;
termination of the Trust in accordance with
Section 9.04(d);
an order for judicial termination of the Trust
having been entered by a court of competent
jurisdiction;
the Trust shall terminate and the Trustees shall take such action
as is required by Section 9.04.
Section Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (i)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed
hereunder upon the final payment of the Trust Securities; (ii)
the payment of any expenses owed by the Trust; and (iii) the
discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section Liquidation. If an Early Termination Event
specified in clause (i) or (iv) of Section 9.02 occurs, after
satisfaction of creditors of the Trust, if any, as provided by
applicable law, the Trust shall be liquidated by the Property
Trustee as expeditiously as the Property Trustee determines to
be appropriate by distributing to each Securityholder a Like
Amount of Debentures, subject to Section 9.04(e). Notice of
liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30
nor more than 60 days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder's address appearing
in the Securities Register. All notices of liquidation shall:
state the Liquidation Date;
state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of Debentures; and
provide such information with respect to the
mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section
9.04(e) applies receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee
shall deem appropriate.
In order to effect any liquidation of the Trust
hereunder, and any resulting distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting
as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall
deem appropriate to effect the distribution of Debentures in
exchange for the Outstanding Trust Securities Certificates.
After any Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Debentures will be issued to
Holders of Trust Securities Certificates, upon surrender of
such Trust Securities Certificates to the Administrative
Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will
be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the
last Distribution Date on which a Distribution was made on
such Trust Certificates until such Trust Securities
Certificates are so surrendered (and until such Trust
Securities Certificates are so surrendered, no payments or
interest or principal will be made to Holders of Trust
Securities Certificates with respect to such Debentures) and
(iv) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to
receive Debentures upon surrender of Trust Securities
Certificates.
If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to (i) redeem the
Debentures in whole but not in part and therefore cause a
mandatory redemption of all the Preferred Securities at the
Redemption Price within 90 days following the occurrence of
such Special Event, or (ii) cause the termination of the
Trust. Further, if at any time, the Trust is not or will not
be taxed as a grantor trust under the United States Federal
income tax law, but a Tax Event has not occurred, the
Depositor may elect termination of the Trust. In the event
the Depositor elects under the provisions of this section for
the Trust to be terminated, the Administrative Trustees shall,
terminate the Trust and, after satisfaction of creditors of
the Trust, if any, as provided by applicable law, cause
Debentures held by the Property Trustee having a Like Amount
of the Preferred Securities and the Common Securities to be
distributed to the Holders of the Preferred Securities and the
Common Securities on a pro rata basis in liquidation of such
Holders' interests in the Trust (in the case of such an
election following the occurrence of a Special Event) within
90 days following the occurrence of such Special Event. The
Common Securities will be redeemed on a pro rata basis with
the Preferred Securities, except that if a Debenture Event of
Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities
with respect to payment of the Redemption Price and
accumulated and unpaid Distributions to the date of such
payment.
In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order
for termination entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner
provided herein is determined by the Property Trustee not to
be practical, the Trust Property shall be liquidated, and the
Trust shall be dissolved, wound-up or terminated, by the
Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders
will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any,
as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any
such dissolution, winding up or termination, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities will be
entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that,
if a Debenture Event of Default has occurred and is continuing
or if a Debenture Event of Default has not occurred solely by
reason of a requirement that time lapse or notice be given,
the Preferred Securities shall have a priority over the Common
Securities.
ARTICLE
Miscellaneous Provisions
Section Guarantee by the Depositor and Assumption of
Obligations. Subject to the terms and conditions hereof, the
Depositor irrevocably and unconditionally guarantees to each
Person to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries"), and agrees to assume liability for,
the full payment, when and as due, of any and all Obligations (as
hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to Holders
or other similar interests in the Trust the amounts due such
Holders pursuant to the terms of the Preferred Securities or such
other similar interests, as the case may be. This guarantee and
assumption is intended to be for the benefit, of, and to be
enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial
or otherwise, in a Trust Security shall not operate to terminate
this Trust Agreement, nor entitle the legal representatives or
heirs of such person or any Securityholder for such person, to
claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section Amendment.
This Trust Agreement may be amended from time to time
by the Trust (on approval of a majority of the Administrative
Trustees and the Depositor, without the consent of any
Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement
or (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure
that the Trust will not be classified for United States
Federal income tax purposes other than as a "grantor trust"
and not as an association taxable as a corporation at any time
that any Trust Securities are outstanding or to ensure the
Trust's exemption from the status of an "investment company"
under the Investment Company Act of 1940, as amended;
provided, however, that, except in the case of clause (ii),
such action shall not adversely affect in any material respect
the interests of any Securityholder and, in the case of clause
(i), any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
Except as provided in Sections 6.01(c) and 10.03(c),
any provision of this Trust Agreement may be amended by the
Administrative Trustees and the Depositor with (i) the consent
of Holders of Trust Securities representing not less than a
majority (based upon Liquidation Amounts) of the Outstanding
Trust Securities and (ii) receipt by the Trustees of an
Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a
grantor trust for Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the
Investment Company Act of 1940, as amended.
In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder (such consent being obtained in
accordance with Section 6.03 or 6.06), this Trust Agreement
may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii)
restrict the right of a Securityholder to institute suit for
the enforcement of any such payment on or after such date.
Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust
to fail or cease to qualify for the exemption from status of
an "investment company" under the Investment Company Act of
1940, as amended, afforded by Rule 3a-5 thereunder.
Notwithstanding anything in this Trust Agreement to
the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or
any Trustee.
In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
The Property Trustee is entitled to receive an
Opinion of Counsel as conclusive evidence that any amendment
to this Trust Agreement executed pursuant to this Section
10.03 is authorized or permitted by, and conforms to, the
terms of this Section 10.03, has been duly authorized by and
lawfully executed and delivered on behalf of the other
requisite parties, and that it is proper for the Property
Trustee under the provisions of this Section 10.03 to join in
the execution thereof.
Section Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section Governing Law. This Trust Agreement and the
rights and obligations of each of the Securityholders, the Trust
and the Trustees with respect to this Trust Agreement and the
Trust Securities shall be construed in accordance with and
governed by the laws of the State of Delaware (without regard to
conflict of laws principles).
Section Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to
the Trust or the Relevant Trustees or any of them, including any
successor by operation of law.
Section Headings. The Article and Section headings
are for convenience only and shall not affect the construction of
this Trust Agreement.
Section Notice and Demand. Any notice, demand or
other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) in the case of a Preferred Securityholder,
to such Preferred Securityholder as such Securityholder's name
and address may appear on the Securities Register and (ii) in the
case of the Common Securityholder or the Depositor, to Entergy
Louisiana, Inc., 639 Loyola Avenue, New Orleans, Louisiana 70113,
Attention: [Treasurer], facsimile no. (504) 576-[____], with a
copy to the Secretary, facsimile no. (504) 576-[____]. Such
notice, demand or other communication to or upon a Securityholder
shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, 101 Barclay Street, 21 West, New York, New
York 10286 marked "Attention: Corporate Trust Administration"
with a copy to: The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, Delaware 19711 and (ii) with respect
to the Trust or the Administrative Trustees, at the address above
for notice to the Depositor, marked "Attention: Administrative
Trustees for Entergy Louisiana Capital I". Such notice, demand
or other communication to or upon the Trust or the Property
Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust or the
Property Trustee.
Section Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in
writing not to take such action and should be stopped and
precluded therefrom and such other defenses, if any, as counsel
for the Property Trustee or the Trust may assert. The provisions
of this Section 10.09 shall survive the termination of this Trust
Agreement.
Section 0. Conflict with Trust Indenture Act.
This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required or deemed to be part
of this Trust Agreement and shall, to the extent applicable,
be governed by such provisions.
The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Trust Agreement
to be duly executed, all as of the day and year first above
written.
ENTERGY LOUISIANA, INC.
By:
Title: [________]
THE BANK
OF NEW YORK,
as Property Trustee
By:
Title: [____________]
THE BANK
OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
Title: [________________]
[_________________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENTERGY LOUISIANA CAPITAL I
THIS CERTIFICATE OF TRUST of Entergy Louisiana Capital
I (the "Trust"), dated as of , 1996, is being
duly executed and filed by the undersigned, as trustees, to
create a business trust under the Delaware Business Trust Act (12
Del. C. 3801, et seq.).
1. Name. The name of the business trust being created
hereby is Entergy Louisiana Capital I.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in
the State of Delaware are The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE) [_________________________],
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By: By:
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-[ ]
Certificate Evidencing Common Securities
of
ENTERGY LOUISIANA CAPITAL I
Common Securities
(Liquidation Amount $25 per Common Security)
Entergy Louisiana Capital I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that Entergy Louisiana, Inc. (the "Holder") is
the registered owner of _____ (_____) common securities of the
Trust representing undivided beneficial interests in the assets
of the Trust and designated the Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities"). In
accordance with Section 5.10 of the Trust Agreement (as defined
below) the Common Securities are not transferable and any
attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______ ___, 1995, as the same may be amended
from time to time (the "Trust Agreement"). The Trust will
furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the
Trust has executed this certificate for and on behalf of the
Trust this ____ day of _________, 199 .
ENTERGY LOUISIANA CAPITAL I
By:
not in his (her) individual capacity, but
solely as Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between
Entergy Louisiana, Inc., a Louisiana corporation ("Entergy
Louisiana"), and Entergy Louisiana Capital I, a Delaware business
trust (the "Trust").
WHEREAS, the Trust intends to issue its Common
Securities (the "Common Securities") to and receive Debentures
from Entergy Louisiana and to issue its ___% Quarterly Income
Preferred Securities (the "Preferred Securities") with such
powers, preferences and special rights and restrictions as are
set forth in the Amended and Restated Trust Agreement of the
Trust dated as of ________ __, 1996 as the same may be amended
from time to time (the "Trust Agreement");
WHEREAS, Entergy Louisiana is the issuer of the
Debentures;
NOW, THEREFORE, in consideration of the acceptance by
each holder of the Preferred Securities, which acceptance Entergy
Louisiana hereby agrees shall benefit Entergy Louisiana and which
acceptance Entergy Louisiana acknowledges will be made in
reliance upon the execution and delivery of this Agreement,
Entergy Louisiana, including in its capacity as holder of the
Common Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Entergy Louisiana.
Subject to the terms and conditions hereof, Entergy Louisiana
hereby irrevocably and unconditionally assumes the full payment,
when and as due, of any and all Obligations (as hereinafter
defined) to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries"). As
used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (i) obligations of the Trust
to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be and (ii) obligations arising out of
the negligence, willful misconduct or bad faith of the Trustees
of the Trust. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by Entergy Louisiana and The Bank of New York, as guarantee
trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Entergy Louisiana
hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and Entergy
Louisiana hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption
and all other notices and demands.
Section 1.04. No Impairment. The obligations,
covenants, agreements and duties of Entergy Louisiana under this
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 extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) 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 Trust or any of
the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, Entergy Louisiana with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
this Agreement directly against Entergy Louisiana and Entergy
Louisiana waives any right or remedy to require that any action
be brought against the Trust or any other person or entity before
proceeding against Entergy Louisiana.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the successors,
assigns, receivers, trustees and representatives of Entergy
Louisiana and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
Entergy Louisiana Capital I
c/o [_________________], Administrative Trustee
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No.: (504) 576-[____]
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No.: (504) 576-[____]
Attention: [__________]
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above written.
ENTERGY LOUISIANA, INC.
By:
Name:
Title:
ENTERGY LOUISIANA CAPITAL I
By:
[_________________]
not in his individual capacity, but solely
as Administrative Trustee
<PAGE>
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTERGY LOUISIANA CAPITAL I
% Quarterly Income Preferred Securities
(Liquidation Amount $25 per Preferred Security)
Entergy Louisiana Capital I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that ____________ (the "Holder") is the
registered owner of _____ (_____) preferred securities of the
Trust representing an undivided beneficial interest in the assets
of the Trust and designated the Entergy Louisiana Capital I %
Quarterly Income Preferred Securities (liquidation amount $25 per
Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer
as provided in Section 5.04 or 5.11 of the Trust Agreement (as
defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and
the Preferred Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of
, 1996, as the same may be amended from time to time (the "Trust
Agreement"). The holder of this certificate is entitled to the
benefits of the Guarantee Agreement of Entergy Louisiana, Inc., a
Louisiana corporation, and The Bank of New York, as guarantee
trustee, dated as of , 1996 (the "Guarantee") to
the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:
ENTERGY LOUISIANA CAPITAL I
By:
not in his (her)
individual capacity, but
solely as Administrative
Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred
Securities Certificate and irrevocably appoints
attorney to transfer such Preferred Securities Certificate on the books of the
Trust. The attorney may substitute another to act for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Exhibit 4.13
GUARANTEE AGREEMENT
Between
Entergy Lousiana, Inc.
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
_____, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.01 Definitions 1
ARTICLE II TRUST INDENTURE ACT 4
SECTION 2.01 Trust Indenture Act; Application 4
SECTION 2.02 Lists of Holders of Preferred Securities 4
SECTION 2.03 Reports by the Guarantee Trustee 4
SECTION 2.04 Periodic Reports to Guarantee Trustee 4
SECTION 2.05 Evidence of Compliance with Conditions
Precedent 5
SECTION 2.06 Events of Default; Waiver 5
SECTION 2.07 Event of Default; Notice 5
SECTION 2.08 Conflicting Interests 5
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE 5
SECTION 3.01 Powers and Duties of the Guarantee Trustee 5
SECTION 3.02 Certain Rights of Guarantee Trustee 7
ARTICLE IV GUARANTEE TRUSTEE 9
SECTION 4.01 Guarantee Trustee; Eligibility 9
SECTION 4.02 Compensation and Reimbursement 9
SECTION 4.03 Appointment, Removal and Resignation of
Guarantee Trustee 10
ARTICLE V GUARANTEE 11
SECTION 5.01 Guarantee 11
SECTION 5.02 Waiver of Notice and Demand 11
SECTION 5.03 Obligations Not Affected 12
SECTION 5.04 Rights of Holders 12
SECTION 5.05 Guarantee of Payment 13
SECTION 5.06 Subrogation 13
SECTION 5.07 Independent Obligations 13
ARTICLE VI SUBORDINATION 13
SECTION 6.01 Subordination 13
ARTICLE VII TERMINATION 14
SECTION 7.01 Termination 14
ARTICLE VIII MISCELLANEOUS 14
SECTION 8.01 Successors and Assigns 14
SECTION 8.02 Amendments 14
SECTION 8.03 Notices 14
SECTION 8.04 Benefit 15
SECTION 8.05 Interpretation 16
SECTION 8.06 Governing Law 16
<PAGE>
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) 4.01(a)
310(b) 4.01(c), 2.08
310(c) Inapplicable
311(a) 2.02(b)
311(b) 2.02(b)
311(c) Inapplicable
312(a) 2.02(a)
312(b) 2.02(b)
313 2.03
314(a) 2.04
314(b) Inapplicable
314(c) 2.05
314(d) Inapplicable
314(e) 1.01, 2.05, 3.02
314(f) 2.01, 3.02
315(a) 3.01(d)
315(b) 2.07
315(c) 3.01
315(d) 3.01(d)
316(a) 5.04(a), 2.06
316(b) 5.03
316(c) 2.02
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.01(b)
318(b) 2.01
318(c) 2.01(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
______, 1996, is executed and delivered by Entergy Louisiana, Inc., a
Louisiana corporation (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 Louisiana Capital I, a Delaware statutory
business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of ______, 1996 between the Trustees
of the Issuer named therein, Entergy Louisiana, Inc., as Depositor, and
the several Holders (as defined therein) the Issuer is issuing as of
the date hereof $__________ aggregate liquidation amount of its ____%
Cumulative Quarterly Income Preferred Securities (the "Preferred
Securities") representing preferred undivided beneficial ownership
interests in the Issuer and having the terms set forth in the Trust
Agreement;
WHEREAS, the Preferred Securities are to be issued for sale
by the Issuer and the proceeds are to be invested in $___________
principal amount of Debentures (as defined in the Trust Agreement); 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 of
Debentures, 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.
I
Definitions
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 Trust 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.
"Common Securities" means the securities representing common
undivided beneficial ownership interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of
its payment 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 accrued and unpaid Distributions that are required to
be paid on such Preferred Securities but only if and to the extent that
the Property Trustee has available in the Payment Account funds
sufficient to make such payment, (ii) the redemption price (the
"Redemption Price"), and all accrued 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
Property Trustee has available in the Payment Account 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 accrued
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 dated as of _______, 1996,
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 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
IITRUST INDENTURE ACT
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. 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 December 31 and
June 30 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.
3. Reports by the Guarantee Trustee. Within 60 days after December
31 of each year, commencing December 31, 1996, 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.
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.
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.
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.
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 Trust Agreement shall have obtained written
notice, of such Event of Default.
8. Conflicting Interests. The Trust 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.
III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
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
5.04 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 2.06),
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;
(iv) 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
(vi) 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.
2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(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 3.02(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.
IV
GUARANTEE TRUSTEE
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
4.01(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 4.01(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.03(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.
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.
3. Appointment, Removal and Resignation of Guarantee Trustee.
(a) Subject to Section 4.03(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 4.03
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 8.03 hereof. Each notice shall include the name of the
successor Guarantee Trustee and the address of its Corporate Trust
Office.
V
GUARANTEE
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.
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.
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 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 5.03 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.
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. 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).
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.
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 5.03.
VI
SUBORDINATION
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 other liabilities of the Guarantor,
including the Debentures, except those made pari passu or subordinate
by their terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any
guarantee now or hereafter entered into by the Guarantor in respect of
any preferred or preference stock of any Affiliate of the Guarantor,
and (iii) senior to all common stock of the Guarantor. Nothing in this
Section 6.01 shall apply to claims of, or payments to, the Guarantee
Trustee under or pursuant to Section 4.02 hereof.
VII
TERMINATION
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, and all accrued and unpaid
Distributions to the date of redemption, (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
Trust Agreement upon liquidation 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.
VIII
MISCELLANEOUS
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, the Guarantor shall not assign its obligations hereunder.
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 66 2/3% in
aggregate liquidation amount of all the outstanding Preferred
Securities. The provisions of Article VI of the Trust 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.
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 Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No: (504) 576-____
Attention: _____________
(b) if given to the Issuer, in care of the Administrative
Trustees, at the Issuer's (and the Administrative Trustee's)
address set forth below or such other address as the
Administrative Trustees on behalf of the Issuer may give notice of
to the Holders:
Entergy Louisiana, Capital I
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No: (504) 576-____
Attention: Administrative Trustees
(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.
4. Benefit. This Guarantee Agreement is solely for the benefit of
the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
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 1.01;
(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.
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.
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>
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
Entergy Louisiana, Inc.
By:
Name:
Title:
The Bank of New York,
as Guarantee Trustee
By:
Name:
Title:
Exhibit 4.14
AMENDED AND RESTATED
TRUST AGREEMENT
between
ENTERGY LOUISIANA, INC., as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
[___________________],
[______________],
and
[_______________], as Trustees
Dated as of [_________] 1, 1996
<PAGE>
ENTERGY LOUISIANA CAPITAL II
Entergy Louisiana Capital II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) 8.07
(a)(2) 8.07
(a)(3) 8.09
(a)(4) Not Applicable
(b) 8.08
Section 311(a) 8.13
(b) 8.13
Section 312(a) 5.07
(b) 5.07
(c) 5.07
Section 313(a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 8.14(a)
(d) 8.14(a), 8.14(b)
Section 314(a) Not Applicable
(b) Not Applicable
(c)(1) Not Applicable
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) Not Applicable
Section 315(a) 8.01
(b) 8.02, 8.14(b)
(c) 8.01(a)
(d) 8.01, 8.03
(e) Not Applicable
Section 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) Not Applicable
Section 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.09
Section 318(a) 10.10
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[_______] 1, 1996, between (i) Entergy Louisiana, Inc., a
Louisiana corporation (the "Depositor"), (ii) The Bank of New
York, a banking corporation duly organized and existing under the
laws of New York, as trustee (the "Property Trustee" and, in its
separate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) The Bank of New York (Delaware), a banking
corporation duly organized under the laws of Delaware, as trustee
(the "Delaware Trustee") and (iv) [__________________],
[______________] and [______________], each an individual, as
trustee, and each of whose address is c/o Entergy Louisiana,
Inc., 639 Loyola Avenue, New Orleans, Louisiana 70113 (each, an
"Administrative Trustee" and collectively the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and [__________________], as the Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act by the entering
into of that certain Trust Agreement, dated as of April __, 1996
(the "Original Trust Agreement"), and by the execution by the
Property Trustee, the Delaware Trustee and [_________________],
as Administrative Trustee and filing with the Secretary of State
of the State of Delaware of the Certificate of Trust, dated April
__, 1996, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware
Trustee and [_________________], as Administrative Trustee,
desire to amend and restate the Original Trust Agreement in its
entirety as set forth herein to provide for, among other things,
(i) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Debentures, (ii) the issuance of
the Common Securities by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities by the Trust and (iv) the
appointment of additional Administrative Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other party and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE
Defined Terms
Section Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
all other terms used herein that are defined in
the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this Trust
Agreement; and
the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and/or a given period,
the amount of Additional Interest (as defined in the Subordinated
Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust created hereunder and not in their
individual capacities, or such trustee's successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"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.
"Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee sequestrator or
other similar official of such Person or of any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or of the
consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such
Person 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.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof and to be in
full force and effect on the date of such certification, and
delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of the Trust or the Trust's Affiliates; and (b) any Holder of
Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Issuer" means Entergy Louisiana, Inc., a
Louisiana corporation, in its capacity as issuer of the
Debentures.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, as
trustee under the Subordinated Indenture.
"Debentures" means the $[________] aggregate principal
amount of the Depositor's [___]% Junior Subordinated Debentures,
Series A, Due [____], issued pursuant to the Subordinated
Indenture.
"Definitive Preferred Securities Certificates" means
Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of any
Redemption Price, plus accumulated and unpaid
distributions of any Trust Security when it becomes due
and payable; or
(iv) default in the performance, or breach, in any
material respect of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is
specifically dealt with in clause (ii) or (iii), above)
and continuation of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Trust by the Holders of at least
10% in Liquidation Amount of the Outstanding Preferred
Securities 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; or
(v) the occurrence of a Bankruptcy Event with respect
to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c).
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partner, employee, representative or agent of any Trustee, or any
employee or agent of the Trust or its Affiliates.
"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 Trust 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 the date of original issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to
be contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities plus accumulated and
unpaid Distributions to the date of such payment and (ii)
Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"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
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust 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.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the
Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu
of which other Preferred Securities have been delivered
pursuant to this Trust Agreement, including pursuant to
Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Preferred Securities which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are
owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative
Trustee the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner
of a Preferred Securities Certificate as reflected in the records
of the Securities Depository or, if a Securities Depository
Participant is not the beneficial owner, then as reflected in the
records of a Person maintaining an account with such Securities
Depository (directly or indirectly), in accordance with the rules
of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee at The Bank of New York, or such other banking
institution as the Depositor shall select in its trust department
for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to
the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a quarterly income preferred
security representing an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having
rights provided therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as
provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any date
fixed for redemption of any Trust Security, the Liquidation
Amount of such Trust Security.
"Redemption Tax Opinion" has the meaning specified in
Section 9.04(d).
"Registrar" shall mean the registrar for the Preferred
Securities appointed by the Trust and shall be initially The Bank
of New York.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matter.
"Securities Depository" shall be The Depository Trust
Company.
"Securities Depository Participant" means an
institution which deposits securities with a Securities
Depository for holding thereby.
"Securities Register" shall mean the Securities
Register described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person shall be deemed to be a
beneficial owner within the meaning of the Delaware Business
Trust Act.
"Special Event" means either a Tax Event or an
Investment Company Event.
"Subordinated Indenture" means the Indenture, dated as
of [______] 1, 1996, between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to
time.
"Tax Event" means the receipt by the Trust of an
opinion of counsel (which may be counsel to the Depositor or an
affiliate but not an employee thereof and which must be
acceptable to the Property Trustee) 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 or any political
subdivision or taxing authority thereof or therein affecting
taxation, or as a result of any official administrative or
judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of
original issuance of the Preferred Securities under this Trust
Agreement, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject
to United States Federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by
the Depositor on the Debentures, is not, or within 90 days of the
date thereof, will not be, deductible, in whole or in part, for
United States Federal income tax purposes, or (iii) the Trust 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.
"Transfer Agent" shall mean one or more transfer agents
for the Preferred Securities appointed by the Trust and shall be
initially The Bank of New York.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities
or the Preferred Securities.
"Trust Securities Certificate" means any one of the
Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of [_____ __] , 1996, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE
Establishment of the Trust
Section Name. The Trust created hereby shall be
known as "Entergy Louisiana Capital II", in which name the
Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue
and be sued.
Section Office of the Delaware Trustee; Principal
Place of Business. The office of the Delaware Trustee in the
State of Delaware is White Clay Center, Route 273, Newark,
Delaware 19711, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Entergy Louisiana, Inc., 639 Loyola
Avenue, New Orleans, Louisiana 70113.
Section Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the
Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses
paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
Section Issuance of the Preferred Securities. On
[____ __], 1996 the Depositor and an Administrative Trustee, on
behalf of the Trust, both executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, one of the Administrative Trustees, on
behalf of the Trust in accordance with Section 5.02, executed
manually and delivered a Preferred Securities Certificate,
registered in the name of the nominee of The Depositary Trust
Company, having an aggregate Liquidation Amount of $[________].
Section Subscription and Purchase of Debentures;
Issuance of the Common Securities. Contemporaneously with the
execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee and having an aggregate principal
amount equal to $[________], and, in satisfaction of the purchase
price for such Debentures, (x) one of the Administrative
Trustees, on behalf of the Trust, shall execute and deliver to
the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of [_____] Common
Securities having an aggregate Liquidation Amount of $[_______],
and (y) the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $[________] representing the
proceeds from the sale of the Preferred Securities pursuant to
the Underwriting Agreement.
Section Declaration of Trust; Appointment of
Additional Administrative Trustees. The exclusive purposes
and functions of the Trust are (i) to issue Trust Securities
and invest the proceeds thereof in Debentures, and (ii) to
engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein. The Property Trustee
hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the
benefit of the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance
with applicable law with respect to accomplishing the purposes
of the Trust. Anything in this Trust Agreement to the
contrary notwithstanding the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrative Trustees set forth
herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust
Act.
Section Authorization to Enter into Certain
Transactions. The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section and Article VIII and in accordance with the following
provisions (A) and (B), the Trustees shall have the authority
to enter into all transactions and agreements determined by
the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under
this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
As among the Trustees, the Administrative Trustees
shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
the issuance and sale of the Trust Securities;
without the consent of any Person, to cause the
Trust to enter into and to execute, deliver and perform
on behalf of the Trust, the Expense Agreement, and such
agreements as may be necessary or desirable in
connection with the consummation of the Underwriting
Agreement (such execution to be by the Administrative
Trustees or any one of them);
to qualify the Trust to do business in any
jurisdiction as may be necessary or desirable;
the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined
by the Depositor and the registration of the Preferred
Securities under the Exchange Act, and the preparation
and filing of all periodic and other reports and other
documents pursuant to the foregoing;
the appointments of a Paying Agent, a Transfer
Agent and a Registrar in accordance with this Trust
Agreement (subject to Section 5.09);
registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the
Trust with respect to the following ministerial matters:
the establishment of the Payment Account;
the receipt of the Debentures;
the deposit of interest, principal and any other
payments made in respect of the Debentures in the
Payment Account;
the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
as provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and
the execution of the certificate of cancellation to be
prepared and filed by the Administrative Trustees with
the Secretary of State of the State of Delaware; and
the taking of any ministerial action incidental
to the foregoing as the Property Trustee may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustee set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the
Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders
of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the
rights of the Holder pursuant to the terms of this Trust
Agreement.
So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust)
shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby.
In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this
Trust Agreement, (ii) sell, assign, transfer, exchange,
pledge, set-off or otherwise dispose of any of the Trust
Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States Federal income tax purposes
and not as an association taxable as a corporation, (iv) incur
any indebtedness for borrowed money or (v) take or consent to
any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims
and demands of all Persons at any time claiming any Lien on
any of the Trust Property adverse to the interest of the Trust
or the Securityholders in their capacity as Securityholders.
In connection with the issue of the Preferred
Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect
on behalf of the Trust, the following (and any actions taken
by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and confirmed
in all respects):
to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
to determine the States in which to take
appropriate action to qualify or register for sale all
or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken
by or on behalf of the Trust, and advise the Trustees
of actions they must take on behalf of the Trust, and
prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such
States;
to prepare for filing by the Trust an application
to the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred
Securities and to file or cause the Administrative
Trustees to file thereafter with such exchange such
notifications and documents as may be necessary from
time to time to maintain such listing;
to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"),
including any amendments thereto;
to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may
be necessary or desirable in connection with the
consummation thereof;
to select the investment banker or bankers to act
as underwriters with respect to the offer and sale by
the Trust of Preferred Securities ("Offer") and
negotiate the terms of an Underwriting Agreement and
pricing agreement providing for the Offer; and
to take any other actions necessary or desirable
to carry out any of the foregoing activities.
Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so
that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment
Company Act of 1940, as amended, or classified other than as a
"grantor trust" for United States Federal income tax purposes
and not as an association taxable as a corporation and so that
the Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In
this connection, subject to the provisions of Section 10.03,
the Depositor and the Administrative Trustees are authorized
to take any action, not inconsistent with applicable law, the
certificate of trust filed with the Secretary of State of the
State of Delaware with respect to the Trust (as amended or
restated from time to time, the "Certificate of Trust") or
this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such
action does not materially adversely affect the interests of
the Holders of the Preferred Securities.
Section Assets of Trust. The assets of the Trust
shall consist of the Trust Property.
Section Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE
Payment Account
Section Payment Account.
On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustees and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect
to, the Debentures. Amounts held in the Payment Account shall
not be invested by the Property Trustee pending distribution
thereof.
ARTICLE
Distributions; Redemption
Section Distributions.
Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds
of the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except
in the event that the Depositor exercises its right to extend
the interest payment period for the Debentures pursuant to
Section 311 of the Subordinated Indenture, shall be payable
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on [_______ __], 1996.
If any date on which Distributions are otherwise payable on
the Trust Securities is not a Business Day, then the payment
of such Distribution shall 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 is in the next succeeding calendar year, payment
of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and
effect as if made on such date (each date on which
distributions are payable in accordance with this Section
4.01(a) a "Distribution Date").
Distributions payable on the Trust Securities
shall be fixed at a rate of [____]% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full quarterly period shall be
computed on the basis of twelve 30-day months and a 360-day
year and for any period shorter than a full month, on the
basis of the actual number of days elapsed. If the interest
payment period for the Debentures is extended pursuant to
Section 311 of the Subordinated Indenture, then Distributions
on the Preferred Securities will be deferred for the period
equal to the extension of the interest payment period for the
Debentures and the rate per annum at which Distributions on
the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such extended
interest payment period 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 during any
such extended interest payment period on the Debentures. The
amount of Distributions payable for any period shall include
the Additional Amounts, if any.
Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date
only to the extent that the Trust has funds available in the
Payment Account for the payment of such Distributions.
Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof
as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be 15 days
prior to the relevant Distribution Date.
Section Redemption.
On each Debenture Redemption Date and at the
maturity date for the Debentures (as defined in the
Subordinated Indenture), the Property Trustee will be required
to redeem a Like Amount of Trust Securities at the Redemption
Price plus accumulated and unpaid Distributions to the date of
such payment.
Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the Redemption
Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All
notices of redemption or liquidation shall state:
the Redemption Date;
the Redemption Price and the amount of
accumulated and unpaid Dividends to be paid on the
Redemption Date;
the CUSIP number;
if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities
to be redeemed; and
that on the Redemption Date the Redemption Price
plus accumulated and unpaid Distributions to the date
of such payment will become due and payable upon each
such Trust Security to be redeemed and that interest
thereon will cease to accrue on and after said date.
The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment with the proceeds from the contemporaneous redemption
of Debentures. Redemptions of the Trust Securities shall be
made and the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment shall be deemed
payable on each Redemption Date only to the extent that the
Trust has funds immediately available in the Payment Account
for such payment.
If the Property Trustee gives a notice of
redemption in respect of any Preferred Securities, then, by
12:00 noon, New York time, on the Redemption Date, subject to
Section 4.02(c), the Property Trustee shall irrevocably
deposit with the Paying Agent (or Securities Depository, in
the event the Preferred Securities are book-entry only) funds
sufficient to pay the applicable Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment to the Holders thereof upon surrender of their
Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the redemption
date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear
on the Securities Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited
as required, then on the Redemption Date, all rights of
Securityholders holding Trust Securities so called for
redemption will cease, except the right of such
Securityholders to receive the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment, but without interest thereon, and such Trust
Securities will cease to be outstanding. In the event that
any Redemption Date is not a Business Day, then payment of the
Redemption Price payable on such date plus accumulated and
unpaid Distributions to such date shall 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). In
the event that payment of the Redemption Price plus
accumulated and unpaid Distributions in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue, at the then applicable
rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption
Price plus accumulated and unpaid Distributions is actually
paid, in which case the actual payment date will be deemed the
date fixed for redemption for purposes of calculating the
Redemption Price plus accumulated and unpaid Distributions to
such date.
Payment of the Redemption Price on the Trust
Securities shall be made to the Holders thereof as they appear
on the Securities Register for the Trust Securities on the
relevant record date, which shall be the fifteenth day prior
to the Redemption Date.
If less than all the Outstanding Trust Securities
are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be
allocated 3% to the Common Securities and 97% to the Preferred
Securities. The particular Preferred Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by
such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for a
redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Securities of
a denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption
of Preferred Securities shall relate, in the case of any
Preferred Securities redeemed or to be redeemed only in part,
to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed.
Section Subordination of Common Securities.
Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price plus accumulated and
unpaid distributions of, the Trust Securities, as applicable,
shall be made pro rata based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date a Debenture Event of
Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable)
on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of
the Redemption Price plus accumulated and unpaid Distributions
the full amount of such Redemption Price plus accumulated and
unpaid Distributions on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions
(including Additional Amounts, if applicable) on, or
Redemption Price plus accumulated and unpaid Distributions of,
Preferred Securities then due and payable.
In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the
Holder of Common Securities will be deemed to have waived any
such Event of Default under this Trust Agreement until the
effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been
so cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and
only the Holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
Section Payment Procedures. Payments in respect of
the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities
are held by a Securities Depository, such Distributions shall be
made to the Securities Depository, which shall credit the
relevant Persons' accounts at such Securities Depository on the
applicable distribution dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually
agreed between the Administrative Trustees and the Holder of the
Common Securities.
Section Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the
Depositor's expense and direction, and file all United States
Federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this
regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) the Internal Revenue Service
Form 1041 (or any successor form) required to be filed in respect
of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each
Securityholder the related Internal Revenue Service Form 1099, or
any successor form or the information required to be provided on
such form. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States Federal
withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section Payments under Indenture. Any amount payable
hereunder to any Holder of Preferred Securities shall be reduced
by the amount of any corresponding payment such Holder has
directly received pursuant to Section 808 of the Subordinated
Indenture. Notwithstanding the provisions hereunder to the
contrary, Securityholders acknowledge that any Holder of
Preferred Securities that receives payment under Section 808 of
the Subordinated Indenture may receive amounts greater than the
amount such Holder may be entitled to receive pursuant to the
other provisions of this Trust Agreement.
ARTICLE
Trust Securities Certificates
Section Initial Ownership. Upon the creation of the
Trust by the contribution by the Depositor pursuant to Section
2.03 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section The Trust Securities Certificates. The Trust
Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. Subject to
Section 2.04 relating to the original issuance of the Preferred
Securities Certificate registered in the name of the nominee of
The Depository Trust Company, the Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee and, if executed
on behalf of the Trust by facsimile signature, countersigned by a
Transfer Agent or its agent. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the
time when such signatures shall have been affixed, authorized to
sign on behalf of the Trust and, if executed on behalf of the
Trust by facsimile signature, countersigned by a Transfer Agent
or its agent, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized
prior to the delivery of such Trust Securities Certificates or
did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Securityholder, and shall be entitled
to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.04 or
5.11.
Section Execution and Delivery of Trust Securities
Certificates. On the Closing Date, the Administrative Trustees
shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.04 and 2.05, to be
executed on behalf of the Trust, and in the case of Preferred
Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred
without negligence arising out of or in connection with any such
countersigning by it.
Section Registration of Transfer and Exchange of
Preferred Securities Certificates. The Registrar shall keep or
cause to be kept, at its principal corporate office, a Securities
Register in which, subject to such reasonable regulations as it
may prescribe, the Registrar shall provide for the registration
of Preferred Securities Certificates and the Common Securities
Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein
provided.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent
to countersign and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and a Transfer Agent
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Administrative
Trustees in accordance with customary practice. The Trust shall
not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange
any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a
Transfer Agent may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection
with any transfer or exchange of Preferred Securities
Certificates.
Section Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If any mutilated Trust Securities
Certificate shall be surrendered to a Transfer Agent, or if a
Transfer Agent shall receive evidence to its satisfaction of
the destruction, loss or theft of any Trust Securities
Certificate and there shall be delivered to the Transfer
Agent and the Administrative Trustees such security or
indemnity as may be required by them to save each of them and
the Depositor harmless, then in the absence of notice that
such Trust Securities Certificate shall have been acquired by
a bona fide purchaser, the Administrative Trustees, or any one
of them, on behalf of the Trust, shall execute by manual or
facsimile signature and, if execution on behalf of the Trust
is by facsimile signature, countersigned by a Transfer Agent;
and the Administrative Trustees, or any one of them, shall
make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of
any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Transfer Agent may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection
therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
Section Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration
of transfer, the Trustees and the Registrar shall be entitled to
treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of
such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither
the Trustees nor the Registrar shall be bound by any notice to
the contrary.
Section Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to
be furnished (x) to the Depositor, within 15 days after receipt
by any Administrative Trustee of a request therefor from the
Depositor in writing and (y) to the Property Trustee, promptly
after receipt by any Administrative Trustee of a request therefor
from the Property Trustee in writing in order to enable the
Property Trustee to discharge its obligations under this Trust
Agreement, a list, in such form as the Depositor or the Property
Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date. If Holders of
Trust Securities Certificates evidencing ownership at such time
and for the previous six months not less than 25% of the
outstanding aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the
applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the
Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current
list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section Maintenance of Office or Agency. The Company
shall or shall cause the Transfer Agent to maintain in the
Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Preferred Securities Certificates may
be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company or the Transfer Agent
in respect of the Trust Securities Certificates may be served.
The Company initially designates The Bank of New York at its
principal corporate trust office for such purposes. The Company
shall or shall cause the Transfer Agent to give prompt written
notice to the Depositor, the Property Trustee and to the
Securityholders of any change in any such office or agency.
Section Appointment of Paying Agent. The Paying
Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such
distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent if the
Administrative Trustee or any one of them determines in its sole
discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect.
The Paying Agent may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. The
Paying Agent shall be permitted to resign upon 30 days' written
notice to the Administrative Trustees and the Depositor. In the
event of the removal or resignation of the Paying Agent, the
Administrative Trustees shall appoint a successor that is
reasonably acceptable to the Property Trustee and the Depositor
to act as Paying Agent (which shall be a bank, trust company or
an Affiliate of the Depositor). The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the
Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it
for payment to the Securityholders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be
paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon resignation or
removal of a Paying Agent such Paying Agent shall also return all
funds in its possession to the Property Trustee. The provisions
of Sections 8.01, 8.03 and 8.06 shall apply to the Paying Agent
appointed hereunder, and the Paying Agent shall be bound by the
requirements with respect to paying agents of securities issued
pursuant to the Trust Indenture Act. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.
Section 0. Ownership of Common Securities by
Depositor. On the Closing Date and on each other date provided
for in Section 2.05, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Securities.
Any attempted transfer of the Common Securities shall be void.
The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE". Common Securities
Certificates representing the Common Securities shall be issued
to the Depositor in the form of a typewritten or definitive
Common Securities Certificate.
Section Definitive Preferred Securities Certificates.
Upon initial issuance of the Preferred Securities the Definitive
Preferred Securities Certificates shall be typewritten, printed,
lithographed or engraved or may be produced in any other manner
as is reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by the Administrative
Trustees, or any one of them. The Administrative Trustees, or
any one of them, shall execute on behalf of the Trust by manual
or facsimile signature, and, if executed by facsimile on behalf
of the Trust, countersigned by the Transfer Agent or its agent
the Definitive Preferred Securities Certificates initially in
accordance with the instructions of the Depositor. Neither the
Transfer Agent nor any of the Administrative Trustees 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.
Section Book-Entry System. Some or all of the
Preferred Securities may be registered in the name of the
Securities Depository or a nominee therefor, and held in the
custody of the Securities Depository. In such event, a single
certificate will be issued and delivered to the Securities
Depository for such Preferred Securities, in which case the
Owners of such Preferred Securities will not receive physical
delivery of certificates for Preferred Securities. Except as
provided herein, all transfers of beneficial ownership interests
in such Preferred Securities will be made by book-entry only, and
no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Securities
will receive, hold or deliver any certificate for Preferred
Securities. The Depositor, the Trustees and the Paying Agent
will recognize the Securities Depository or its nominee as the
Holder of Preferred Securities for all purposes, including
notices and voting.
The Administrative Trustees, at the direction and
expense of the Depositor, may from time to time appoint a
Securities Depository or a successor thereto and enter into a
letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Securities. Any Securities Depository shall be a Clearing
Agency.
The Depositor and the Trustees covenant and agree to
meet the requirements of a Securities Depository for the
Preferred Securities with respect to required notices and other
provisions of the letter of representations or agreement executed
with respect to such Preferred Securities.
Whenever the beneficial ownership of any Preferred
Securities is determined through the books of a Securities
Depository, the requirements in this Trust Agreement of holding,
delivering or transferring such Preferred Securities shall be
deemed modified with respect to such Preferred Securities to meet
the requirements of the Securities Depository with respect to
actions of the Trustees, the Depositor and the Paying Agent. Any
provisions hereof permitting or requiring delivery of such
Preferred Securities shall, while such Preferred Securities are
in a book-entry system, be satisfied by the notation on the books
of the Securities Depository in accordance with applicable state
law.
Section Rights of Securityholders. The legal title
to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Securityholders
against payment of the purchase price therefor will be fully paid
and nonassessable interests in the Trust.
ARTICLE
Acts of Securityholders; Meetings; Voting
Section Limitations on Voting Rights.
Except as provided in this Section 6.01, in
Section 10.03 and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in
the terms of the Trust Securities Certificates, be construed
so as to constitute the Securityholders from time to time as
partners or members of an association. If the Property
Trustee fails to enforce its rights under the Debentures or
this Trust Agreement, a Holder of Preferred Securities may
institute a legal proceeding directly against the Depositor to
enforce the Property Trustee's rights under the Debentures or
this Trust Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against the
Property Trustee or any other person. Notwithstanding the
foregoing, a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such
Holder directly of principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
preference amount of the Preferred Securities of such Holder
on or after the due dates specified in the Debentures.
So long as any Debentures are held by the Property
Trustee, the Trustees 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 such
Debentures, (ii) waive any past default which is waivable
under Section 813 of the Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of
the Subordinated Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining
the prior approval of the Holders of at least 66 2/3% of the
aggregate Liquidation Amount of the Outstanding Preferred
Securities; provided, however, that where a consent under the
Subordinated Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of
each holder of Preferred Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote
of the Preferred Securities, except pursuant to a subsequent
vote of the Preferred Securities. The Property Trustee shall
notify all Holders of the Preferred Securities of any notice
of default received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Property Trustee
shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such matters to the effect that the
Trust will be classified as a "grantor trust" and not as an
association taxable as a corporation for United States Federal
income tax purposes on account of such action.
If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would materially adversely affect the powers,
preferences or special rights of the Preferred Securities,
whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not
be effective except with the approval of the Holders of at
least 66 2/3 in Liquidation Amount of the Outstanding
Preferred Securities. No amendment to this Trust Agreement
may be made if, as a result of such amendment, the Trust would
not be classified as a "grantor trust" but as an association
taxable as a corporation for United States Federal income tax
purposes.
Section Notice of Meetings. Notice of all meetings
of the Holders of Preferred Securities, stating the time, place
and purpose of the meeting, shall be given by the Administrative
Trustees pursuant to Section 10.08 to each Holder of a Preferred
Security, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section Meetings of Holders of Preferred Securities.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter upon the written request of
the Holders of 25% of the then Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) and may, at any
time in their discretion, call a meeting of Holders of Preferred
Securities to vote on any matters as to which the Holders of
Preferred Securities are entitled to vote.
Holders of 50% of the then Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders.
If a quorum is present at a meeting, an affirmative
vote by the Holders of Preferred Securities present, in person or
by proxy, holding more than the lesser of (x) 66 2/3% of the then
Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) held by the Holders of then Outstanding
Preferred Securities present, either in person or by proxy, at
such meeting and (y) 50% of the Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) shall constitute
the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
Section Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
Section Proxies, etc. At any meeting of
Securityholders, any Securityholder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, or, if earlier, until eleven months after
it is sent and the burden of proving invalidity shall rest on the
challenger.
Section Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding more than a
majority of all Outstanding Trust Securities entitled to vote in
respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust
Agreement) shall consent to the action in writing (based upon
their aggregate Liquidation Amount).
Section Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any Distribution on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of Distribution or
other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
Section Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to the Administrative
Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in
the manner provided in this Section.
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 acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. 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. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved
by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust 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 Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
Section Inspection of Records. Subject to Section
5.07 concerning access to the list of Securityholders, upon
reasonable notice to the Administrative Trustees and the Property
Trustee, the other records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section Property [and Delaware] Trustee. The
Property [and Delaware] Trustee hereby represents and warrants
for the benefit of the Depositor and the Securityholders that:
the Property [and Delaware] Trustee is a banking
corporation or trust company duly organized, validly existing
and in good standing under the laws of the State of [New York]
[Delaware];
the Property [and Delaware] Trustee has full
corporate power, authority and legal right to execute, deliver
and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized,
executed and delivered by the Property [and Delaware] Trustee
and constitutes the valid and legally binding agreement of the
Property and Delaware] Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
the execution, delivery and performance by the
Property [and Delaware] Trustee of this Trust Agreement will
not violate, conflict with or constitute a breach of the
Property [and Delaware] Trustee's charter or by-laws; and
neither the authorization, execution or delivery
by the Property [and Delaware] Trustee of this Trust Agreement
nor the consummation of any of the transactions by the
Property [and Delaware] Trustee contemplated herein require
the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with
respect to any governmental authority or agency under any
existing Federal or [New York] [Delaware] law governing the
banking or trust powers of the Property Trustee.
[Section Delaware Trustee. The Delaware Trustee
represents and warrants for the benefit of the Depositor and the
Securityholders that:
the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware
Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate the
Delaware Trustee's charter or by-laws; and
neither the authorization, execution or delivery
by the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Delaware
Trustee contemplated herein require the consent or approval
of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental
authority or agency under any existing Federal or Delaware law
governing the banking or trust powers of the Delaware
Trustee.]
ARTICLE
The Trustees
Section Certain Duties and Responsibilities.
The duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case
of the Property Trustee, the Trust Indenture Act, and no
implied covenants or obligations shall be read into this Trust
Agreement against any of the Trustees. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require
any of the Trustees 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. Notwithstanding anything contained in this Trust
Agreement to the contrary, the duties and responsibilities of
the Property Trustee under this Trust Agreement shall be
subject to the protections, exculpations and limitations on
liability afforded to the Property Trustee under the
provisions of the Trust Indenture Act and, to the extent
applicable, Rule 3A-7 under the Investment Company Act of
1940, as amended, or any successor rule thereunder. Whether
or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be
subject to the provisions of this Section.
All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property
Trustee or Paying Agent to make payments in accordance with
the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income
and proceeds from the Trust Property to the extent available
for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any
other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in
the case of the Property Trustee, in the Trust Indenture Act.
All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property
in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement, the
Trust Indenture Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act of 1940, as
amended;
the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor. Money held by the
Property Trustee need not be segregated from other
funds held by it except in relation to the Payment
Account established by the Property Trustee pursuant to
this Trust Agreement and except to the extent otherwise
required by law; and
the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative
Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
Section Notice of Defaults. Within five Business
Days after the occurrence of any Event of Default, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of any default known to the Property
Trustee to the Securityholders and the Depositor, unless such
default shall have been cured or waived. 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 Certain Rights of Property Trustee. Subject
to the provisions of Section 8.01 and except as provided by law:
the Property Trustee may rely and shall be
protected in acting or refraining from acting in good
faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or
transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal,
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;
if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of
action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Property Trustee (unless other evidence be 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 Depositor or the
Administrative Trustees;
the Property 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;
the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by
this Trust Agreement at the request or direction of any
of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security or
indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying
with such request or direction;
the Property 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, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, unless
requested in writing to do so by one or more
Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Depositor personally or by agent or attorney;
the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property 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, provided that the Property Trustee
shall be responsible for its own negligence or
recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
the Property 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 Trust Agreement;
the Property Trustee shall not be charged with
knowledge of any default or Event of Default with
respect to the Trust Securities unless either (1) a
Responsible Officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or
(2) written notice of such default or Event of Default
shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder
of the Trust Securities;
no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
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 Property 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; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty;
no provision of this Trust Agreement shall
require the Property 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
Property 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
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument
(including any financing or continuation statement or
any tax or securities) (or any rerecording, refiling or
registration thereof);
the Property Trustee shall have the right at any
time to seek instructions concerning the administration
of this Trust Agreement from any court of competent
jurisdiction; and
whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder
the Property Trustee (i) may request instructions from
the Holders of the Trust Securities, which instructions
may only be given by the Holders of the same proportion
of Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the
terms of this Trust Agreement in respect of such
remedies, rights or actions, (ii) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and
(iii) shall be protected in acting in accordance with
such instructions.
Section Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part
thereof or as to the title of the Trust thereto or as to the
security afforded thereby or hereby, or as to the validity or
genuineness of any securities at any time pledged and deposited
with any Trustees hereunder, nor as to the validity or
sufficiency of this Trust Agreement or the Trust Securities. The
Trustees shall not be accountable for the use or application by
the Trust of the proceeds of the Trust Securities in accordance
with Section 2.05.
Section May Hold Securities. Except as provided in
the definition of the term "Outstanding" in Article I, any
Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such
other agent.
Section Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this
Trust Agreement, 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.
As security for the performance of the obligations of
the Depositor under this Section, each of the Trustees shall have
a lien prior to the Trust Securities upon all property and funds
held or collected by such Trustee as such, except funds held in
trust for the payment of Distributions on the Trust Securities.
The provisions of this Section shall survive the
termination of this Trust Agreement.
Section Certain Trustees Required; Eligibility.
There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall
be a Person that has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then
for the purposes of this Section, the combined capital and
surplus of such Person 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 Property Trustee
with respect to the Trust Securities 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 VIII.
There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust
Securities. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized
to bind such entity.
There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of
age and a resident of the State of Delaware or (ii) a legal
entity with its principal place of business in the State of
Delaware that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons
authorized to bind such entity.
Section Conflicting Interests.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Subordinated Indenture and the Guarantee
Agreement shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
Section Co-Trustees and Separate Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, at any time or times, for the purpose of
meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property may at
the time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, 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 Depositor does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming 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 Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed 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 Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property 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 Property
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.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join
with the Property Trustee in the execution, delivery, and
performance 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.
(4) 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.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 0. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (as the case
may be, the "Relevant Trustee") and no appointment of a successor
Relevant Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section
8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at any
time by Act of the Common Securityholder. If a Debenture Event
of Default shall have occurred and be continuing, the Relevant
Trustee may be removed at such time by Act of the Securityholders
of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Relevant Trustee shall
resign, be removed or become incapable of continuing to act as
the Relevant Trustee at a time when a Debenture Event of Default
shall have occurred and be continuing, the Preferred
Securityholders, by Act of the Preferred Securityholders of a
majority in Liquidation Amount of the Outstanding Preferred
Securities delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed by the Common Securityholders or the
Preferred Securityholders and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a
Securityholder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor
Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirements for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
Section Acceptance of Appointment by Successor. In
case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Trustee
shall execute and deliver an amendment hereto wherein each
successor Relevant 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 Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust and (2) shall add to or change any of
the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees of the same trust and that each
such Relevant Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or
removal of the retiring Relevant Trustee shall become effective
to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Relevant Trustee; but, on request of the Trust or
any successor Relevant Trustee such retiring Relevant Trustee
shall duly assign, transfer and deliver to such successor Trustee
all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee,
the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
Section Merger, Conversion, Consolidation or
Succession to Business. Any Person into which the Property
Trustee or the Delaware Trustee or any Administrative Trustee or
any Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
such Relevant Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties
hereto.
Section Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or
become a creditor of the Depositor or the Trust (or any other
obligor upon the Debentures or the Trust Securities), the
Property Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor).
Section Reports by Property Trustee. the
Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under
this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto. Such of those reports as are required to be
transmitted by the Property Trustee pursuant to Section 313(a)
of the Trust Indenture Act shall be so transmitted within 60
days after [________ __] of each year, commencing [_______
__], 199[_].
A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
Section Reports to the Property Trustee. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property 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.
Section Evidence of Compliance With Conditions
Precedent. Each of the Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) that
relate to any of the matters set forth in 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.
Section Number of Trustees.
The number of Trustees shall be five, provided
that Depositor, by written instrument may increase or decrease
the number of Administrative Trustees.
If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced
pursuant to Section 8.17(a), or if the number of Trustees is
increased pursuant to Section 8.17(a), a vacancy shall occur.
The vacancy shall be filled with a Trustee appointed in
accordance with Section 8.10.
The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties
of a Trustee shall not operate to annul the Trust. Whenever a
vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section Delegation of Power.
Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment
thereto filed with the Commission, or making any other
governmental filing; and
the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing
of such things and the execution of such instruments either in
the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as
set forth herein.
Section Fiduciary Duty.
To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this Trust
Agreement shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law
or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of
such Indemnified Person;
Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act:
whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person;
or
whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation 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, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, whenever
in this Trust Agreement an Indemnified Person is permitted or
required to make a decision
in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it reasonably
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other
Person; or
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 Trust Agreement
or by applicable law.
ARTICLE
Termination and Liquidation
Section Termination Upon Expiration Date. The Trust
shall automatically terminate on December 31, [____] (the
"Expiration Date") and the Trust Property shall be distributed in
accordance with Section 9.04.
Section Early Termination. Upon the first to occur
of any of the following events (such first occurrence, an "Early
Termination Event"):
the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the
Depositor;
the redemption of all of the Preferred
Securities;
termination of the Trust in accordance with
Section 9.04(d);
an order for judicial termination of the Trust
having been entered by a court of competent
jurisdiction;
the Trust shall terminate and the Trustees shall take such action
as is required by Section 9.04.
Section Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (i)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed
hereunder upon the final payment of the Trust Securities; (ii)
the payment of any expenses owed by the Trust; and (iii) the
discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section Liquidation. If an Early Termination Event
specified in clause (i) or (iv) of Section 9.02 occurs, after
satisfaction of creditors of the Trust, if any, as provided by
applicable law, the Trust shall be liquidated by the Property
Trustee as expeditiously as the Property Trustee determines to
be appropriate by distributing to each Securityholder a Like
Amount of Debentures, subject to Section 9.04(e). Notice of
liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30
nor more than 60 days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder's address appearing
in the Securities Register. All notices of liquidation shall:
state the Liquidation Date;
state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of Debentures; and
provide such information with respect to the
mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section
9.04(e) applies receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee
shall deem appropriate.
In order to effect any liquidation of the Trust
hereunder, and any resulting distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting
as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall
deem appropriate to effect the distribution of Debentures in
exchange for the Outstanding Trust Securities Certificates.
After any Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Debentures will be issued to
Holders of Trust Securities Certificates, upon surrender of
such Trust Securities Certificates to the Administrative
Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will
be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the
last Distribution Date on which a Distribution was made on
such Trust Certificates until such Trust Securities
Certificates are so surrendered (and until such Trust
Securities Certificates are so surrendered, no payments or
interest or principal will be made to Holders of Trust
Securities Certificates with respect to such Debentures) and
(iv) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to
receive Debentures upon surrender of Trust Securities
Certificates.
If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to (i) redeem the
Debentures in whole but not in part and therefore cause a
mandatory redemption of all the Preferred Securities at the
Redemption Price within 90 days following the occurrence of
such Special Event, or (ii) cause the termination of the
Trust. Further, if at any time, the Trust is not or will not
be taxed as a grantor trust under the United States Federal
income tax law, but a Tax Event has not occurred, the
Depositor may elect termination of the Trust. In the event
the Depositor elects under the provisions of this section for
the Trust to be terminated, the Administrative Trustees shall,
terminate the Trust and, after satisfaction of creditors of
the Trust, if any, as provided by applicable law, cause
Debentures held by the Property Trustee having a Like Amount
of the Preferred Securities and the Common Securities to be
distributed to the Holders of the Preferred Securities and the
Common Securities on a pro rata basis in liquidation of such
Holders' interests in the Trust (in the case of such an
election following the occurrence of a Special Event) within
90 days following the occurrence of such Special Event. The
Common Securities will be redeemed on a pro rata basis with
the Preferred Securities, except that if a Debenture Event of
Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities
with respect to payment of the Redemption Price and
accumulated and unpaid Distributions to the date of such
payment.
In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order
for termination entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner
provided herein is determined by the Property Trustee not to
be practical, the Trust Property shall be liquidated, and the
Trust shall be dissolved, wound-up or terminated, by the
Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders
will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any,
as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any
such dissolution, winding up or termination, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities will be
entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that,
if a Debenture Event of Default has occurred and is continuing
or if a Debenture Event of Default has not occurred solely by
reason of a requirement that time lapse or notice be given,
the Preferred Securities shall have a priority over the Common
Securities.
ARTICLE
Miscellaneous Provisions
Section Guarantee by the Depositor and Assumption of
Obligations. Subject to the terms and conditions hereof, the
Depositor irrevocably and unconditionally guarantees to each
Person to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries"), and agrees to assume liability for,
the full payment, when and as due, of any and all Obligations (as
hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to Holders
or other similar interests in the Trust the amounts due such
Holders pursuant to the terms of the Preferred Securities or such
other similar interests, as the case may be. This guarantee and
assumption is intended to be for the benefit, of, and to be
enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial
or otherwise, in a Trust Security shall not operate to terminate
this Trust Agreement, nor entitle the legal representatives or
heirs of such person or any Securityholder for such person, to
claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section Amendment.
This Trust Agreement may be amended from time to time
by the Trust (on approval of a majority of the Administrative
Trustees and the Depositor, without the consent of any
Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement
or (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure
that the Trust will not be classified for United States
Federal income tax purposes other than as a "grantor trust"
and not as an association taxable as a corporation at any time
that any Trust Securities are outstanding or to ensure the
Trust's exemption from the status of an "investment company"
under the Investment Company Act of 1940, as amended;
provided, however, that, except in the case of clause (ii),
such action shall not adversely affect in any material respect
the interests of any Securityholder and, in the case of clause
(i), any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
Except as provided in Sections 6.01(c) and 10.03(c),
any provision of this Trust Agreement may be amended by the
Administrative Trustees and the Depositor with (i) the consent
of Holders of Trust Securities representing not less than a
majority (based upon Liquidation Amounts) of the Outstanding
Trust Securities and (ii) receipt by the Trustees of an
Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a
grantor trust for Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the
Investment Company Act of 1940, as amended.
In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder (such consent being obtained in
accordance with Section 6.03 or 6.06), this Trust Agreement
may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii)
restrict the right of a Securityholder to institute suit for
the enforcement of any such payment on or after such date.
Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust
to fail or cease to qualify for the exemption from status of
an "investment company" under the Investment Company Act of
1940, as amended, afforded by Rule 3a-5 thereunder.
Notwithstanding anything in this Trust Agreement to
the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or
any Trustee.
In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
The Property Trustee is entitled to receive an
Opinion of Counsel as conclusive evidence that any amendment
to this Trust Agreement executed pursuant to this Section
10.03 is authorized or permitted by, and conforms to, the
terms of this Section 10.03, has been duly authorized by and
lawfully executed and delivered on behalf of the other
requisite parties, and that it is proper for the Property
Trustee under the provisions of this Section 10.03 to join in
the execution thereof.
Section Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section Governing Law. This Trust Agreement and the
rights and obligations of each of the Securityholders, the Trust
and the Trustees with respect to this Trust Agreement and the
Trust Securities shall be construed in accordance with and
governed by the laws of the State of Delaware (without regard to
conflict of laws principles).
Section Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to
the Trust or the Relevant Trustees or any of them, including any
successor by operation of law.
Section Headings. The Article and Section headings
are for convenience only and shall not affect the construction of
this Trust Agreement.
Section Notice and Demand. Any notice, demand or
other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) in the case of a Preferred Securityholder,
to such Preferred Securityholder as such Securityholder's name
and address may appear on the Securities Register and (ii) in the
case of the Common Securityholder or the Depositor, to Entergy
Louisiana, Inc., 639 Loyola Avenue, New Orleans, Louisiana 70113,
Attention: [Treasurer], facsimile no. (504) 576-[____], with a
copy to the Secretary, facsimile no. (504) 576-[____]. Such
notice, demand or other communication to or upon a Securityholder
shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, 101 Barclay Street, 21 West, New York, New
York 10286 marked "Attention: Corporate Trust Administration"
with a copy to: The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, Delaware 19711 and (ii) with respect
to the Trust or the Administrative Trustees, at the address above
for notice to the Depositor, marked "Attention: Administrative
Trustees for Entergy Louisiana Capital II". Such notice, demand
or other communication to or upon the Trust or the Property
Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust or the
Property Trustee.
Section Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in
writing not to take such action and should be stopped and
precluded therefrom and such other defenses, if any, as counsel
for the Property Trustee or the Trust may assert. The provisions
of this Section 10.09 shall survive the termination of this Trust
Agreement.
Section 0. Conflict with Trust Indenture Act.
This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required or deemed to be part
of this Trust Agreement and shall, to the extent applicable,
be governed by such provisions.
The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Trust Agreement
to be duly executed, all as of the day and year first above
written.
ENTERGY LOUISIANA, INC.
By:
Title: [________]
THE BANK
OF NEW YORK,
as Property Trustee
By:
Title: [____________]
THE BANK
OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
Title: [________________]
[_________________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENTERGY LOUISIANA CAPITAL II
THIS CERTIFICATE OF TRUST of Entergy Louisiana Capital
II (the "Trust"), dated as of , 1996, is being
duly executed and filed by the undersigned, as trustees, to
create a business trust under the Delaware Business Trust Act (12
Del. C. 3801, et seq.).
1. Name. The name of the business trust being created
hereby is Entergy Louisiana Capital II.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in
the State of Delaware are The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE) [________________________],
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By: By:
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-[ ]
Certificate Evidencing Common Securities
of
ENTERGY LOUISIANA CAPITAL II
Common Securities
(Liquidation Amount $25 per Common Security)
Entergy Louisiana Capital II, a statutory business
trust created under the laws of the State of Delaware (the
"Trust"), hereby certifies that Entergy Louisiana, Inc. (the
"Holder") is the registered owner of _____ (_____) common
securities of the Trust representing undivided beneficial
interests in the assets of the Trust and designated the Common
Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the
Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void.
The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of _______ ___, 1995, as
the same may be amended from time to time (the "Trust
Agreement"). The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to
the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the
Trust has executed this certificate for and on behalf of the
Trust this ____ day of _________, 199 .
ENTERGY LOUISIANA CAPITAL II
By:
not in his (her) individual capacity, but
solely as Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between
Entergy Louisiana, Inc., a Louisiana corporation ("Entergy
Louisiana"), and Entergy Louisiana Capital II, a Delaware
business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common
Securities (the "Common Securities") to and receive Debentures
from Entergy Louisiana and to issue its ___% Quarterly Income
Preferred Securities (the "Preferred Securities") with such
powers, preferences and special rights and restrictions as are
set forth in the Amended and Restated Trust Agreement of the
Trust dated as of ________ __, 1996 as the same may be amended
from time to time (the "Trust Agreement");
WHEREAS, Entergy Louisiana is the issuer of the
Debentures;
NOW, THEREFORE, in consideration of the acceptance by
each holder of the Preferred Securities, which acceptance Entergy
Louisiana hereby agrees shall benefit Entergy Louisiana and which
acceptance Entergy Louisiana acknowledges will be made in
reliance upon the execution and delivery of this Agreement,
Entergy Louisiana, including in its capacity as holder of the
Common Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Entergy Louisiana.
Subject to the terms and conditions hereof, Entergy Louisiana
hereby irrevocably and unconditionally assumes the full payment,
when and as due, of any and all Obligations (as hereinafter
defined) to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries"). As
used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (i) obligations of the Trust
to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be and (ii) obligations arising out of
the negligence, willful misconduct or bad faith of the Trustees
of the Trust. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by Entergy Louisiana and The Bank of New York, as guarantee
trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Entergy Louisiana
hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and Entergy
Louisiana hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption
and all other notices and demands.
Section 1.04. No Impairment. The obligations,
covenants, agreements and duties of Entergy Louisiana under this
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 extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) 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 Trust or any of
the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, Entergy Louisiana with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
this Agreement directly against Entergy Louisiana and Entergy
Louisiana waives any right or remedy to require that any action
be brought against the Trust or any other person or entity before
proceeding against Entergy Louisiana.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the successors,
assigns, receivers, trustees and representatives of Entergy
Louisiana and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
Entergy Louisiana Capital II
c/o [_________________], Administrative Trustee
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No.: (504) 576-[____]
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No.: (504) 576-[____]
Attention: [__________]
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above written.
ENTERGY LOUISIANA, INC.
By:
Name:
Title:
ENTERGY LOUISIANA CAPITAL II
By:
[_________________]
not in his individual capacity, but solely
as Administrative Trustee
<PAGE>
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTERGY LOUISIANA CAPITAL II
% Quarterly Income Preferred Securities
(Liquidation Amount $25 per Preferred Security)
Entergy Louisiana Capital II, a statutory business
trust created under the laws of the State of Delaware (the
"Trust"), hereby certifies that ____________ (the "Holder") is
the registered owner of _____ (_____) preferred securities of the
Trust representing an undivided beneficial interest in the assets
of the Trust and designated the Entergy Louisiana Capital II
% Quarterly Income Preferred Securities (liquidation amount $25
per Preferred Security) (the "Preferred Securities"). The
Preferred Securities are transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.04 or 5.11 of the Trust
Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of , 1996, as the same may be
amended from time to time (the "Trust Agreement"). The holder of
this certificate is entitled to the benefits of the Guarantee
Agreement of Entergy Louisiana, Inc., a Louisiana corporation,
and The Bank of New York, as guarantee trustee, dated as of
, 1996 (the "Guarantee") to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the
Guarantee to the holder of this certificate without charge upon
written request to the Trust at its principal place of business
or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:
ENTERGY LOUISIANA CAPITAL II
By:
[ ]
not in his (her)
individual capacity, but
solely as Administrative
Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred
Securities Certificate and irrevocably appoints
attorney to transfer such Preferred Securities Certificate on the
books of the Trust. The attorney may substitute another to act for
him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Exhibit 4.16
GUARANTEE AGREEMENT
Between
Entergy Lousiana, Inc.
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
_____, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.01 Definitions 1
ARTICLE II TRUST INDENTURE ACT 4
SECTION 2.01 Trust Indenture Act; Application 4
SECTION 2.02 Lists of Holders of Preferred Securities 4
SECTION 2.03 Reports by the Guarantee Trustee 4
SECTION 2.04 Periodic Reports to Guarantee Trustee 4
SECTION 2.05 Evidence of Compliance with Conditions
Precedent 5
SECTION 2.06 Events of Default; Waiver 5
SECTION 2.07 Event of Default; Notice 5
SECTION 2.08 Conflicting Interests 5
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE 5
SECTION 3.01 Powers and Duties of the Guarantee Trustee 5
SECTION 3.02 Certain Rights of Guarantee Trustee 7
ARTICLE IV GUARANTEE TRUSTEE 9
SECTION 4.01 Guarantee Trustee; Eligibility 9
SECTION 4.02 Compensation and Reimbursement 9
SECTION 4.03 Appointment, Removal and Resignation of
Guarantee Trustee 10
ARTICLE V GUARANTEE 11
SECTION 5.01 Guarantee 11
SECTION 5.02 Waiver of Notice and Demand 11
SECTION 5.03 Obligations Not Affected 12
SECTION 5.04 Rights of Holders 12
SECTION 5.05 Guarantee of Payment 13
SECTION 5.06 Subrogation 13
SECTION 5.07 Independent Obligations 13
ARTICLE VI SUBORDINATION 13
SECTION 6.01 Subordination 13
ARTICLE VII TERMINATION 14
SECTION 7.01 Termination 14
ARTICLE VIII MISCELLANEOUS 14
SECTION 8.01 Successors and Assigns 14
SECTION 8.02 Amendments 14
SECTION 8.03 Notices 14
SECTION 8.04 Benefit 15
SECTION 8.05 Interpretation 16
SECTION 8.06 Governing Law 16
<PAGE>
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) 4.01(a)
310(b) 4.01(c), 2.08
310(c) Inapplicable
311(a) 2.02(b)
311(b) 2.02(b)
311(c) Inapplicable
312(a) 2.02(a)
312(b) 2.02(b)
313 2.03
314(a) 2.04
314(b) Inapplicable
314(c) 2.05
314(d) Inapplicable
314(e) 1.01, 2.05, 3.02
314(f) 2.01, 3.02
315(a) 3.01(d)
315(b) 2.07
315(c) 3.01
315(d) 3.01(d)
316(a) 5.04(a), 2.06
316(b) 5.03
316(c) 2.02
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.01(b)
318(b) 2.01
318(c) 2.01(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 ______, 1996, is executed and delivered by
Entergy Louisiana, Inc., a Louisiana corporation (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 Louisiana Capital
II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of ______, 1996
between the Trustees of the Issuer named therein, Entergy
Louisiana, Inc., as Depositor, and the several Holders (as
defined therein) the Issuer is issuing as of the date hereof
$__________ aggregate liquidation amount of its ____%
Cumulative Quarterly Income Preferred Securities (the
"Preferred Securities") representing preferred undivided
beneficial ownership interests in the Issuer and having the
terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities are to be issued
for sale by the Issuer and the proceeds are to be invested
in $___________ principal amount of Debentures (as defined
in the Trust Agreement); 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
of Debentures, 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.
I DEFINITIONS
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 Trust
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.
"Common Securities" means the securities
representing common undivided beneficial ownership interests
in the assets of the Issuer.
"Event of Default" means a default by the
Guarantor on any of its payment 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 accrued and unpaid
Distributions that are required to be paid on such Preferred
Securities but only if and to the extent that the Property
Trustee has available in the Payment Account funds
sufficient to make such payment, (ii) the redemption price
(the "Redemption Price"), and all accrued 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 Property Trustee has
available in the Payment Account 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 accrued 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 dated as of
_______, 1996, 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 4.01.
"Trust Indenture Act" means the Trust Indenture
Act of 1939, as amended.
II TRUST INDENTURE ACT
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 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 December
31 and June 30 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.
3 Reports by the Guarantee Trustee. Within 60
days after December 31 of each year, commencing December 31,
1996, 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.
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.
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.
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.
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 Trust
Agreement shall have obtained written notice, of such Event
of Default.
8 Conflicting Interests. The Trust 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.
III POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
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 5.04 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 2.06), 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;
iv) 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
vi) 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.
2 Certain Rights of Guarantee Trustee.
a) Subject to the provisions of Section 3.01:
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 3.02(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.
IV GUARANTEE TRUSTEE
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 4.01(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 4.01(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 4.03(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.
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.
3 Appointment, Removal and Resignation of
Guarantee Trustee.
a) Subject to Section 4.03(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
4.03 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 8.03 hereof. Each notice shall include the name of
the successor Guarantee Trustee and the address of its Corporate
Trust Office.
V GUARANTEE
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.
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.
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 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 5.03 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.
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 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).
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.
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 5.03.
VI SUBORDINATION
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 other
liabilities of the Guarantor, including the Debentures, except
those made pari passu or subordinate by their terms, (ii) pari
passu with the most senior preferred or preference stock now or
hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any
preferred or preference stock of any Affiliate of the Guarantor,
and (iii) senior to all common stock of the Guarantor. Nothing
in this Section 6.01 shall apply to claims of, or payments to,
the Guarantee Trustee under or pursuant to Section 4.02 hereof.
VII TERMINATION
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, and
all accrued and unpaid Distributions to the date of redemption,
(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 Trust Agreement upon
liquidation 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.
VIII MISCELLANEOUS
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, the Guarantor
shall not assign its obligations hereunder.
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 66 2/3% in aggregate
liquidation amount of all the outstanding Preferred Securities.
The provisions of Article VI of the Trust 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.
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 Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No: (504) 576-____
Attention: _____________
b) if given to the Issuer, in care of the Administrative
Trustees, at the Issuer's (and the Administrative Trustee's)
address set forth below or such other address as the
Administrative Trustees on behalf of the Issuer may give notice
of to the Holders:
Entergy Louisiana, Capital II
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No: (504) 576-____
Attention: Administrative Trustees
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.
4 Benefit. This Guarantee Agreement is solely
for the benefit of the Holders and, subject to Section 3.01(a),
is not separately transferable from the Preferred Securities.
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 1.01;
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.
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.
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>
THIS GUARANTEE AGREEMENT is executed as of the day
and year first above written.
Entergy Louisiana, Inc.
By:
Name:
Title:
The Bank of New York,
as Guarantee Trustee
By:
Name:
Title:
Exhibit 4.17
AMENDED AND RESTATED
TRUST AGREEMENT
between
ENTERGY LOUISIANA, INC., as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
[___________________],
[______________],
and
[_______________], as Trustees
Dated as of [_________] 1, 1996
ENTERGY LOUISIANA CAPITAL III
<PAGE>
Entergy Louisiana Capital III
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) 8.07
(a)(2) 8.07
(a)(3) 8.09
(a)(4) Not Applicable
(b) 8.08
Section 311(a) 8.13
(b) 8.13
Section 312(a) 5.07
(b) 5.07
(c) 5.07
Section 313(a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 8.14(a)
(d) 8.14(a), 8.14(b)
Section 314(a) Not Applicable
(b) Not Applicable
(c)(1) Not Applicable
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) Not Applicable
Section 315(a) 8.01
(b) 8.02, 8.14(b)
(c) 8.01(a)
(d) 8.01, 8.03
(e) Not Applicable
Section 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) Not Applicable
Section 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.09
Section 318(a) 10.10
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of [_______] 1,
1996, between (i) Entergy Louisiana, Inc., a Louisiana corporation (the
"Depositor"), (ii) The Bank of New York, a banking corporation duly
organized and existing under the laws of New York, as trustee (the
"Property Trustee" and, in its separate capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) The Bank of New York (Delaware), a
banking corporation duly organized under the laws of Delaware, as trustee
(the "Delaware Trustee") and (iv) [__________________], [______________]
and [______________], each an individual, as trustee, and each of whose
address is c/o Entergy Louisiana, Inc., 639 Loyola Avenue, New Orleans,
Louisiana 70113 (each, an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and
the Administrative Trustees referred to collectively as the "Trustees") and
(v) the several Holders, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the Delaware
Trustee and [__________________], as the Administrative Trustee, have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of April __, 1996 (the "Original Trust Agreement"), and
by the execution by the Property Trustee, the Delaware Trustee and
[_________________], as Administrative Trustee and filing with the
Secretary of State of the State of Delaware of the Certificate of Trust,
dated April __, 1996, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware Trustee
and [_________________], as Administrative Trustee, desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures, (ii)
the issuance of the Common Securities by the Trust to the Depositor, (iii)
the issuance of the Preferred Securities by the Trust and (iv) the
appointment of additional Administrative Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of
the other party and for the benefit of the Securityholders, hereby amends
and restates the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE
Defined Terms
Section Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) paid by the Depositor
on a Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals identified
as an "Administrative Trustee" in the preamble to this Trust Agreement
solely in their capacities as Administrative Trustees of the Trust created
hereunder and not in their individual capacities, or such trustee's
successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"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.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a receiver, liqui
dator, assignee, trustee sequestrator or other similar official
of such Person or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under Federal bankruptcy law or
any other applicable Federal or State law, or the consent by it
to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person 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.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized
committee thereof and to be in full force and effect on the date of such
certification, and delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or a Sunday,
(y) a day on which banks in New York, New York are authorized or obligated
by law or executive order to remain closed or (z) a day on which the
Property Trustee's Corporate Trust Office or the Debenture Trustee's
principal corporate trust office is closed for business.
"Certificate of Trust" has the meaning specified in Section
2.07(d).
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit B.
"Corporate Trust Office" means the principal corporate trust
office of the Property Trustee located in New York, New York.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or the
Trust's Affiliates; and (b) any Holder of Trust Securities.
"Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Debenture Issuer" means Entergy Louisiana, Inc., a Louisiana
corporation, in its capacity as issuer of the Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined in
the Subordinated Indenture with respect to the Debentures.
"Debenture Trustee" means The Bank of New York, as trustee under
the Subordinated Indenture.
"Debentures" means the $[________] aggregate principal amount of
the Depositor's [___]% Junior Subordinated Debentures, Series A, Due
[____], issued pursuant to the Subordinated Indenture.
"Definitive Preferred Securities Certificates" means Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the banking corporation identified as
the "Delaware Trustee" in the preamble to this Trust Agreement solely in
its capacity as Delaware Trustee of the Trust formed hereunder and not in
its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(iii) default by the Trust in the payment of any Redemption
Price, plus accumulated and unpaid distributions of any Trust
Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material
respect of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in whose
performance or breach is specifically dealt with in clause (ii)
or (iii), above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered or
certified mail, to the Trust by the Holders of at least 10% in
Liquidation Amount of the Outstanding Preferred Securities 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; or
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
"Exchange Act" has the meaning specified in Section 2.07(c).
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit C, as amended from time to time.
"Expiration Date" shall have the meaning specified in Section
9.01.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and The Bank of New York, a New York banking corporation,
as trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officer, director, shareholder, member, partner, employee,
representative or agent of any Trustee, or any employee or agent of the
Trust or its Affiliates.
"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 Trust 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 the date of original issuance of the Preferred
Securities.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of
which will be used to pay the Redemption Price of such Trust Securities
plus accumulated and unpaid Distributions to the date of such payment and
(ii) Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Debentures are
distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"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 Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 8.16 shall be the principal executive, financial
or accounting officer of the Depositor. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in
this Trust 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.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, but not an employee of the Trust, the Property Trustee, the
Delaware Trustee or the Depositor, and who shall be reasonably acceptable
to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities
theretofore delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative
Trustees for cancellation;
(ii) Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such
Preferred Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been delivered pursuant to this
Trust Agreement, including pursuant to Sections 5.04, 5.05 or
5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities which such
Trustee knows to be so owned shall be so disregarded and (b) the foregoing
shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or
any such Affiliate. Preferred Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Administrative Trustee the pledgee's right so to
act with respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Preferred Securities Certificate as reflected in the records of the
Securities Depository or, if a Securities Depository Participant is not the
beneficial owner, then as reflected in the records of a Person maintaining
an account with such Securities Depository (directly or indirectly), in
accordance with the rules of such Securities Depository.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be The Bank of New
York.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee at The Bank of
New York, or such other banking institution as the Depositor shall select
in its trust department for the benefit of the Securityholders in which all
amounts paid in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to the
Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means a quarterly income preferred security
representing an undivided beneficial interest in the assets of the Trust
having a Liquidation Amount of $25 and having rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit D.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust formed
and continued hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust
Security.
"Redemption Tax Opinion" has the meaning specified in Section
9.04(d).
"Registrar" shall mean the registrar for the Preferred Securities
appointed by the Trust and shall be initially The Bank of New York.
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Responsible Officer," when used with respect to the Property
Trustee means an officer of the Property Trustee assigned by the Property
Trustee to administer its corporate trust matter.
"Securities Depository" shall be The Depository Trust Company.
"Securities Depository Participant" means an institution which
deposits securities with a Securities Depository for holding thereby.
"Securities Register" shall mean the Securities Register
described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Special Event" means either a Tax Event or an Investment Company
Event.
"Subordinated Indenture" means the Indenture, dated as of
[______] 1, 1996, between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust of an opinion of
counsel (which may be counsel to the Depositor or an affiliate but not an
employee thereof and which must be acceptable to the Property Trustee)
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 or any
political subdivision or taxing authority thereof or therein affecting
taxation, or as a result of any official administrative or judicial
decision interpreting or applying such laws or regulations, which amendment
or change is effective or such pronouncement or decision is announced on or
after the date of original issuance of the Preferred Securities under this
Trust Agreement, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Depositor on the Debentures, is
not, or within 90 days of the date thereof, will not be, deductible, in
whole or in part, for United States Federal income tax purposes, or (iii)
the Trust 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.
"Transfer Agent" shall mean one or more transfer agents for the
Preferred Securities appointed by the Trust and shall be initially The Bank
of New York.
"Trust" means the Delaware business trust created by the Original
Trust Agreement and continued hereby and identified on the cover page to
this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all exhibits
hereto, including, for all purposes of this Amended and Restated Trust
Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Amended and Restated Trust Agreement and any such modification,
amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and
rights in respect of the foregoing and any other property and assets for
the time being held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated
as of [_____ __] , 1996, among the Trust, the Depositor and the
underwriters named therein.
ARTICLE
Establishment of the Trust
Section Name. The Trust created hereby shall be known as
"Entergy Louisiana Capital III", in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
Section Office of the Delaware Trustee; Principal Place of
Business. The office of the Delaware Trustee in the State of Delaware is
White Clay Center, Route 273, Newark, Delaware 19711, or at such other
address in Delaware as the Delaware Trustee may designate by written notice
to the Securityholders and the Depositor. The principal place of business
of the Trust is c/o Entergy Louisiana, Inc., 639 Loyola Avenue, New
Orleans, Louisiana 70113.
Section Initial Contribution of Trust Property; Organizational
Expenses. The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the sum of
$10, which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request
of any Trustee, promptly reimburse such Trustee for any such expenses paid
by such Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
Section Issuance of the Preferred Securities. On [____ __],
1996 the Depositor and an Administrative Trustee, on behalf of the Trust,
both executed and delivered the Underwriting Agreement. Contemporaneously
with the execution and delivery of this Trust Agreement, one of the
Administrative Trustees, on behalf of the Trust in accordance with Section
5.02, executed manually and delivered a Preferred Securities Certificate,
registered in the name of the nominee of The Depositary Trust Company,
having an aggregate Liquidation Amount of $[________].
Section Subscription and Purchase of Debentures; Issuance of
the Common Securities. Contemporaneously with the execution and delivery
of this Trust Agreement, the Administrative Trustees, on behalf of the
Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Property Trustee and having an aggregate
principal amount equal to $[________], and, in satisfaction of the purchase
price for such Debentures, (x) one of the Administrative Trustees, on
behalf of the Trust, shall execute and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of [_____] Common Securities having an aggregate
Liquidation Amount of $[_______], and (y) the Property Trustee, on behalf
of the Trust, shall deliver to the Depositor the sum of $[________]
representing the proceeds from the sale of the Preferred Securities
pursuant to the Underwriting Agreement.
Section Declaration of Trust; Appointment of Additional
Administrative Trustees. The exclusive purposes and functions of the
Trust are (i) to issue Trust Securities and invest the proceeds thereof
in Debentures, and (ii) to engage in those activities necessary,
convenient or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the
Securityholders. The Trustees shall have all rights, powers and duties
set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. Anything in this Trust
Agreement to the contrary notwithstanding the Delaware Trustee shall not
be entitled to exercise any powers, nor shall the Delaware Trustee have
any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be
one of the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act.
Section Authorization to Enter into Certain Transactions.
The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth
in paragraph (b) of this Section and Article VIII and in accordance with
the following provisions (A) and (B), the Trustees shall have the
authority to enter into all transactions and agreements determined by
the Trustees to be appropriate in exercising the authority, express or
implied, otherwise granted to the Trustees under this Trust Agreement,
and to perform all acts in furtherance thereof, including without
limitation, the following:
As among the Trustees, the Administrative Trustees shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
the issuance and sale of the Trust Securities;
without the consent of any Person, to cause the Trust to
enter into and to execute, deliver and perform on behalf of the
Trust, the Expense Agreement, and such agreements as may be
necessary or desirable in connection with the consummation of the
Underwriting Agreement (such execution to be by the
Administrative Trustees or any one of them);
to qualify the Trust to do business in any jurisdiction as
may be necessary or desirable;
the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;
the appointments of a Paying Agent, a Transfer Agent and a
Registrar in accordance with this Trust Agreement (subject to
Section 5.09);
registering transfers of the Trust Securities in accordance
with this Trust Agreement; and
the taking of any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is
necessary or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of
the effect of any such action on any particular Securityholder).
As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect
to the following ministerial matters:
the establishment of the Payment Account;
the receipt of the Debentures;
the deposit of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the terms of
this Trust Agreement;
the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust
Agreement;
the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
as provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the execution of the
certificate of cancellation to be prepared and filed by the
Administrative Trustees with the Secretary of State of the State
of Delaware; and
the taking of any ministerial action incidental to the
foregoing as the Property Trustee may from time to time determine
is necessary or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.07(a)(B), the Property Trustee shall
have none of the duties, powers or authority of the Administrative Trustee
set forth in Section 2.07(a)(A) or the Depositor set forth in Section
2.07(c). The Property Trustee shall have the power and authority to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders of the
Trust Securities, in its discretion proceed to protect and enforce its
rights as holder of the Debentures subject to the rights of the Holder
pursuant to the terms of this Trust Agreement.
So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein
or contemplated hereby. In particular, the Trustees shall not (i)
acquire any investments or engage in any activities not authorized by
this Trust Agreement, (ii) sell, assign, transfer, exchange, pledge, set-
off or otherwise dispose of any of the Trust Property or interests
therein, including to Securityholders, except as expressly provided
herein, (iii) take any action that would cause the Trust to fail or
cease to qualify as a "grantor trust" for United States Federal income
tax purposes and not as an association taxable as a corporation, (iv)
incur any indebtedness for borrowed money or (v) take or consent to any
action that would result in the placement of a Lien on any of the Trust
Property. The Trustees shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
In connection with the issue of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust
with respect to, or effect on behalf of the Trust, the following (and
any actions taken by the Depositor in furtherance of the following prior
to the date of this Trust Agreement are hereby ratified and confirmed in
all respects):
to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form S-3 in relation to
the Preferred Securities, including any amendments thereto;
to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and advise the
Trustees of actions they must take on behalf of the Trust, and
prepare for execution and filing any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor
deems necessary or advisable in order to comply with the
applicable laws of any such States;
to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or
the Nasdaq National Market for listing upon notice of issuance of
any Preferred Securities and to file or cause the Administrative
Trustees to file thereafter with such exchange such notifications
and documents as may be necessary from time to time to maintain
such listing;
to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of
the Securities Exchange Act of 1934, as amended ("Exchange Act"),
including any amendments thereto;
to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may be
necessary or desirable in connection with the consummation
thereof;
to select the investment banker or bankers to act as
underwriters with respect to the offer and sale by the Trust of
Preferred Securities ("Offer") and negotiate the terms of an
Underwriting Agreement and pricing agreement providing for the
Offer; and
to take any other actions necessary or desirable to carry
out any of the foregoing activities.
Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that the Trust will not
be deemed to be an "investment company" required to be registered under
the Investment Company Act of 1940, as amended, or classified other than
as a "grantor trust" for United States Federal income tax purposes and
not as an association taxable as a corporation and so that the
Debentures will be treated as indebtedness of the Depositor for United
States Federal income tax purposes. In this connection, subject to the
provisions of Section 10.03, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with
applicable law, the certificate of trust filed with the Secretary of
State of the State of Delaware with respect to the Trust (as amended or
restated from time to time, the "Certificate of Trust") or this Trust
Agreement, that each of the Depositor and the Administrative Trustees
determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially adversely affect
the interests of the Holders of the Preferred Securities.
Section Assets of Trust. The assets of the Trust shall consist
of the Trust Property.
Section Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property
Trustee for the benefit of the Securityholders in accordance with this
Trust Agreement.
ARTICLE
Payment Account
Section Payment Account.
On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustees and the Paying
Agent appointed by the Administrative Trustees shall have exclusive
control and sole right of withdrawal with respect to the Payment Account
for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account
shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Holders of Trust Securities and for
distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts
held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
ARTICLE
Distributions; Redemption
Section Distributions.
Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue
from the Closing Date, and, except in the event that the Depositor
exercises its right to extend the interest payment period for the
Debentures pursuant to Section 311 of the Subordinated Indenture, shall
be payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on [_______ __], 1996. If any
date on which Distributions are otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution
shall 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 is in the next succeeding calendar
year, payment of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as
if made on such date (each date on which distributions are payable in
accordance with this Section 4.01(a) a "Distribution Date").
Distributions payable on the Trust Securities shall be fixed
at a rate of [____]% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full quarterly
period shall be computed on the basis of twelve 30-day months and a 360-
day year and for any period shorter than a full month, on the basis of
the actual number of days elapsed. If the interest payment period for
the Debentures is extended pursuant to Section 311 of the Subordinated
Indenture, then Distributions on the Preferred Securities will be
deferred for the period equal to the extension of the interest payment
period for the Debentures and the rate per annum at which Distributions
on the Trust Securities accumulate shall be increased by an amount such
that the aggregate amount of Distributions that accumulate on all Trust
Securities during any such extended interest payment period 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 during any
such extended interest payment period on the Debentures. The amount of
Distributions payable for any period shall include the Additional
Amounts, if any.
Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the extent
that the Trust has funds available in the Payment Account for the
payment of such Distributions.
Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear
on the Securities Register for the Trust Securities on the relevant
record date, which shall be 15 days prior to the relevant Distribution
Date.
Section Redemption.
On each Debenture Redemption Date and at the maturity date
for the Debentures (as defined in the Subordinated Indenture), the
Property Trustee will be required to redeem a Like Amount of Trust
Securities at the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment.
Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust
Securities to be redeemed, at such Holder's address appearing in the
Security Register. All notices of redemption or liquidation shall
state:
the Redemption Date;
the Redemption Price and the amount of accumulated and
unpaid Dividends to be paid on the Redemption Date;
the CUSIP number;
if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of
the particular Trust Securities to be redeemed; and
that on the Redemption Date the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment
will become due and payable upon each such Trust Security to be
redeemed and that interest thereon will cease to accrue on and
after said date.
The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price plus accumulated and
unpaid Distributions to the date of such payment shall be deemed payable
on each Redemption Date only to the extent that the Trust has funds
immediately available in the Payment Account for such payment.
If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York time,
on the Redemption Date, subject to Section 4.02(c), the Property Trustee
shall irrevocably deposit with the Paying Agent (or Securities
Depository, in the event the Preferred Securities are book-entry only)
funds sufficient to pay the applicable Redemption Price plus accumulated
and unpaid Distributions to the date of such payment and will give the
Paying Agent irrevocable instructions and authority to pay the
Redemption Price plus accumulated and unpaid Distributions to the date
of such payment to the Holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the redemption date for any Trust Securities
called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds
deposited as required, then on the Redemption Date, all rights of
Securityholders holding Trust Securities so called for redemption will
cease, except the right of such Securityholders to receive the
Redemption Price plus accumulated and unpaid Distributions to the date
of such payment, but without interest thereon, and such Trust Securities
will cease to be outstanding. In the event that any Redemption Date is
not a Business Day, then payment of the Redemption Price payable on such
date plus accumulated and unpaid Distributions to such date shall 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). In the event
that payment of the Redemption Price plus accumulated and unpaid
Distributions in respect of any Trust Securities called for redemption
is improperly withheld or refused and not paid either by the Trust or by
the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue, at the then applicable rate, from
the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price plus accumulated and unpaid
Distributions is actually paid, in which case the actual payment date
will be deemed the date fixed for redemption for purposes of calculating
the Redemption Price plus accumulated and unpaid Distributions to such
date.
Payment of the Redemption Price on the Trust Securities
shall be made to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which
shall be the fifteenth day prior to the Redemption Date.
If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated 3% to the Common
Securities and 97% to the Preferred Securities. The particular
Preferred Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption,
by such method as the Property Trustee shall deem fair and appropriate
and which may provide for the selection for a redemption of portions
(equal to $25 or integral multiples thereof) of the Liquidation Amount
of Preferred Securities of a denomination larger than $25. The Property
Trustee shall promptly notify the Transfer Agent and Registrar in
writing of the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this
Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the
case of any Preferred Securities redeemed or to be redeemed only in
part, to the portion of the Liquidation Amount of Preferred Securities
which has been or is to be redeemed.
Section Subordination of Common Securities. Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price plus accumulated and unpaid distributions of, the Trust
Securities, as applicable, shall be made pro rata based on the
Liquidation Amount of the Trust Securities; provided, however, that if
on any Distribution Date or Redemption Date a Debenture Event of Default
shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or Redemption Price
of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the
Redemption Price plus accumulated and unpaid Distributions the full
amount of such Redemption Price plus accumulated and unpaid
Distributions on all Outstanding Preferred Securities, shall have been
made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash
of all Distributions (including Additional Amounts, if applicable) on,
or Redemption Price plus accumulated and unpaid Distributions of,
Preferred Securities then due and payable.
In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the Holder of Common
Securities will be deemed to have waived any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Trust Agreement
with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred Securities will have
the right to direct the Property Trustee to act on their behalf.
Section Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Securities
Depository, such Distributions shall be made to the Securities Depository,
which shall credit the relevant Persons' accounts at such Securities
Depository on the applicable distribution dates. Payments in respect of
the Common Securities shall be made in such manner as shall be mutually
agreed between the Administrative Trustees and the Holder of the Common
Securities.
Section Tax Returns and Reports. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense and
direction, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of
the Trust. In this regard, the Administrative Trustees shall (a) prepare
and file (or cause to be prepared or filed) the Internal Revenue Service
Form 1041 (or any successor form) required to be filed in respect of the
Trust in each taxable year of the Trust and (b) prepare and furnish (or
cause to be prepared and furnished) to each Securityholder the related
Internal Revenue Service Form 1099, or any successor form or the
information required to be provided on such form. The Administrative
Trustees shall provide the Depositor and the Property Trustee with a copy
of all such returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States Federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the
Trust Securities.
Section Payments under Indenture. Any amount payable hereunder
to any Holder of Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant to Section
808 of the Subordinated Indenture. Notwithstanding the provisions
hereunder to the contrary, Securityholders acknowledge that any Holder of
Preferred Securities that receives payment under Section 808 of the
Subordinated Indenture may receive amounts greater than the amount such
Holder may be entitled to receive pursuant to the other provisions of this
Trust Agreement.
ARTICLE
Trust Securities Certificates
Section Initial Ownership. Upon the creation of the Trust by
the contribution by the Depositor pursuant to Section 2.03 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
Section The Trust Securities Certificates. The Trust
Securities Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. Subject to Section 2.04 relating to
the original issuance of the Preferred Securities Certificate registered in
the name of the nominee of The Depository Trust Company, the Trust
Securities Certificates shall be executed on behalf of the Trust by manual
or facsimile signature of at least one Administrative Trustee and, if
executed on behalf of the Trust by facsimile signature, countersigned by a
Transfer Agent or its agent. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust and, if
executed on behalf of the Trust by facsimile signature, countersigned by a
Transfer Agent or its agent, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the delivery of
such Trust Securities Certificates or did not hold such offices at the date
of delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled
to the rights and subject to the obligations of a Securityholder hereunder,
upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Section 5.04 or 5.11.
Section Execution and Delivery of Trust Securities
Certificates. On the Closing Date, the Administrative Trustees shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.04 and 2.05, to be executed on behalf of the Trust,
and in the case of Preferred Securities executed by facsimile signature,
countersigned by a Transfer Agent or its agent, and delivered to or upon
the written order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further corporate action
by the Depositor, in authorized denominations. The Depositor agrees to
indemnify, defend and hold each Transfer Agent harmless against any and all
costs and liabilities incurred without negligence arising out of or in
connection with any such countersigning by it.
Section Registration of Transfer and Exchange of Preferred
Securities Certificates. The Registrar shall keep or cause to be kept, at
its principal corporate office, a Securities Register in which, subject to
such reasonable regulations as it may prescribe, the Registrar shall
provide for the registration of Preferred Securities Certificates and the
Common Securities Certificates (subject to Section 5.10 in the case of the
Common Securities Certificates) and registration of transfers and exchanges
of Preferred Securities Certificates as herein provided.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to
Section 5.08, the Administrative Trustees, or any one of them, shall
execute on behalf of the Trust by manual or facsimile signature and, if
executed on behalf of the Trust by facsimile signature, cause a Transfer
Agent or its agent to countersign and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation
Amount. At the option of a Holder, Preferred Securities Certificates may
be exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount
upon surrender of the Preferred Securities Certificates to be exchanged at
the office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative Trustees
and a Transfer Agent duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Administrative Trustees in accordance with
customary practice. The Trust shall not be required to (i) issue, register
the transfer of, or exchange any Preferred Securities during a period
beginning at the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities called for
redemption and ending at the close of business on the day of such mailing
or (ii) register the transfer of or exchange any Preferred Securities so
selected for redemption, in whole or in part, except the unredeemed portion
of any such Preferred Securities being redeemed in part.
No service charge shall be made for any registration of transfer
or exchange of Preferred Securities Certificates, but a Transfer Agent may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Preferred Securities Certificates.
Section Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If any mutilated Trust Securities Certificate
shall be surrendered to a Transfer Agent, or if a Transfer Agent shall
receive evidence to its satisfaction of the destruction, loss or theft
of any Trust Securities Certificate and there shall be delivered to the
Transfer Agent and the Administrative Trustees such security or
indemnity as may be required by them to save each of them and the
Depositor harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of
the Trust, shall execute by manual or facsimile signature and, if
execution on behalf of the Trust is by facsimile signature,
countersigned by a Transfer Agent; and the Administrative Trustees, or
any one of them, shall make available for delivery, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any
new Trust Securities Certificate under this Section, the Administrative
Trustees or the Transfer Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive
evidence of an ownership interest in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of
transfer, the Trustees and the Registrar shall be entitled to treat the
Person in whose name any Trust Securities Certificate shall be registered
in the Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving Distributions and for all other
purposes whatsoever, and neither the Trustees nor the Registrar shall be
bound by any notice to the contrary.
Section Access to List of Securityholders' Names and Addresses.
The Administrative Trustees shall furnish or cause to be furnished (x) to
the Depositor, within 15 days after receipt by any Administrative Trustee
of a request therefor from the Depositor in writing and (y) to the Property
Trustee, promptly after receipt by any Administrative Trustee of a request
therefor from the Property Trustee in writing in order to enable the
Property Trustee to discharge its obligations under this Trust Agreement, a
list, in such form as the Depositor or the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of the most
recent record date. If Holders of Trust Securities Certificates evidencing
ownership at such time and for the previous six months not less than 25% of
the outstanding aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the applicants
desire to communicate with other Securityholders with respect to their
rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the
Administrative Trustees shall, within five Business Days after the receipt
of such application, afford such applicants access during normal business
hours to the current list of Securityholders. Each Holder, by receiving
and holding a Trust Securities Certificate, shall be deemed to have agreed
not to hold either the Depositor or the Administrative Trustees accountable
by reason of the disclosure of its name and address, regardless of the
source from which such information was derived.
Section Maintenance of Office or Agency. The Company shall or
shall cause the Transfer Agent to maintain in the Borough of Manhattan, The
City of New York, an office or offices or agency or agencies where
Preferred Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company
or the Transfer Agent in respect of the Trust Securities Certificates may
be served. The Company initially designates The Bank of New York at its
principal corporate trust office for such purposes. The Company shall or
shall cause the Transfer Agent to give prompt written notice to the
Depositor, the Property Trustee and to the Securityholders of any change in
any such office or agency.
Section Appointment of Paying Agent. The Paying Agent shall
make distributions to Securityholders from the Payment Account and shall
report the amounts of such distributions to the Administrative Trustees and
the Property Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
Distributions referred to above. The Property Trustee shall be entitled to
rely upon a certificate of the Paying Agent stating in effect the amount of
such funds so to be withdrawn and that same are to be applied by the Paying
Agent in accordance with this Section 5.09. The Administrative Trustees or
any one of them may revoke such power and remove the Paying Agent if the
Administrative Trustee or any one of them determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under
this Trust Agreement in any material respect. The Paying Agent may choose
any co-paying agent that is acceptable to the Administrative Trustees and
the Depositor. The Paying Agent shall be permitted to resign upon 30 days'
written notice to the Administrative Trustees and the Depositor. In the
event of the removal or resignation of the Paying Agent, the Administrative
Trustees shall appoint a successor that is reasonably acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a
bank, trust company or an Affiliate of the Depositor). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Administrative Trustees to execute and deliver to
the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold all sums,
if any, held by it for payment to the Securityholders in trust for the
benefit of the Securityholders entitled thereto until such sums shall be
paid to such Securityholders. The Paying Agent shall return all unclaimed
funds to the Property Trustee and upon resignation or removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall
apply to the Paying Agent appointed hereunder, and the Paying Agent shall
be bound by the requirements with respect to paying agents of securities
issued pursuant to the Trust Indenture Act. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
Section 0. Ownership of Common Securities by Depositor. On the
Closing Date and on each other date provided for in Section 2.05, the
Depositor shall acquire, and thereafter retain, beneficial and record
ownership of the Common Securities. Any attempted transfer of the Common
Securities shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE". Common Securities
Certificates representing the Common Securities shall be issued to the
Depositor in the form of a typewritten or definitive Common Securities
Certificate.
Section Definitive Preferred Securities Certificates. Upon
initial issuance of the Preferred Securities the Definitive Preferred
Securities Certificates shall be typewritten, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable
to the Administrative Trustees, as evidenced by the execution thereof by
the Administrative Trustees, or any one of them. The Administrative
Trustees, or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature, and, if executed by facsimile on behalf of
the Trust, countersigned by the Transfer Agent or its agent the Definitive
Preferred Securities Certificates initially in accordance with the
instructions of the Depositor. Neither the Transfer Agent nor any of the
Administrative Trustees 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.
Section Book-Entry System. Some or all of the Preferred
Securities may be registered in the name of the Securities Depository or a
nominee therefor, and held in the custody of the Securities Depository. In
such event, a single certificate will be issued and delivered to the
Securities Depository for such Preferred Securities, in which case the
Owners of such Preferred Securities will not receive physical delivery of
certificates for Preferred Securities. Except as provided herein, all
transfers of beneficial ownership interests in such Preferred Securities
will be made by book-entry only, and no investor or other party purchasing,
selling or otherwise transferring beneficial ownership of the Preferred
Securities will receive, hold or deliver any certificate for Preferred
Securities. The Depositor, the Trustees and the Paying Agent will
recognize the Securities Depository or its nominee as the Holder of
Preferred Securities for all purposes, including notices and voting.
The Administrative Trustees, at the direction and expense of the
Depositor, may from time to time appoint a Securities Depository or a
successor thereto and enter into a letter of representations or other
agreement with such Securities Depository to establish procedures with
respect to the Preferred Securities. Any Securities Depository shall be a
Clearing Agency.
The Depositor and the Trustees covenant and agree to meet the
requirements of a Securities Depository for the Preferred Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred
Securities.
Whenever the beneficial ownership of any Preferred Securities is
determined through the books of a Securities Depository, the requirements
in this Trust Agreement of holding, delivering or transferring such
Preferred Securities shall be deemed modified with respect to such
Preferred Securities to meet the requirements of the Securities Depository
with respect to actions of the Trustees, the Depositor and the Paying
Agent. Any provisions hereof permitting or requiring delivery of such
Preferred Securities shall, while such Preferred Securities are in a book-
entry system, be satisfied by the notation on the books of the Securities
Depository in accordance with applicable state law.
Section Rights of Securityholders. The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its
capacity as such) in accordance with Section 2.09, and the Securityholders
shall not have any right or title therein other than an undivided
beneficial interest in the assets of the Trust conferred by their Trust
Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust Agreement. The
Preferred Securities shall have no preemptive or similar rights and when
issued and delivered to Securityholders against payment of the purchase
price therefor will be fully paid and nonassessable interests in the Trust.
ARTICLE
Acts of Securityholders; Meetings; Voting
Section Limitations on Voting Rights.
Except as provided in this Section 6.01, in Section 10.03
and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained
in the terms of the Trust Securities Certificates, be construed so as to
constitute the Securityholders from time to time as partners or members
of an association. If the Property Trustee fails to enforce its rights
under the Debentures or this Trust Agreement, a Holder of Preferred
Securities may institute a legal proceeding directly against the
Depositor to enforce the Property Trustee's rights under the Debentures
or this Trust Agreement, to the fullest extent permitted by law, without
first instituting any legal proceeding against the Property Trustee or
any other person. Notwithstanding the foregoing, a Holder of Preferred
Securities may directly institute a proceeding for enforcement of
payment to such Holder directly of principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation
preference amount of the Preferred Securities of such Holder on or after
the due dates specified in the Debentures.
So long as any Debentures are held by the Property Trustee,
the Trustees 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 such Debentures, (ii) waive any past default
which is waivable under Section 813 of the Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal
of all the Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Subordinated Indenture or
the Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of at least 66 2/3% of
the aggregate Liquidation Amount of the Outstanding Preferred
Securities; provided, however, that where a consent under the
Subordinated Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by any
Trustee without the prior written consent of each holder of Preferred
Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Preferred Securities, except
pursuant to a subsequent vote of the Preferred Securities. The Property
Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to
the effect that the Trust will be classified as a "grantor trust" and
not as an association taxable as a corporation for United States Federal
income tax purposes on account of such action.
If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that
would materially adversely affect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the
Trust Agreement or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities as a
class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of
the Holders of at least 66 2/3 in Liquidation Amount of the Outstanding
Preferred Securities. No amendment to this Trust Agreement may be made
if, as a result of such amendment, the Trust would not be classified as
a "grantor trust" but as an association taxable as a corporation for
United States Federal income tax purposes.
Section Notice of Meetings. Notice of all meetings of the
Holders of Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Administrative Trustees pursuant to Section
10.08 to each Holder of a Preferred Security, at his registered address, at
least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered
whether or not stated in the notice of the meeting. Any adjourned meeting
may be held as adjourned without further notice.
Section Meetings of Holders of Preferred Securities. No annual
meeting of Securityholders is required to be held. The Administrative
Trustees, however, shall call a meeting of Securityholders to vote on any
matter upon the written request of the Holders of 25% of the then
Outstanding Preferred Securities (based upon their aggregate Liquidation
Amount) and may, at any time in their discretion, call a meeting of Holders
of Preferred Securities to vote on any matters as to which the Holders of
Preferred Securities are entitled to vote.
Holders of 50% of the then Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount), present in person or by
proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Holders of Preferred Securities present, in person or by proxy, holding
more than the lesser of (x) 66 2/3% of the then Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount) held by the
Holders of then Outstanding Preferred Securities present, either in person
or by proxy, at such meeting and (y) 50% of the Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount) shall constitute
the action of the Securityholders, unless this Trust Agreement requires a
greater number of affirmative votes.
Section Voting Rights. Securityholders shall be entitled to
one vote for each $25 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on
file with the Administrative Trustees, or with such other officer or agent
of the Trust as the Administrative Trustees may direct, for verification
prior to the time at which such vote shall be taken. Only Securityholders
of record shall be entitled to vote. When Trust Securities are held
jointly by several Persons, any one of them may vote at any meeting in
person or by proxy in respect of such Trust Securities, but if more than
one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities.
A proxy purporting to be executed by or on behalf of a Securityholder shall
be deemed valid unless challenged at or prior to its exercise, or, if
earlier, until eleven months after it is sent and the burden of proving
invalidity shall rest on the challenger.
Section Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding
Trust Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any express provision of this
Trust Agreement) shall consent to the action in writing (based upon their
aggregate Liquidation Amount).
Section Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of
any other action, the Administrative Trustees may from time to time fix a
date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of Distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
or permitted by this Trust Agreement to be given, made or taken by
Securityholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Securityholders in person or
by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to the Administrative Trustees. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Securityholders signing
such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
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 acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. 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. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which any
Trustee deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the
Securityholder of every Trust 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 Trustees or the Trust
in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any part
of such Liquidation Amount.
If any dispute shall arise between or among the Securityholders
and the Administrative Trustees with respect to the authenticity, validity
or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Securityholder or Trustee under this
Article VI, then the determination of such matter by the Property Trustee
shall be conclusive with respect to such matter.
Section Inspection of Records. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to
the Administrative Trustees and the Property Trustee, the other records of
the Trust shall be open to inspection by Securityholders during normal
business hours for any purpose reasonably related to such Securityholder's
interest as a Securityholder.
ARTICLE
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section Property [and Delaware] Trustee. The Property [and
Delaware] Trustee hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
the Property [and Delaware] Trustee is a banking corporation
or trust company duly organized, validly existing and in good standing
under the laws of the State of [New York] [Delaware];
the Property [and Delaware] Trustee has full corporate
power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of
this Trust Agreement;
this Trust Agreement has been duly authorized, executed and
delivered by the Property [and Delaware] Trustee and constitutes the
valid and legally binding agreement of the Property and Delaware]
Trustee enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
the execution, delivery and performance by the Property [and
Delaware] Trustee of this Trust Agreement will not violate, conflict
with or constitute a breach of the Property [and Delaware] Trustee's
charter or by-laws; and
neither the authorization, execution or delivery by the
Property [and Delaware] Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property [and Delaware]
Trustee contemplated herein require the consent or approval of, the
giving of notice to, the registration with or the taking of any other
action with respect to any governmental authority or agency under any
existing Federal or [New York] [Delaware] law governing the banking or
trust powers of the Property Trustee.
[Section Delaware Trustee. The Delaware Trustee represents and
warrants for the benefit of the Depositor and the Securityholders that:
the Delaware Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of Delaware;
the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement will not violate the Delaware Trustee's
charter or by-laws; and
neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of
the transactions by the Delaware Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with
or the taking of any other action with respect to any governmental
authority or agency under any existing Federal or Delaware law governing
the banking or trust powers of the Delaware Trustee.]
ARTICLE
The Trustees
Section Certain Duties and Responsibilities.
The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property
Trustee, the Trust Indenture Act, and no implied covenants or
obligations shall be read into this Trust Agreement against any of the
Trustees. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require any of the Trustees 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. Notwithstanding anything contained in
this Trust Agreement to the contrary, the duties and responsibilities of
the Property Trustee under this Trust Agreement shall be subject to the
protections, exculpations and limitations on liability afforded to the
Property Trustee under the provisions of the Trust Indenture Act and, to
the extent applicable, Rule 3A-7 under the Investment Company Act of
1940, as amended, or any successor rule thereunder. Whether or not
therein expressly so provided, every provision of this Trust Agreement
relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this
Section.
All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the income
and proceeds from the Trust Property and only to the extent that there
shall be sufficient income or proceeds from the Trust Property to enable
the Property Trustee or Paying Agent to make payments in accordance with
the terms hereof. Each Securityholder, by its acceptance of a Trust
Security, agrees that it will look solely to the income and proceeds
from the Trust Property to the extent available for distribution to it
as herein provided and that the Trustees are not personally liable to it
for any amount distributable in respect of any Trust Security or for any
other liability in respect of any Trust Security. This Section 8.01(b)
does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property
Trustee, in the Trust Indenture Act.
All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust
Property shall be to deal with such property in a similar manner
as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement, the
Trust Indenture Act and, to the extent applicable, Rule 3a-7
under the Investment Company Act of 1940, as amended;
the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency
of the Trust Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with
the Depositor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account established by the Property Trustee pursuant to
this Trust Agreement and except to the extent otherwise required
by law; and
the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Administrative Trustees or the
Depositor.
Section Notice of Defaults. Within five Business Days after
the occurrence of any Event of Default, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.08, notice
of any default known to the Property Trustee to the Securityholders and the
Depositor, unless such default shall have been cured or waived. 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 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01 and except as provided by law:
the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of auditors
or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, 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;
if (A) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative
courses of action or (B) in construing any of the provisions in
this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the application
of any provision of this Trust Agreement, then, except as to any
matter as to which the Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the Property
Trustee shall deliver a notice to the Depositor requesting
written instructions of the Depositor as to the course of action
to be taken. The Property Trustee shall take such action, or
refrain from taking such action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking, by the
Depositor; provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which
to the extent practicable shall not be less than two Business
Days), it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Trust
Agreement as it shall deem advisable and in the best interests of
the Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or
willful misconduct;
whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence be 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
Depositor or the Administrative Trustees;
the Property 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;
the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying with such
request or direction;
the Property 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, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, unless requested in
writing to do so by one or more Securityholders, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Property Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Depositor personally or by
agent or attorney;
the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through its agents or attorneys, and the Property
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, provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect
to selection of any agent or attorney appointed by it hereunder;
the Property 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 Trust
Agreement;
the Property Trustee shall not be charged with knowledge of
any default or Event of Default with respect to the Trust
Securities unless either (1) a Responsible Officer of the
Property Trustee shall have actual knowledge of the default or
Event of Default or (2) written notice of such default or Event
of Default shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder of the
Trust Securities;
no provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property 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 Property 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; and no permissive or discretionary power or authority
available to the Property Trustee shall be construed to be a
duty;
no provision of this Trust Agreement shall require the
Property 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 Property 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 Trust Agreement or adequate
indemnity against such risk or liability is not reasonably
assured to it;
the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any tax or securities)
(or any rerecording, refiling or registration thereof);
the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction; and
whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder the Property Trustee (i) may request
instructions from the Holders of the Trust Securities, which
instructions may only be given by the Holders of the same
proportion of Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of
this Trust Agreement in respect of such remedies, rights or
actions, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received,
and (iii) shall be protected in acting in accordance with such
instructions.
Section Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not
assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust
or any part thereof or as to the title of the Trust thereto or as to the
security afforded thereby or hereby, or as to the validity or genuineness
of any securities at any time pledged and deposited with any Trustees
hereunder, nor as to the validity or sufficiency of this Trust Agreement or
the Trust Securities. The Trustees shall not be accountable for the use or
application by the Trust of the proceeds of the Trust Securities in
accordance with Section 2.05.
Section May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity,
may become the owner or pledgee of Trust Securities and may otherwise deal
with the Trust with the same rights it would have if it were not a Trustee
or such other agent.
Section Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustees in accordance
with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence (gross negligence, in the case of any
Administrative Trustee), bad faith or willful misconduct; and
(3) to indemnify each Trustee for, and to hold each Trustee
harmless against, any and all loss, damage, claims, liability or
expense incurred without negligence (gross negligence, in the case of
any Administrative Trustee), bad faith or willful misconduct on its
part, arising out of or in connection with the acceptance or
administration of this Trust Agreement, 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.
As security for the performance of the obligations of the
Depositor under this Section, each of the Trustees shall have a lien prior
to the Trust Securities upon all property and funds held or collected by
such Trustee as such, except funds held in trust for the payment of
Distributions on the Trust Securities.
The provisions of this Section shall survive the termination of
this Trust Agreement.
Section Certain Trustees Required; Eligibility. There
shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be a Person that has a
combined capital and surplus of at least $50,000,000. If any such
Person publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of
such Person 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 Property Trustee with respect to the Trust Securities 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 VIII.
There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of
age or a legal entity that shall act through one or more persons
authorized to bind such entity.
There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the
State of Delaware or (ii) a legal entity with its principal place of
business in the State of Delaware that otherwise meets the
requirements of applicable Delaware law and that shall act through one
or more persons authorized to bind such entity.
Section Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Trust Agreement. The Subordinated Indenture and the
Guarantee Agreement shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
Section Co-Trustees and Separate Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any
part of the Trust Property may at the time be located, the Depositor and
the Property Trustee shall have power to appoint, and upon the written
request of the Property Trustee, the Depositor shall for such purpose join
with the Property Trustee in the execution, delivery, and performance of
all instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Property Trustee either to act as co-trustee,
jointly with the Property Trustee, of all or any part of such Trust
Property, or to act as separate trustee of any such property, 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 Depositor does not join in
such appointment within 15 days after the receipt by it of a request so to
do, or in case an Event of Default under the Subordinated Indenture has
occurred and is continuing, the Property Trustee alone shall have power to
make such appointment.
Should any written instrument from the Depositor be required by
any co-trustee or separate trustee so appointed for more fully confirming
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 Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(1) The Trust Securities shall be executed 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 Trustees designated for
such purpose hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby conferred
or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Property Trustee or by the Property
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 Property 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.
(3) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 8.09, and, in case an Event of
Default under the Subordinated Indenture has occurred and is
continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written request of
the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery, and performance 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.
(4) 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.
(5) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 0. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (as the case may be, the "Relevant
Trustee") and no appointment of a successor Relevant Trustee pursuant to
this Article shall become effective until the acceptance of appointment by
the successor Relevant Trustee in accordance with the applicable
requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving written
notice thereof to the Securityholders. If the instrument of acceptance by
a successor Relevant Trustee required by Section 8.11 shall not have been
delivered to the Relevant Trustee within 30 days after the giving of such
notice of resignation, the resigning Relevant Trustee may petition any
court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the
Common Securityholder. If a Debenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at such time by Act
of the Securityholders of a majority of the aggregate Liquidation Amount of
the Outstanding Preferred Securities, delivered to the Relevant Trustee (in
its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Relevant Trustee at a time when no
Debenture Event of Default shall have occurred and be continuing, the
Common Securityholder, by Act of the Common Securityholder delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and the retiring Relevant Trustee shall comply with
the applicable requirements of Section 8.11. If the Relevant Trustee shall
resign, be removed or become incapable of continuing to act as the Relevant
Trustee at a time when a Debenture Event of Default shall have occurred and
be continuing, the Preferred Securityholders, by Act of the Preferred
Securityholders of a majority in Liquidation Amount of the Outstanding
Preferred Securities delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and the Relevant
Trustee shall comply with the applicable requirements of Section 8.11. If
no successor Relevant Trustee shall have been so appointed by the Common
Securityholders or the Preferred Securityholders and accepted appointment
in the manner required by Section 8.11, any Securityholder who has been a
Securityholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each appointment
of a successor Trustee to all Securityholders in the manner provided in
Section 10.08 and shall give notice to the Depositor. Each notice shall
include the name and address of the successor Relevant Trustee and, in the
case of the Property Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes incompetent or
incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (i) the unanimous act of remaining
Administrative Trustees if there are at least two of them or (ii) otherwise
by the Depositor (with the successor in each case being an individual who
satisfies the eligibility requirements for Administrative Trustees or
Delaware Trustee, as the case may be, set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes that any
Administrative Trustee who is a natural person has become incompetent or
incapacitated, the Depositor, by notice to the remaining Trustees, may
terminate the status of such Person as an Administrative Trustee (in which
case the vacancy so created will be filled in accordance with the preceding
sentence).
Section Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Trustee shall execute and deliver an
amendment hereto wherein each successor Relevant 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 Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the
Trust and (2) shall add to or change any of the provisions of this Trust
Agreement as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Relevant Trustee,
it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees of the same trust and that
each such Relevant Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Relevant Trustee and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor
Relevant Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Trustee all Trust Property, all proceeds thereof
and money held by such retiring Relevant Trustee hereunder with respect to
the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the retiring
Relevant Trustee shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee all
such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article VIII.
Section Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee or the Delaware
Trustee or any Administrative Trustee or any Trustee that is not a natural
person may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which
such Relevant Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Relevant Trustee,
shall be the successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article VIII,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto.
Section Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee shall be or become a creditor of
the Depositor or the Trust (or any other obligor upon the Debentures or the
Trust Securities), the Property Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor).
Section Reports by Property Trustee. the Property Trustee
shall transmit to Securityholders such reports concerning the Property
Trustee and its actions under this Trust Agreement as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. Such of those reports as are required to be
transmitted by the Property Trustee pursuant to Section 313(a) of the
Trust Indenture Act shall be so transmitted within 60 days after
[________ __] of each year, commencing [_______ __], 199[_].
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each
stock exchange upon which the Trust Securities are listed, with the
Commission and with the Depositor. The Depositor will notify the
Property Trustee when any Trust Securities are listed on any stock
exchange.
Section Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the
Property 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.
Section Evidence of Compliance With Conditions Precedent. Each
of the Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement
(including any covenants compliance with which constitutes a condition
precedent) that relate to any of the matters set forth in 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.
Section Number of Trustees.
The number of Trustees shall be five, provided that
Depositor, by written instrument may increase or decrease the number of
Administrative Trustees.
If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section
8.17(a), a vacancy shall occur. The vacancy shall be filled with a
Trustee appointed in accordance with Section 8.10.
The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section
8.10, the Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Agreement), shall have
all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by
this Trust Agreement.
Section Delegation of Power.
Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 2.07(a), including any registration
statement or amendment thereto filed with the Commission, or making any
other governmental filing; and
the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and
the execution of such instruments either in the name of the Trust or the
names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust,
as set forth herein.
Section Fiduciary Duty.
To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Trust Agreement shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity (other
than the duties imposed on the Property Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act:
whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that are,
fair and reasonable to the Trust or any Holder of Trust
Securities, the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, considering in
each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation
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,
action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Trust Agreement or
any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise; and
Unless otherwise expressly provided herein and subject to the
provisions of the Trust Indenture Act, whenever in this Trust Agreement
an Indemnified Person is permitted or required to make a decision
in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such
interests and factors as it reasonably desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust
or any other Person; or
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 Trust Agreement or by applicable law.
ARTICLE
Termination and Liquidation
Section Termination Upon Expiration Date. The Trust shall
automatically terminate on December 31, [____] (the "Expiration Date") and
the Trust Property shall be distributed in accordance with Section 9.04.
Section Early Termination. Upon the first to occur of any of
the following events (such first occurrence, an "Early Termination Event"):
the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
the redemption of all of the Preferred Securities;
termination of the Trust in accordance with Section
9.04(d);
an order for judicial termination of the Trust having been
entered by a court of competent jurisdiction;
the Trust shall terminate and the Trustees shall take such action as is
required by Section 9.04.
Section Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall
terminate upon the latest to occur of the following: (i) the distribution
by the Property Trustee to Securityholders upon the liquidation of the
Trust pursuant to Section 9.04, or upon the redemption of all of the Trust
Securities pursuant to Section 4.02 or 9.04(d), of all amounts required to
be distributed hereunder upon the final payment of the Trust Securities;
(ii) the payment of any expenses owed by the Trust; and (iii) the discharge
of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
Section Liquidation. If an Early Termination Event specified
in clause (i) or (iv) of Section 9.02 occurs, after satisfaction of
creditors of the Trust, if any, as provided by applicable law, the Trust
shall be liquidated by the Property Trustee as expeditiously as the
Property Trustee determines to be appropriate by distributing to each
Securityholder a Like Amount of Debentures, subject to Section 9.04(e).
Notice of liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more
than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
state the Liquidation Date;
state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be outstanding and any
Trust Securities Certificates not surrendered for exchange will
be deemed to represent a Like Amount of Debentures; and
provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.04(e) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property
Trustee shall deem appropriate.
In order to effect any liquidation of the Trust hereunder, and
any resulting distribution of the Debentures to Securityholders, the
Property Trustee shall establish a record date for such distribution
(which shall be not more than 45 days prior to the Liquidation Date)
and, either itself acting as exchange agent or through the appointment
of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Debentures in
exchange for the Outstanding Trust Securities Certificates.
After any Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) certificates representing a
Like Amount of Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such Trust Securities Certificates to
the Administrative Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which
a Distribution was made on such Trust Certificates until such Trust
Securities Certificates are so surrendered (and until such Trust
Securities Certificates are so surrendered, no payments or interest or
principal will be made to Holders of Trust Securities Certificates with
respect to such Debentures) and (iv) all rights of Securityholders
holding Trust Securities will cease, except the right of such
Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
If at any time, a Special Event shall occur and be continuing,
the Depositor has the right to (i) redeem the Debentures in whole but
not in part and therefore cause a mandatory redemption of all the
Preferred Securities at the Redemption Price within 90 days following
the occurrence of such Special Event, or (ii) cause the termination of
the Trust. Further, if at any time, the Trust is not or will not be
taxed as a grantor trust under the United States Federal income tax law,
but a Tax Event has not occurred, the Depositor may elect termination of
the Trust. In the event the Depositor elects under the provisions of
this section for the Trust to be terminated, the Administrative Trustees
shall, terminate the Trust and, after satisfaction of creditors of the
Trust, if any, as provided by applicable law, cause Debentures held by
the Property Trustee having a Like Amount of the Preferred Securities
and the Common Securities to be distributed to the Holders of the
Preferred Securities and the Common Securities on a pro rata basis in
liquidation of such Holders' interests in the Trust (in the case of such
an election following the occurrence of a Special Event) within 90 days
following the occurrence of such Special Event. The Common Securities
will be redeemed on a pro rata basis with the Preferred Securities,
except that if a Debenture Event of Default has occurred and is
continuing, the Preferred Securities will have a priority over the
Common Securities with respect to payment of the Redemption Price and
accumulated and unpaid Distributions to the date of such payment.
In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for termination entered by a
court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and
the Trust shall be dissolved, wound-up or terminated, by the Property
Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution, winding-up or other termination
of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any, as
provided by applicable law, an amount equal to the Liquidation Amount
per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution").
If, upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of Common Securities
will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if a
Debenture Event of Default has occurred and is continuing or if a
Debenture Event of Default has not occurred solely by reason of a
requirement that time lapse or notice be given, the Preferred Securities
shall have a priority over the Common Securities.
ARTICLE
Miscellaneous Provisions
Section Guarantee by the Depositor and Assumption of
Obligations. Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust
is now or hereafter becomes indebted or liable (the "Beneficiaries"), and
agrees to assume liability for, the full payment, when and as due, of any
and all Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or liabilities
of the Trust, other than obligations of the Trust to pay to Holders or
other similar interests in the Trust the amounts due such Holders pursuant
to the terms of the Preferred Securities or such other similar interests,
as the case may be. This guarantee and assumption is intended to be for
the benefit, of, and to be enforceable by, all such Beneficiaries, whether
or not such Beneficiaries have received notice hereof.
Section Limitation of Rights of Securityholders. The death or
incapacity of any person having an interest, beneficial or otherwise, in a
Trust Security shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Section Amendment.
This Trust Agreement may be amended from time to time by the
Trust (on approval of a majority of the Administrative Trustees and the
Depositor, without the consent of any Securityholders), (i) to cure any
ambiguity, correct or supplement any provision herein or therein which
may be inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the
other provisions of this Trust Agreement or (ii) to modify, eliminate or
add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust will not be classified for United
States Federal income tax purposes other than as a "grantor trust" and
not as an association taxable as a corporation at any time that any
Trust Securities are outstanding or to ensure the Trust's exemption from
the status of an "investment company" under the Investment Company Act
of 1940, as amended; provided, however, that, except in the case of
clause (ii), such action shall not adversely affect in any material
respect the interests of any Securityholder and, in the case of clause
(i), any amendments of this Trust Agreement shall become effective when
notice thereof is given to the Securityholders.
Except as provided in Sections 6.01(c) and 10.03(c), any
provision of this Trust Agreement may be amended by the Administrative
Trustees and the Depositor with (i) the consent of Holders of Trust
Securities representing not less than a majority (based upon Liquidation
Amounts) of the Outstanding Trust Securities and (ii) receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with
such amendment will not affect the Trust's status as a grantor trust for
Federal income tax purposes or the Trust's exemption from status of an
"investment company" under the Investment Company Act of 1940, as
amended.
In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 6.03 or 6.06),
this Trust Agreement may not be amended to (i) change the amount or
timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii) restrict
the right of a Securityholder to institute suit for the enforcement of
any such payment on or after such date.
Notwithstanding any other provisions of this Trust Agreement,
no Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for
the exemption from status of an "investment company" under the
Investment Company Act of 1940, as amended, afforded by Rule 3a-5
thereunder.
Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor and the Trustees, this
Trust Agreement may not be amended in a manner which imposes any
additional obligation on the Depositor or any Trustee.
In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
The Property Trustee is entitled to receive an Opinion of
Counsel as conclusive evidence that any amendment to this Trust
Agreement executed pursuant to this Section 10.03 is authorized or
permitted by, and conforms to, the terms of this Section 10.03, has been
duly authorized by and lawfully executed and delivered on behalf of the
other requisite parties, and that it is proper for the Property Trustee
under the provisions of this Section 10.03 to join in the execution
thereof.
Section Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section Governing Law. This Trust Agreement and the rights and
obligations of each of the Securityholders, the Trust and the Trustees with
respect to this Trust Agreement and the Trust Securities shall be construed
in accordance with and governed by the laws of the State of Delaware
(without regard to conflict of laws principles).
Section Successors. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to the Trust or the
Relevant Trustees or any of them, including any successor by operation of
law.
Section Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust
Agreement.
Section Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, postage
prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (i) in the case of a Preferred
Securityholder, to such Preferred Securityholder as such Securityholder's
name and address may appear on the Securities Register and (ii) in the case
of the Common Securityholder or the Depositor, to Entergy Louisiana, Inc.,
639 Loyola Avenue, New Orleans, Louisiana 70113, Attention: [Treasurer],
facsimile no. (504) 576-[____], with a copy to the Secretary, facsimile no.
(504) 576-[____]. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for
all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served to
or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the
Property Trustee or the Delaware Trustee, 101 Barclay Street, 21 West, New
York, New York 10286 marked "Attention: Corporate Trust Administration"
with a copy to: The Bank of New York (Delaware), White Clay Center, Route
273, Newark, Delaware 19711 and (ii) with respect to the Trust or the
Administrative Trustees, at the address above for notice to the Depositor,
marked "Attention: Administrative Trustees for Entergy Louisiana Capital
III". Such notice, demand or other communication to or upon the Trust or
the Property Trustee shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Trust or the Property
Trustee.
Section Agreement Not to Petition. Each of the Trustees and
the Depositor agrees for the benefit of the Securityholders that, until at
least one year and one day after the Trust has been terminated in
accordance with Article IX, it shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, reorganization,
arrangement, insolvency, liquidation or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any proceeding
against the Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer
with the bankruptcy court or otherwise properly contest the filing of such
petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not
to take such action and should be stopped and precluded therefrom and such
other defenses, if any, as counsel for the Property Trustee or the Trust
may assert. The provisions of this Section 10.09 shall survive the
termination of this Trust Agreement.
Section 0. Conflict with Trust Indenture Act.
This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required or deemed to be part of this Trust
Agreement and shall, to the extent applicable, be governed by such
provisions.
The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in
this Trust Agreement by any of the provisions of the Trust Indenture
Act, such required or deemed provision shall control.
The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the parties have caused this Trust Agreement to be duly
executed, all as of the day and year first above written.
ENTERGY LOUISIANA, INC.
By:
Title: [________]
THE BANK OF NEW
YORK,
as Property Trustee
By:
Title: [____________]
THE BANK OF NEW YORK
(DELAWARE),
as Delaware Trustee
By:
Title: [________________]
[_________________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENTERGY LOUISIANA CAPITAL III
THIS CERTIFICATE OF TRUST of Entergy Louisiana Capital III (the
"Trust"), dated as of , 1996, is being duly executed and
filed by the undersigned, as trustees, to create a business trust under the
Delaware Business Trust Act (12 Del. C. 3801, et seq.).
1. Name. The name of the business trust being created hereby is
Entergy Louisiana Capital III.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware are The Bank of New York (Delaware), White Clay Center, Route 273,
Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of
the Trust, have executed this Certificate of Trust as of the date first
above written.
THE BANK OF NEW YORK (DELAWARE) [_________________________],
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By: By:
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-[ ]
Certificate Evidencing Common Securities
of
ENTERGY LOUISIANA CAPITAL III
Common Securities
(Liquidation Amount $25 per Common Security)
Entergy Louisiana Capital III, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies
that Entergy Louisiana, Inc. (the "Holder") is the registered owner of
_____ (_____) common securities of the Trust representing undivided
beneficial interests in the assets of the Trust and designated the Common
Securities (liquidation amount $25 per Common Security) (the "Common
Securities"). In accordance with Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______ ___, 1995, as the same may be amended from time
to time (the "Trust Agreement"). The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust this ____ day of
_________, 199 .
ENTERGY LOUISIANA CAPITAL III
By:
not in his (her) individual capacity, but
solely as Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between Entergy
Louisiana, Inc., a Louisiana corporation ("Entergy Louisiana"), and Entergy
Louisiana Capital III, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from Entergy Louisiana and
to issue its ___% Quarterly Income Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement
of the Trust dated as of ________ __, 1996 as the same may be amended from
time to time (the "Trust Agreement");
WHEREAS, Entergy Louisiana is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance by each holder
of the Preferred Securities, which acceptance Entergy Louisiana hereby
agrees shall benefit Entergy Louisiana and which acceptance Entergy
Louisiana acknowledges will be made in reliance upon the execution and
delivery of this Agreement, Entergy Louisiana, including in its capacity as
holder of the Common Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Entergy Louisiana. Subject to the
terms and conditions hereof, Entergy Louisiana hereby irrevocably and
unconditionally assumes the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries").
As used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (i) obligations of the Trust to pay to
holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be and (ii)
obligations arising out of the negligence, willful misconduct or bad faith
of the Trustees of the Trust. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof by Entergy
Louisiana and The Bank of New York, as guarantee trustee, or under this
Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Entergy Louisiana hereby waives
notice of acceptance of this Agreement and of any Obligation to which it
applies or may apply, and Entergy Louisiana hereby waives presentment,
demand for payment, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of Entergy Louisiana under this 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 extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) 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 Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, Entergy Louisiana with respect to the happening of
any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against Entergy Louisiana and Entergy Louisiana waives
any right or remedy to require that any action be brought against the Trust
or any other person or entity before proceeding against Entergy Louisiana.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of Entergy Louisiana and shall inure to the
benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon receipt of an answer-back, if sent by telex), to wit:
Entergy Louisiana Capital III
c/o [_________________], Administrative Trustee
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No.: (504) 576-[____]
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No.: (504) 576-[____]
Attention: [__________]
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first above
written.
ENTERGY LOUISIANA, INC.
By:
Name:
Title:
ENTERGY LOUISIANA CAPITAL III
By:
[_________________]
not in his individual capacity, but solely
as Administrative Trustee
<PAGE>
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTERGY LOUISIANA CAPITAL III
% Quarterly Income Preferred Securities
(Liquidation Amount $25 per Preferred Security)
Entergy Louisiana Capital III, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies
that ____________ (the "Holder") is the registered owner of _____ (_____)
preferred securities of the Trust representing an undivided beneficial
interest in the assets of the Trust and designated the Entergy Louisiana
Capital III % Quarterly Income Preferred Securities (liquidation amount
$25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in Section 5.04
or 5.11 of the Trust Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of
, 1996, as the same may be amended from time to time (the "Trust
Agreement"). The holder of this certificate is entitled to the benefits of
the Guarantee Agreement of Entergy Louisiana, Inc., a Louisiana
corporation, and The Bank of New York, as guarantee trustee, dated as of
, 1996 (the "Guarantee") to the extent provided therein. The Trust will
furnish a copy of the Trust Agreement and the Guarantee to the holder of
this certificate without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate
is bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate for and on behalf of the Trust.
Dated:
ENTERGY LOUISIANA CAPITAL III
By:
[ ]
not in his (her) individual
capacity, but solely as
Administrative Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred Securities
Certificate and irrevocably appoints
attorney to transfer such Preferred Securities Certificate on the books of the
Trust. The attorney may substitute another to act for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Exhibit 4.20
GUARANTEE AGREEMENT
Between
Entergy Lousiana, Inc.
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
_____, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.01 Definitions 1
ARTICLE II TRUST INDENTURE ACT 4
SECTION 2.01 Trust Indenture Act; Application 4
SECTION 2.02 Lists of Holders of Preferred Securities 4
SECTION 2.03 Reports by the Guarantee Trustee 4
SECTION 2.04 Periodic Reports to Guarantee Trustee 4
SECTION 2.05 Evidence of Compliance with Conditions
Precedent 5
SECTION 2.06 Events of Default; Waiver 5
SECTION 2.07 Event of Default; Notice 5
SECTION 2.08 Conflicting Interests 5
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE 5
SECTION 3.01 Powers and Duties of the Guarantee Trustee 5
SECTION 3.02 Certain Rights of Guarantee Trustee 7
ARTICLE IV GUARANTEE TRUSTEE 9
SECTION 4.01 Guarantee Trustee; Eligibility 9
SECTION 4.02 Compensation and Reimbursement 9
SECTION 4.03 Appointment, Removal and Resignation of
Guarantee Trustee 10
ARTICLE V GUARANTEE 11
SECTION 5.01 Guarantee 11
SECTION 5.02 Waiver of Notice and Demand 11
SECTION 5.03 Obligations Not Affected 12
SECTION 5.04 Rights of Holders 12
SECTION 5.05 Guarantee of Payment 13
SECTION 5.06 Subrogation 13
SECTION 5.07 Independent Obligations 13
ARTICLE VI SUBORDINATION 13
SECTION 6.01 Subordination 13
ARTICLE VII TERMINATION 14
SECTION 7.01 Termination 14
ARTICLE VIII MISCELLANEOUS 14
SECTION 8.01 Successors and Assigns 14
SECTION 8.02 Amendments 14
SECTION 8.03 Notices 14
SECTION 8.04 Benefit 15
SECTION 8.05 Interpretation 16
SECTION 8.06 Governing Law 16
<PAGE>
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) 4.01(a)
310(b) 4.01(c), 2.08
310(c) Inapplicable
311(a) 2.02(b)
311(b) 2.02(b)
311(c) Inapplicable
312(a) 2.02(a)
312(b) 2.02(b)
313 2.03
314(a) 2.04
314(b) Inapplicable
314(c) 2.05
314(d) Inapplicable
314(e) 1.01, 2.05, 3.02
314(f) 2.01, 3.02
315(a) 3.01(d)
315(b) 2.07
315(c) 3.01
315(d) 3.01(d)
316(a) 5.04(a), 2.06
316(b) 5.03
316(c) 2.02
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.01(b)
318(b) 2.01
318(c) 2.01(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 ______, 1996, is executed and delivered by Entergy
Louisiana, Inc., a Louisiana corporation (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
Louisiana Capital III, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of ______, 1996
between the Trustees of the Issuer named therein, Entergy
Louisiana, Inc., as Depositor, and the several Holders (as
defined therein) the Issuer is issuing as of the date hereof
$__________ aggregate liquidation amount of its ____% Cumulative
Quarterly Income Preferred Securities (the "Preferred
Securities") representing preferred undivided beneficial
ownership interests in the Issuer and having the terms set forth
in the Trust Agreement;
WHEREAS, the Preferred Securities are to be issued for
sale by the Issuer and the proceeds are to be invested in
$___________ principal amount of Debentures (as defined in the
Trust Agreement); 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 of
Debentures, 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.
I DEFINITIONS
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 Trust
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.
"Common Securities" means the securities representing
common undivided beneficial ownership interests in the assets of
the Issuer.
"Event of Default" means a default by the Guarantor on
any of its payment 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 accrued and unpaid Distributions
that are required to be paid on such Preferred Securities but
only if and to the extent that the Property Trustee has available
in the Payment Account funds sufficient to make such payment,
(ii) the redemption price (the "Redemption Price"), and all
accrued 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 Property Trustee
has available in the Payment Account 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 accrued
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 dated as of _______,
1996, 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 4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
II TRUST INDENTURE ACT
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 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 December
31 and June 30 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.
3 Reports by the Guarantee Trustee. Within 60
days after December 31 of each year, commencing December 31,
1996, 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.
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.
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.
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.
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 Trust Agreement shall have
obtained written notice, of such Event of Default.
8 Conflicting Interests. The Trust 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.
III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
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 5.04 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 2.06), 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;
iv) 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
vi) 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.
2 Certain Rights of Guarantee Trustee.
a) Subject to the provisions of Section 3.01:
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 3.02(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.
IV GUARANTEE TRUSTEE
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 4.01(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 4.01(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 4.03(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.
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.
3 Appointment, Removal and Resignation of
Guarantee Trustee.
a) Subject to Section 4.03(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
4.03 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 8.03 hereof. Each notice shall include the name of
the successor Guarantee Trustee and the address of its Corporate
Trust Office.
V GUARANTEE
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.
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.
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 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 5.03 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.
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 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).
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.
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 5.03.
VI SUBORDINATION
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 other
liabilities of the Guarantor, including the Debentures, except
those made pari passu or subordinate by their terms, (ii) pari
passu with the most senior preferred or preference stock now or
hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any
preferred or preference stock of any Affiliate of the Guarantor,
and (iii) senior to all common stock of the Guarantor. Nothing
in this Section 6.01 shall apply to claims of, or payments to,
the Guarantee Trustee under or pursuant to Section 4.02 hereof.
VII TERMINATION
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, and
all accrued and unpaid Distributions to the date of redemption,
(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 Trust Agreement upon
liquidation 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.
VIII MISCELLANEOUS
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, the Guarantor
shall not assign its obligations hereunder.
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 66 2/3% in aggregate
liquidation amount of all the outstanding Preferred Securities.
The provisions of Article VI of the Trust 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.
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 Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No: (504) 576-____
Attention: _____________
b) if given to the Issuer, in care of the Administrative
Trustees, at the Issuer's (and the Administrative Trustee's)
address set forth below or such other address as the
Administrative Trustees on behalf of the Issuer may give notice
of to the Holders:
Entergy Louisiana, Capital III
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No: (504) 576-____
Attention: Administrative Trustees
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.
4 Benefit. This Guarantee Agreement is solely
for the benefit of the Holders and, subject to Section 3.01(a),
is not separately transferable from the Preferred Securities.
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 1.01;
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.
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.
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>
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
Entergy Louisiana, Inc.
By:
Name:
Title:
The Bank of New York,
as Guarantee Trustee
By:
Name:
Title:
05/10/96/KMR/03320/119/OPINION/46248.1
Exhibit 5.01
[LETTERHEAD OF ENTERGY SERVICES, INC.]
May 10, 1996
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Ladies and Gentlemen:
I refer to the joint Registration Statement on Form S-
3, including the exhibits thereto, to be filed with the
Securities and Exchange Commission (the "Commission") on or about
the date hereof of Entergy Louisiana, Inc. (the "Company"),
Entergy Louisiana Capital I, Entergy Louisiana Capital II and
Entergy Louisiana Capital III (the "Trusts") for the registration
under the Securities Act of 1933, as amended (the "Securities
Act"), of (i) Preferred Securities (the "Preferred Securities")
of the Trusts to be offered in one or more underwritten public
offerings; (ii) Junior Subordinated Debentures (the "Debentures")
of the Company to be issued pursuant to the terms of either of
two indentures from the Company to The Bank of New York, as
trustee (the "Indentures"), either to be issued and sold by the
Company to the Trusts or to be offered in one or more
underwritten public offerings; and (iii) Guarantees of the
Company with respect to the Preferred Securities (the
"Guarantees") to be issued pursuant to the terms of guarantee
agreements between the Company and The Bank of New York, as
trustee (the "Guarantee Agreements") (the Preferred Securities
and Debentures to be issued in a combined aggregate liquidation
preference or principal amount of $150,000,000).
I am of the opinion that the Company is a corporation duly
organized and validly existing under the laws of the State of
Louisiana.
I am of the opinion that all action necessary to make valid
and legal the proposed issuance and sale of the Debentures and
the Guarantees of the Company will have been taken when:
(a) the Company's and the Trusts' said joint Registration
Statement on Form S-3, as it may be amended, shall have
become effective in accordance with the applicable
provisions of the Securities Act, and the Indentures and the
Guarantee Agreements shall have been qualified under the
Trust Indenture Act of 1939, as amended;
(b) an appropriate order or orders shall have been issued
by the Commission under the Public Utility Holding Company
Act of 1935, as amended, with respect to the related
Application-Declaration on Form U-1 (File No. 70-8487), as
amended and as it may be further amended;
(c) appropriate action shall have been taken by the Board
of Directors of the Company for the purpose of authorizing
the consummation of the issuance and sale of the Debentures
and the Guarantees;
(d) the proposed Indentures and the Guarantee Agreements
shall have been appropriately executed and delivered;
(e) the specific terms of the Debentures and the Guarantees
shall have been determined by supplemental indenture, board
resolution or officer's certificate; and
(f) the Debentures and the Guarantees shall have been
appropriately issued and delivered for the consideration
contemplated by, and otherwise in conformity with, the acts,
proceedings and documents referred to above.
I am further of the opinion that when the foregoing steps
have been taken, the Debentures and the Guarantees will be legal,
valid and binding obligations of the Company enforceable in
accordance with their respective terms, in each case, except as
limited by bankruptcy, insolvency, reorganization or other laws
affecting creditors' rights and general equitable principles.
This opinion does not pass upon the matter of compliance with
"blue sky" laws or similar laws relating to the sale or
distribution of the Debentures and Guarantees by the
underwriters.
I am a member of the Louisiana Bar and do not hold myself
out as an expert on the laws of any other state. As to all
matters of New York law, I have relied upon an opinion of even
date addressed to you by Reid & Priest LLP, special counsel to
the Company. I consent to the reliance of Reid & Priest LLP upon
my opinion insofar as it relates to matters of Louisiana law.
I hereby consent to the use of this opinion as an exhibit to
the Company's and the Trusts' said Registration Statement on Form
S-3, as it may be amended, and consent to such references to me
as may be made in such Registration Statement and in the
Prospectus Supplement constituting a part thereof.
Very truly yours,
/s/ Denise C. Redmann
Denise C. Redmann
Senior Attorney -
Corporate and Securities
Exhibit 5.02
[Letterhead of Richards, Layton & Finger]
May 9, 1996
Entergy Louisiana Capital I
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Re: Entergy Louisiana Capital I
Ladies and Gentlemen:
We have acted as special Delaware counsel for
Entergy Louisiana, Inc., a Louisiana corporation (the
"Company"), and Entergy Louisiana Capital I, a Delaware
business trust (the "Trust"), 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 Trust of the Trust, dated as of
April 30, 1996 (the "Certificate"), as filed in the
office of the Secretary of State of the State of
Delaware (the "Secretary of State") on April 30, 1996;
(b) The Trust Agreement of the Trust, dated as of April
30, 1996, among the Company, as Depositor, and the
trustees of the Trust named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary
prospectus and preliminary prospectus supplement (the
"Prospectus Supplement"), relating to the __% Cumulative
Quarterly Income Preferred Securities, Series A, of the
Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"),
as proposed to be filed by the Company, the Trust and
others as set forth therein with the Securities and
Exchange Commission on or about May 9, 1996;
(d) A form of Amended and Restated Trust Agreement of
the Trust, to be entered into among the Company, as
Depositor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits
A, B and D thereto) (the "Trust Agreement"), attached as
an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated
May 9, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed
any documents other than the documents listed in paragraphs
(a) through (e) above. In particular, we have not reviewed
any document (other than the documents listed in paragraphs
(a) through (e) 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 Trust 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 or
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 natural persons who are parties to the
documents examined by us, (iv) 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) the due authorization, execution and
delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for
the Preferred Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement
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 which 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 Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act.
2. The Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3
below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same
limitation of personal liability extended to
stockholders of private corporations for profit
organized under the General Corporation Law of the State
of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth
in the Trust Agreement.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement. In addition, we hereby consent to
the use of our name under the heading "Legal Opinions" in the
Prospectus Supplement. In giving the foregoing consents, we
do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission
thereunder. 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,
/s/ Richards, Layton & Finger, P.A.
Exhibit 5.03
[Letterhead of Richards, Layton & Finger]
May 9, 1996
Entergy Louisiana Capital II
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Re: Entergy Louisiana Capital II
Ladies and Gentlemen:
We have acted as special Delaware counsel for
Entergy Louisiana, Inc., a Louisiana corporation (the
"Company"), and Entergy Louisiana Capital II, a Delaware
business trust (the "Trust"), 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 Trust of the Trust, dated as of
April 30, 1996 (the "Certificate"), as filed in the
office of the Secretary of State of the State of
Delaware (the "Secretary of State") on April 30, 1996;
(b) The Trust Agreement of the Trust, dated as of April
30, 1996, among the Company, as Depositor, and the
trustees of the Trust named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary
prospectus relating to the __% Cumulative Quarterly
Income Preferred Securities of the Trust representing
preferred undivided beneficial interests in the assets
of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed
to be filed by the Company, the Trust and others as set
forth therein with the Securities and Exchange
Commission on or about May 9, 1996;
(d) A form of Amended and Restated Trust Agreement of
the Trust, to be entered into among the Company, as
Depositor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits
A, B and D thereto) (the "Trust Agreement"), attached as
an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated
May 9, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed
any documents other than the documents listed in paragraphs
(a) through (e) above. In particular, we have not reviewed
any document (other than the documents listed in paragraphs
(a) through (e) 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 Trust 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 or
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 natural persons who are parties to the
documents examined by us, (iv) 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) the due authorization, execution and
delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for
the Preferred Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement
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 which 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 Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act.
2. The Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3
below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same
limitation of personal liability extended to
stockholders of private corporations for profit
organized under the General Corporation Law of the State
of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth
in the Trust Agreement.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement. In giving the foregoing consent, we
do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission
thereunder. 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,
/s/ Richards, Layton & Finger, P.A.
Exhibit 5.04
[Letterhead of Richards, Layton & Finger]
May 9, 1996
Entergy Louisiana Capital III
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Re: Entergy Louisiana Capital III
Ladies and Gentlemen:
We have acted as special Delaware counsel for
Entergy Louisiana, Inc., a Louisiana corporation (the
"Company"), and Entergy Louisiana Capital III, a Delaware
business trust (the "Trust"), 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 Trust of the Trust, dated as of
April 30, 1996 (the "Certificate"), as filed in the
office of the Secretary of State of the State of
Delaware (the "Secretary of State") on April 30, 1996;
(b) The Trust Agreement of the Trust, dated as of April
30, 1996, among the Company, as Depositor, and the
trustees of the Trust named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary
prospectus relating to the __% Cumulative Quarterly
Income Preferred Securities of the Trust representing
preferred undivided beneficial interests in the assets
of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed
to be filed by the Company, the Trust and others as set
forth therein with the Securities and Exchange
Commission on or about May 9, 1996;
(d) A form of Amended and Restated Trust Agreement of
the Trust, to be entered into among the Company, as
Depositor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits
A, B and D thereto) (the "Trust Agreement"), attached as
an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated
May 9, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed
any documents other than the documents listed in paragraphs
(a) through (e) above. In particular, we have not reviewed
any document (other than the documents listed in paragraphs
(a) through (e) 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 Trust 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 or
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 natural persons who are parties to the
documents examined by us, (iv) 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) the due authorization, execution and
delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for
the Preferred Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement
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 which 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 Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act.
2. The Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3
below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same
limitation of personal liability extended to
stockholders of private corporations for profit
organized under the General Corporation Law of the State
of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth
in the Trust Agreement.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement. In giving the foregoing consent, we
do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission
thereunder. 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,
/s/ Richards, Layton & Finger, P.A.
Exhibit 5.05
REID & PRIEST LLP
40 West 57th Street
New York, New York 10019
May 10, 1996
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Ladies and Gentlemen:
We refer to the joint Registration Statement on Form
S3, including the exhibits thereto, to be filed with the
Securities and Exchange Commission (the "Commission") on or
about the date hereof of Entergy Louisiana, Inc. (the
"Company"), Entergy Louisiana Capital I, Entergy Louisiana
Capital II and Entergy Louisiana Capital III (the "Trusts") for
the registration under the Securities Act of 1933, as amended
(the "Securities Act"), of (i) Preferred Securities (the
"Preferred Securities") of the Trusts to be offered in one or
more underwritten public offerings; (ii) Junior Subordinated
Debentures (the "Debentures") of the Company to be issued
pursuant to the terms of either of two indentures from the
Company to The Bank of New York, as trustee (the "Indentures"),
either to be issued and sold by the Company to the Trusts or to
be offered in one or more underwritten public offerings; and
(iii) Guarantees of the Company with respect to the Preferred
Securities (the "Guarantees") to be issued pursuant to the
terms of guarantee agreements between the Company and The Bank
of New York, as trustee (the "Guarantee Agreements") (the
Preferred Securities and Debentures to be issued in a combined
aggregate liquidation preference or principal amount of
$150,000,000).
We are of the opinion that the Company is a corporation
duly organized and validly existing under the laws of the State
of Louisiana.
We are of the opinion that all action necessary to make
valid and legal the proposed issuance and sale of the
Debentures and the Guarantees of the Company will have been
taken when:
(a) the Company's and the Trusts' said joint Registration
Statement on Form S-3, as it may be amended, shall have
become effective in accordance with the applicable
provisions of the Securities Act, and the Indentures and
the Guarantee Agreements shall have been qualified under
the Trust Indenture Act of 1939, as amended;
(b) an appropriate order or orders shall have been issued
by the Commission under the Public Utility Holding Company
Act of 1935, as amended, with respect to the related
Application-Declaration on Form U-1 (File No. 70-8487), as
amended and as it may be further amended;
(c) appropriate action shall have been taken by the Board
of Directors of the Company for the purpose of authorizing
the consummation of the issuance and sale of the
Debentures and the Guarantees;
(d) the proposed Indentures and the Guarantee Agreements
shall have been appropriately executed and delivered;
(e) the specific terms of the Debentures and the
Guarantees shall have been determined by supplemental
indenture, board resolution or officer's certificate; and
(f) the Debentures and the Guarantees shall have been
appropriately issued and delivered for the consideration
contemplated by, and otherwise in conformity with, the
acts, proceedings and documents referred to above.
We are further of the opinion that when the foregoing
steps have been taken, the Debentures and the Guarantees will
be legal, valid and binding obligations of the Company
enforceable in accordance with their respective terms, in each
case, except as limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights and
general equitable principles. This opinion does not pass upon
the matter of compliance with "blue sky" laws or similar laws
relating to the sale or distribution of the Debentures and
Guarantees by the underwriters.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of Louisiana law, we have relied upon an opinion of
even date addressed to you by Denise C. Redmann, Esq., Senior
Attorney - Corporate and Securities of Entergy Services, Inc.,
Louisiana counsel to the Company. We consent to the reliance
of Ms. Redmann upon our opinion insofar as it relates to
matters of New York law.
We confirm our opinion as set forth under the caption
"Certain United States Federal Income Tax Consequences" in the
Prospectus Supplement constituting a part of the Registration
Statement.
We hereby consent to the use of this opinion as an
exhibit to the Company's and the Trusts' said Registration
Statement on Form S-3, as it may be amended, and consent to
such references to our firm as may be made in such Registration
Statement and in the Prospectus Supplement constituting a part
thereof.
Very truly yours,
/s/ REID & PRIEST LLP
REID & PRIEST LLP
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-3 of our reports dated
February 14, 1996, on our audits of the financial statements
and financial statement schedule of Entergy Louisiana, Inc.
(formerly Louisiana Power & Light Company) as of and for the
years ended December 31, 1995 and 1994, which reports are
included in the Company's Annual Report on Form 10-K. We
also consent to the reference to our firm under the caption
"Experts."
COOPERS & LYBRAND L.L.P.
New Orleans, Louisiana
May 7, 1996
EXHIBIT 23.02
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Entergy Louisiana, Inc. (formerly
Louisiana Power & Light Company) on Form S-3 of our reports dated
February 11, 1994 appearing in the Annual Report on Form 10-K of
the Company for the year ended December 31, 1995 and to the
reference to us under the heading "Experts" in the Prospectus
Supplement which is part of this Registration Statement.
Deloitte & Touche LLP
New Orleans, Louisiana
May 8, 1996
Exhibit 25.01
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
ENTERGY LOUISIANA, INC.
(Exact name of obligor as specified in its charter)
Louisiana 72-0245590
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
639 Loyola Avenue
New Orleans, Louisiana 70113
(Address of principal executive offices) (Zip code)
______________________
Junior Subordinated Deferrable Interest Debentures
(Title of the indenture securities)
==========================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of powers
to exercise corporate trust powers. (Exhibit 1 to Amendment
No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit
4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of
New York, and State of New York, on the 9th day of May, 1996.
THE BANK OF NEW YORK
By: /S/MARY JANE MORRISSEY
Name: MARY JANE MORRISSEY
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
-----------
Total assets ......................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
----------
Total liabilities .................... 39,224,720
----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
----------
Total liabilities and equity
capital ........................... $42,711,907
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
* *
J. Carter Bacot *
Thomas A. Renyi * * * Directors
Alan R. Griffith *
* *
Exhibit 25.02
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ENTERGY LOUISIANA, INC.
(Exact name of obligor as specified in its charter)
Louisiana 72-0245590
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
639 Loyola Avenue
New Orleans, Louisiana 70113
(Address of principal executive offices) (Zip code)
______________________
Junior Subordinated Indenture
(Title of the indenture securities)
===========================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
- ---------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of
New York, and State of New York, on the 9th day of May, 1996.
THE BANK OF NEW YORK
By: /S/WALTER N. GITLIN
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
-----------
Total assets ......................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
----------
Total liabilities .................... 39,224,720
----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
-----------
Total equity capital ................ 3,487,187
Total liabilities and equity -----------
capital $42,711,907
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
* * *
J. Carter Bacot *
Thomas A. Renyi * * * Directors
Alan R. Griffith *
* * *
Exhibit 25.03
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
ENTERGY LOUISIANA CAPITAL I
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
(Address of principal executive offices) (Zip code)
______________________
Preferred Securities
(Title of the indenture securities)
===========================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
- ---------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of powers
to exercise corporate trust powers. (Exhibit 1 to Amendment
No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit
4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of
New York, and State of New York, on the 9th day of May, 1996.
THE BANK OF NEW YORK
By: /s/Mary Jane Marrissey
Name: Mary Jane Morrissey
Title: Vice President
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
-----------
Total assets ......................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
----------
Total liabilities .................... 39,224,720
----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
-----------
Total liabilities and equity
capital ........................... $42,711,907
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
* * *
J. Carter Bacot *
Thomas A. Renyi * * * Directors
Alan R. Griffith *
* * *
Exhibit 25.04
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
ENTERGY LOUISIANA CAPITAL I
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
(Address of principal executive offices) (Zip code)
______________________
Guarantee Preferred Securities
(Title of the indenture securities)
===========================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
- ---------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of powers
to exercise corporate trust powers. (Exhibit 1 to Amendment
No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit
4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of
New York, and State of New York, on the 9th day of May, 1996.
THE BANK OF NEW YORK
By: /S/WALTER N. GITLIN
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
-----------
Total assets ......................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
----------
Total liabilities .................... 39,224,720
----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
-----------
Total liabilities and equity
capital ........................... $42,711,907
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
* * *
J. Carter Bacot *
Thomas A. Renyi * * * Directors
Alan R. Griffith *
* * *
Exhibit 25.05
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
ENTERGY LOUISIANA CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
(Address of principal executive offices) (Zip code)
______________________
Preferred Securities
(Title of the indenture securities)
===========================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
- ---------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of powers
to exercise corporate trust powers. (Exhibit 1 to Amendment
No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit
4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of
New York, and State of New York, on the 9th day of May, 1996.
THE BANK OF NEW YORK
By: /S/MARY JANE MORRISSEY
Name: MARY JANE MORRISSEY
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
-----------
Total assets ......................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
----------
Total liabilities .................... 39,224,720
----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
-----------
Total liabilities and equity
capital ........................... $42,711,907
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
* * *
J. Carter Bacot *
Thomas A. Renyi * * * Directors
Alan R. Griffith *
* * *
Exhibit 25.06
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
ENTERGY LOUISIANA CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
(Address of principal executive offices) (Zip code)
______________________
Guarantee Preferred Securities
(Title of the indenture securities)
===========================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
- ---------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of powers
to exercise corporate trust powers. (Exhibit 1 to Amendment
No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit
4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of
New York, and State of New York, on the 9th day of May, 1996.
THE BANK OF NEW YORK
By: /S/Paul J. Schmalzel
Name: PAUL J. SCHMALZEL
Title: ASSISTANT TREASURER
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
-----------
Total assets ......................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
----------
Total liabilities .................... 39,224,720
----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
-----------
Total liabilities and equity
capital ........................... $42,711,907
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
* * *
J. Carter Bacot *
Thomas A. Renyi * * * Directors
Alan R. Griffith *
* * *
Exhibit 25.07
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
ENTERGY LOUISIANA CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
(Address of principal executive offices) (Zip code)
______________________
Preferred Securities
(Title of the indenture securities)
============================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
- ---------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of powers
to exercise corporate trust powers. (Exhibit 1 to Amendment
No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit
4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of
New York, and State of New York, on the 9th day of May, 1996.
THE BANK OF NEW YORK
By: /S/WALTER N. GITLIN
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
-----------
Total assets ......................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
----------
Total liabilities .................... 39,224,720
----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
-----------
Total liabilities and equity
capital ........................... $42,711,907
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
* * *
J. Carter Bacot *
Thomas A. Renyi * * * Directors
Alan R. Griffith *
* * *
Exhibit 25.08
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
ENTERGY LOUISIANA CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
(Address of principal executive offices) (Zip code)
______________________
Guarantee Preferred Securities
(Title of the indenture securities)
===========================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
- ---------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of powers
to exercise corporate trust powers. (Exhibit 1 to Amendment
No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit
4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of
New York, and State of New York, on the 9th day of May, 1996.
THE BANK OF NEW YORK
By: /S/PAUL J. SCHMALZEL
Name: PAUL J. SCHMALZEL
Title: ASSISTANT TREASURER
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
-----------
Total assets ......................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
----------
Total liabilities .................... 39,224,720
----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
-----------
Total liabilities and equity
capital ........................... $42,711,907
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
* * *
J. Carter Bacot *
Thomas A. Renyi * * * Directors
Alan R. Griffith *
* * *
