As filed with the Securities and Exchange Commission on December 28, 1999.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________________
ENTERGY LOUISIANA, INC.
(Exact name of registrant as specified in charter)
State of Louisiana 72-0245590
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4809 Jefferson Highway
Jefferson, Louisiana 70121
(504)-560-2734
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Jerry D. Jackson Steven C. McNeal
President and Chief Vice President and
Executive Officer Treasurer
Entergy Louisiana, Inc. Entergy Louisiana, Inc.
4809 Jefferson Highway 639 Loyola Avenue
Jefferson, Louisiana 70121 New Orleans, Louisiana 70113
(504) 560-2734 (504) 576-4363
Denise C. Redmann, Esq. John Hood, Esq.
Entergy Services, Inc. Thelen Reid & Priest LLP
639 Loyola Avenue 40 West 57th Street
New Orleans, Louisiana 70113 New York New York 10019
(504) 576-2272 (212) 603-2140
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
________________________________
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, please 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 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, check the following box. [ ]
_______________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximun Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered Per Unit* Offering Price* Registration Fee
<S> <C> <C> <C> <C>
First Mortgage Bonds..
Debt Securities......
Total $500,000,000 100% $500,000,000 (1)
</TABLE>
* Estimated solely for the purpose of calculating the
registration fee, pursuant to Rule 457(o) under the Securities
Act of 1933.
(1) An aggregate principal amount of $64,000,000 of unsold First
Mortgage Bonds registered by the registrant pursuant to
Registration Statement No. 33-50937 are being carried forward to
this Registration Statement pursuant to Rule 429 under the
Securities Act of 1933. The registration fee of $72,414
associated with such securities was previously paid.
Accordingly, pursuant to such Rule 429, the total amount of
securities to which the prospectus contained in this Registration
Statement relates, when combined with the unsold securities
registered pursuant to Registration Statement No. 33-50937, is
$500,000,000, $436,000,000 of which are additional securities to
be registered pursuant to this Registration Statement. A
registration fee of $115,104.00 is being paid herewith in
connection with the registration of such additional securities.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant 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.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
Subject to completion
Dated December 28, 1999 PROSPECTUS
$500,000,000
First Mortgage Bonds
and
Debt Securities
ENTERGY LOUISIANA, INC.
4809 Jefferson Highway
Jefferson, Louisiana 70121
(504) 560-2734
Entergy Louisiana -
- May periodically offer its first mortgage bonds
and its debt securities in one or more series; and
- Will determine the price and other terms of each
series of securities when sold, including whether any
series will be subject to redemption prior to
maturity.
The First Mortgage Bonds -
- Will be secured by a mortgage that constitutes a
first mortgage lien on substantially all of our
property.
The Debt Securities -
- Will be unsecured and will rank equally with all
of our other unsecured and unsubordinated debt; and
- Will be effectively subordinated to all of our
secured debt, including our first mortgage bonds.
Securityholders -
- Will receive interest payments in the amounts
and on the dates specified in an accompanying
prospectus supplement.
This prospectus may be used to offer and sell series of
securities only if accompanied by the prospectus supplement for
that series. Entergy Louisiana will provide the specific terms
of these securities, including their offering prices, interest
rates and maturities, in supplements to this prospectus. The
supplements may also add, update or change information in this
prospectus. You should read this prospectus and any supplements
carefully before you invest.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
December 28, 1999
<PAGE>
Table of Contents
About this Prospectus 2
Entergy Louisiana, Inc. 2
Ratios of Earnings to Fixed Charges 2
Where You Can Find More Information 3
Use of Proceeds 4
Description of the First Mortgage Bonds 4
General 4
Terms of Specific Series of First Mortgage Bonds 4
Replacement Fund 5
Sinking or Improvement Fund 5
Redemption and Retirement 5
Security 6
Issuance of Additional First Mortgage Bonds 6
Release and Substitution of Property 8
Dividend Covenant 8
Modification 9
Defaults 9
Description of Debt Securities 10
General 10
Terms of Specific Series of the Debt Securities 10
Payment and Paying Agents 11
Registration and Transfer 12
Satisfaction and Discharge 12
Consolidation, Merger and Sale of Assets 13
Events of Default 13
Remedies 13
Modification and Waiver 15
Resignation of Trustee 17
Notices 17
Title 18
Governing Law 18
Book-Entry Only Securities 18
Experts and Legality 21
Plan of Distribution 21
Methods and Terms of Sale 21
Underwriters 22
Stabilizing Transactions 22
Agents 22
Related Transactions 22
Indemnification 22
<PAGE>
About this Prospectus
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or SEC,
utilizing a "shelf" registration process. Under this shelf
process, we may sell the securities described in this prospectus
in one or more offerings up to a total dollar amount of
$500,000,000. This prospectus provides a general description of
the securities being offered. Each time we sell a series of
securities we will provide a prospectus supplement containing
specific information about the terms of that series of securities
and the related offering. It is important for you to consider
the information contained in this prospectus and the related
prospectus supplement together with additional information
described under the heading "Where You Can Find More Information"
in making your investment decision.
Entergy Louisiana, Inc.
Entergy Louisiana, Inc. is an electric public utility
company providing service to customers in the State of Louisiana
since 1927.
We are owned by Entergy Corporation, which is a registered
public utility holding company registered under the Public
Utility Holding Company Act of 1935. The other major public
utilities owned by Entergy Corporation are Entergy Arkansas,
Inc., Entergy Gulf States, Inc., Entergy Mississippi, Inc. and
Entergy New Orleans, Inc. Entergy Corporation also owns all of
the common stock of System Energy Resources, Inc., the principal
asset of which is the Grand Gulf Electric Generating Station.
Capacity and energy from Grand Gulf is allocated among
ourselves, Entergy Arkansas, Inc., Entergy Mississippi, Inc. and
Entergy New Orleans, Inc. under a unit power sales agreement.
Our allocated share of Grand Gulf's capacity and energy, together
with related costs is 14%. Payments we make under the unit power
sales agreement are generally recovered through rates set by the
Louisiana Public Service Commission, which regulates our electric
service, rates and charges.
Together with Entergy Arkansas, Inc., Entergy Mississippi,
Inc. and Entergy New Orleans, Inc. we own all of the capital
stock of System Fuels, Inc. System Fuels, Inc. is a special
purpose company which implements and maintains certain programs
for the purchase, delivery and storage of fuel supplies for
Entergy Corporation's utility subsidiaries.
The information above is only a summary and is not complete.
You should read the incorporated documents listed under the
caption "Where You Can Find More Information" for more specific
information concerning our business and affairs, including
significant contingencies, our general capital requirements, our
financing plans and capabilities, and pending legal and
regulatory proceedings, including the status of industry
restructuring in our service areas.
Ratios of Earnings to Fixed Charges
We have calculated ratios of earnings to fixed charges
pursuant to Item 503 of SEC Regulation S-K as follows:
Twelve
Months Twelve Months Ended
Ended December 31,
September
30,
1999 1998 1997 1996 1995 1994
4.06 3.18 2.74 3.16 3.18 2.91
"Earnings," as defined by Regulation S-K, represent the
aggregate of (1) income before the cumulative effect of an
accounting change, (2) taxes based on income, (3) investment tax
credit adjustments-net and (4) fixed charges.
"Fixed Charges" include interest (whether expensed or
capitalized), related amortization and interest applicable to
rentals charged to operating expenses.
Where You Can Find More Information
We are required to file annual, quarterly and current
reports, proxy statements and other information with the SEC.
Our filings are available to the public on the Internet at the
SEC's home page located at (http://www.sec.gov) or you may read
and copy any document at the SEC Public Reference Rooms located
at:
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549-1004
CitiCorp Center
500 W. Madison Street
Suite 1400
Chicago, Illinois 60661
7 World Trade Center
13th Floor
New York, New York 10048.
Call the SEC at 1-800-732-0330 for more information about the
public reference rooms and how to request documents.
The SEC allows us to "incorporate by reference" the
information filed by us with the SEC, which means we can refer
you to important information without restating it in this
prospectus. The information incorporated by reference is an
important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed
below, all documents that we file with the SEC under Sections
13(a), 13(c) , 14 or 15(d) of the Securities Exchange Act of 1934
after the date of the initial registration statement to which
this prospectus relates and prior to the effectiveness of the
registration statement along with any future filings that we make
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until we have sold all of the
securities described in this prospectus:
1. Annual Report on Form 10-K for the year ended December 31,
1998; and
2. Quarterly Reports on Form 10-Q for the quarters ended March
31, June 30, and September 30, 1999.
You may access a copy of any or all of these filings, free
of charge, at our web site (http://www.entergy.com) or by writing
or telephoning us at the following address:
Mr. Christopher T. Screen
Assistant Secretary
Entergy Louisiana, Inc.
P. O. Box 61000
New Orleans, Louisiana 70161
(504) 576-4212
You may also direct your requests via e-mail to
[email protected].
You should rely only on the information incorporated by
reference or provided in this prospectus or any prospectus
supplement. We have not, and any underwriters, dealers or agents
have not, authorized anyone else to provide you with different
information about us or the securities. We are not, and any
underwriters, dealers or agents are not, making an offer of the
securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any other date than the
date on the front of those documents or that the documents
incorporated by reference in this prospectus are accurate as of
any date other than the date those documents were filed with the
SEC.
Use of Proceeds
The net proceeds from the offering of the securities will be
used either (a) to acquire or redeem one or more series of our
outstanding securities on their stated due dates or in some cases
prior to their stated due dates or (b) for other general
corporate purposes. The specific securities, if any, to be
acquired or redeemed with the proceeds of a particular series of
securities will be set forth in the prospectus supplement
relating to that series.
Description of the First Mortgage Bonds
General
We will issue the first mortgage bonds offered by this
prospectus from time to time in one or more series under one or
more separate supplemental indentures to the Mortgage and Deed of
Trust dated as of April 1, 1944 with Harris Trust Company of New
York, successor corporate trustee, and Mark F. McLaughlin,
successor co-trustee, and together referred to in this prospectus
as trustees. This Mortgage and Deed of Trust, as amended and
supplemented, is referred to in this prospectus as the
"Mortgage". All first mortgage bonds issued or to be issued
under the Mortgage, including the first mortgage bonds offered by
this prospectus, are referred to herein as "first mortgage
bonds."
The statements in this prospectus and any accompanying
prospectus supplement concerning the first mortgage bonds and the
Mortgage are not comprehensive and are subject to the detailed
provisions of the Mortgage. The Mortgage and a form of
supplemental indenture are filed as exhibits to the registration
statement. You should read these documents for provisions that
may be important to you. The Mortgage has been qualified under
the Trust Indenture Act of 1939. You should refer to the Trust
Indenture Act for provisions that apply to the first mortgage
bonds. Wherever particular provisions or defined terms in the
Mortgage are referred to under the "Description of the First
Mortgage Bonds" those provisions or defined terms are
incorporated by reference in the prospectus.
Terms of Specific Series of the First Mortgage Bonds
A prospectus supplement relating to each series of first
mortgage bonds offered by this prospectus will include a
description of the specific terms relating to the offering of
that series. These terms will include any of the following terms
that apply to that series:
(1) the designation, or name, of the series of first mortgage
bonds;
(2) the aggregate principal amount of the series;
(3) the offering price of the series;
(4) the date on which the series will mature;
(5) the rate or method for determining the rate at which the
series will bear interest;
(6) the date from which interest on the series accrues;
(7) the dates on which interest on the series will be payable;
(8) the prices and other terms and conditions, if any, upon
which we may redeem the series prior to maturity;
(9) the applicability of the dividend covenant described below
to the series;
(10) the terms of any insurance policy that will be provided for
the payment of principal of and/or interest on the series; and
(11) any other terms or provisions relating to that series that
are not inconsistent with the Mortgage.
As of September 30, 1999, we had $518 million of first
mortgage bonds outstanding.
Replacement Fund
In addition to actual expenditures for maintenance and
repairs, the Mortgage requires us to expend or deposit each year
an amount equal to $800,000 plus 2 1/4% of net additions to the
mortgaged electric, gas, steam and/or hot water utility property
made after December 31, 1943 and prior to the beginning of that
year. These funds are for replacements and improvements on
electric, gas, steam and/or hot water utility property and
certain automotive equipment subject to the lien of the Mortgage.
We can meet this requirement by:
(1) depositing cash;
(2) certifying gross property additions;
(3) certifying net cash expenditures for certain automotive
equipment; or
(4) by taking credit for first mortgage bonds and qualified lien
bonds that we have retired.
We may withdraw the cash against gross property additions or by
waiving our right to issue first mortgage bonds on the basis of
retired bond credits.
We have reserved the right to amend the Mortgage without any
consent or other action of the holders of any series of first
mortgage bonds created after February 29, 1996 to eliminate the
requirements of the replacement fund under the Mortgage.
Sinking or Improvement Fund
The Mortgage also requires us to make annual sinking or
improvement fund payments for certain outstanding series of first
mortgage bonds. This amount is stated as 1% per year of the
greatest amount for each of these series outstanding prior to the
beginning of the year, less certain retired first mortgage bonds.
Any series of first mortgage bonds that we issue under this
prospectus will not be entitled to these sinking or improvement
fund requirements.
Redemption and Retirement
General
The prospectus supplement for a particular series of first
mortgage bonds offered by this prospectus will contain the prices
and other terms and conditions, if any, for redemption of that
series prior to maturity.
Special Retirement Provisions
If, during any 12 month period, we dispose of mortgaged
property by order of or to any governmental authority, resulting
in the receipt of $5,000,000 or more as proceeds, we, subject to
certain conditions, must apply such proceeds, less certain
deductions, to the retirement of outstanding first mortgage
bonds. If this occurs, we may redeem the outstanding first
mortgage bonds of any series that are redeemable before maturity
by the application of cash deposited for this purpose at the
redemption prices applicable to those first mortgage bonds. If
any series of first mortgage bonds offered by this prospectus
will be redeemable for this purpose, the special redemption
prices applicable to that series will be set forth in the
prospectus supplement related to that series.
Security
The first mortgage bonds offered by this prospectus,
together with all other first mortgage bonds outstanding now or
in the future under the Mortgage, will be secured by the
Mortgage. In the opinion of our counsel, the Mortgage
constitutes a first mortgage lien on substantially all of our
property subject to:
(1) leases of minor portions of our property to others for uses
which, in the opinion of our counsel, do not interfere with our
business,
(2) leases of certain of our property that we do not use in our
business, and
(3) excepted encumbrances.
The Mortgage does not create a lien on the following
"excepted property":
(1) cash and securities;
(2) certain equipment, materials and supplies;
(3) automobiles and other vehicles and aircraft, timber,
minerals, mineral rights and royalties; and
(4) receivables, contracts, leases and operating agreements.
The Mortgage contains provisions that impose a lien of the
Mortgage on property that we acquired after the date of the
Mortgage, other than the excepted property, subject to pre-
existing liens. However, if we consolidate or merge with, or
sell substantially all of our assets to, another corporation, the
lien created by the Mortgage will generally not cover the
property of the successor company, other than the property it
acquires from us and improvements, replacements and additions to
that property.
The Mortgage also provides that the trustees have a lien on
the mortgaged property to ensure the payment of their reasonable
compensation, expenses and disbursements and for indemnity
against certain liabilities. This lien takes priority over the
lien securing the first mortgage bonds.
The Mortgage also contains restrictions on the acquisition
of property subject to liens and on the issuance of bonds under
divisional or prior lien mortgages. Some of these restrictions
only apply if certain series of first mortgage bonds are
outstanding.
Issuance of Additional First Mortgage Bonds
The maximum principal amount of first mortgage bonds that
may be issued under the Mortgage is limited to $100 billion at
any time outstanding under the Mortgage, subject to property
additions, earnings and other limitations of the Mortgage. First
mortgage bonds of any series may be issued from time to time on
the following bases:
(1) 60% of the cost or fair value, whichever is less, of
unfunded property additions after adjustments to offset
retirements;
(2) retirements of first mortgage bonds or qualified lien
bonds; or
(3) deposit of cash with the trustees.
Property additions generally include, among other things,
electric, gas, steam or hot water property acquired after
December 31, 1943. Securities, automobiles or other vehicles or
aircraft, or property used principally for the production or
gathering of natural gas may not be included as property
additions.
As of September 30, 1999, we could have issued approximately
$35 million of additional first mortgage bonds on the basis of
property additions and $620 million on the basis of retired first
mortgage bonds. We expect to issue the first mortgage bonds
offered by this prospectus on the basis of property additions or
on the basis of retired first mortgage bonds.
When first mortgage bonds are issued on the basis of
property additions as described in clause (1) above, cash as
described in clause (3) above or with certain exceptions, retired
first mortgage bonds as described in clause (2) above, the
issuance must meet an "earnings" test. The adjusted net
earnings, before interest and income taxes, for 12 consecutive
months of the preceding 15 months must be at least twice the
annual interest requirements on all first mortgage bonds
outstanding at the time, plus the first mortgage bonds to be
issued, plus all indebtedness, if any, of prior rank. The
adjusted net earnings are calculated after provisions are made
for retirement and depreciation of property at least equal to the
replacement fund requirements for that period.
We have reserved the right to amend the Mortgage without any
consent or other action of the holders of any series of first
mortgage bonds created after February 29, 1996
(1) to permit the issuance of first mortgage bonds on the basis
of 80% of the cost or fair value, whichever is less, of unfunded
property additions after adjustments to offset retirements; and
(2) to modify the net earnings test
(a) to provide that the period over which we will calculate net
earnings will be 12 consecutive months of the preceding 18
months,
(b) to specifically permit the inclusion in net earnings of
revenues collected subject to possible refund and allowances for
funds used during construction, and
(c) to provide for no deduction for non-recurring charges.
We have also reserved the right to amend the Mortgage
without any consent or other action by holders of any first
mortgage bonds to include nuclear fuel, and similar or analogous
devices or substances, as property additions. We have also
reserved the right to amend the Mortgage without any consent or
other action of the holders of any first mortgage bonds created
after June 30, 1978 to make any form of space satellites
including solar power satellites, space stations and other
analogous facilities available as property additions.
No first mortgage bonds may be issued on the basis of
property additions subject to qualified liens if the qualified
lien bonds secured thereby exceed 50% of such property additions,
or if the qualified lien bonds and first mortgage bonds then
outstanding which have been issued against property additions
subject to continuing qualified liens and certain other items
would in the aggregate exceed 15% of the first mortgage bonds and
qualified lien bonds outstanding.
Release and Substitution of Property
We may release property from the lien of the Mortgage,
without applying an earnings test, on the following bases:
(1) the deposit of cash or, to a limited extent, purchase money
mortgages;
(2) property additions, after adjustments in certain cases to
offset retirements and after making adjustments for qualified
lien bonds, if any, outstanding against property additions; and
(3) a waiver of the right to issue first mortgage bonds on the
basis of retired bond credits.
We can withdraw cash upon the bases stated in clause (2) and (3)
above without applying an earnings test.
If unfunded property is released, the property additions
used to effect the release may become available again as credits
under the Mortgage and the waiver of the right to issue first
mortgage bonds on the basis of retired bond credits to effect the
release may cease to be effective as such a waiver. Similar
provisions are in effect as to cash proceeds of such property.
The Mortgage also contains special provisions with respect to
qualified lien bonds pledged and the disposition of moneys
received on pledged prior lien bonds.
We have reserved the right to amend the Mortgage without any
consent or other action by the holders of any series of first
mortgage bonds created after February 29, 1996
(1) to permit the release of property from the lien of the
mortgage in an amount equal to the aggregate principal amount of
retired bonds that we elect to use as the basis for such release
times the reciprocal of the bonding ratio in effect when such
retired bonds were originally issued;
(2) to permit the release of unfunded property so long as we
have at least $1 in unfunded property additions remaining;
(3) to remove the existing limitation on the amount of
obligations secured by purchase money mortgages upon any property
being released that can be used as the basis for such release;
(4) to specifically provide that if we transfer all or
substantially all of our property subject to the Mortgage to a
successor corporation, we would be released from all obligations
under the Mortgage; and
(5) to change the definition of "Funded Property" to mean only
property we specify with a fair value, to be determined by an
independent expert, of not less than 10/8 of the sum of the
amount of outstanding first mortgage bonds and retired bond
credits.
Dividend Covenant
We may covenant that, so long as a particular series of
first mortgage bonds remains outstanding, we will not pay any
cash dividends on common stock after a selected date close to the
date of the original issuance of that series of first mortgage
bonds, other than certain dividends that we may declare prior to
this date, except out of credits to earned surplus after this
selected date plus an amount not to exceed $345 million and plus
any additional amounts that the SEC may approve. The prospectus
supplement relating to a particular series of first mortgage
bonds will state if this covenant will apply to that series.
Modification
Your rights as a bondholder may be modified with the consent
of the holders of 66 2/3% of the outstanding first mortgage
bonds, and, if less than all series of first mortgage bonds are
affected, the consent also of holders of 66 2/3% of the
outstanding first mortgage bonds of each series affected. In
general, no modification of the terms
(1) of payment of principal or interest,
(2) affecting the lien of the Mortgage, or
(3) reducing the percentage required for modification,
is effective against any bondholder without that bondholder's
consent.
We have reserved the right to amend the Mortgage without any
consent or other action by the holders of any series of first
mortgage bonds created after February 29, 1996
(1) to reduce the percentage vote required to modify certain
rights of the holders of the first mortgage bonds to a majority
of the holders of all outstanding first mortgage bonds;
(2) to provide that if a proposed change affects less than all
series of outstanding first mortgage bonds then only the consent
of a majority of the first mortgage bonds of each series affected
is required to make this change; and
(3) to permit us to amend the Mortgage without the consent of
the holders of first mortgage bonds to make changes which do not
adversely affect the interests of the holders in any material
respect.
Defaults
Defaults under the Mortgage include:
(1) default in the payment of principal;
(2) default for 60 days in the payment of interest or
installments of funds for the retirement of first mortgage bonds;
(3) certain events of bankruptcy, insolvency or reorganization;
(4) defaults with respect to qualified lien bonds; and
(5) default in other covenants for 90 days after notice.
The trustees may withhold notice of default, except in
payment of principal, interest or funds for retirement of first
mortgage bonds, if they determine it is in your best interests.
The corporate trustee or the holders of 25% of the first
mortgage bonds may declare the principal and interest due and
payable on default. However, a majority of the holders may annul
such declaration if the default has been cured. No holder of
first mortgage bonds may enforce the lien of the Mortgage without
giving the trustees written notice of a default and unless
(1) the holders of 25% of the first mortgage bonds have
requested the trustees in writing to act and offered them
reasonable opportunity to act and indemnity satisfactory to them
against the costs, expenses and liabilities to be incurred
thereby; and
(2) the trustees shall have failed to act.
The holders of a majority of the first mortgage bonds may direct
the time, method and place of conducting any proceedings for any
remedy available to the trustees or exercising any trust or power
conferred upon the trustees.
We are required to file an annual certificate with the
trustees as to compliance with the provisions of the Mortgage and
as to the absence of a default with respect to any of the
covenants in the Mortgage.
Description of Debt Securities
General
The debt securities will be our direct unsecured general
obligations. We will issue the debt securities offered by this
prospectus from time to time in one or more series under one or
more separate indentures between us and the financial
institution(s) that we will name in the prospectus supplement, as
trustee. This indenture or indentures are collectively referred
to in this prospectus as the "indenture".
The following description summarizes certain general terms
and provisions of the debt securities offered by this prospectus.
This summary is not complete and should be read together with the
prospectus supplement describing the specific terms of the debt
securities. The form of the indenture is filed as an exhibit to
the registration statement. You should read the indenture for
provisions that may be important to you. The indenture will be
qualified under the Trust Indenture Act of 1939. You should
refer to the Trust Indenture Act for provisions that apply to the
debt securities. Whenever particular provisions or defined terms
in the indenture are referred to under this "Description of Debt
Securities," those provisions or defined terms are incorporated
by reference in this prospectus.
The debt securities will rank equally with all of our other
unsecured and unsubordinated debt. As of September 30, 1999, we
had $81.9 million of unsecured and unsubordinated debt that would
have ranked equally with the debt securities.
The debt securities will be effectively subordinated to all
of our secured debt, including our first mortgage bonds. As of
September 30, 1999, we had $1.2 billion of secured debt
outstanding.
Terms of Specific Series of the Debt Securities
A prospectus supplement relating to each series of debt
securities offered by this prospectus will include a description
of the specific terms relating to the offering of that series.
These terms will include any of the following terms that apply to
that series:
(1) the title of the debt securities;
(2) the total principal amount of the debt securities;
(3) the date or dates on which the principal of the debt
securities will be payable or how the date or dates will be
determined;
(4) the rate or rates at which the debt securities will bear
interest, or how the rate or rates will be determined, the date
or dates from which any such interest will accrue, the interest
payment dates for the debt securities and the regular record
dates for interest payments;
(5) the percentage, if less than 100%, of the principal amount
of the debt securities that will be payable if the maturity of
the debt securities is accelerated;
(6) any period or periods within which, or any date or dates on
which, and the price or prices at which and the terms and
conditions upon which, we may redeem the debt securities at our
option and any restrictions on those redemptions;
(7) any sinking fund or other provisions or options held by
holders of debt securities that would obligate us to repurchase
or otherwise redeem the debt securities;
(8) any changes or additions to the events of default under the
indenture or changes or additions to our covenants under the
indenture;
(9) if the debt securities will be issued in denominations other
than $1,000;
(10) if payments on the debt securities may be made in a currency
or currencies other than United States dollars;
(11) any collateral, security, assurance or guarantee for the
debt securities; and
(12) any other terms of the debt securities not inconsistent with
the terms of the indenture.
The indenture does not limit the principal amount of debt
securities that we may issue under the indenture. Our amended
and restated articles of incorporation generally limit the amount
of unsecured debt that we may issue to the equivalent of 20% of
the total of all our secured debt and total equity. As of
September 30, 1999, approximately $ 259.3 million of additional
unsecured debt with a maturity of less than ten years or $368.2
million of additional unsecured debt with a maturity ten years or
greater could have been issued under this provision.
We may sell debt securities at a discount below their
principal amount. We may describe in the prospectus supplement
United States federal income tax considerations applicable to
debt securities sold at an original issue discount. In addition,
we may describe in the prospectus supplement important United
States federal income tax or other tax considerations applicable
to any debt securities denominated or payable in a currency or
currency unit other than United States dollars.
Except as we may otherwise describe in the prospectus
supplement, the covenants contained in the indenture will not
afford holders of debt securities protection in the event of a
highly-leveraged or similar transaction involving us or in the
event of a change of control.
Payment and Paying Agents
Except as we may otherwise provide in the prospectus
supplement, we will pay interest, if any, on each debt security
payable on each interest payment date to the person in whose name
that debt security is registered as of the close of business on
the regular record date for that interest payment date. However,
interest payable at maturity will be paid to the person to whom
the principal is paid. If there has been a default in the
payment of interest on any debt security, the defaulted interest
may be paid to the holder of such debt security as of the close
of business on a date to be fixed by the trustee between 10 and
15 days prior to the date proposed by us for payment of such
defaulted interest or in any other manner permitted by any
securities exchange on which that debt security may be listed, if
the trustee finds it practicable.
Unless we otherwise specify in the prospectus supplement,
principal of, and premium, if any, and interest on the debt
securities at maturity will be payable upon presentation of the
debt securities at the corporate trust office of the trustee in
The City of New York, as our paying agent. We may change the
place of payment on the debt securities, may appoint one or more
additional paying agents, including us, and may remove any paying
agent, all at our discretion.
As long as the debt securities are registered in the name of
The Depository Trust Company, or DTC, or its nominee, as
described under the caption "Book-Entry Only Securities,"
payments of principal, premium, if any, and interest will be made
to DTC for subsequent disbursement to beneficial owners of the
debt securities.
Registration and Transfer
Unless we otherwise specify in the prospectus supplement,
and subject to restrictions related to the issuance of debt
securities through DTC's book-entry system, the transfer of debt
securities may be registered, and debt securities may be
exchanged for other debt securities of the same series or
tranche, of authorized denominations and with the same terms and
principal amount, at the corporate trust office of the trustee in
The City of New York. We may change the place for registration of
transfer and exchange of the debt securities and may designate
additional places for registration and exchange. Unless we
otherwise provide in the prospectus supplement, no service charge
will be made for any registration of transfer or exchange of the
debt securities. However, we may require payment to cover any
tax or other governmental charge that may be imposed. We will
not be required to execute or to provide for the registration of
transfer of, or the exchange of, (1) any debt security during the
15 days prior to giving any notice of redemption or (2) any debt
security selected for redemption, except the unredeemed portion
of any debt security being redeemed in part.
Satisfaction and Discharge
We will be discharged from our obligations on the debt
securities of a particular series if we deposit with the trustee
sufficient cash or government securities to pay the principal,
interest, any premium and any other sums when due on the stated
maturity date or a redemption date of that series of debt
securities.
The indenture will be deemed satisfied and discharged when
no debt securities remain outstanding and when we have paid all
other sums payable by us under the indenture.
Consolidation, Merger and Sale of Assets
Under the terms of the indenture, we may not consolidate
with or merge into any other entity or convey, or transfer or
lease our properties and assets substantially as an entirety to
any entity, unless:
(1) the surviving or successor entity is organized and validly
existing under the laws of any domestic jurisdiction and it
expressly assumes our payment obligations on all outstanding debt
securities and our obligations under the indenture;
(2) immediately after giving effect to the 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
(3) we shall have delivered to the trustee an officer's
certificate and an opinion of counsel as provided in the
indenture.
The terms of the indenture do not restrict us in a merger in
which we are the surviving entity.
Events of Default
"Event of default", when used in the indenture with respect
to any series of debt securities, means any of the following:
(1) failure to pay interest on any debt security of that series
for 60 days after it is due;
(2) failure to pay the principal of or any premium on any debt
security of that series when due;
(3) failure to perform any other covenant in the indenture,
other than a covenant that does not relate to that series of debt
securities, that continues for 60 days after we receive written
notice from the trustee, or after we and the trustee receive a
written notice from the holders of at least 33% in principal
amount of the outstanding debt securities of that series;
however, the trustee or the trustee and the holders of that
principal amount of debt securities of that series can agree to
an extension of the 60 day period and such an agreement to extend
will be automatically deemed to occur if we are diligently
pursuing action to correct the default;
(4) events in bankruptcy, insolvency or our reorganization
specified in the indenture; or
(5) any other event of default specified for that series of debt
securities.
An event of default for a particular series of debt
securities does not necessarily constitute an event of default
for any other series of debt securities issued under the
indenture. The trustee may withhold notice to the holders of
debt securities of any default, except default in the payment of
principal, premium or interest, if it considers the withholding
of notice to be in the interests of holders.
Remedies
Acceleration of Maturity
If an event of default for any series of debt securities
occurs and continues, then either the trustee or the holders of
at least 33% in principal amount of that series may declare the
entire principal amount of all the debt securities of that
series, together with accrued interest, to be due and payable
immediately. However, if the event of default is applicable to
more than one series of debt securities under the indenture, only
the trustee or holders of at least 33% in aggregate principal
amount of the outstanding debt securities of all affected series,
voting as one class, and not the holders of any one series, may
make that declaration of acceleration.
At any time after a declaration of acceleration with respect
to the debt securities of any series has been made and before a
judgment or decree for payment of the money due has been
obtained, the event of default giving rise to that declaration of
acceleration will be considered waived, and that declaration and
its consequences will be considered rescinded and annulled, if:
(1) we have paid or deposited with the trustee a sum sufficient
to pay:
(a) all overdue interest on all debt securities of that series;
(b) the principal of and premium, if any, on any debt securities
of that series which have otherwise become due and interest that
is currently due;
(c) interest on overdue interest; and
(d) all amounts due to the trustee under the indenture; and
(2) any other event of default with respect to the debt
securities of that series has been cured or waived as provided in
the indenture.
There is no automatic acceleration, even in the event of our
bankruptcy, insolvency or reorganization.
Right to Direct Proceedings
Other than its duties in case of an event of default, the
trustee is not obligated to exercise any of its rights or powers
under the indenture at the request, order or direction of any of
the holders, unless the holders offer the trustee reasonable
security or indemnity. If they provide this reasonable security
or indemnity, the holders of a majority in principal amount of
any series of debt securities will have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the trustee, or exercising any power
conferred upon the trustee. However, if the event of default
relates to more than one series of debt securities, only the
holders of a majority in aggregate principal amount of all
affected series, voting as one class, will have the right to give
this direction and not the holders of any one series. The
trustee is not obligated to comply with directions that conflict
with law or other provisions of the indenture.
Limitation on Right to Institute Proceedings
No holder of debt securities of any series will have any
right to institute any proceeding under the indenture, or any
remedy under the indenture, unless:
(1) the holder has previously given to the trustee written
notice of a continuing event of default;
(2) the holders of a majority in aggregate principal amount of
the outstanding debt securities of all series in respect of which
an event of default shall have occurred and be continuing have
made a written request to the trustee, and have offered
reasonable indemnity to the trustee to institute proceedings; and
(3) the trustee has failed to institute any proceeding for 60
days after that notice, request and offer of indemnity.
However, these limitations do not apply to a suit by a
holder of a debt security for payment of the principal, premium,
if any, or interest on that debt security on or after the
applicable due date.
Annual Notice to Trustee
We will provide to the trustee an annual statement by an
appropriate officer as to our compliance with all conditions and
covenants under the indenture.
Modification and Waiver
Without the consent of any holder of debt securities, we may
enter into one or more supplemental indentures for any of the
following purposes:
(1) to evidence the assumption by any permitted successor of our
covenants in the indenture and in the debt securities;
(2) to add additional covenants or to surrender any of our
rights or powers under the indenture;
(3) to add additional events of default;
(4) to change or eliminate any provision of the indenture or to
add any new provision to the indenture; provided, however, if the
change, elimination or addition will adversely affect the
interests of the holders of debt securities of any series in any
material respect, the change, elimination or addition will become
effective only:
(a) when the consent of the holders of debt securities of that
series has been obtained in accordance with the indenture; or
(b) when no debt securities of the affected series remain
outstanding under the indenture;
(5) to provide collateral security for all but not part of the
debt securities;
(6) to establish the form or terms of debt securities of any
series as permitted by the indenture;
(7) to provide for the authentication and delivery of bearer
securities and coupons attached thereto;
(8) to evidence and provide for the acceptance of appointment of
a successor trustee;
(9) to provide for the procedures required for use of a non-
certificated system of registration for the debt securities of
all or any series;
(10) to change any place where principal, premium, if any, and
interest shall be payable, debt securities may be surrendered for
registration of transfer or exchange and notices to us may be
served; or
(11) to cure any ambiguity or inconsistency or to make any other
change to the provisions or to add other provisions with respect
to matters or questions arising under the indenture; provided
that the action does not adversely affect the interests of the
holders of debt securities of any series in any material respect.
The holders of a majority in aggregate principal amount of
the debt securities of all series then outstanding may waive our
compliance with some restrictive provisions of the indenture.
The holders of not less than a majority in principal amount of
the outstanding debt securities of any series may waive any past
default under the indenture with respect to that series, except a
default in the payment of principal, premium, if any, or interest
and certain covenants and provisions of the indenture that cannot
be modified or be amended without the consent of the holder of
each outstanding debt security of the series affected.
If the Trust Indenture Act of 1939 is amended after the date
of the indenture in such a way as to require changes to the
indenture, the indenture will be deemed to be amended so as to
conform to that amendment to the Trust Indenture Act of 1939. We
and the trustee may, without the consent of any holders, enter
into one or more supplemental indentures to evidence that
amendment.
The consent of the holders of a majority in aggregate
principal amount of the debt securities of all series then
outstanding, voting as one class, is required for all other
modifications to the indenture. However, if less than all of the
series of debt securities outstanding are directly affected by a
proposed supplemental indenture, then the consent only of the
holders of a majority in aggregate principal amount of all series
that are directly affected, voting as one class, will be
required. No supplemental indenture may:
(1) change the stated maturity of the principal of, or any
installment of principal of or interest on, any debt security, or
reduce the principal amount of any debt security or its rate of
interest or change the method of calculating the interest rate or
reduce any premium payable upon redemption, or reduce the amount
of principal that would be due and payable upon a declaration of
acceleration of the maturity thereof, or change the currency in
which payments are made, or impair the right to institute suit
for the enforcement of any payment on or after the stated
maturity of any debt security, without the consent of the holder
of that debt security;
(2) reduce the percentage in principal amount of the outstanding
debt securities of any series the consent of the holders of which
is required for any supplemental indenture or any waiver of
compliance with a provision of the indenture or any default
thereunder and its consequences, or reduce the requirements for
quorum or voting, without the consent of all the holders of the
series; or
(3) modify some of the provisions of the indenture relating to
supplemental indentures, waivers of certain covenants and waivers
of past defaults with respect to the debt securities of any
series, without the consent of the holder of each outstanding
debt security affected thereby.
A supplemental indenture which changes the indenture solely
for the benefit of one or more particular series of debt
securities, or modifies the rights of the holders of debt
securities of one or more series, will not affect the rights
under the indenture of the holders of the debt securities of any
other series.
The indenture provides that debt securities owned by us or
anyone else required to make payment on the debt securities shall
be disregarded and considered not to be outstanding in
determining whether the required holders have given a request or
consent.
We may fix in advance a record date to determine the
required number of holders entitled to give any request, demand,
authorization, direction, notice, consent, waiver or other such
act of the holders, but we shall have no obligation to do so. If
we fix a record date, that request, demand, authorization,
direction, notice, consent, waiver or other act of the holders
may be given before or after that record date, but only the
holders of record at the close of business on that record date
will be considered holders for the purposes of determining
whether holders of the required percentage of the outstanding
debt securities have authorized or agreed or consented to the
request, demand, authorization, direction, notice, consent,
waiver or other act of the holders. For that purpose, the
outstanding debt securities shall be computed as of the record
date. Any request, demand, authorization, direction, notice,
consent, election, waiver or other act of a holder will bind
every future holder of the same debt securities and the holder of
every debt security issued upon the registration of transfer of
or in exchange of those debt securities. A transferee will be
bound by acts of the trustee or us in reliance thereon, whether
or not notation of that action is made upon the debt security.
Resignation of Trustee
A trustee may resign at any time by giving written notice to
us or may be removed at any time by act of the holders of a
majority in principal amount of all series of debt securities
then outstanding delivered to the trustee and us. No resignation
or removal of a trustee and no appointment of a successor trustee
will be effective until the acceptance of appointment by a
successor trustee. So long as no event of default or event
which, after notice or lapse of time, or both, would become an
event of default has occurred and is continuing and except with
respect to a trustee appointed by act of the holders, if we have
delivered to the trustee a resolution of our board of directors
appointing a successor trustee and such successor has accepted
the appointment in accordance with the terms of the respective
indenture, the trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in
accordance with the indenture.
Notices
Notices to holders of debt securities will be given by mail
to the addresses of such holders as they appear in the security
register under the indenture.
Title
We, the trustee, and any of our agents or any agent of the
trustee, may treat the person in whose name debt securities are
registered as the absolute owner thereof, whether or not the debt
securities may be overdue, for the purpose of making payments and
for all other purposes irrespective of notice to the contrary.
Governing Law
Each indenture and the debt securities will be governed by,
and construed in accordance with, the laws of the State of New
York.
Book-Entry Only Securities
Unless otherwise specified in the applicable prospectus
supplement, DTC, will act as securities depository for the
securities offered by this prospectus. The securities will be
issued only as fully registered securities registered in the name
of Cede & Co., DTC's partnership nominee or such other name as
may be requested by an authorized representative of DTC. One
fully-registered certificate will be issued for each series of
securities, representing the aggregate principal amount of that
series of securities, and will be deposited with DTC or its
custodian. If, however, the aggregate principal amount of any
series of securities offered exceeds $400 million, one
certificate will be issued with respect to each $400 million of
principal amount and an additional certificate will be issued for
any remaining principal amount of such series.
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 Securities
Exchange Act of 1934. DTC holds securities that its participants
("Direct Participants") deposit with DTC. DTC also facilitates
the settlement among Direct Participants of securities
transactions, such as transfers and pledges, in deposited
securities through electronic computerized records for Direct
Participants' accounts. This eliminates the need for physical
movement of securities certificates.
Direct Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its Direct
Participants and The New York Stock Exchange, Inc., 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 a custodial relationship
with a Direct Participant, either directly or indirectly (the
"Indirect Participants," and, together with the Direct
Participants, the "Participants"). The rules applicable to DTC
and its Participants are on file with the SEC.
Purchases of securities within the DTC system must be made
by or through Direct Participants which will receive a credit for
the securities on DTC's records. The ownership interest of each
actual purchaser of a security (a "Beneficial Owner") will, in
turn, be recorded on the Direct and Indirect Participant's
respective 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 Participant through which
the Beneficial Owner entered into the transaction. Transfers of
ownership interests in the 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 the securities, except in the event
that the use of the book-entry system for the securities is
discontinued.
To facilitate subsequent transfers, all securities deposited
by Direct Participants with DTC are registered in the name of
DTC's partnership nominee, Cede & Co., or such other name as may
be requested by an authorized representative of DTC. The deposit
of the securities with DTC and their registration in the name of
Cede & Co. or such other nominee do not effect any change in
beneficial ownership. DTC has no knowledge of actual beneficial
ownership of the securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such
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 that may be applicable. Beneficial Owners of
securities may wish to take certain steps to augment transmission
to them of notices of significant events with respect to the
securities, such as redemptions, tenders, defaults, and proposed
amendments to the security documents. Beneficial Owners of
securities may wish to ascertain that the nominee holding the
securities for their benefit has agreed to obtain and transmit
notices to Beneficial Owners, or in the alternative, Beneficial
Owners may wish to provide their names and addresses to the
registrar and request that copies of the notices be provided
directly to them.
Redemption notices, if any, will be sent to Cede & Co. If
less than all of the securities of a particular series are being
redeemed, DTC's practice is to determine by lot the amount of the
interest of each Direct Participant in such series to be
redeemed.
Neither DTC nor Cede & Co., nor such other DTC nominee, will
consent or vote with respect to the securities. Under its usual
procedures, DTC mails an omnibus proxy (an "Omnibus Proxy") to
the appropriate trustee 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 the
securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Payments of redemption proceeds, principal of, premium, if
any, and interest on the securities will be made to DTC, or such
other nominee as may be requested by an authorized representative
of 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. Payments by
Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or
registered in "street-name," and will be the responsibility of
such Participant and not of DTC, the underwriters, the
appropriate trustee or us, subject to any statutory or regulatory
requirements that may be in effect from time to time. Payment of
redemption proceeds, principal, premium, if any, and interest to
DTC is our responsibility or that of the appropriate trustee.
Disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the
Beneficial Owners is the responsibility of Direct and Indirect
Participants.
DTC may discontinue providing its services as securities
depository with respect to the securities at any time by giving
reasonable notice to us or the appropriate trustee. Under such
circumstances and in the event that a successor securities
depository is not obtained, certificates for the securities are
required to be printed and delivered. In addition, we may, at
any time, discontinue use of the system of book-entry transfers
through DTC or a successor securities depository. In that event,
certificates for the securities will also be printed and
delivered.
We will not have any responsibility or obligation to
Participants or the persons for whom they act as nominees with
respect to the accuracy of the records of DTC, its nominee or any
Direct or Indirect Participant with respect to any ownership
interest in the securities, or with respect to payments to, or
providing of notice to, the Direct Participants, the Indirect
Participants or the Beneficial Owners.
So long as Cede & Co. is the registered owner of any series
of securities, as nominee of DTC, references herein to holders of
such series of securities shall mean Cede & Co. or DTC and shall
not mean the Beneficial Owners of the securities.
DTC management is aware that some computer applications,
systems and the like for processing data ("Systems") that are
dependent upon calendar dates, including dates before, on and
after January 1, 2000, may encounter "Year 2000 problems." DTC
has informed its Participants and other members of the financial
community that it has developed and is implementing a program so
that its Systems, as the same relate to the timely payment of
distributions, including principal and income payments, to
security holders, book entry deliveries, and settlement of trades
within DTC, continue to function appropriately. This program
includes a technical assessment and a remediation plan, each of
which is complete. Additionally, DTC's plan includes a testing
phase, which is expected to be completed within appropriate time
frames.
However, DTC's ability to perform properly its services is
also dependent upon other parties, including but not, limited to
issuers and their agents, as well as third party vendors from
whom DTC licenses software and hardware, and third party vendors
on whom DTC relies for information or the provision of services,
including telecommunication and electrical utility service
providers, among others. DTC has informed the financial
community that it is contacting, and will continue to contact,
third party vendors from whom DTC acquires services to: (a)
impress upon them the importance of such services being Year 2000
compliant and (b) determine the extent of their efforts for Year
2000 remediation, and, as appropriate, testing, of their
services. In addition, DTC is in the process of developing such
contingency plans as it deems appropriate.
DTC has established a Year 2000 Project Office and will
provide information concerning DTC's Year 2000 compliance to
persons requesting that information. The address is as follows:
The Depository Trust Company
Year 2000 Project Office
55 Water Street
New York, New York 10041
(212) 855-8068 or
(212) 855-8881
In addition, information concerning DTC's Year 2000 compliance
can be obtained from its web site at the following address:
www.dtc.org.
According to DTC, the foregoing information with respect to
DTC has been provided to the financial community for
informational purposes only and is not intended to serve as a
representation, warranty or contract modification of any kind.
The information in this section concerning DTC, its Year
2000 efforts and its book-entry system has been obtained from
DTC. Neither ourselves, the appropriate trustee nor any
underwriters, dealers or agents takes responsibility for its
accuracy or completeness.
Experts and Legality
The financial statements incorporated in this prospectus by
reference to our Annual Report on Form 10-K for the year ended
December 31, 1998 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and
accounting.
The legality of the securities will be passed upon for us by
Thelen Reid & Priest LLP, New York, New York, and Denise C.
Redmann, Esq., Senior Counsel - Corporate and Securities, of
Entergy Services, Inc., and for any underwriters, dealers or
agents by Winthrop, Stimson, Putnam & Roberts, New York, New
York. All legal matters pertaining to our organization, titles
to property, franchises and the lien of the Mortgage and all
matters pertaining to Louisiana law will be passed upon only by
Denise C. Redmann, Esq.
The statements in this prospectus as to matters of law and
legal conclusions made under "Description of the First Mortgage
Bonds - Security," have been reviewed by Denise C. Redmann, Esq.,
and are set forth herein in reliance upon the opinion of said
counsel, and upon her authority as an expert.
Plan of Distribution
Methods and Terms of Sale
We may use a variety of methods to sell the securities
including:
(1) through one or more underwriters or dealers;
(2) directly to one or more purchasers;
(3) through one or more agents; or
(4) through a combination of any such methods of sale.
The prospectus supplement relating to a particular series of the
securities will set forth the terms of the offering of the
securities, including:
(1) the name or names of any underwriters, dealers or agents and
any syndicate of underwriters;
(2) the initial public offering price;
(3) any underwriting discounts and other items constituting
underwriters' compensation;
(4) the proceeds we receive from that sale; and
(5) any discounts or concessions allowed or reallowed or paid by
any underwriters to dealers.
Underwriters
If we sell the securities through underwriters, they will
acquire the securities for their own account and may resell them
from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. The underwriters
for a particular underwritten offering of securities will be
named in the prospectus supplement and, if an underwriting
syndicate is used, the managing underwriter or underwriters will
be named on the cover page. In connection with the sale of
securities, the underwriters may receive compensation from us or
from purchasers in the form of discounts, concessions or
commissions. The obligations of the underwriters to purchase
securities will be subject to certain conditions. The
underwriters will be obligated to purchase all of the securities
of a particular series if any are purchased. However, the
underwriters may purchase less than all of the securities of a
particular series should certain circumstances involving a
default of one or more underwriters occur.
The initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers by any
underwriters may be changed from time to time.
Stabilizing Transactions
Underwriters may engage in stabilizing transactions and
syndicate covering transactions in accordance with Rule 104 under
the Securities Exchange Act of 1934. Stabilizing transactions
permit bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. Syndicate
covering transactions involve purchases of the securities in the
open market after the distribution has been completed in order to
cover syndicate short positions. These stabilizing transactions
and syndicate covering transactions may cause the price of the
securities to be higher than it would otherwise be if such
transactions had not occurred.
Agents
If we sell the securities through agents, the prospectus
supplement will set forth the name of any agent involved in the
offer or sale of the securities as well as any commissions we
will pay to them. Unless otherwise indicated in the prospectus
supplement, any agent will be acting on a best efforts basis for
the period of its appointment.
Related Transactions
Underwriters, dealers and agents may engage in transactions
with, or perform services for, us or our affiliates in the
ordinary course of business.
Indemnification
We will agree to indemnify any underwriters, dealers, agents
or purchasers and their controlling persons against certain civil
liabilities, including liabilities under the Securities Act of
1933.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Each
Initial Additional
Sale Sale
Filing Fees-Securities and Exchange Commission:
Registration Statement $ 115,104 $ N/A
*Rating Agencies' fees 25,000 25,000
*Trustees' fees 2,500 2,500
*Fees of Company's Outside Legal Counsel:
Thelen 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 25,000 15,000
*Miscellaneous expenses (including blue- 20,000 15,000
sky expenses)
---------- -----------
*Total Expenses $ 284,604 $ 118,500
========== ===========
___________________
* Estimated
Item 15. Indemnification of Directors and Officers.
Entergy Louisiana, Inc. (the "Company") has insurance
covering its expenditures that 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 that 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 Amended and Restated Articles of
Incorporation. Its officers and directors may generally be
indemnified to the full extent of such laws.
Item 16. List of Exhibits.*
**1(a) Form of Underwriting Agreement for the First
Mortgage Bonds. (Filed as Exhibit 1(a) to the
Company's Registration Statement on Form S-3, File
No. 33-50937)
1(b) Form of Underwriting Agreement for the Debt
Securities.
3(a) Amended and Restated Articles of Incorporation.
3(b) By-laws, as amended and as presently in effect as
of November 26, 1999.
**4(a) Mortgage and Deed of Trust, as amended by fifty-
four Supplemental Indentures (filed, respectively,
as the exhibits and in the file numbers
indicated: 7(d) in 2-5317 (Mortgage); 7(b) in 2-
7408 (First); 7(c) in 2-8636 (Second); 4(b)-3 in 2-
10412 (Third); 4(b)-4 in 2-12264 (Fourth); 2(b)-5
in 2-12936 (Fifth); D in 70-3862 (Sixth); 2(b)-7 in
2-22340 (Seventh); 2(c) in 2-24429 (Eighth); 4(c)-9
in 2-25801 (Ninth); 4(c)-10 in 2-26911 (Tenth);
2(c) in 2-28123 (Eleventh); 2(c) in 2-34659
(Twelfth); C to Rule 24 Certificate in 70-4793
(Thirteenth); 2(b)-2 in 2-38378 (Fourteenth); 2(b)-
2 in 2-39437 (Fifteenth); 2(b)-2 in 2-42523
(Sixteenth); C to Rule 24 Certificate in 70-5242
(Seventeenth); C to Rule 24 Certificate in 70-5330
(Eighteenth); C-1 to Rule 24 Certificate in 70-5449
(Nineteenth); C-1 to Rule 24 Certificate in 70-5550
(Twentieth); A-6(a) to Rule 24 Certificate in 70-
5598 (Twenty-first); C-1 to Rule 24 Certificate in
70-5711 (Twenty-second); C-1 to Rule 24 Certificate
in 70-5919 (Twenty-third); C-1 to Rule 24
Certificate in 70-6102 (Twenty-fourth); C-1 to Rule
24 Certificate in 70-6169 (Twenty-fifth); C-1 to
Rule 24 Certificate in 70-6278 (Twenty-sixth); C-1
to Rule 24 Certificate in 70-6355 (Twenty-seventh);
C-1 to Rule 24 Certificate in 70-6508 (Twenty-
eighth); C-1 to Rule 24 Certificate in 70-6556
(Twenty-ninth); C-1 to Rule 24 Certificate in 70-
6635 (Thirtieth); C-1 to Rule 24 Certificate in 70-
6834 (Thirty-first); C-1 to Rule 24 Certificate in
70-6886 (Thirty-second); C-1 to Rule 24 Certificate
in 70-6993 (Thirty-third); C-2 to Rule 24
Certificate in 70-6993 (Thirty-fourth); C-3 to Rule
24 Certificate in 70-6993 (Thirty-fifth); A-2(a) to
Rule 24 Certificate in 70-7166 (Thirty-sixth); A-
2(a) in 70-7226 (Thirty-seventh); C-1 to Rule 24
Certificate in 70-7270 (Thirty-eighth); 4(a) to
Quarterly Report on Form 10-Q for the Quarter ended
June 30, 1988 in File 1-8474 (Thirty-ninth); A-2(b)
to Rule 24 Certificate in 70-7553 (Fortieth); A-
2(d) to Rule 24 Certificate in 70-7553 (Forty-
first); A-3(a) to Rule 24 Certificate in 70-7822
(Forty-second); A-3(b) to Rule 24 Certificate in 70-
7822 (Forty-third); A-2(b) to Rule 24 Certificate
in 70-7822 (Forty-fourth); A-3(c) to Rule 24
Certificate in 70-7822 (Forty-fifth); A-2(c) to
Rule 24 Certificate in 70-7822 (Forty-sixth); and A-
3(d) to Rule 24 Certificate in 70-7822 (Forty-
seventh); A-3(e) to Rule 24 Certificate dated
December 21, 1993, in File No. 70-7822 (Forty-
eighth); A-3(e) to Rule 24 Certificate dated August
1, 1994, in File No. 70-7822 (Forty-ninth); A-4(c)
to Rule 24 Certificate dated September 1994 in File
No. 70-7653 (Fiftieth); A-2(a) to Rule 24
Certificate dated April 4, 1996 in File No. 70-8487
(Fifty-first) and A-2(a) to Rule 24 Certificate
dated April 3, 1998 in File No. 70-9141 (Fifty-
second); A-2(b) to Rule 24 Certificate dated April
9, 1999 in File No. 70-9141 (Fifty-third); and A-
3(a) to Rule 24 Certificate dated July 9, 1999 in
File No. 70-9141 (Fifty-fourth)).
**4(b) Form of Supplemental Indenture for the First
Mortgage Bonds.(Filed as Exhibit 4(b) to the
Company's Registration Statement on Form S-3, File
No. 33-50937)
4(c) Form of Indenture for Debt Securities.
4(d) Form of Officer's Certificate for Debt Securities.
5(a) Opinion of Denise C. Redmann, Esq., Senior Counsel
- Corporate and Securities of Entergy Services,
Inc., as to the legality of the securities being
registered.
5(b) Opinion of Thelen Reid & Priest LLP, New York
counsel for the Company, as to the legality of the
securities being registered.
**12(a) Computation of Ratios of Earnings to Fixed Charges
(filed as Exhibit 12(c) to the Company's Annual
Report on Form 10-K for the year ended December 31,
1998).
**12(b) Computation of Ratios of Earnings to Fixed Charges
(filed as Exhibit 99(c) to the Company's Quarterly
Report on Form 10-Q for the period ended September
30, 1999).
23(a) Consent of Denise C. Redmann, Esq. (included in
Exhibit 5(a) hereto).
23(b) Consent of Thelen Reid & Priest LLP (included in
Exhibit 5(b) hereto).
23(c) Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included herein at page S-1).
25(a) Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939, as amended, of Harris Trust
Company of New York, Corporate Trustee.
***25(b) Form T-2 Statement of Eligibility under the Trust
Indenture Act of 1939, as amended, of Mark F.
McLaughlin, Co-Trustee.
***25(c) Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939, as amended, of the Trustee
under the Indenture for Debt Securities.
* Reference is made to a duplicate list of exhibits being
filed as a part of this Registration Statement, which list,
in accordance with Item 102 of Regulation S-T of the
Commission, immediately precedes the exhibits being
physically filed with this Registration Statement.
** Incorporated herein by reference as indicated.
*** To be filed by amendment or pursuant to Trust Indenture Act
305(b)(2)
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(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 a 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
registrant 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 registrant's 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) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has 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 registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant 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 registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
(6) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
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 22nd day of
December 1999.
ENTERGY LOUISIANA, INC.
By: /s/ Steven C. McNeal
Steven C. McNeal
Vice President and Treasurer
Each director and/or officer of the registrant whose
signature appears below has appointed 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 registrant
hereby also has appointed each such named person as its attorney-
in-fact with like authority to sign and file any such amendments
in its name and behalf.
Signature Title Date
/s/ Jerry D. Jackson Chairman of the Board, December 15, 1999
Jerry D. Jackson President
and Chief Executive Officer
(Principal Executive Officer)
/s/ C. John Wilder Director, Executive Vice December 16, 1999
C. John Wilder President
and Chief Financial Officer
(Principal Financial Officer)
/s/ Nathan E. Langston Vice President and December 17, 1999
Nathan E. Langston Chief Accounting Officer
(Principal Accounting Officer)
/s/ Donald C. Hintz Director December 16, 1999
Donald C. Hintz
<PAGE>
EXHIBIT 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our reports dated February
18, 1999, relating to the financial statements and financial
statement schedule, which appear in Entergy Louisiana, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the reference to us under the heading "Experts
and Legality" in such Registration Statement.
PricewaterhouseCoopers LLP
New Orleans, Louisiana
December 22, 1999
Exhibit 1(b)
Entergy Louisiana, Inc.
$_____________
___% [Insert Title of Debt Securities]
UNDERWRITING AGREEMENT
_______ __, ____
[Underwriters]
c/o [Lead Manager]
[Address]
Ladies & Gentlemen:
The undersigned, Entergy Louisiana, Inc., a Louisiana
corporation (the "Company"), proposes to issue and sell severally
to you, as underwriters (the "Underwriters," which term, when the
context permits shall also include any underwriters substituted
as hereinafter in Section 11 provided), an aggregate of
$___________ principal amount of the Company's ___% [Insert title
of Debt Securities] (the "Securities"), 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 Securities at ____% of
the principal amount thereof [plus accrued interest thereon from
_____ __, ____ to the Closing Date (as defined herein)], in the
principal amount set forth opposite the name of such Underwriter
in Schedule I hereto.
SECTION 2. Description of Securities. The Securities shall
be issued under and pursuant to an Indenture (For Unsecured Debt
Securities) dated as of ________ __, ____ between the Company and
_____________, as trustee (the "Trustee"), including the terms of
the Securities established as contemplated by Section 301 thereof
(the "Indenture"). The Securities and the 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 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. 33-50937) (the "1993 Registration
Statement") for the registration of $210,000,00 aggregate par
value and/or aggregate principal amount of the Company's
preferred stock and/or the Company's first mortgage bonds under
the Securities Act of 1933 (the "Securities Act") and the 1993
Registration Statement has become effective. The Company also
filed with the Commission a registration statement on Form S-3
(File No. 333-______) (the "1999 Registration Statement") for the
registration of $500,000,000 aggregate offering price of the
Company's securities (including $64,000,000 of the Company's
first mortgage bonds carried forward from the 1993 Registration
Statement), including the Securities, under the Securities Act
(all of which securities remain unsold), and the 1999
Registration Statement has become effective. The Company
qualifies for use of Form S-3 for the registration of the
Securities and the Securities are registered under the Securities
Act. The combined prospectus forming a part of the 1999
Registration Statement pursuant to Rule 429 under the Securities
Act, at the time the 1999 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 (the "Exchange Act") after the
time the 1999 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 1993 Registration Statement and
the 1999 Registration Statement each 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 Securities
by a prospectus supplement (a "Prospectus Supplement") to be
filed with the Commission pursuant to Rule 424(b) under the
Securities Act ("Rule 424(b)"), are hereinafter referred to as
the "Registration Statements" and the "Prospectus," respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d) hereof, the Company will not file any amendment to the
Registration Statements or any 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 incorporated or
deemed to be 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.
(d) The Registration Statements, at the Effective Date
(as defined below), 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 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, (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 or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3, on
the date 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.
With respect to either of the Registration Statements, on the
later of (i) the date such Registration Statement (or the most
recent post-effective amendment thereto, but excluding any post-
effective amendment relating solely to debt securities other than
the Securities) 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 (such date is hereinafter referred to as
the "Effective Date"), such Registration Statement 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 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 were 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 were 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 Statements 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, under the Trust Indenture Act
filed as an exhibit to the 1999 Registration Statement (the "Form
T-1").
(e) The issuance and sale of the Securities 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 material adverse effect on the Company.
SECTION 4. Offering. The Underwriters advise the Company
that they propose to make a public offering of their respective
portions of the Securities as soon after the effectiveness of
this Underwriting Agreement as in their judgment is advisable.
The Company is further advised by the Underwriters that the
Securities 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 Securities and payment of the
purchase price therefor by wire transfer of immediately available
funds shall be made at the offices of Thelen 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 [Lead
Manager], 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 Securities shall be delivered to the Underwriters
in book-entry only form through the facilities of The Depository
Trust Company in New York, New York. The certificates for the
Securities shall be in the form of one or more typewritten bonds
in fully registered form, in the aggregate principal amount of
the Securities, and registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Company agrees to
make the Securities available to the Underwriters 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
between the Underwriters and the Company, or at such other time
and/or date as may be agreed upon between the Underwriters 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 Underwriters a conformed copy of each Registration
Statement in the form that it or the most recent post-effective
amendment thereto became effective, 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 the Commission pursuant to and in compliance with Rule
424(b) and will advise [Lead Manager] promptly of the issuance of
any stop order under the Securities Act with respect to either of
the Registration Statements 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 Underwriters 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 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 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
Securities for offer and sale, under the blue sky laws of such
jurisdictions as the Underwriters 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 Statements and any post-effective amendments
thereto, (ii) the printing, issuance and delivery of the
Securities and the preparation, execution, printing and
recordation of the Indenture, (iii) legal counsel relating to the
qualification of the Securities under the blue sky laws of
various jurisdictions, in an amount not to exceed $3,500, (iv)
the printing and delivery to the Underwriters of reasonable
quantities of copies of the Registration Statements, the
preliminary (or any supplemental) blue sky survey, any
preliminary prospectus supplement relating to the 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 Securities by one or more nationally recognized
statistical rating agencies and (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. 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 debt
securities without the consent of the Underwriters 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 Underwriters agree to notify the
Company of such termination if it occurs prior to the Closing
Date.
SECTION 7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the
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 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 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 Underwriters.
(b) No stop order suspending the effectiveness of
either of the Registration Statements 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 Securities, an
order of the Commission under the Public Utility Holding Company
Act of 1935 (the "1935 Act") authorizing the issuance and sale of
the Securities on the terms set forth in, or contemplated by,
this Underwriting Agreement.
(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 Thelen 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 Underwriters 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
Securities, 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
PricewaterhouseCoopers LLP, 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 audited 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) 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.
(h) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Indenture.
(i) 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.
(j) 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 Underwriters,
materially impairs the investment quality of the Securities.
(k) Between the date hereof and the Closing Date,
neither Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Services shall have lowered its rating of any of the
Company's outstanding debt securities in any respect.
(l) On or prior to the Closing Date, [Lead Manager]
shall have received from the Company evidence reasonably
satisfactory to it that the Securities have received ratings of
____ from Moody's Investors Service, Inc. and ____ from Standard
& Poor's Ratings Services, which ratings shall be in full force
and effect on the Closing Date.
(m) All legal matters in connection with the issuance
and sale of the Securities shall be satisfactory in form and
substance to Counsel for the Underwriters.
(n) 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
either of the Registration Statements shall be in effect at or
prior to the Closing Date, and no proceedings for that purpose
shall be pending before, or threatened by, the Commission on the
Closing Date.
(b) At the Closing Date, there shall have been issued
and, there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Securities, 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.
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 [Lead
Manager]. 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 Statements, 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 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 Statements, the Basic Prospectus (if used prior to
the date the Prospectus is filed with 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 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
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 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 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) 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 Statements, 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 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 Statements, the Basic Prospectus (if used prior to
the date the Prospectus is filed with 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 Statements, 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 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 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 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(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 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 principal amount of Securities that it has agreed to
purchase and pay for hereunder, and the aggregate principal
amount of Securities that such defaulting Underwriter agreed but
failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Securities, the other
Underwriters shall be obligated to purchase the Securities that
such defaulting Underwriter agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
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 principal amount of
Securities without written consent of such Underwriter. If any
Underwriter shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of the Securities, the Company shall have the
right (a) to require the non-defaulting Underwriters to purchase
and pay for the respective principal amount of Securities that it
had severally agreed to purchase hereunder, and, in addition, the
principal amount of Securities 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
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 principal amount of 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
Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the
Underwriters 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 Securities, 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
[Lead Manager] to the Company if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing
Date (i) trading in securities generally shall have been
suspended on the New York Stock Exchange 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 New York Stock Exchange 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 [Lead Manager], 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
[Lead Manager], impracticable to market the Securities. This
Underwriting Agreement shall also be subject to termination, upon
notice by [Lead Manager] as provided above, if, in the judgment
of [Lead Manager], 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 Securities, to the activity of the Underwriters or to the
terms of any series of securities of the Company other than the
Securities) filed or issued after the effectiveness of this
Underwriting Agreement by the Company shall have materially
impaired the marketability of the 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. THE RIGHTS AND DUTIES OF THE
PARTIES TO THIS UNDERWRITING AGREEMENT SHALL, PURSUANT TO NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. This Underwriting Agreement shall
become effective when a fully executed copy thereof is delivered
to the Company and to the Underwriters. 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 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 [Lead Manager] at the address set forth at the
beginning of this Underwriting Agreement (to the attention of
Capital Markets) 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.
Very truly yours,
Entergy Louisiana, Inc.
By: ____________________
Name:
Title:
Accepted as of the date first above written:
[Underwriters]
By: [Lead Manager]
By: ____________________
Name:
Title:
SCHEDULE I
Entergy Louisiana, Inc.
___% [Insert Title of Debt Securities]
Name of Underwriter Principal Amount of Securities
________________
Total $________________
<PAGE>
EXHIBIT A
[Letterhead of Entergy Services, Inc.]
________ __,
_____
[Underwriters]
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
I, together with Thelen Reid & Priest LLP, of New York,
New York, have acted as counsel for Entergy Louisiana, Inc., a
Louisiana corporation (the "Company"), in connection with the
issuance and sale to you, pursuant to the Underwriting Agreement,
effective ________ __, ____ (the "Underwriting Agreement"),
between the Company and you, of an aggregate of $________
principal amount of its % [Insert Title of Debt Securities]
(the "Securities"), issued pursuant to an Indenture (For
Unsecured Debt Securities) dated as of _________ __, ____ between
the Company and _________, as trustee (the "Trustee"), including
the terms of the Securities established as contemplated by
Section 301 thereof (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 Statements and
the Prospectus; (e) the records of various corporate proceedings
relating to the authorization, issuance and sale of the
Securities 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
Securities 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 Securities, 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, the
conformity with the originals of all documents submitted to me as
copies and the authenticity of the originals of such latter
documents. 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 and the
Indenture and certificates delivered at the closing of the sale
of the 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 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 Statements 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 (whether 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 Securities 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 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 (whether
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) The statements made in the Prospectus under the
captions "__________________________________" and
"Description of Unsecured Debt Securities" insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(6) The issuance and sale by the Company of the
Securities, 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 Statements, at the Effective Date, and the
Prospectus, at the time it was filed with 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 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 Statements have become, and on the date hereof
are, effective under the Securities Act, and, to the best of
my knowledge, no stop order suspending the effectiveness of
either of the Registration Statements 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 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 Trust Indenture Act, which have been
duly obtained, or in connection or compliance with the
provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Securities 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 Securities or
under the Indenture and the Underwriting Agreement.
In connection with the preparation by the Company of
the Registration Statements 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
audited certain of the financial statements included or
incorporated by reference in the Registration Statements. My
examination of the Registration Statements and the Prospectus and
such discussions did not disclose to me any information which
gives me reason to believe that the Registration Statements, 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 it was filed with
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 (i) the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statements or the Prospectus, (ii)
the Form T-1 or (iii) the information contained in the Prospectus
under the caption "Book-Entry Only Securities."
I have examined the portions of the information
contained in the Registration Statements 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 Thelen 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, for purposes of
this opinion, do not hold myself out as an expert on the laws of
any jurisdiction other than the State of Louisiana and the United
States of America. 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 Thelen 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 Thelen 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 Thelen Reid & Priest LLP]
___________ __, ____
[Underwriters]
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
We, together with Denise C. Redmann, Esq., Senior
Counsel-Corporate and Securities of Entergy Services, Inc., have
acted as counsel for Entergy Louisiana, Inc., a Louisiana
corporation (the "Company"), in connection with the issuance and
sale to you, pursuant to the Underwriting Agreement, effective
________ __, ____ (the "Underwriting Agreement"), between the
Company and you, of an aggregate of $________ principal amount of
its % [Insert Title of Debt Securities] (the "Securities"),
issued pursuant to an Indenture (For Unsecured Debt Securities)
dated as of _________ __, ____ between the Company and _________,
as trustee (the "Trustee"), including the terms of the Securities
established as contemplated by Section 301 thereof (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 Statements
and the Prospectus; (e) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Securities 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 Securities 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, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such
latter documents. We have not examined the Securities, 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 (whether 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 Securities 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 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 (whether
considered in a proceeding in equity or at law), and are
entitled to the benefits provided by the Indenture.
(3) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(4) The statements made in the Prospectus under the
captions "__________________________________" and
"Description of Unsecured Debt Securities" 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.
(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 Statements, at the Effective Date,
and the Prospectus, at the time it was filed with 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 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 Statements have become,
and on the date hereof are, effective under the Securities
Act and, to the best of our knowledge, no stop order
suspending the effectiveness of either of the Registration
Statements 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 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 Trust Indenture Act, which have been
duly obtained, or in connection or compliance with the
provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Securities 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 Securities or
under the Indenture and the Underwriting Agreement.
In passing upon the forms of the Registration
Statements 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 Statements and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (5) above. In connection
with the preparation by the Company of the Registration
Statements 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 audited certain of the
financial statements included or incorporated by reference in the
Registration Statements. Our examination of the Registration
Statements and the Prospectus and such discussions did not
disclose to us any information which gives us reason to believe
that the Registration Statements, 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 it was filed with 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 (i) the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statements or the Prospectus, (ii) the Form T-1 or (iii) the
information contained in the Prospectus Supplement under the
caption "Book-Entry Only Securities."
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 Louisiana and the United
States of America. 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,
THELEN REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_________ __, ____
[Underwriters]
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
We have acted as counsel for you, as the several
underwriters, of an aggregate of $_________ principal amount of
% [Insert Title of Debt Securities] (the "Securities"), issued by
Entergy Louisiana, Inc., a Louisiana corporation (the "Company"),
under an Indenture (For Unsecured Debt Securities) dated as of
_________ __, ____ between the Company and _________, as trustee
(the "Trustee"), including the terms of the Securities
established as contemplated by Section 301 thereof (the
"Indenture"), pursuant to the agreement between you 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 Denise C.
Redmann, Esq., Senior Counsel-Corporate and Securities 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 Thelen Reid & Priest LLP
required by Section 7(d) of the Underwriting Agreement, and we
believe said opinion to be satisfactory.
We have reviewed, and have relied as to matters of fact
material to this opinion upon, the documents delivered to you at
the closing of the transactions contemplated by the Underwriting
Agreement, and we have reviewed such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to enable us to render this opinion. As to
such matters of fact material to this opinion, we have relied
upon representations and certifications of the Company and in
such documents and in the Underwriting Agreement, and upon
statements in the Registration Statements. In such review, we
have assumed the genuineness of all signatures, the conformity to
the originals of the documents submitted to us as certified or
photostatic copies, the authenticity of the originals of such
documents and all documents submitted to us as originals, and the
correctness of all statements of fact contained in all such
original documents. We have not examined the Securities 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 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
(whether considered in a proceeding in equity or at law),
and by requirements of good faith, reasonableness and fair
dealing 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 Securities 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 against the Company in accordance
with their terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and general
equitable principles (whether considered in a proceeding in
equity or at law), and by requirements of good faith,
reasonableness and fair dealing, and are entitled to the
benefits provided by the Indenture.
(3) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(4) The statements made in the Prospectus under the
captions "__________________________________" and
"Description of Unsecured Debt Securities" 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.
(5) 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 Trust Indenture Act, which have
been duly obtained, or in connection or compliance with the
provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Securities 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 Statements, at the Effective Date,
and the Prospectus, at the time it was filed with 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 Statements have become, and
on the date hereof are, effective under the Securities Act
and no stop order suspending the effectiveness of either of
the Registration Statements 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 Statements
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 Statements and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (4) hereof. In connection
with the preparation by the Company of the Registration
Statements 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 Statements and
the Prospectus, and such discussions, did not disclose to us any
information that gives us reason to believe that the Registration
Statements, 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 it was filed
with 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 (i) the financial
statements or other financial or statistical data included or
incorporated by reference in the Registration Statements or
Prospectus or (ii) the Form T-1.
This opinion is solely for your benefit 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 3(a)
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ENTERGY LOUISIANA, INC.
ARTICLE 1
The name of this corporation is and shall be: ENTERGY
LOUISIANA, INC.
ARTICLE 2
The objects and purposes of this corporation (sometimes
hereinafter referred to as the "Corporation") and for which the
Corporation is organized are stated and declared to be to engage
in any lawful activity for which corporations may be formed under
Chapter 1 of Title 12 of the Louisiana Revised Statutes of 1950,
as amended, including specifically, but not by way of limitation,
the purchasing or otherwise acquiring, holding, mortgaging or
otherwise encumbering, and selling or otherwise alienating of
real estate and all forms of immovable property, as well as all
forms of personal and mixed property; and further, and without in
any way limiting the foregoing, the Corporation shall have all
powers which corporations may have, and may carry on all
businesses of any and every nature and kind which corporations
may carry on, under said Chapter 1 of Title 12 of the Louisiana
Revised Statutes of 1950, as amended, including, but not by way
of limitation, the following business or businesses:
To acquire, buy, hold, own, sell, lease, exchange, dispose
of, pledge, mortgage, encumber, hypothecate, finance, deal in,
construct, build, install, equip, improve, use, operate, maintain
and work upon:
(a) Any and all kinds of plants and systems for the
manufacture, production, generation, storage, utilization,
purchase, sale, supply, transmission, distribution or
disposition of electricity, gas or water, or power produced
thereby:
(b) Any and all kinds of plants and systems for the
manufacture of ice:
(c) Any and all kinds of works, power plants,
structures, substations, systems, tracks, machinery,
generators, motors, lamps, poles, pipes, wires, cables,
conduits, apparatus, devices, equipment, supplies, articles
and merchandise of every kind in anywise connected with or
pertaining to the manufacture, production, generation,
purchase, use, sale, supply, transmission, distribution,
regulation, control or application of electricity, gas,
water and power;
To acquire, buy, hold, own, sell, lease, exchange, dispose
of, transmit, distribute, deal in, use, manufacture, produce,
furnish and supply electricity, power, energy, gas, light, heat
and water in any form and for any purposes whatsoever;
To purchase, acquire, develop, hold, own and dispose of
lands, interests in and rights with respect to lands and waters
and fixed and movable property necessary or suitable for the
carrying out of any of the foregoing powers;
To borrow money and contract debts when necessary for the
transaction of the business of the Corporation or for the
exercise of its corporate rights, privileges or franchises or for
any other lawful purpose of its incorporation; to issue bonds,
promissory notes, bills of exchange, debentures and other
obligations and evidences of indebtedness payable a a specified
time or times or payable upon the happening of a specified event
or events, whether secured by mortgage, pledge, or otherwise, or
unsecured, for money borrowed or in payment for property
purchased or acquired or any other lawful objects;
To guarantee purchase, hold sell assign, transfer, mortgage,
pledge or otherwise dispose of the shares of the capital stock
of, or any bonds, securities or evidences of indebtedness created
by, any other corporation or corporations organized under the
laws of the State of Louisiana or of any other state or
government and formed for the purpose of carrying out any of the
foregoing powers and, while the owner of such stock, to exercise
all the rights, powers and privileges of ownership, including the
right to vote thereon, and to do any acts designed to protect,
preserve, improve or enhance the value of any property at any
time held or controlled by the Corporation, or in which it may be
at any time interested; and to organize or promote or facilitate
the organization of subsidiary companies for the purpose of
carrying out any of the foregoing powers;
To purchase, hold, sell and transfer shares of its own
capital stock, provided that the Corporation shall not purchase
its own shares of capital stock except from the surplus of its
assets over its liabilities including capital; and provided,
further, that the shares of its own capital stock owned by the
Corporation shall not be voted upon directly or indirectly nor
counted as outstanding for the purposes of any stockholders'
quorum or vote;
To conduct business at one or more offices and hold,
purchase, mortgage and convey real and personal property in the
State of Louisiana and in any of the several states, territories,
possessions and dependencies of the United States, the District
of Columbia and foreign countries;
In any manner to acquire, enjoy, utilize and to dispose of
patents, copyrights and trademarks and any licenses or other
rights or interests therein and thereunder necessary for and in
its opinion useful or desirable for or in connection with the
foregoing powers;
To purchase acquire, hold, own and dispose of franchises,
concessions, consents, privileges and licenses necessary for and
in its opinion useful or desirable for or in connection with the
foregoing powers; and
To do all and everything necessary and proper for the
accomplishment of the objects enumerated in these Amended and
Restated Articles of Incorporation or any amendment thereof or
necessary or incidental to the protection and benefit of the
Corporation.
ARTICLE 3
I
The aggregate number of shares of stock which the
Corporation shall have authority to issue and have outstanding at
any time is as follows:
(a) 250,000,000 shares of Common Stock, without nominal or
par value (hereinafter called the "Common Stock").
(b) 4,500,000 shares of preferred stock having a par value
of $100 per share, which shall all be of one class (hereinafter
called the "$100 Preferred Stock"), and 22,000,000 shares of
preferred stock having a par value of $25 per share, which shall
all be of one class (hereinafter called the "$25 Preferred
Stock"), which said two classes of preferred stock are
hereinafter together referred to as the "Preferred Stock", and,
for certain purposes and to such extent as are hereinafter set
forth, are treated or referred to together as a single class of
stock; and further with respect to the Preferred Stock:
(i) Said 4,500,000 shares of $100 Preferred Stock shall
be issuable in one or more series from time to time;
2,305,000 of said shares of $100 Preferred Stock shall be
divided into fourteen series, one of which shall consist of
60,000 shares of 4.96% Preferred Stock, Cumulative, $100 par
value (hereinafter sometimes called "First Series Preferred
Stock"), one of which shall consist of 70,000 shares of
4.16% Preferred Stock, Cumulative, $100 par value
(hereinafter sometimes called "Second Series Preferred
Stock"), one of which shall consist of 70,000 shares of
4.44% Preferred Stock, Cumulative, $100 par value
(hereinafter sometimes called "Third Series Preferred
Stock"), one of which shall consist of 75,000 shares of
5.16% Preferred Stock, Cumulative, $100 par value
(hereinafter sometimes called "Fourth Series Preferred
Stock"), one of which shall consist of 80,000 shares of
5.40% Preferred Stock, Cumulative, $100 par value
(hereinafter sometimes called "Fifth Series Preferred
Stock"), one of which shall consist of 80,000 shares of
6.44% Preferred Stock, Cumulative, $100 par value
(hereinafter sometimes called "Sixth Series Preferred
Stock"), one of which shall consist of 100,000 shares of
7.84% Preferred Stock, Cumulative, $100 par value
(hereinafter sometimes called "Eighth Series Preferred
Stock"), one of which shall consist of 100,000 shares of
7.36% Preferred Stock, Cumulative, $100 par value
(hereinafter sometimes called "Ninth Series Preferred
Stock"), one of which shall consist of 350,000 shares of 8%
Preferred Stock, Cumulative, $100 par value (hereinafter
sometimes called "Thirteenth Series Preferred Stock"), and
one of which shall consist of 500,000 shares of 7% Preferred
Stock, Cumulative, $100 par value (hereinafter sometimes
called "Fourteenth Series Preferred Stock"); and the
remaining 2,195,000 of said shares of $100 Preferred Stock
may be divided into and issued in additional series from
time to time, each such additional series to be provided for
and to be distinctively designated, and the issuance of the
shares of each such additional series to be authorized, in
and by a resolution or resolutions to be adopted by the
Board of Directors of the Corporation in accordance with the
provisions hereof.
(ii) Said 22,000,000 shares of $25 Preferred Stock
shall be issuable in one or more series from time to time;
one series of $25 Preferred Stock shall consist of 1,480,000
shares of 8% Preferred Stock, Cumulative, $25 par value
(hereinafter sometimes called "Series H Preferred Stock");
and the remaining 20,520,000 of said shares of $25 Preferred
Stock may be divided into and issued in additional series
from time to time, each such additional series to be
provided for and to be distinctively designated, and the
issuance of the shares of each such additional series to be
authorized, in and by a resolution or resolutions to be
adopted by the Board of Directors of the Corporation in
accordance with the provisions hereof.
II
The shares of each class of Preferred Stock shall have the
same rank and shall have the same relative rights except as to
matters relating to the par values and voting rights thereof
(including matters relating to quorums and adjournments) and
those characteristics with respect to which there may be
variations among the respective series of Preferred Stock.
The shares of each series of Preferred Stock shall have the
same rank and shall have the same relative rights except with
respect to such characteristics as are peculiar to or pertain
only to the particular class of such series and with respect to
the following characteristics:
(a) The number of shares to constitute each such series
and the distinctive designation thereof;
(b) The annual rate or rates of dividends payable on
shares of such series and the date from which such dividends
shall commence to accumulate;
(c) The amount or amounts payable upon redemption
thereof; and
(d) The terms and amount of the sinking fund
requirements (if any) for the purchase or redemption of
shares of each series of Preferred Stock other than the
First through Sixth and the Eighth and Ninth Series
Preferred Stock;
which different characteristics of clauses (a), (b), and (c)
above are herein set forth with respect to the First through
Sixth and the Eighth and Ninth Series Preferred Stock and of
clauses (a), (b), (c), and (d) above are herein set forth with
respect to the Fourteenth Series Preferred Stock and the Series H
Preferred Stock, and, with respect to each additional series of
Preferred Stock, the designation of the class thereof and the
different characteristics of clauses (a), (b), (c), and (d) above
shall be set forth in the resolution or resolutions of the Board
of Directors of the Corporation providing for such series.
III
Further provisions with respect to the Preferred Stock and
the Common Stock are and shall be as set forth hereinafter in
this Part III of Article 3 and hereinafter in these Amended and
Restated Articles of Incorporation.
(A) The Preferred Stock shall be entitled, but only when and
as declared by the Board of Directors, out of funds legally
available for the payment of dividends, in preference to the
Common Stock, to dividends at the rate of 4.96% per annum on the
First Series Preferred Stock, at the rate of 4.16% per annum on
the Second Series Preferred Stock, at the rate of 4.44% per annum
on the Third Series Preferred Stock, at the rate of 5.16% per
annum on the Fourth Series Preferred Stock, at the rate of 5.40%
per annum on the Fifth Series Preferred Stock, at the rate of
6.44% per annum on the Sixth Series Preferred Stock, at the rate
of 7.84% per annum on the Eighth Series Preferred Stock, at the
rate of 7.36% per annum on the Ninth Series Preferred Stock, at
the rate of 8% per annum on the Thirteenth Series Preferred
Stock, at the rate of 7% per annum on the Fourteenth Series
Preferred Stock, at the rate of 8% per annum on the Series H
Preferred Stock, of the par value thereof, and no more, and at
such rate per annum on each additional series as shall be fixed
in and by the resolution or resolutions of the Board of Directors
of the Corporation providing for the issuance of the shares of
such series, payable quarterly on February 1, May 1, August 1 and
November 1 of each year to stockholders of record as of a date,
not exceeding forty (40) days and not less than ten (10) days
preceding such dividend payment dates, to be fixed by the Board
of Directors, such dividends to be cumulative from the last date
to which dividends upon the First through Sixth and the Eighth
and Ninth Series Preferred Stock of Louisiana Power & Light
Company, a Florida corporation, are paid, with respect to the
First through Sixth and the Eighth and Ninth Series Preferred
Stock, from October 31, 1991 with respect to the Thirteenth
Series Preferred Stock, from February 4, 1992 with respect to the
Fourteenth Series Preferred Stock, from October 29, 1992 with
respect to the Series H Preferred Stock, and from such date with
respect to each additional series, if made cumulative in and by
the resolution or resolutions of the Board of Directors of the
Corporation providing for such series, as shall be fixed in and
by such resolution or resolutions, provided that, if such
resolution or resolutions so provide, the first dividend payment
date for any such additional series may be the dividend payment
date next succeeding the dividend payment date immediately
following the issuance of the shares of such series.
(B) If and when dividends payable on any of the Preferred
Stock of the Corporation at any time outstanding shall be in
default in an amount equal to four full quarterly payments or
more per share, and thereafter until all dividends on any such
Preferred Stock in default shall have been paid, the holders of
the Preferred Stock, voting separately as a class, shall be
entitled to elect the smallest number of directors necessary to
constitute a majority of the full Board of Directors, and the
holders of the Common Stock, voting separately as a class, shall
be entitled to elect the remaining directors of the Corporation,
anything herein to the contrary notwithstanding. The terms of
office, as directors, of all persons who may be directors of the
Corporation at the time shall terminate upon the election of a
majority of the Board of Directors by the holders of the
Preferred Stock, except that if the holders of the Common Stock
shall not have elected the remaining directors of the
Corporation, then, and only in that event, the directors of the
Corporation in office just prior to the election of a majority of
the Board of Directors by the holders of the Preferred Stock
shall elect the remaining directors of the Corporation.
Thereafter, while such default continues and the majority of the
Board of Directors is being elected by the holders of the
Preferred Stock, the remaining directors, whether elected by
directors, as aforesaid, or whether originally or later elected
by holders of the Common Stock, shall continue in office until
their successors are elected by holders of the Common Stock and
shall qualify.
If and when all dividends then in default on the Preferred
Stock then outstanding shall be paid (such dividends to be
declared and paid out of any funds legally available therefor as
soon as reasonably practicable), the holders of the Preferred
Stock shall be divested of any special right with respect to the
election of directors, and the voting power of the holders of the
Preferred Stock and the holders of the Common Stock shall revert
to the status existing before the first dividend payment date on
which dividends on the Preferred Stock were not paid in full, but
always subject to the same provisions for vesting such special
rights in the holders of the Preferred Stock in case of further
like defaults in the payment of dividends thereon as described in
the immediately foregoing paragraph. Upon termination of any
such special voting right upon payment of all accumulated and
unpaid dividends on the Preferred Stock, the terms of office of
all persons who may have been elected directors of the
Corporation by vote of the holders of the Preferred Stock as a
class, pursuant to such special voting right, shall forthwith
terminate, and the resulting vacancies shall be filled by the
vote of a majority of the remaining directors.
In case of any vacancy in the office of a director occurring
among the directors elected by the holders of the Preferred
Stock, voting separately as a class, the remaining directors
elected by the holders of the Preferred Stock; by affirmative
vote of a majority thereof, or the remaining director so elected
if there be but one, may elect a successor or successors to hold
office for the unexpired term or terms of the director or
directors whose place or places shall be vacant. Likewise, in
case of any vacancy in the office of a director occurring among
the directors not elected by the holders of the Preferred Stock,
the remaining directors not elected by the holders of the
Preferred Stock, by affirmative vote of a majority thereof, or
the remaining director so elected if there be but one, may elect
a successor or successors to hold office for the unexpired term
or terms of the director or directors whose place or places shall
be vacant.
Whenever the right shall have accrued to the holders of the
Preferred Stock to elect directors, voting separately as a class
it shall be the duty of the President, a Vice President or the
Secretary of the Corporation forthwith to call and cause notice
to be given to the shareholders entitled to vote of a meeting to
be held at such time as the Corporation's officers may fix, not
less than forty-five (45) nor more than sixty (60) days after the
accrual of such right, for the purpose of electing directors.
The notice so given shall be mailed to each holder of record of
the Preferred Stock at his last known address appearing on the
books of the Corporation and shall set forth, among other things,
(i) that by reason of the fact that dividends payable on the
Preferred Stock are in default in an amount equal to four full
quarterly payments or more per share, the holders of the
Preferred Stock, voting separately as a class, have the right to
elect the smallest number of directors necessary to constitute a
majority of the full Board of Directors of the Corporation, (ii)
that any holder of the Preferred Stock has the right, at any
reasonable time, to inspect, and make copies of, the list or
lists of holders of the Preferred Stock maintained at the
principal office of the Corporation or at the office of any
Transfer Agent of the Preferred Stock, and (iii) either the
entirety of this paragraph or the substance thereof with respect
to the number of shares of the Preferred Stock required to be
represented at any meeting, or adjournment thereof, called for
the election of directors of the Corporation. At the first
meeting of stockholders held for the purpose of electing
directors during such time as the holders of the Preferred Stock
shall have the special right, voting separately as a class, to
elect directors, the presence in person or by proxy of the
holders of a majority of the outstanding Common Stock shall be
required to constitute a quorum of such class for the election of
directors, and the presence in person or by proxy of the holders
of a majority of the outstanding Preferred Stock shall be
required to constitute a quorum of such class for the election of
directors; provided, however, that in the absence of a quorum of
the holders of the Preferred Stock, no election of directors
shall be held, but a majority of the holders of the Preferred
Stock who are present in person or by proxy shall have power to
adjourn the election of the directors to a date not less than
fifteen (15) nor more than fifty (50) days from the giving of the
notice of such adjourned meeting hereinafter provided for; and
provided, further, that at such adjourned meeting, the presence
in person or by proxy of the holders of 35% of the outstanding
Preferred stock shall be required to constitute a quorum of such
class for the election of directors. In the event such first
meeting of stockholders shall be so adjourned, it shall be the
duty of the President, a Vice President or the Secretary of the
Corporation, within ten (10) days from the date on which such
first meeting shall have been adjourned, to cause notice of such
adjourned meeting to be given to the shareholders entitled to
vote thereat, such adjourned meeting to be held not less than
fifteen (15) days nor more than fifty (50) days from the giving
of such second notice, such second notice shall be given in the
form and manner hereinabove provided for with respect to the
notice required to be given of such first meeting of
stockholders, and shall further set forth that a quorum was not
present at such first meeting and that the holders of 35% of the
outstanding Preferred Stock shall be required to constitute a
quorum of such class for the election of directors at such
adjourned meeting. If the requisite quorum of holders of the
Preferred Stock shall not be present at said adjourned meeting,
then the directors of the Corporation then in office shall remain
in office until the next Annual Meeting of the Corporation, or
special meeting in lieu thereof and until their successors shall
have been elected and shall qualify. Neither such first meeting
nor such adjourned meeting shall be held on a date within sixty
(60) days of the date of the next Annual Meeting of the
Corporation or special meeting in lieu thereof. At each Annual
Meeting of the Corporation, or special meeting in lieu thereof,
held during such time as the holders of the Preferred Stock,
voting separately as a class, shall have the right to elect a
majority of the Board of Directors, the foregoing provisions of
this paragraph shall govern each Annual Meeting, or special
meeting in lieu thereof, as if said Annual Meeting or special
meeting were the first meeting of stockholders held for the
purpose of electing directors after the right of the holders of
the Preferred Stock, voting separately as a class, to elect a
majority of the Board of Directors, should have accrued with the
exception, that if, at any adjourned annual meeting, or special
meeting in lieu thereof, 35% of the outstanding Preferred Stock
is not present in person or by proxy, all the directors shall be
elected by a vote of the holders of a majority of the Common
Stock of the Corporation present or represented at the meeting.
(C) So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not, without the consent
(given by vote at a meeting called for that purpose) of at least
two-thirds of the total number of shares of the Preferred Stock
then outstanding:
(1) create, authorize or issue any new stock which,
after issuance would rank prior to the Preferred Stock as to
dividends, in liquidation, dissolution, winding up or
distribution, or create, authorize or issue any security
convertible into shares of any such stock except for the
purpose of providing funds for the redemption of all of the
Preferred Stock then outstanding, such new stock or security
not to be issued until such redemption shall have been
authorized and notice of such redemption given and the
aggregate redemption price deposited as provided in
paragraph (G) below; provided, however, that any such new
stock or security shall be issued within twelve months (and
so long as any of the First Series Preferred Stock remains
outstanding, within 180 days), after the vote of the
Preferred Stock herein provided for authorizing the issuance
of such new stock or security; or
(2) amend, alter, change or repeal any of the express
terms of any of the Preferred Stock then outstanding in a
manner prejudicial to the holders thereof; the increase or
decrease in the authorized amount of the Preferred Stock or
the creation, or increase or decrease in the authorized
amount, of any new class of stock ranking on a parity with
the Preferred Stock shall not, for the purposes of this
paragraph, be deemed to be prejudicial to the holders of the
Preferred Stock.
(D) So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not, without the consent
(given by vote, at a meeting called for that purpose) of the
holders of a majority of the total number of shares of the
Preferred Stock then outstanding:
(1) merge or consolidate with or into any other
corporation or corporations or sell or otherwise dispose of
all or substantially all of the assets of the Corporation,
unless such merger or consolidation or sale or other
disposition, or the exchange, issuance or assumption of all
securities to be issued or assumed in connection with any
such merger or consolidation or sale or other disposition,
shall have been ordered, approved or permitted by regulatory
authority of the United States of America under the
provisions of the Public Utility Holding Company Act of
1935; provided that the provisions of this sub-paragraph (1)
shall not apply to a purchase or other acquisition by the
Corporation of franchises or assets of another corporation
in any manner which does not involve a corporate merger or
consolidation; or
(2) issue or assume any unsecured notes, debentures or
other securities representing unsecured indebtedness for
purposes other than (i) the refunding of outstanding
unsecured indebtedness theretofore issued or assumed by the
Corporation, (ii) the reacquisition, redemption or other
retirement of any indebtedness which reacquisition,
redemption or other retirement has been authorized by the
Securities and Exchange Commission under the provisions of
the Public Utility Holding Company Act of 1935, or (iii) the
reacquisition, redemption or other retirement of all
outstanding shares of the Preferred Stock, or preferred
stock ranking prior to, or pari passu with, the Preferred
Stock, if immediately after such issue or assumption, the
total principal amount of all unsecured notes, debentures or
other securities representing unsecured indebtedness issued
or assumed by the Corporation, including unsecured
indebtedness then to be issued or assumed (but excluding the
principal amount then outstanding of any unsecured notes,
debentures or other securities representing unsecured
indebtedness having a maturity in excess of ten (10) years
and in amount not exceeding 10% of the aggregate of (a) and
(b) of this sub-paragraph (2) below) would exceed ten per
centum (10%) of the aggregate of (a) the total principal
amount of all bonds or other securities representing secured
indebtedness issued or assumed by the Corporation and then
to be outstanding, and (b) the capital and surplus of the
Corporation as then to be stated on the books of account of
the Corporation. When unsecured notes, debentures or other
securities representing unsecured debt of a maturity in
excess of ten (10) years shall become of a maturity of ten
(10) years or less, it shall then be regarded as unsecured
debt of a maturity of less than ten (10) years and shall be
computed with such debt for the purpose of determining the
percentage ratio to the sum of (a) and (b) above of
unsecured debt of a maturity of less than ten (10) years,
and when provision shall have been made, whether through a
sinking fund or otherwise, for the retirement, prior to
their maturity, of unsecured notes, debentures or other
securities representing unsecured debt of a maturity in
excess of ten (10) years, the amount of such security so
required to be retired in less than ten (10) years shall be
regarded as unsecured debt of a maturity of less than ten
(10) years (and not as unsecured debt of a maturity in
excess of ten (10) years) and shall be computed with such
debt for the purpose of determining the percentage ratio to
the sum of (a) and (b) above of unsecured debt of a maturity
of less than ten (10) years, provided, however, that the
payment due upon the maturity of unsecured debt having an
original single maturity in excess of ten (10) years or the
payment due upon the latest maturity of any serial debt
which had original maturities in excess of ten (10) years
shall not, for the purposes of this provision, be regarded
as unsecured debt of a maturity of less than ten (10) years
until such payment or payments shall be required to be made
within five (5) years (provided the words "five (5) years"
shall read "three (3) years" when none of the First Series
Preferred Stock remains outstanding); furthermore, when
unsecured notes, debentures or other securities representing
unsecured debt of a maturity of less than ten (10) years
shall exceed 10% of the sum of (a) and (b) above, no
additional unsecured notes, debentures or other securities
reprsenting unsecured debt shall be issued or assumed
(except for the purposes set forth in (i), (ii) and (iii)
above) until such ratio is reduced to 10% of the sum of (a)
and (b) above; or
(3) issue, sell, or otherwise dispose of any shares of
the Preferred Stock in addition to the 635,000 shares of the
First through Sixth and the Eight and Ninth Series Preferred
Stock originally authorized, or of any other class of stock
ranking on a parity with the Preferred Stock as to dividends
or in liquidation, dissolution, winding up or distribution,
(a) so long as any of the First Series Preferred Stock
remains outstanding, unless the net income of the
Corporation and Louisiana Power & Light Company, a Florida
corporation, determined, after provision for depreciation
and all taxes and in accordance with generally accepted
accounting practices, to be available for the payment of
dividends for a period of twelve (12) consecutive calendar
months within the fifteen (15) calendar months immediately
preceding the issuance, sale or disposition of such stock,
is at least equal to twice the annual dividend requirements
on all outstanding shares of the Preferred Stock and of all
other classes of stock ranking prior to, or on a parity
with, the Preferred Stock as to dividends or distributions,
including the shares proposed to be issued, and (b) so long
as any Preferred Stock remains outstanding, unless the gross
income of the Corporation and Louisiana Power & Light
Company, a Florida corporation, for such period, determined
in accordance with generally accepted accounting practices
(but in any event after deducting all taxes and the greater
of (a) the amount for said period charged by the Corporation
and Louisiana Power & Light Company, a Florida corporation,
on their books to depreciation expense or (b) the largest
amount required to be provided therefor by any mortgage
indenture of the Corporation) to be available for the
payment of interest, shall have been at least one and one-
half times the sum of (i) the annual interest charges on all
interest indebtedness of the Corporation and (ii) the annual
dividend requirements on all outstanding shares of the
Preferred Stock and of all other classes of stock ranking
prior to, or on a parity with, the Preferred Stock as to
dividends or distributions, including the shares proposed to
be issued; provided, that there shall be excluded from the
foregoing computation interest charges on all indebtedness
and dividends on all shares of stock which are to be retired
in connection with the issue of such additional shares; and
provided, further, that in any case where such additional
shares of the Preferred Stock, or other class of stock
ranking on a parity with the Preferred Stock as to dividends
or distributions, are to be issued in connection with the
acquisition of new property, the net income and gross income
of the property to be so acquired, computed on the same
basis as the net income and gross income of the Corporation,
may be included on a pro forma basis in making the foregoing
computation; or
(4) issue, sell, or otherwise dispose of any shares of
the Preferred Stock, in addition to the 635,000 shares of
the First through Sixth and the Eighth and Ninth Series
Preferred Stock originally authorized, or of any other class
of stock ranking on a parity with the Preferred Stock as to
dividends or distributions, unless the aggregate of the
capital of the Corporation applicable to the Common Stock
and the surplus of the Corporation shall be not less than
the aggregate amount payable on the involuntary liquidation,
dissolution or winding up of the Corporation, in respect of
all shares of the Preferred Stock and all shares of stock,
if any, ranking prior thereto, or on a parity therewith, as
to dividends or distributions, which will be outstanding
after the issue of the shares proposed to be issued;
provided, that if, for the purposes of meeting the
requirements of this sub-paragraph (4), it becomes necessary
to take into consideration any earned surplus of the
Corporation, the Corporation shall not thereafter pay any
dividends on shares of the Common Stock which would result
in reducing the Corporation's Common Stock Equity (as in
paragraph (H) hereinafter defined) to an amount less than
the aggregate amount payable, on involuntary liquidation,
dissolution or winding up of the Corporation, on all shares
of the Preferred Stock and of any stock ranking prior to, or
on a parity with, the Preferred Stock, as to dividends or
other distributions, at the time outstanding.
(E) Each holder of Common Stock of the Corporation shall be
entitled to one vote, in person or by proxy, for each share of
such stock standing in his name on the books of the Corporation.
Except as hereinbefore expressly provided in this Article 3 and
as may otherwise be required by law, the holders of the Preferred
Stock shall have no power to vote and shall be entitled to no
notice of any meeting of the stockholders of the Corporation. As
to matter upon which holders of the Preferred Stock are entitled
to vote as hereinbefore expressly provided, each holder of $100
Preferred Stock shall be entitled to one vote, in person or by
proxy, for each share of such stock standing in his name on the
books of the Corporation, and each holder of $25 Preferred Stock
shall be entitled to one-quarter (1/4) vote, in person or by
proxy, for each share of such stock standing in his name on the
books of the Corporation. As to any matters requiring or
permitting or otherwise calling for or involving the presence of,
or the consent or vote of, or any other action by, a particular
number or percentage or fraction or portion of the total number
of shares of Preferred Stock outstanding, or of the outstanding
Preferred Stock, or of the total number of shares of Preferred
Stock present in person or by proxy, or of the Preferred Stock
present in person or by proxy, for purposes of making such
calculation and determination, each share of $100 Preferred Stock
shall be considered and counted as one share and each share of
$25 Preferred Stock shall be considered and counted as one-
quarter (1/4) of a share.
(F) In the event of any voluntary liquidation, dissolution
or winding up of the Corporation, the Preferred Stock shall have
a preference over the Common Stock until an amount equal to the
then current redemption price shall have been paid. In the event
of any involuntary liquidation, dissolution or winding up of the
Corporation, which shall include any such liquidation,
dissolution or winding up which may arise out of or result from
the condemnation or purchase of all or a major portion of the
properties of the Corporation, by (i) the United States
Government or any authority, agency, or instrumentality thereof,
(ii) a state of the United States or any political subdivision,
authority, agency or instrumentality thereof, or (iii) a
district, cooperative or other association or entity not
organized for profit, the Preferred Stock shall also have a
preference over the Common Stock until the full par value thereof
and an amount equal to all accumulated and unpaid dividends
thereon shall have been paid by dividends or distribution.
(G) Upon the affirmative vote of a majority of the shares of
the issued and outstanding Common Stock at any annual meeting, or
any special meeting called for that purpose, the Corporation may
at any time redeem all of any series of the Preferred Stock or
may from time to time redeem any part thereof, by paying in cash,
as to the First Series Preferred Stock, a redemption price of
$104.25 per share, as to the Second Series Preferred Stock, a
redemption price of $104.21 per share, as to the Third Series
Preferred Stock, a redemption price of $104.06 per share, as to
the Fourth Series Preferred Stock, a redemption price of $104.18
per share, as to the Fifth Series Preferred Stock, a redemption
price of $103.00 per share, as to the Sixth Series Preferred
Stock, a redemption price of $102.92 per share, as to the Eighth
Series Preferred Stock, a redemption price of $107.70 per share
if redeemed on or prior to April 1, 1981, $105.74 per share if
redeemed subsequent to April 1, 1981 but on or prior to April 1,
1986, and $103.78 per share if redeemed subsequent to April 1,
1986, as to the Ninth Series Preferred Stock, a redemption price
of $107.04 per share if redeemed on or prior to January 1, 1982,
$105.20 per share if redeemed subsequent to January 1, 1982 but
on or prior to January 1, 1987, and $103.36 per share if redeemed
subsequent to January 1, 1987, as to the Thirteenth Series
Preferred Stock, a redemption price of $100.00 per share (except
that no share of the Thirteenth Series Preferred Stock shall be
redeemed on or before November 1, 1999), as to the Fourteenth
Series Preferred Stock, a redemption price of $100.00 per share
(except that no share of the Fourteenth Series Preferred Stock
shall be redeemed on or before February 1, 1998), and as to the
Series H Preferred Stock, a redemption price of $25.00 per share
(except that no share of the Series H Preferred Stock shall be
redeemed on or before October 1, 1997), and as to each additional
series such redemption price or prices, with such restrictions or
limitations, if any, on redemption or refunding, as shall be
fixed in and by the resolution or resolutions of the Board of
Directors of the Corporation providing for such series; plus, in
each case where applicable, an amount equivalent to the
accumulated and unpaid dividends, if any, to the date fixed for
redemption; provided that without the vote of the issued and
outstanding Common Stock, the Thirteenth Series Preferred Stock
shall be subject to redemption as and for a sinking fund as
follows: on November 1, 2001 (such date being hereinafter
referred to as the "Thirteenth Series Sinking Fund Redemption
Date"), the Corporation shall redeem, out of funds legally
available therefor, all of the shares of the Thirteenth Series
Preferred Stock then outstanding at the sinking fund redemption
price of $100 per share plus, as to each share so redeemed, an
amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date of redemption (the obligation of the
Corporation to redeem all of the shares of the Thirteenth Series
Preferred Stock on the Thirteenth Series Sinking Fund Redemption
Date or, as hereinafter provided for, on any annual anniversary
thereof on which shares of the Thirteenth Series Preferred Stock
are outstanding (each such annual anniversary being hereinafter
referred to as the "Thirteenth Series Sinking Fund Redemption
Date Annual Anniversary") being hereinafter referred to as the
"Thirteenth Series Sinking Fund Obligation"); the Thirteenth
Series Sinking Fund Obligation shall be cumulative and if on the
Thirteenth Series Sinking Fund Redemption Date, or on any
Thirteenth Series Sinking Fund Redemption Date Annual
Anniversary, the Corporation shall not have funds legally
available therefor sufficient to redeem all of the shares of the
Thirteenth Series Preferred Stock then outstanding, the
Thirteenth Series Sinking Fund Obligation with respect to the
shares not redeemed shall carry forward to each successive
Thirteenth Series Sinking Fund Redemption Date Annual Anniversary
until all of the outstanding shares of the Thirteenth Series
Preferred Stock shall have been redeemed; if on the Thirteenth
Series Sinking Fund Redemption Date or on any Thirteenth Series
Sinking Fund Redemption Date Annual Anniversary, the funds of the
Corporation legally available for the satisfaction of the
Thirteenth Series Sinking Fund Obligation and all other sinking
fund and similar obligations then existing with respect to any
other class or series of its stock ranking on a parity as to
dividends or assets with the Thirteenth Series Preferred Stock
(such Obligation and obligations collectively being hereinafter
referred to as the "Total Sinking Fund Obligation") are
insufficient to permit the Corporation to satisfy fully its Total
Sinking Fund Obligation on that date, the Corporation shall apply
to the satisfaction of its Thirteenth Series Sinking Fund
Obligation on that date that proportion of such legally available
funds which is equal to the ratio of such Thirteenth Series
Sinking Fund Obligation to such Total Sinking Fund Obligation;
and provided that without the vote of the issued and outstanding
Common Stock, the Fourteenth Series Preferred Stock shall be
subject to redemption as and for a sinking fund as follows: on
February 1, 1999 (such date being hereinafter referred to as the
"Fourteenth Series Sinking Fund Redemption Date"), the
Corporation shall redeem, out of funds legally available
therefor, all of the shares of the Fourteenth Series Preferred
Stock then outstanding at the sinking fund redemption price of
$100 per share plus, as to each share so redeemed, an amount
equivalent to the accumulated and unpaid dividends thereon, if
any, to the date of redemption (the obligation of the Corporation
to redeem all of the shares of the Fourteenth Series Preferred
Stock on the Fourteenth Series Sinking Fund Redemption Date or,
as hereinafter provided for, on any annual anniversary thereof on
which shares of the Fourteenth Series Preferred Stock are
outstanding (each such annual anniversary being hereinafter
referred to as the "Fourteenth Series Sinking Fund Redemption
Date Annual Anniversary") being hereinafter referred to as the
"Fourteenth Series Sinking Fund Obligation"); the Fourteenth
Series Sinking Fund Obligation shall be cumulative and if on the
Fourteenth Series Sinking Fund Redemption Date, or on any
Fourteenth Series Sinking Fund Redemption Date Annual
Anniversary, the Corporation shall not have funds legally
available therefor sufficient to redeem all of the shares of the
Fourteenth Series Preferred Stock then outstanding, the
Fourteenth Series Sinking Fund Obligation with respect to the
shares not redeemed shall carry forward to each successive
Fourteenth Series Sinking Fund Redemption Date Annual Anniversary
until all of the outstanding shares of the Fourteenth Series
Preferred Stock shall have been redeemed; if on the Fourteenth
Series Sinking Fund Redemption Date or on any Fourteenth Series
Sinking Fund Redemption Date Annual Anniversary, the funds of the
Corporation legally available for the satisfaction of the
Fourteenth Series Sinking Fund Obligation and all other sinking
fund and similar obligations then existing with respect to any
other class or series of its stock ranking on a parity as to
dividends or assets with the Fourteenth Series Preferred Stock
(such Obligation and obligations collectively being hereinafter
referred to as the "Total Sinking Fund Obligation") are
insufficient to permit the Corporation to satisfy fully its Total
Sinking Fund Obligation on that date, the Corporation shall apply
to the satisfaction of its Fourteenth Series Sinking Fund
Obligation on that date that proportion of such legally available
funds which is equal to the ratio of such Fourteenth Series
Sinking Fund Obligation to such Total Sinking Fund Obligation;
and provided that without the vote of the issued and outstanding
Common Stock.
(H) For the purposes of this paragraph (H) and subparagraph
(4) of paragraph (D) the term "Common Stock Equity" shall mean
the aggregate of the par value of, or stated capital represented
by, the outstanding shares (other than shares owned by the
Corporation) of stock ranking junior to the Preferred Stock as to
dividends and assets, of the premium on such junior stock and of
the surplus (including earned surplus, capital surplus and
surplus invested in plant) of the Corporation less (unless the
amounts or items are being amortized or are being provided for by
reserves), (1) any amounts recorded on the books of the
Corporation for utility plant and other plant in excess of the
original cost thereof, (2) unamortized debt discount and expense,
capital stock discount and expense and any other intangible items
set forth on the asset side of the balance sheet as a result of
accounting convention, (3) the excess, if any, of the aggregate
amount payable on involuntary liquidation, dissolution or winding
up of the affairs of the Corporation upon all outstanding
Preferred Stock over the aggregate par or stated value thereof
and any premiums thereon and (4) the excess, if any, for the
period beginning with January 1, 1953 to the end of a month
within ninety (90) days preceding the date as of which Common
Stock Equity is determined, of the cumulative amount computed
under requirements contained in the Corporation's mortgage
indentures relating to minimum depreciation provisions (this
cumulative amount being the aggregate of the largest amounts
separately computed for entire periods of differing co-existing
mortgage indenture requirements), over the amount charged by the
Corporation and Louisiana Power & Light Company, a Florida
corporation, on their books for depreciation during such period,
including the final fraction of a year. For the purpose of this
paragraph (H):(i) the term "total capitalization" shall mean the
sum or the Common Stock Equity plus item (3) in this paragraph
(H) and the stated capital applicable to, and any premium on,
outstanding stock of the Corporation not included in Common Stock
Equity, and the principal amount of all outstanding debt of the
Corporation maturing more than twelve months after the date of
the determination of the total capitalization; and (ii) the term
"dividends on Common Stock" shall embrace dividends on Common
Stock (other than dividends payable only in shares of Common
Stock), distributions on, and purchases or other acquisitions for
value of, any Common Stock of the Corporation or other stock, if
any, subordinate to its Preferred Stock as to dividends or other
distributions. So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not declare or pay any
dividends on the Common Stock, except as follows:
(a) If and so long as the Common Stock Equity at the
end of the calendar month immediately preceding the date on
which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 20% of total
capitalization, the Corporation shall not declare such
dividends in an amount which, together with all other
dividends on Common Stock paid by the Corporation and
Louisiana Power & Light Company, a Florida corporation,
within the year ending with and including the date on which
such dividend is payable, exceeds 50% of the net income of
the Corporation and Louisiana Power & Light Company, a
Florida corporation, available for dividends on Common Stock
for the twelve full calendar months immediately preceding
the month in which such dividends are declared, except in an
amount not exceeding the aggregate of dividends on Common
Stock which under the restrictions set forth above in this
subparagraph (a) could have been, and have not been,
declared; and
(b) If and so long as the Common Stock Equity at the
end of the calendar month immediately preceding the date on
which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not
less than 20% of total capitalization, the Corporation shall
not declare dividends on the Common Stock in an amount
which, together with all other dividends on Common Stock
paid by the Corporation and Louisiana Power & Light Company,
a Florida corporation, within the year ending with and
including the date on which such dividend is payable,
exceeds 75% of the net income of the Corporation and
Louisiana Power & Light Company, a Florida corporation,
available for dividends on Common Stock for the twelve full
calendar months immediately preceding the month in which
such dividends are declared, except in an amount not
exceeding the aggregate of dividends on Common Stock which
under the restrictions set forth above in subparagraph (a)
and in this subparagraph (b) could have been, and have not
been, declared; and
(c) At any time when the Common Stock Equity is 25% or
more of total capitalization, the Corporation may not
declare dividends on shares of the Common Stock which would
reduce the Common Stock Equity below 25% of total
capitalization, except to the extent provided in
subparagraphs (a) and (b) above.
So long as any of the Second through Fourteenth Series
Preferred Stock or the Series H Preferred Stock remains
outstanding, or there remains outstanding any additional series
of Preferred Stock with respect to which the resolution or
resolutions of the Board of Directors of the Corporation
providing for same makes this sentence applicable, at any time
when the aggregate of all amounts credited subsequent to January
1, 1953 to the depreciation reserve account of the Corporation
and Louisiana Power & Light Company, a Florida corporation,
through charges to operating revenue deductions or otherwise on
the books of the Corporation and Louisiana Power & Light Company,
a Florida corporation (other than transfers out of the balance of
surplus as of December 31, 1952), shall be less than the amount
computed as provided in clause (aa) below, under requirements
contained in the Corporation's mortgage indentures, then for the
purposes of subparagraphs (a) and (b) above, in determining the
earnings available for Common Stock dividends during any twelve-
month period, the amount to be provided for depreciation in that
period shall be (aa) the greater of the cumulative amount charged
to depreciation expense on the books of the Corporation and
Louisiana Power & Light Company, a Florida corporation, or the
cumulative amount computed under requirements contained in the
Corporation's mortgage indentures relating to minimum
depreciation provisions (the latter cumulative amount being the
aggregate of the largest amounts separately computed for entire
periods of differing coexisting mortgage indenture requirements)
for the period from January 1, 1953 to and including said twelve-
month period, less (bb) the greater of the cumulative amount
charged to depreciation expense on the books of the Corporation
and Louisiana Power & Light Company, a Florida corporation, or
the cumulative amount computed under requirements contained in
the Corporation's mortgage indentures relating to minimum
depreciation provisions (the latter cumulative amount being the
aggregate of the largest amounts separately computed for entire
periods of differing coexisting mortgage indenture requirements)
from January 1, 1953 up to but excluding said twelve-month
period; provided that in the event any company other than
Louisiana Power & Light Company, a Florida corporation, is merged
into the Corporation, the "cumulative amount computed under
requirements contained in the Corporation's mortgage indentures
relating to minimum depreciation provisions" referred to above
shall be computed without regard, for the period prior to the
merger, of property acquired in the merger, and the "cumulative
amount charged to depreciation expense on the books of the
Corporation and Louisiana Power & Light Company, a Florida
corporation", shall be exclusive of amounts provided for such
property prior to the merger.
(I) Dividends may be paid upon the Common Stock only when
(i) dividends have been paid or declared and funds set apart for
the payment of dividends as aforesaid on the Preferred Stock from
the dates after which dividends thereon became cumulative, to the
beginning of the period then current, with respect to which such
dividends on the Preferred Stock are usually declared, and (ii)
all payments have been made or funds have been set aside for
payments then or theretofore due under the terms of sinking fund
requirements (if any) for the purchase or redemption of shares of
the Preferred Stock, but whenever (x) there shall have been paid
or declared and funds shall have been set apart for the payment
of all such dividends upon the Preferred Stock as aforesaid, and
(y) all payments shall have been made or funds shall have been
set aside for all payments then or theretofore due under the
terms of sinking fund requirements (if any) for the purchase or
redemption of shares of the Preferred Stock, then, subject to the
limitations above set forth, dividends upon the Common Stock may
be declared payable then or thereafter, out of any net earnings
or surplus of assets over liabilities, including capital, then
remaining. After the payment of the limited dividends and/or
shares in distribution of assets to which the Preferred Stock is
expressly entitled in preference to the Common Stock, in
accordance with the provisions hereinabove set forth, the Common
Stock alone (subject to the rights of any class of stock
hereafter authorized) shall receive all further dividends and
shares in distribution.
(J) Subject to the limitations hereinabove set forth the
Corporation from time to time may resell any of its own stock,
purchased or otherwise acquired by it as hereinafter provided
for, at such price as may be fixed by its Board of Directors or
Executive Committee.
(K) Subject to the limitations hereinabove set forth the
Corporation in order to acquire funds with which to redeem any
outstanding Preferred Stock, may issue and sell stock of any
class then authorized but unissued, bonds, notes, evidences of
indebtedness, or other securities.
(L) Subject to the limitations hereinabove set forth the
Board of Directors of the Corporation may at any time authorize
the conversion or exchange of the whole or any particular share
of the outstanding Preferred Stock, with the consent of the
holder thereof, into or for stock of any other class at the time
of such consent authorized but unissued and may fix the terms and
conditions upon which such conversion or exchange may be made;
provided that without the consent of the holders of record of two-
thirds of the shares of Common Stock outstanding given at a
meeting of the holders of the Common Stock called and held as
provided by the By-Laws or given in writing without a meeting,
the Board of Directors shall not authorize the conversion or
exchange of any Preferred Stock into or for Common Stock or
authorize the conversion or exchange of any Preferred Stock into
or for preferred stock of any other class, if by such conversion
or exchange the amount which the holders of the shares of stock
so converted or exchanged would be entitled to receive either as
dividends or shares in distribution of assets in preference to
the Common Stock would be increased.
(M) A consolidation, merger or amalgamation of the
Corporation with or into any other corporation or corporations
shall not be deemed a distribution of assets of the Corporation
within the meaning of any provisions of these Amended and
Restated Articles of Incorporation.
(N) The consideration received by the Corporation from the
sale of any additional stock without nominal or par value shall
be entered in the Corporation's capital stock account.
(O) Subject to the limitations hereinabove set forth, upon
the vote of a majority of all the directors of the Corporation
and of a majority of the total number of shares of stock then
issued and outstanding and entitled to vote (or if the vote of a
larger number or different proportion of shares is required by
the laws of the State of Louisiana, notwithstanding the above
agreement of the stockholders of the Corporation to the contrary,
then upon the vote of the larger number or different proportion
of shares so required), the Corporation may from time to time
create or authorize one or more other classes of stock with such
preferences, designations, rights, privileges, powers,
restrictions, limitations and qualifications as may be determined
by said vote, which may be the same as or different from the
preferences, designations, rights, privileges, powers,
restrictions, limitations and qualifications of the classes of
stock of the Corporation then authorized. Any such vote
authorizing the creation of a new class of stock may provide that
all moneys payable by the Corporation with respect to any class
of stock thereby authorized shall be paid in the money of any
foreign country named therein or designated by the Board of
Directors, pursuant to authority therein granted, at a fixed rate
of exchange with the money of the United States of America
therein stated or provided for and all such payments shall be
made accordingly. Any such vote may authorize any shares of any
class then authorized but unissued to be issued as shares of such
new class or classes.
(P) Subject to the limitations hereinabove set forth, the
$100 Preferred Stock or the $25 Preferred Stock or the Common
Stock or any of said classes of stock may be increased at any
time upon vote of the holders of a majority of the total number
of shares of the Corporation then issued and outstanding and
entitled to vote thereon, irrespective of class.
(Q) If any provision in this Article 3 shall be in conflict
or inconsistent with any other provision of the Amended and
Restated Articles of Incorporation of the Corporation, the
provisions of this Article 3 shall prevail and govern.
ARTICLE 4
The Corporation shall have perpetual existence.
ARTICLE 5
The Board of Directors shall consist of such number of
directors as shall be determined from time to time as provided in
this Article 5. Directors shall be elected at each annual
meeting of stockholders and, subject to the provisions of Article
3 hereof, each director so elected shall hold office until the
next annual meeting of stockholders and until his successor is
elected and qualified. The stockholders or the Board of
Directors shall have the power from time to time to fix the
number of directors of the corporation, provided that the number
so fixed shall not be less than three (3) and not more than
fifteen (15). If the number of directors is increased, the
additional directors may, to the extent permitted by law and
subject to the provisions of Article 3 hereof, be elected by the
stockholders or by a majority of the directors in office at the
time of the increase, or, if not so elected prior to the next
annual meeting of stockholders, such additional directors shall
be elected at such annual meeting. If the number of directors is
decreased and the decrease does not exceed the number of
vacancies in the Board then existing, then, subject to the
provisions of Article 3 hereof, the stockholders or the Board of
Directors may provide that it shall become effective forthwith;
and to the extent that the decrease does exceed such number of
vacancies, the stockholders or the Board of Directors may provide
that it shall not become effective until the next election of
directors by the stockholders. If the Board of Directors shall
fail to adopt a resolution which fixes initially the number of
directors, the number of directors shall be nine (9). If, after
the number of directors shall have been fixed by such resolution,
such resolution shall be ineffective or shall cease to be in
effect for any cause other than by being superseded by another
such resolution, the number of directors shall be that number
specified in the latest of such resolutions, whether or not such
resolution continues in effect.
ARTICLE 6
For the regulation of the business and for the conduct of
the affairs of the Corporation, and to create, divide, limit and
regulate the powers of the Corporation, the directors and the
stockholders, provision is made as follows:
(a) General authority is hereby conferred upon the
Board of Directors of the Corporation to fix the
consideration for which shares of stock of the Corporation
without nominal or par value, may be issued and disposed of
and the shares of stock of the Corporation without nominal
or par value, whether authorized by these Amended and
Restated Articles of Incorporation or by subsequent increase
of the authorized number of shares of stock or by amendment
of these Amended and Restated Articles of Incorporation by
consolidation or merger or otherwise and/or any securities
convertible into stock of the Corporation without nominal or
par value, may be issued and disposed of by the Board of
Directors for such consideration and on such terms and in
such manner as may be fixed from time to time by the Board
of Directors.
(b) If now or hereafter permitted by Louisiana law, the
issue of the whole, or any part determined by the Board of
Directors, of the shares of stock of the Corporation as
partly paid, and subject to calls thereon until the whole
thereof shall have been paid, is hereby authorized.
(c) The Board of Directors shall have power to
authorize the payment of compensation to the directors for
services to the Corporation, including fees for attendance
at meetings of the Board of Directors or the Executive
Committee and all other Committees and to determine the
amount of such compensation and fees.
(d) The Corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by
it, alleged to have been lost or destroyed, and the Board of
Directors may, in their discretion, require the owner of the
lost or destroyed certificate, or his legal representative,
to give bond in such sum as they may direct as indemnity
against any claim that may be made against the Corporation,
its officers, employees or agents by reason thereof; a new
certificate may be issued without requiring any bond when,
in the judgment of the directors, it is proper so to do.
If the Corporation shall neglect or refuse to issue
such a new certificate and it shall appear that the owner
thereof has applied to the Corporation for a new certificate
in place thereof and has made due proof of the loss or
destruction thereof and has given such notice of his
application for such new certificate in such newspaper of
general circulation, published in the State of Louisiana, as
reasonably should be approved by the Board of Directors, and
in such other newspaper as may be required by the Board of
Directors, and has tendered to the Corporation adequate
security to indemnify the Corporation, its officers,
employees or agents, and any person other than such
applicant who shall thereafter appear to be the lawful owner
of such allegedly lost or destroyed certificate against
damage, loss or expense because of the issuance of such new
certificate, and the effect thereof as herein provided,
then, unless there is adequate cause why such new
certificate shall not be issued, the Corporation, upon the
receipt of said indemnity, shall issue a new certificate of
stock in place of such lost or destroyed certificate. In
the event that the Corporation shall nevertheless refuse to
issue a new certificate as aforesaid, the applicant may then
petition any court of competent jurisdiction for relief
against the failure of the Corporation to perform its
obligations hereunder. In the event that the Corporation
shall issue such new certificate, any person who shall
thereafter claim any rights under the certificate in place
of which such new certificate is issued, whether such new
certificate is issued pursuant to the judgment or decree of
such court or voluntarily by the Corporation after the
publication of notice and the receipt of proof and indemnity
as aforesaid, shall have recourse to such indemnity and the
Corporation shall be discharged from all liability to such
person by reason of such certificate and the shares
represented thereby.
(e) No stockholder shall have any right to inspect any
account, book or document of the Corporation, except as
conferred by statute or authorized by the directors.
(f) No holder of any stock of the Corporation shall be
entitled as of right to purchase or subscribe for any part
of any stock of the Corporation authorized by these Amended
and Restated Articles of Incorporation or of any additional
stock of any class to be issued by reason of any increase of
the authorized capital stock of the Corporation or of any
bonds, certificates of indebtedness, debentures or other
securities convertible into stock of the Corporation, but
any stock authorized by these Amended and Restated Articles
of Incorporation or any such additional authorized issue of
new stock or of securities convertible into stock may be
issued and disposed of by the Board of Directors to such
persons, firms, corporations or associations for such
consideration and upon such terms and in such manner as the
Board of Directors may in their discretion determine,
without offering any thereof, on the same terms or on any
terms, to the stockholders then of record or to any class of
stockholders.
(g) A director of the Corporation shall not be
disqualified by his office from dealing or contracting with
the Corporation either as a vendor, purchaser or otherwise,
nor shall any transaction or contract of the Corporation be
void or voidable by reason of the fact that any director or
any firm of which any director is a member or any
corporation of which any director is a shareholder or
director, is in any way interested in such transaction or
contract, provided that such transaction or contract is or
shall be authorized, ratified or approved either (1) by a
vote of a majority of a quorum of the Board of Directors or
of the Executive Committee, without counting in such
majority or quorum any director so interested or member of a
firm so interested or a shareholder or director of a
corporation so interested, or (2) by vote at a stockholders'
meeting of the holders of record of a majority of all the
outstanding shares of stock of the Corporation entitled to
vote or by writing or writings signed by a majority of such
holders; nor shall any director be liable to account to the
Corporation for any profits realized by and from or through
any such transaction or contract of the Corporation,
authorized, ratified or approved as aforesaid, by reason of
the fact that he or any firm of which he is a member or any
corporation of which is a shareholder or director was
interested in such transaction or contract. Nothing herein
contained shall create any liability in the events above
described or prevent the authorization, ratification or
approval of such contracts in any other manner provided by
law.
(h) Any director may be removed and his place filled at
any meeting of the stockholders by the vote of a majority of
the outstanding stock of the Corporation entitled to vote.
Vacancies and newly created directorships resulting from
anyu increase in the authorized number of directors may be
filled as provided in the By-Laws.
(i) Any property of the Corporation not essential to
the conduct of its corporate business and purposes may be
sold, leased, exchanged or otherwise disposed of by
authority of its Board of Directors, and the Corporation may
sell, lease, exchange or otherwise dispose of all of its
property and franchises or any of its property, franchises,
corporate rights or privileges essential to the conduct of
its corporate business and purposes, upon the consent of and
for such consideration and upon such terms as may be
authorized by a majority of all of the directors and the
holders of a majority of the outstanding shares of stock
entitled to vote (or, if the consent or vote of a larger
number or different proportion of the directors and/or
shares is required by the laws of the State of Louisiana
notwithstanding the above agreement of the stockholders of
the Corporation to the contrary, then upon the consent or
vote of the larger number or different proportion of the
directors and/or shares so required) expressed in writing or
by vote at a meeting of stockholders duly called and held as
provided by law or in the manner provided by the By-Laws of
the Corporation, if not inconsistent therewith; and at no
time shall any of the plants, properties, easements,
franchises (other than corporate franchises) or securities
then owned by the Corporation, be deemed to be property,
franchises, corporate rights or privileges essential to the
conduct of the corporate business and purposes of the
Corporation.
(j) Upon the written consent or the vote of the holders
of record of a majority of the shares of stock of the
Corporation then outstanding and entitled to vote, (1) any
or every statute of the State of Louisiana (a) increasing,
diminishing, or in any way affecting the rights, powers or
privileges of stockholders of corporations organized under
the general laws of said State, or (b) giving effect to the
action taken by any part, less than all, of the stockholders
of any such corporation, shall be binding upon the
Corporation and every stockholder thereof, to the same
extent as if such statute had been in force at the date of
the making, filing and recording of these Amended and
Restated Articles of Incorporation, and/or (2) amendments of
these Amended and Restated Articles of Incorporation
authorized at the time of making such amendments by the laws
of the State of Louisiana, may be made.
************
Exhibit 3(b)
BY-LAWS
OF
ENTERGY LOUISIANA, INC.
ARTICLE I.
OFFICES
The principal business office of the Corporation shall be
in Jefferson Parish, Louisiana, or in such other location as
designated by the Board of Directors. The Corporation may also
have offices at such other places as the Board of Directors may
from time to time designate or the business of the Corporation
may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. Meetings of stockholders,
whether annual or special, shall be held at a location fixed by
the Board of Directors or by the stockholders.
SECTION 2. Annual Meeting. The annual meeting of
stockholders for the election of Directors and the transaction of
such other business as may properly come before the meeting shall
be held on such date and at such time of day as shall have been
fixed by the Board of Directors or by the stockholders.
SECTION 3. Special Meetings. Special meetings of the
stockholders may be held at any time upon the call of (i) a
majority of the entire Board of Directors, (ii) the President,
(iii) the Chairman of the Board, (iv) the person, if any,
designated by the Board of Directors as the Chief Executive
Officer, or (v) the holders of not less than a majority of the
outstanding stock entitled to vote at the special meeting.
SECTION 4. Organization. The Chief Executive Officer or,
in his absence, a person appointed by him or, in default of such
appointment, the officer next in seniority of position (as
determined by the Secretary or, in the Secretary's absence, the
Assistant Secretary), shall call meetings of the stockholders to
order and shall act as chairman thereof. The Secretary of the
Corporation, if present, shall act as secretary of all meetings
of stockholders, and, in his absence, the presiding officer may
appoint a secretary.
SECTION 5. Action by Consent. Any action required or
permitted to be taken at any meeting of the stockholders, whether
annual or special, may be taken without a meeting, if prior to
such action a written consent thereto is signed by a sufficient
percentage of shareholders to satisfy the minimum requirements of
state law.
ARTICLE III.
DIRECTORS
SECTION 1. General Powers. The property, affairs and
business of the Corporation shall be managed by the Board of
Directors.
SECTION 2. Term of Office. The term of office of each
Director shall be until the next annual meeting of stockholders
and until his or her successor is duly elected and qualified or
until the earlier death, resignation or removal of such Director.
SECTION 3. Number of Directors. The number of Directors
which shall constitute the whole Board of Directors shall be not
more than fifteen (15) nor less than three (3), with the exact
number at any given time to be fixed by a resolution of the Board
of Directors or by the stockholders.
SECTION 4. Meetings; Notice. Meetings of the Board of
Directors shall be held at such place as may from time to time be
fixed by resolution of the Board or by the Chairman of the Board,
the Vice Chairman, the President or a Vice President and as may
be specified in the notice or waiver of notice of any meeting.
Notice may be written, electronic or oral and may be given at any
time prior to the meeting. Notice may be waived by a Director
either prior to or following a meeting. Directors present at a
meeting shall be deemed to have waived notice thereof. Meetings
of the Board of Directors, or any committee thereof, may be held
by means of a video conference, a telephone conference or similar
communications equipment.
SECTION 5. Quorum. A majority of the Board of Directors
shall be necessary to constitute a quorum for the transaction of
business, and the act of a majority of the Directors present at a
meeting at which a quorum is present shall be the act of the
Board of Directors. If a quorum is present when the meeting is
convened, the Directors present may continue to conduct the
business of the meeting, taking action by vote of a majority of a
quorum as fixed above, until adjournment, notwithstanding the
withdrawal of enough Directors to leave less than a quorum as
fixed above, or the refusal of any Director present to vote.
SECTION 6. Action By Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or
of any committee thereof may be taken without a meeting if, prior
to such action, a written consent thereto is signed by all
members of the Board of Directors or of such committee, as the
case may be, and such written consent is filed with the minutes
of proceedings of the Board of Directors or such committee, as
the case may be.
SECTION 7. Advisory Directors. The stockholders or the
Board of Directors may elect one or more Advisory Directors of
the Corporation. Advisory Directors may be called upon
individually or as a group by the Board of Directors or Officers
of the Corporation to give advice and counsel to the Corporation.
Advisory Directors shall receive from the Corporation such
remuneration as shall be fixed by the Board of Directors. Terms
of Advisory Directors shall expire on the day of the Annual
Meeting of the Corporation, provided, however, that Advisory
Directors shall serve at the pleasure of the Board of Directors
and may be removed at any time with or without cause by a vote of
the Board of Directors. For the purpose of Article IX
(Indemnification) of these By-Laws, Advisory Directors of the
Corporation shall enjoy the same rights and privileges as
Directors of the Corporation.
SECTION 8. Vacancies; Removal. Vacancies and newly
created directorships resulting from any increase in the
authorized number of Directors may be filled by the stockholders
or by the Board of Directors, and the Directors so chosen shall
hold office until the next annual election. The stockholders may
by majority vote remove any Director from his directorship,
whether cause shall be assigned for such removal or not.
ARTICLE IV.
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
SECTION 1. Executive Committee. The Board of Directors
may, by resolution passed by a majority of the whole Board of
Directors, establish an Executive Committee of not less than two
or more than five members, to serve at the pleasure of the Board
of Directors, which Executive Committee shall consist of such
directors as the Board of Directors may from time to time
designate.
SECTION 2. Procedure. The Executive Committee shall meet
at the call of any of the members of the Executive Committee. A
majority of the members shall be necessary to constitute a quorum
and action shall be taken by a majority vote of those present.
SECTION 3. Powers and Reports. During the intervals
between the meetings of the Board of Directors, the Executive
Committee shall possess and may exercise, to the full extent
authorized by law, all the powers of the Board of Directors in
the management and direction of the business and affairs of the
Corporation. The taking of an action by the Executive Committee
shall be conclusive evidence that the Board of Directors was not
in session when such action was taken. The Executive Committee
shall keep regular minutes of its proceedings and all action by
the Executive Committee shall be reported to the Board of
Directors at its meeting next following the meeting of the
Executive Committee and shall be subject to revision or
alteration by the Board of Directors; provided, that no rights of
third parties shall be affected by such revision or alteration.
SECTION 4. Other Committees. From time to time the Board
of Directors, by the affirmative vote of a majority of the whole
Board of Directors, may appoint other committees for any purpose
or purposes, and such committees shall have such powers as shall
be conferred by the resolution of appointment; provided, however,
that no such committee shall be authorized to exercise the powers
of the Board of Directors. The quorum of any such committee so
appointed shall be a majority of the membership of that
committee.
ARTICLE V.
OFFICERS
SECTION 1. Required and Discretionary Officers. The Board
of Directors shall elect individuals to occupy at least three
executive offices: President, Secretary and Treasurer. In its
discretion, the Board of Directors may elect individuals to
occupy other executive offices, including Chief Executive
Officer, Chief Operating Officer, Vice President and such other
executive offices as the Board shall designate. Officers shall be
elected annually and shall hold office until their respective
successors shall have been duly elected and qualified, or until
such officer shall have died or resigned or shall have been
removed by majority vote of the whole Board of Directors. To the
extent permitted by law, individuals may occupy more than one
office.
SECTION 2. President. The President shall perform duties
incident to the office of the president of a corporation and such
other duties as from time to time may be assigned to him or her
by the Board of Directors, by the Executive Committee or, if the
Board has elected a Chief Executive Officer and if the Chief
Executive Officer is not the President, by the Chief Executive
Officer.
SECTION 3. Vice Presidents. Each Vice President shall have
such powers and shall perform such duties as from time to time
may be conferred upon or assigned to him or her by the Board of
Directors, the Executive Committee, the President or the Chief
Executive Officer.
SECTION 4. Secretary. The Secretary shall keep the minutes
of all meetings of the stockholders and of the Board of Directors
in books provided for the purpose; shall see that all notices are
duly given in accordance with the provisions of law and these By-
Laws; shall be custodian of the records and of the corporate seal
of the Corporation; shall see that the corporate seal is affixed
to all documents the execution of which under the seal is duly
authorized, and, when the seal is so affixed, he may attest the
same; and, in general, shall perform all duties incident to the
office of the secretary of a corporation, and such other duties
as from time to time may be assigned to the Secretary by the
Chief Executive Officer, the Chairman of the Board, the Vice
Chairman, the President, the Board of Directors or the Executive
Committee. The Secretary shall also keep, or cause to be kept, a
stock book, containing the names, alphabetically arranged, of all
persons who are stockholders of the Corporation, showing their
addresses of record, the number of shares held by them
respectively, and the date when they respectively became the
owners of stock of the Corporation.
SECTION 5. Treasurer. The Treasurer shall have charge of
and be responsible for all funds, securities, receipts and
disbursements of the Corporation, and shall deposit, or cause to
be deposited, in the name of the Corporation, all moneys or other
valuable effects in such banks, trust companies or other
depositories as shall, from time to time, be selected by the
Treasurer, by an assistant Treasurer or by any other individual
designated by the Board of Directors. The Treasurer may endorse
for collection on behalf of the Corporation, checks, notes and
other obligations; may sign receipts and vouchers for payments
made to the Corporation singly or jointly with another person as
the Board of Directors may authorize; may sign checks of the
Corporation and pay out and dispose of the proceeds as the Board
of Directors may authorize; shall render or cause to be rendered
to the Chairman of the Board, the President and the Board of
Directors, whenever requested, an account of the financial
condition of the Corporation; and, in general, shall perform all
the duties incident to the office of a treasurer of a
corporation, and such other duties as from time to time may be
assigned to him by the Chairman of the Board, the Vice Chairman,
the President, the Board of Directors or the Executive Committee.
SECTION 6. Subordinate Officers. The Board of Directors may
appoint such assistant secretaries, assistant treasurers and
other officers as it may deem desirable. Each such officer shall
hold office for such period, have such authority and perform such
duties as the Board of Directors may prescribe. The Board of
Directors may, from time to time, authorize any officer to
appoint and remove such officers and to prescribe the powers and
duties thereof.
SECTION 7. Vacancies; Absences. Any vacancy in any of the
above offices may be filled by the Board of Directors at any
regular or special meeting. Except when the law requires the act
of a particular officer, the Board of Directors or the Executive
Committee, whenever necessary, may, in the absence of any
officer, designate any other officer or properly qualified
employee, to perform the duties of the absent officer for the
time being, and such designated officer or employee shall have,
when so acting, all the powers herein given to such absent
officer.
SECTION 8. Resignations. Any officer may resign at any time
by giving written notice of such resignation to the Board of
Directors, the Chairman of the Board, the Vice Chairman, the
President or the Secretary. Unless otherwise specified therein,
such resignation shall take effect upon written receipt thereof
by the Board of Directors or by such officer.
ARTICLE VI.
CAPITAL STOCK
SECTION 1. Stock Certificates. Every stockholder shall be
entitled to have a certificate certifying the number of shares
owned by him in the Corporation. Stock certificates shall be
signed by the Chairman of the Board, the Vice Chairman of the
Board, the President or a Vice President and by the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation.
Such seal may be facsimile, engraved or printed. Where such
certificate is signed (1) by a transfer agent or an assistant
transfer agent, other than the Corporation itself, or (2) by a
transfer clerk acting on behalf of the Corporation and a
registrar, the signature of the Chairman of the Board, the Vice
Chairman of the Board, the President, Vice President, Treasurer,
Secretary, Assistant Treasurer or Assistant Secretary may be
facsimile. In case any officer or officers who shall have signed,
or whose facsimile signature or signatures shall have been used
on any such certificate or certificates shall cease to be such
officer or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates
shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile
signature or signatures shall have been used thereon had not
ceased to be such officer or officers of the Corporation.
SECTION 2. Transfer of Shares. The shares of stock of the
Corporation shall be transferred on the books of the Corporation
by the holder thereof in person or by his attorney lawfully
constituted, upon surrender for cancellation of certificates for
the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed,
with such proof or guaranty of the authenticity of the signature
as the Corporation or its agents may reasonably require. The
Board of Directors may appoint one or more transfer agents and
registrars of the stock of the Corporation. The Corporation shall
be entitled to treat the holder of record of any share or shares
of stock as the holder in fact and legal owner thereof and
accordingly shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other
notice thereof, save as expressly provided by law.
SECTION 3. Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, mutilated or destroyed,
and may require the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost or destroyed.
When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost
or destroyed certificate or certificates, or his legal
representative, to give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged
to have been lost, mutilated or destroyed.
ARTICLE VII.
CHECKS, NOTES, ETC.
SECTION 1. Execution of Checks, Notes, etc. All checks and
drafts on the Corporation's bank accounts and all bills of
exchange, promissory notes, acceptances, obligations and other
instruments for the payment of money, shall be signed by such
officer or officers, person or persons, as shall be thereunto
authorized by the Board of Directors or as may be designated in a
manner authorized by the Board of Directors.
SECTION 2. Execution of Contracts, Assignments, etc.
All contracts, agreements, endorsements, assignments, transfers,
stock powers, and other instruments shall be signed by such
officer or officers, person or persons, as shall be thereunto
authorized by the Board of Directors or as may be designated in
a manner authorized by the Board of Directors.
SECTION 3. Voting of Stock and Execution of Proxies. The
Chairman of the Board, the Vice Chairman, the President or any
Vice President or any other officer of the Corporation designated
by the Board of Directors, the Chairman of the Board, or the
President shall be authorized to attend any meeting of the
stockholders of any other corporation in which the Corporation is
an owner of stock and to vote such stock upon all matters coming
before such meeting. The Chairman of the Board, the Vice
Chairman, the President or any Vice President may sign and issue
proxies to vote shares of stock of other corporations owned by
the Corporation.
ARTICLE VIII.
SEAL
The seal of the Corporation shall show the year of its
incorporation and shall be in such form as the Board of Directors
shall prescribe. The seal on any corporate obligation for the
payment of money may be a facsimile, engraved or printed.
ARTICLE IX.
INDEMNIFICATION
SECTION 1. Mandatory Indemnification - Third Party Actions.
The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding ("Action"), whether civil,
criminal, administrative or investigative (other than an Action
by or in the right of the Corporation) by reason of the fact that
such person is or was a director, officer or employee of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgements, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such Action if such
person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal Action, had no
reasonable cause to believe the conduct was unlawful. The
termination of any Action by judgement, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal Action or
proceeding, had reasonable cause to believe that the conduct was
unlawful.
SECTION 2. Mandatory Indemnification - Derivative Actions.
The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any Action by or in the
right of the Corporation to procure a judgement in its favor by
reason of the fact that such person is or was a director,
officer, or employee of the Corporation or is or was serving at
the request of the Corporation as a director, officer or employee
of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees and
amounts paid in settlement not exceeding the estimated expense of
litigating the Action to a conclusion) actually and reasonably
incurred by such person in connection with the defense or
settlement of such Action if such person acted in good faith and
in a manner such person reasonably believed to be in or not
opposed to the best interest of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of such
person's duty to the Corporation unless and only to the extent
that the court in which such Action was brought shall determine
upon application that, despite the adjudication of liability but
in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such
court shall deem proper.
SECTION 3. Mandatory Indemnification - Successful Party. To
the extent that a director, officer, employee or agent of the
Corporation, or any person who is or was serving at the request
of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, has been successful on the merits or otherwise in the
defense of any such Action, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
SECTION 4. Permissive Indemnification. Notwithstanding any
limitations of the indemnification provided by Sections 1 and 2,
the Corporation may, to the fullest extent authorized by law,
indemnify any person who is or was a party or is threatened to be
made a party to any Action by reason of the fact that such person
is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against all or part of any expenses (including
attorneys' fees), judgements, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such Action, if it shall be determined in
accordance with the applicable procedures set forth in Section 5
that such person is fairly and reasonably entitled to such
indemnification.
SECTION 5. Procedure. Any indemnification under Sections 1,
2 or 4 (unless ordered by a court) shall be made by the
Corporation only as authorized by the Board of Directors (which
may so act whether or not there is a sufficient number of
disinterested directors to constitute a quorum) in the specific
case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because
such person has met the applicable standards of conduct set forth
in Sections 1 and 2 or is entitled to indemnification under
Section 4. Such determination, in the case of indemnification
made pursuant to Section 1 or Section 2 shall be made (1) by the
Board of Directors by a majority vote of a quorum, as defined in
the Certificate of Incorporation or the By-Laws, consisting of
directors who are not or were not parties to any pending or
completed Action giving rise to the proposed indemnification, or
(2) if such a quorum is not obtainable or, even if obtainable, a
quorum of disinterested directors so directs, by independent
legal counsel (who may be, but need not be, outside counsel to
the Corporation) in a written opinion, or (3) by the
shareholder(s) of the Corporation. Such determination, in the
case of indemnification made pursuant to Section 4, shall be made
by the Board of Directors by a majority vote of a quorum, as
defined in the Certificate of Incorporation or the By-Laws,
consisting of directors who are not or were not parties to any
pending or completed Action giving rise to the proposed
indemnification or by the shareholders.
SECTION 6. Advance Payments. Expenses (including attorneys'
fees) incurred or reasonably expected to be incurred by a
director, officer or employee of the Corporation in defending
against any claim asserted or threatened against such person in
such capacity or arising out of such person's status as such
shall be paid by the Corporation in advance of the final
determination thereof, if authorized by the Board of Directors
(which may so act whether or not there is a sufficient number of
disinterested directors to constitute a quorum) upon receipt by
the Corporation of his written request therefor and such person's
written promise to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by
the Corporation as authorized or required in this article.
SECTION 7. Provisions Not Exclusive. The indemnification
provided by this Article shall not be deemed exclusive of any
other rights to which any person seeking indemnification may be
entitled under any law, Bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, and shall continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 8. Miscellaneous. For purposes of this Article, and
without any limitation whatsoever upon the generality thereof,
the term "fines" as used herein shall be deemed to include (i)
penalties imposed by the Nuclear Regulatory Commission (the
"NRC") pursuant to Section 206 of the Energy Reorganization Act
of 1974 and Part 21 of NRC regulations thereunder, as they may be
amended from time to time, and any other penalties, whether
similar or dissimilar, imposed by the NRC, and (ii) excise taxes
assessed with respect to an employee benefit plan pursuant to the
Employee Retirement Income Security Act of 1974, as it may be
amended from time to time, ("ERISA"). For purposes of determining
the entitlement of a director, officer or employee of the
Corporation to indemnification under this Article, the term
"other enterprise" shall be deemed to include an employee benefit
plan governed by ERISA. The Corporation shall be deemed to have
requested such person to serve as a director, officer or employee
of such a plan where such person is a trustee of the plan or
where the performance by such person of his duties to the
Corporation also imposes duties on, or otherwise involves
services by, such person to such plan or its participants or
beneficiaries, and action taken or permitted by such person in
the performance of his duties with respect to such employee
benefit plan for which is a purpose reasonably believed by him to
be in the interest of the participants and beneficiaries of the
plan, shall be deemed to meet the standard of conduct required
for indemnification hereunder. Any act, omission, step or conduct
taken or had in good faith which is required, authorized or
approved by any order or orders issued pursuant to the Public
Utility Holding Company Act of 1935 or any other federal statute
or any state statute or municipal ordinance shall be deemed to
meet the standard of conduct required for indemnification
hereunder.
ARTICLE X.
CONFLICTS
In the event that any provisions of these By-Laws conflict
with the Articles of Incorporation or with state or federal
statutes, the Articles of Incorporation or such statutes shall
take precedence over such provisions of these By-Laws.
ARTICLE XI.
AMENDMENTS
Subject to the provisions of applicable law and of the
Articles of Incorporation, these By-Laws may be altered, amended
or repealed and new By-Laws adopted either by the stockholders or
by the Board of Directors.
Exhibit 4(c)
__________________________________________
ENTERGY LOUISIANA, INC.
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Debt Securities)
Dated as of ______________, _____
__________________________________________
<PAGE>
TABLE OF CONTENTS
RECITAL OF THE COMPANY 1
ARTICLE ONE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 101. DEFINITIONS. 1
"ACT" 2
"AFFILIATE" 2
"AUTHENTICATING AGENT" 2
"AUTHORIZED OFFICER" 2
"BOARD OF DIRECTORS" 2
"BOARD RESOLUTION" 2
"BUSINESS DAY" 3
"COMMISSION" 3
"COMPANY" 3
"COMPANY REQUEST OR COMPANY ORDER" 3
"CORPORATE TRUST OFFICE" 3
"CORPORATION" 3
"DEFAULTED INTEREST" 3
"DISCOUNT SECURITY" 3
"DOLLAR" OR "$" 3
"ELIGIBLE OBLIGATIONS" 3
"EVENT OF DEFAULT" 4
"GOVERNMENTAL AUTHORITY" 4
"GOVERNMENT OBLIGATIONS" 4
"HOLDER" 4
"INDENTURE" 4
"INTEREST PAYMENT DATE" 4
"MATURITY" 4
"OFFICER'S CERTIFICATE" 5
"OPINION OF COUNSEL" 5
"OUTSTANDING" 5
"PAYING AGENT" 6
"PERIODIC OFFERING" 6
"PERSON" 6
"PLACE OF PAYMENT" 6
"PREDECESSOR SECURITY" 6
"REDEMPTION DATE" 6
"REDEMPTION PRICE" 6
"REGULAR RECORD DATE" 7
"REQUIRED CURRENCY" 7
"RESPONSIBLE OFFICER" 7
"SECURITIES" 7
"SECURITY REGISTER AND SECURITY REGISTRAR" 7
"SPECIAL RECORD DATE" 7
"STATED INTEREST RATE" 7
"STATED MATURITY" 7
"TRANCHE" 7
"TRUST INDENTURE ACT" 7
"TRUSTEE" 7
"UNITED STATES" 8
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. 8
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. 8
SECTION 104. ACTS OF HOLDERS. 9
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY. 11
SECTION 106. NOTICE TO HOLDERS OF SECURITIES;
WAIVER. 12
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT. 12
SECTION 108. EFFECT OF HEADINGS AND TABLE OF
CONTENTS. 13
SECTION 109. SUCCESSORS AND ASSIGNS. 13
SECTION 110. SEPARABILITY CLAUSE. 13
SECTION 111. BENEFITS OF INDENTURE. 13
SECTION 112. GOVERNING LAW. 13
SECTION 113. LEGAL HOLIDAYS. 13
ARTICLE TWO 14
SECURITY FORMS 14
SECTION 201. FORMS GENERALLY. 14
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. 14
ARTICLE THREE 15
THE SECURITIES 15
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. 15
SECTION 302. DENOMINATIONS. 18
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING. 18
SECTION 304. TEMPORARY SECURITIES. 21
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER
AND EXCHANGE. 22
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES. 23
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED. 24
SECTION 308. PERSONS DEEMED OWNERS. 25
SECTION 309. CANCELLATION BY SECURITY REGISTRAR. 26
SECTION 310. COMPUTATION OF INTEREST. 26
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY. 26
ARTICLE FOUR 27
REDEMPTION OF SECURITIES 27
SECTION 401. APPLICABILITY OF ARTICLE. 27
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE. 27
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED. 27
SECTION 404. NOTICE OF REDEMPTION. 28
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE. 29
SECTION 406. SECURITIES REDEEMED IN PART. 29
ARTICLE FIVE 30
SINKING FUNDS 30
SECTION 501. APPLICABILITY OF ARTICLE. 30
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS
WITH SECURITIES. 30
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING
FUND. 31
ARTICLE SIX 31
COVENANTS 31
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND
INTEREST. 31
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY. 31
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE
HELD IN TRUST. 32
SECTION 604. CORPORATE EXISTENCE. 34
SECTION 605. MAINTENANCE OF PROPERTIES. 34
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO
COMPLIANCE. 34
SECTION 607. WAIVER OF CERTAIN COVENANTS. 34
ARTICLE SEVEN 35
SATISFACTION AND DISCHARGE 35
SECTION 701. SATISFACTION AND DISCHARGE OF
SECURITIES. 35
SECTION 702. SATISFACTION AND DISCHARGE OF
INDENTURE. 37
SECTION 703. APPLICATION OF TRUST MONEY. 38
ARTICLE EIGHT 39
EVENTS OF DEFAULT; REMEDIES 39
SECTION 801. EVENTS OF DEFAULT. 39
SECTION 802. ACCELERATION OF MATURITY; RESCISSION
AND ANNULMENT. 40
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY TRUSTEE. 41
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM. 42
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES. 43
SECTION 806. APPLICATION OF MONEY COLLECTED. 43
SECTION 807. LIMITATION ON SUITS. 43
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO
RECEIVE PRINCIPAL, PREMIUM AND INTEREST 44
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES. 44
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE. 45
SECTION 811. DELAY OR OMISSION NOT WAIVER. 45
SECTION 812. CONTROL BY HOLDERS OF SECURITIES. 45
SECTION 813. WAIVER OF PAST DEFAULTS. 46
SECTION 814. UNDERTAKING FOR COSTS. 46
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS. 46
ARTICLE NINE 47
THE TRUSTEE 47
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES. 47
SECTION 902. NOTICE OF DEFAULTS. 48
SECTION 903. CERTAIN RIGHTS OF TRUSTEE. 48
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR
ISSUANCE OF SECURITIES. 50
SECTION 905. MAY HOLD SECURITIES. 50
SECTION 906. MONEY HELD IN TRUST. 50
SECTION 907. COMPENSATION AND REIMBURSEMENT. 50
SECTION 908. DISQUALIFICATION; CONFLICTING
INTERESTS. 51
SECTION 909. CORPORATE TRUSTEE REQUIRED;
ELIGIBILITY. 51
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. 52
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. 54
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS. 55
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY. 55
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES. 56
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT. 57
ARTICLE TEN 59
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 59
SECTION 1001. LISTS OF HOLDERS. 59
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY. 59
ARTICLE ELEVEN 60
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER 60
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS. 60
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED. 60
ARTICLE TWELVE 61
SUPPLEMENTAL INDENTURES 61
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF HOLDERS. 61
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT
OF HOLDERS. 63
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES. 64
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES. 64
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT. 65
SECTION 1206. REFERENCE IN SECURITIES TO
SUPPLEMENTAL INDENTURES. 65
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL
INDENTURE. 65
ARTICLE THIRTEEN 65
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING 65
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE
CALLED. 65
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS. 66
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS. 66
SECTION 1304. QUORUM; ACTION. 67
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION
OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS. 68
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS. 69
SECTION 1307. ACTION WITHOUT MEETING. 69
ARTICLE FOURTEEN 69
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS 69
SECTION 1401. LIABILITY SOLELY CORPORATE. 69
<PAGE>
ENTERGY LOUISIANA, INC.
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________, _____
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
INDENTURE, dated as of _________________,
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 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:
For 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 reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles
as are generally accepted in the United States at the date
of such computation or, at the election of the Company
from time to time, at the date of the execution and
delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles
applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation
of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the
Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine,
are 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, 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"
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 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.
"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 or delivered to
the Security Registrar 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 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 protected in relying upon any such
request, demand, authorization, direction,
notice, consent or waiver or upon any such
determination as to the presence of a
quorum, only Securities which the Trustee
knows to be so owned shall be so
disregarded; provided, however, that
Securities so owned which have been pledged
in good faith may be regarded as
Outstanding if the pledgee establishes to
the satisfaction of the Trustee the
pledgee's right so to act with respect to
such Securities and that the pledgee is not
the Company or any other obligor upon the
Securities or any Affiliate of the Company
or of such other obligor; and
(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;
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, limited
liability company, limited liability partnership, joint
venture, trust 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 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.
"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
authenticated and delivered under this Indenture.
"Security Register and Security Registrar"
have the respective meanings specified in Section 305.
"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, 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 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 (except as otherwise
contemplated in clause (y) of the 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,
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 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, 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 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.
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:
Attention:
Telephone:
Telecopy:
If to the Company, 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 the
Securities 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 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 and the
Holders, 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 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, 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
of 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 of 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; 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 for
such series; and if such is the case, 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 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
interest, 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;
(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
temporary 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;
(v) any collateral security, assurance or guarantee
for the Securities of such series; and
(w) any other terms of the Securities of such
series, or any Tranche thereof, not inconsistent with the
provisions of this Indenture.
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) 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);
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 Periodic 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 substantially in the form
provided for herein executed by the Trustee or its agent
by manual signature, 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 each
office designated pursuant to Section 602, with respect to
the Securities of each series or any Tranche thereof, a
register (all registers kept in accordance with this
Section being collectively 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
Tranche and the registration of transfer thereof. The
Company shall designate one Person to maintain the
Security Register for the Securities of each series on a
consolidated basis, 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 or more of its offices as an
office in which a register with respect to the Securities
of one or more series, or any Tranche or Tranches thereof,
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 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, 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 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 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.
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
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.
(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 and with respect to any period
shorter than a full month, on the basis of the actual
number of days elapsed in such period.
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 appropriate 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.
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 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,
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 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 (if known),
(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.
(h) 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 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 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; and
(e) the portion, if any, of such aggregate 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 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 sums 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 such
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 __________________ in each year,
commencing _______________, 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 (a) Section 602 or any additional covenant or
restriction specified with respect to the Securities of
any series, or any Tranche thereof, as contemplated by
Section 301 if before the time for such compliance the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches with
respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders,
either waive such compliance in such instance or generally
waive compliance with such term, provision or condition
and (b) Section 604, 605 or Article Eleven if before the
time for such compliance the Holders of a majority in
principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance
with such term, provision or condition; but, in the case
of (a) or (b), no such waiver shall extend to or affect
such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
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)
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 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 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 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 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 and upon Company Request and delivery to the
Trustee of the documents referred to in clause (y) of
Section 701, be invested 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 of the
following events which shall have occurred and be
continuing:
(a) failure to pay interest, if any, on any Security
of such series within sixty (60) days after the same
becomes due and payable; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series 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.
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
immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon receipt by the
Company of notice of such declaration such principal
amount (or specified amount), together with premium, if
any, and accrued interest, if any thereon, shall become
immediately due and payable; 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
(i) all overdue interest on all Securities of such
series;
(ii) 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;
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or
rates prescribed therefor in such Securities;
(iv) 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 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.
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 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
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 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) 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 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,
(i) 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
(ii) 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
(i) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(ii) 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;
(iii) 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
(iv) 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 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 (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, 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 money
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 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.
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:
(i) 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
(ii) 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
(iii) 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 appointed by the Company.
If no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner
required by Section 911, any Holder who has been a bona
fide Holder of a Security of such series for at least six
months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the
Securities of such series.
(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
successor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the
appointment of such successor Trustee relates.
(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, or 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 published. If
at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, in accordance
with, and subject to the provisions of Section 907.
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, 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 Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _______ and
___________ in each year, commencing _______________, 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, the Commission and each securities exchange
upon which any Securities are listed, and the Company
shall file with the Trustee (within 30 days after filing
with the Commission in the case of reports which pursuant
to the Trust Indenture Act must be filed with the
Commission and furnished to the Trustee) and transmit to
the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as
shall be required by the Trust Indenture Act. The Company
shall notify the Trustee of the listing of any Securities
on any securities exchange.
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 Person, or convey or otherwise transfer or
lease its properties and assets substantially as an
entirety to any Person, unless
(a) the Person 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 performed 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 Person Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other Person 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 Person 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
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 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 all but not
part of 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 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; 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, 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 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 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, or 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 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, 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
any Tranche or Tranches thereof, 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 ten 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 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 and Tranches 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 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 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 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 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,
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.
_________________________
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, as of the day
and year first above written.
ENTERGY LOUISIANA, INC.
By:
Trustee
By:
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
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
Exhibit 4(d)
ENTERGY LOUISIANA, INC.
OFFICER'S CERTIFICATE
Creating the ____% Debentures, Series due ________
____________, the ___________________________________ of
Entergy Louisiana, Inc. (the "Company"), pursuant to the
authority granted in the accompanying Board Resolutions (all
capitalized terms used herein which are not defined herein but
are defined in the Indenture referred to below, shall have the
meanings specified in the Indenture), and Sections 201 and 301 of
the Indenture, does hereby certify to ____________________ (the
"Trustee"), as Trustee under the Indenture of the Company (For
Unsecured Debt Securities) dated as of ____________ (the
"Indenture") that:
1. The securities of the ______ series to be issued under the
Indenture shall be designated "_____% Debentures, Series due
_________" (the "Debentures of the _____ Series"), and shall
be issued in substantially the form set forth in Exhibit A
hereto;
2. The Debentures of the _____ Series shall mature and the
principal shall be due and payable together with all accrued
and unpaid interest thereon on ______, ____;
3. The Debentures of the _____ Series shall bear interest as
provided in the form thereof set forth in Exhibit A hereto;
4. Each installment of interest on a Debenture of the _____
Series shall be payable as provided in the form thereof set
forth as Exhibit A hereto;
5. Registration and registration of transfers and exchanges in
respect of the Debentures of the _____ Series may be
effected at the office or agency of the Company in The City
of New York. Notices and demands to or upon the Company in
respect of the Debentures of the _____ Series may be served
at the office or agency of the Company in The City of New
York. The Corporate Trust Office of the Trustee will
initially be the agency of the Company for such payment,
registration and registration of transfers and exchanges and
service of notices and demands and the Company hereby
appoints the Trustee as its agent for all such purposes;
provided, however, that the Company reserves the right to
change, by one or more Officer's Certificates, any such
office or agency and such agent. The Trustee will be the
Security Registrar and the Paying Agent for the Debentures
of the _____ Series;
6. The Regular Record Date for the interest payable on any
given Interest Payment Date with respect to the Debentures
of the _____ Series shall be the __th day prior to such
Interest Payment Date;
7. [Redemption provisions will be inserted]
8. No service charge shall be made for the registration of
transfer or exchange of the Debentures of the _____ Series;
provided, however, that the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with the exchange or
transfer;
9. If the Company shall make any deposit of money and/or
Eligible Obligations with respect to any Debentures of the
_____ Series, or any portion of the principal amount
thereof, as contemplated by Section 701 of the Indenture,
the Company shall not deliver an Officer's Certificate
described in clause (z) in the first paragraph of said
Section 701 unless the Company shall also deliver to the
Trustee, together with such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding
the satisfaction and discharge of its indebtedness in
respect of the Debentures of the _____ Series, shall assume
the obligation (which shall be absolute and unconditional)
to irrevocably deposit with the Trustee or Paying Agent such
additional sums of money, if any, or additional Eligible
Obligations (meeting the requirements of Section 701), if
any, or any combination thereof, at such time or times, as
shall be necessary, together with the money and/or Eligible
Obligations theretofore so deposited, to pay when due the
principal of and premium, if any, and interest due and to
become due on such Debentures of the _____ Series or
portions thereof, all in accordance with and subject to the
provisions of said Section 701; provided, however, that such
instrument may state that the obligation of the Company to
make additional deposits as aforesaid shall be subject to
the delivery to the Company by the Trustee of a notice
asserting the deficiency accompanied by an opinion of an
independent public accountant of nationally recognized
standing, selected by the Trustee, showing the calculation
thereof; or
(B) an Opinion of Counsel to the effect that, as a
result of a change in law occurring after the date of this
certificate, the Holders of such Debentures of the _____
Series, or portions of the principal amount thereof, will
not recognize income, gain or loss for United States federal
income tax purposes as a result of the satisfaction and
discharge of the Company's indebtedness in respect thereof
and will be subject to United States federal income tax on
the same amounts, at the same times and in the same manner
as if such satisfaction and discharge had not been effected;
[11. The Debentures of the _____ Series will be initially issued
in global form registered in the name of Cede & Co. (as
nominee for The Depository Trust Company, New York, New
York). The Debentures of the _____ Series in global form
shall bear the depository legend in substantially the form
set forth in Exhibit A hereto. The Debentures of the _____
Series in global form will contain restrictions on transfer,
substantially as described in the form set forth in Exhibit
A hereto.]
12. The Debentures of the _____ Series shall have such other
terms and provisions as are provided in the form set forth
in Exhibit A hereto;
13. The undersigned has read all of the covenants and conditions
contained in the Indenture relating to the issuance of the
Debentures of the _____ Series and the definitions in the
Indenture relating thereto and in respect of which this
certificate is made;
14. The statements contained in this certificate are based upon
the familiarity of the undersigned with the Indenture, the
documents accompanying this certificate, and upon
discussions by the undersigned with officers and employees
of the Company familiar with the matters set forth herein;
15. In the opinion of the undersigned, he or she has made such
examination or investigation as is necessary to enable him
or her to express an informed opinion whether or not such
covenants and conditions have been complied with; and
16. In the opinion of the undersigned, such conditions and
covenants and conditions precedent, if any (including any
covenants compliance with which constitutes a condition
precedent) to the authentication and delivery of the
Debentures of the _____ Series requested in the accompanying
Company Order No. __ have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this ____ day of ______, ____ in New York, New York.
<PAGE>
Exhibit A
[Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"), to Entergy Louisiana, Inc. or
its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.]
No._______________ Cusip No.__________
[FORM OF FACE OF DEBENTURE]
ENTERGY LOUISIANA, INC.
_____% DEBENTURES, SERIES DUE _________
ENTERGY LOUISIANA, INC., a corporation duly organized and
existing under the laws of the State of Louisiana, herein
referred to as the "Company", which term includes any successor
Person under the Indenture), for value received, hereby promises
to pay to
or registered assigns, the principal sum of ____________________
Dollars on ____________ and to pay interest on said principal sum
semi-annually on ______ and ______ of each year (each an
"Interest Payment Date") at the rate of ______% per annum until
the principal hereof is paid or made available for payment.
Interest on the Securities of this series will accrue from and
including __________, to and excluding the first Interest Payment
Date, and thereafter will accrue from and including the last
Interest Payment Date to which interest has been paid or duly
provided for. No interest will accrue on the Securities with
respect to the day on which the Securities mature. In the event
that any Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of such delay) with the same force
and effect as if made on the Interest Payment Date. The interest
so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the __th day preceding such Interest Payment Date (the "Regular
Record Date"). Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
the State of New York in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at
the option of the Company, interest on this Security may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed in New York, New York.
ENTERGY LOUISIANA, INC.
By:_________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Bank of New York, as Trustee
By:_______________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture
(for Unsecured Debt Securities), dated as of _____, ____ (herein,
together with any amendments thereto, called the "Indenture",
which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as
Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture, including the Board Resolutions and
Officer's Certificate filed with the Trustee on _________, ____
creating the series designated on the face hereof, for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof.
[Redemption provisions will be inserted]
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of a
majority in aggregate principal amount of the Securities of all
series at the time Outstanding in respect of which an Event of
Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and
integral multiples thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
Exhibit 5(a)
December 27, 1999
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-3,
including the exhibits thereto, which Entergy Louisiana,
Inc. (the "Company") proposes to file with the Securities
and Exchange Commission (the "Commission") on or shortly
after the date hereof, for the registration under the
Securities Act of 1933, as amended (the "Securities Act"),
of $436,000,000 in aggregate principal amount of its First
Mortgage Bonds (the "Bonds") and/or aggregate principal
amount of its Debt Securities (the "Debt Securities"), each
to be issued in one or more new series, and for the
qualification under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Company's
Mortgage and Deed of Trust, as heretofore amended and
supplemented, under which the Bonds are to be issued (the
"Mortgage"), and the Company's Indenture for the Debt
Securities, under which the Debt Securities are to be issued
(the "Indenture"). I advise you that in my opinion:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Louisiana.
(2) All action necessary to make valid and legal the
proposed issuance and sale by the Company of the Bonds and
the Debt Securities will have been taken when:
(a) the Company's said 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 a supplement or supplements to the
prospectus specifying certain details with respect to the
offering or offerings of the Bonds and the Debt Securities
shall have been filed with the Commission, and both the
Mortgage and the Indenture shall have been qualified under
the Trust Indenture Act;
(b) an Application-Declaration on Form U-1
contemplating, among other things, the issuance and sale of
the Bonds and the Debt Securities, shall have become
effective with respect to the issuance and sale of the Bonds
and the Debt Securities in accordance with an appropriate
order or orders of the Commission under the Public Utility
Holding Company Act of 1935, as amended;
(c) appropriate action shall have been taken by
the Board of Directors of the Company and/or by the
Executive Committee thereof for the purpose of authorizing
the consummation of the issuance and sale of the Bonds
and/or the issuance and sale of the Debt Securities;
(d) the proposed supplemental indenture relating
to the Bonds being issued, supplemental to the Company's
Mortgage shall have been duly executed and delivered; and
(e) the Bonds and the Debt Securities shall have
been issued an delivered for the consideration contemplated
by, and otherwise in conformity with, the acts, proceedings
and documents referred to above.
(3) When the foregoing steps applicable to the Bonds
and Debt Securities, respectively, have been taken, the
Bonds and the Debt Securities, respectively, will have been
legally issued and will be valid and binding obligations of
the Company enforceable in accordance with their terms,
except as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and by general equitable principles
(whether considered in a proceeding in equity or at law).
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 Bonds and the Debt
Securities by underwriters.
I am a member of the Louisiana Bar and, for
purposes of this opinion, 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
herewith addressed to you by Thelen Reid & Priest LLP.
I hereby consent to the use of this opinion as an
exhibit to the Company's Registration Statement on Form S-3
and consent to such references to myself as may be made in
the Registration Statement and in the Prospectus
constituting a part thereof.
Very truly yours,
/s/ Denise C. Redmann
Denise C. Redmann
[LETTERHEAD OF THELEN REID & PRIEST LLP]
Exhibit 5(b)
December 27, 1999
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3,
including the exhibits thereto, which Entergy Louisiana, Inc.
(the "Company") proposes to file with the Securities and Exchange
Commission (the "Commission") on or shortly after the date
hereof, for the registration under the Securities Act of 1933, as
amended (the "Securities Act"), of $436,000,000 in aggregate
principal amount of its First Mortgage Bonds (the "Bonds") and/or
aggregate principal amount of its Debt Securities (the "Debt
Securities"), each to be issued in one or more new series, and
for the qualification under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Company's Mortgage
and Deed of Trust, as heretofore amended and supplemented, under
which the Bonds are to be issued (the "Mortgage"), and the
Company's Indenture for the Debt Securities, under which the Debt
Securities are to be issued (the "Indenture"). We advise you
that in our opinion:
(1) The Company is a corporation duly organized and validly
existing under the laws of the State of Louisiana.
(2) All action necessary to make valid and legal the
proposed issuance and sale by the Company of the Bonds and the
Debt Securities will have been taken when:
(a) the Company's said 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 a supplement or supplements to the prospectus
specifying certain details with respect to the offering or
offerings of the Bonds and the Debt Securities shall have
been filed with the Commission, and both the Mortgage and
the Indenture shall have been qualified under the Trust
Indenture Act;
(b) an Application-Declaration on Form U-1
contemplating, among other things, the issuance and sale of
the Bonds and the Debt Securities, shall have become
effective with respect to the issuance and sale of the Bonds
and the Debt Securities in accordance with an appropriate
order or orders of the Commission under the Public Utility
Holding Company Act of 1935, as amended;
(c) appropriate action shall have been taken by the
Board of Directors of the Company and/or by the Executive
Committee thereof for the purpose of authorizing the
consummation of the issuance and sale of the Bonds and/or
the issuance and sale of the Debt Securities;
(d) the proposed supplemental indenture relating to
the Bonds being issued, supplemental to the Company's
Mortgage shall have been duly executed and delivered; and
(e) the Bonds and the Debt Securities shall have been
issued an delivered for the consideration contemplated by,
and otherwise in conformity with, the acts, proceedings and
documents referred to above.
(3) When the foregoing steps applicable to the Bonds and
Debt Securities, respectively, have been taken, the Bonds and the
Debt Securities, respectively, will have been legally issued and
will be valid and binding obligations of the Company enforceable
in accordance with their terms, except as may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and by general equitable
principles (whether considered in a proceeding in equity or at
law).
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 Bonds and the Debt Securities by
underwriters.
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
other state. As to all matters of Louisiana law, we have relied
upon an opinion of even date herewith addressed to you by Denise
C. Redmann, Esq., Senior Counsel - Corporate and Securities of
Entergy Services, Inc.
We hereby consent to the use of this opinion as an exhibit
to the Company's Registration Statement on Form S-3 and consent
to such references to our firm as may be made in the Registration
Statement and in the Prospectus constituting a part thereof.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
Exhibit 25(a)
____________________________________________________________________________
____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM T-1
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)___
HARRIS TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-4941093
(State of incorporation or organization (I.R.S. employer
if not a U.S. national bank) identification no.)
Wall Street Plaza, 88 Pine Street, 19th Floor
New York, New York 10005
(Address of trustee's principal executive offices) (Zip code)
Mark F. McLaughlin
Harris Trust Company of New York
Wall Street Plaza, 88 Pine Street, 19th Floor
New York, NY 10005
(212) 701-7602
(Name, address and telephone number of agent for service)
____________________________________
ENTERGY LOUISIANA, INC.
(Exact name of obligor as specified in its charter)
LOUSIANA 72-0245590
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
4809 Jefferson Highway
Jefferson, LA 70121
(504) 560-2734
(Address of principal executive offices)
______________________________________
First Mortgage Bonds
(Title of Securities)
____________________________________________________________________________
____________________________________________________________________________
<PAGE>
Item 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.
Federal Reserve Bank of New York
33 Liberty Street, New York N.Y. 10045
State of New York Banking Department
2 Rector Street, New York, N.Y. 10006
(b) Whether it is authorized to exercise corporate trust
powers.
The Trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The obligor is not an affiliate of the trustee.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under
another indenture under which any other
securities, or certificates of interest or
participation in any other securities, of the
obligor are outstanding, furnish the
following information:
(a) Title of the securities outstanding under each such
other indenture.
All securities currently outstanding for
which Harris Trust Company acts as
Trustee for Entergy Louisiana, Inc. are
under the Trust Indenture, as amended,
dated April 1, 1994.
(b) A brief statement of the facts relied
upon as a basis for the claim that no
conflicting interest within the meaning of
Section 310 (b) (1) of the Act arises as a
result of the trusteeship under any such
other indenture, including a statement as to
how the indenture securities will rank as
compared with the securities issued under
such other indenture.
The indenture to be qualified and
the indenture(s) referred to in
paragraph A above are wholly unsecured
and rank pari passu.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
A. Copy of Organization Certificate of
Harris Trust Company of New York to transact
business and exercise corporate trust powers;
attached hereto as Exhibit "A"
B. Copy of the existing By-Laws of Harris
Trust Company of New York; incorporated
herein by reference as Exhibit "B" filed with
Form T-1 Statement, Registration No. 33-46118
C. The consent of the Trustee required by
Section 321(b) of the Act; incorporated
herein by reference as Exhibit "C" with Form
T-1 Statement, Registration No. 33-46118
D. A copy of the latest report of condition
of Harris Trust Company of New York published
pursuant to law or the requirements of its
supervising or examining authority, attached
hereto as Exhibit "D"
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, Harris Trust Company 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 21st day of
December, 1999.
HARRIS TRUST COMPANY OF NEW YORK
By: /s/ Amy Roberts
Amy Roberts
Vice President
<PAGE>
EXHIBIT "A", 1
STATE OF NEW YORK
BANKING DEPARTMENT
I, ROBERT H. McCORMICK, Deputy Superintendent of Banks of the
State of New York, DO HEREBY APPROVE, pursuant to the provisions
of Section 601-b of the New York Banking Law, an AGREEMENT AND
PLAN OF MERGER, dated as of March 18, 1999, providing for the
merger of the HARRIS TRUST COMPANY OF NEW YORK, New York, New
York, with and into the BANK OF MONTREAL TRUST COMPANY, New York,
New York, under the name BANK OF MONTREAL TRUST COMPANY, said
merger to become effective upon the filing of the AGREEMENT AND
PLAN OF MERGER in the office of the Superintendent of Banks.
WITNESS, my hand and official seal of the Banking Department at
the City of New York,
this 19th day of May in the Year of our Lord
one thousand nine hundred ninety-nine.
/s/ Robert H. McCormick
Deputy Superintendent of Banks
[SEAL]
<PAGE>
EXHIBIT "A", 2
STATE OF NEW YORK
BANKING DEPARTMENT
WHEREAS on July 1, 1999 BANK OF MONTREAL TRUST COMPANY merged
into itself HARRIS TRUST COMPANY OF NEW YORK.
WHEREAS BANK OF MONTREAL TRUST COMPANY submitted a Certificate of
Amendment to the Organization Certificate to authorize the
amendment of the Certificate of Organization to change its name
to HARRIS TRUST COMPANY OF NEW YORK.
WHEREAS, there appears to be no reasonable objection to such
change of name:
NOW THEREFORE, I, ROBERT H. McCORMICK, Deputy Superintendent of
Banks of the State of New York, DO HEREBY CONSNET TO AND APPROVE
OF the aforementioned change of name to be effective July 1,
1999.
WITNESS, my hand and official seal of the Banking Department at
the City of New York,
this 30th day of September in the Year of our Lord
one thousand nine hundred ninety-nine.
/s/ Robert H. McCormick
Deputy Superintendent of Banks
[SEAL]
<PAGE>
EXHIBIT "D"
STATEMENT OF CONDITION
HARRIS TRUST COMPANY OF NEW YORK
_________________________________
ASSETS
Due From Banks $4,209,001
----------
Investment Securities:
State & Municipal 11,138,164
Other 100
----------
Total Securities 11,138,264
Loans and Advances
Federal Funds Sold 7,890,000
----------
Total Loans and Advances 7,890,000
Premises and Equipment 867,056
Other Assets 5,679,943
-----------
6,546,999
-----------
TOTAL ASSETS $29,784,264
===========
LIABILITIES
Other Liabilities 2,882,378
----------
TOTAL LIABILITIES 2,882,378
CAPITAL ACCOUNTS
Capital Stock, Authorized, Issued and
Fully Paid - 15,000 Shares of $100 Each 1,500,000
Surplus 17,322,188
Retained Earnings 8,209,241
Equity - Municipal Gain/Loss (129,543)
-----------
TOTAL CAPITAL ACCOUNTS 26,901,886
-----------
TOTAL LIABILITIES
AND CAPITAL ACCOUNTS $29,784,264
===========
I, Mark F. McLaughlin, Vice President, of the above-named
bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Mark F. McLaughlin
September 30, 1999
We, the undersigned directors, attest to the correctness of
this statement of resources and liabilities. We declared that it
has been examined by us and to the best of our knowledge and
belief has been prepared in conformance with the instructions and
is true and correct.
Sanjiv Tandon
Kevin O. Healy
Steven R. Rothbloom
