UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
- --------------------------------------------X
:
In the Matter of : CERTIFICATE PURSUANT TO
: RULE 24
ENTERGY ARKANSAS, INC. :
:
File No. 70-8723 :
:
(Public Utility Holding Company Act of 1935):
- --------------------------------------------X
This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that
the transactions described below, which were proposed by
Entergy Arkansas, Inc. ("Company") in its Application-
Declaration, as amended, in the above file, have been
carried out in accordance with the terms and conditions of
and for the purposes represented by said Application-
Declaration, as amended, and pursuant to the order of the
Securities and Exchange Commission with respect thereto
dated January 18, 1996.
On August 14, 1996, the Company's subsidiary,
Entergy Arkansas Capital I, a statutory business trust
created under the laws of the State of Delaware ("Trust"),
issued and sold, by negotiated public offering, to Goldman,
Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Smith Barney Inc. and Stephens Inc., as
underwriters, 2,400,000 8 1/2% Cumulative Quarterly Income
Preferred Securities, Series A ($60,000,000 in aggregate
liquidation amount) ("Series A Preferred Securities") issued
by the Trust pursuant to the Amended and Restated Trust
Agreement of Entergy Arkansas Capital I dated August 14,
1996 ("Trust Agreement"). In connection with the issuance
and sale of the Series A Preferred Securities, the Company
executed and delivered a guarantee of the Trust's payment
obligations under the Series A Preferred Securities
("Guaranty"). In addition, the Company purchased 74,227 8
1/2% Common Securities ($1,855,675 in aggregate liquidation
amount) issued by the Trust pursuant of the Trust Agreement
("Common Securities"). The Trust invested the proceeds from
the sale of both the Series A Preferred Securities and the
Common Securities in the Company's 8 1/2% Junior
Subordinated Deferrable Interest Debentures, Series A due
September 30, 2045 ("Series A Debentures"), issued pursuant
to the Indenture (For Unsecured Subordinated Debt Securities
relating to Trust Securities), dated as of August 1, 1996
between the Company and The Bank of New York, as Trustee
("Indenture").
Attached hereto and incorporated by reference are:
Exhibit A-1 (a) - Execution form of Indenture.
Exhibit A-2(a) - Execution form of Series A
Debentures.
Exhibit A-3(a) - Execution form of Trust
Agreement and execution form of
Series A Preferred Securities.
Exhibit A-4(a) - Execution form of Guaranty.
Exhibit B-1(a) - Execution form of Underwriting
Agreement relating to the Series A
Preferred Securities.
Exhibit C-1(a) - Prospectus Supplement and
accompanying Prospectus used in
connection with the sale of the
Series A Preferred Securities
(previously filed in Registration
Nos. 333-5045 and 333-5045-01 and
incorporated herein by reference).
Exhibit F-1(a) - Post-effective opinion of
Friday, Eldredge and Clark,
counsel for the Company.
Exhibit F-2(a) - Post-effective opinion of Reid
& Priest LLP, counsel for the
Company.
Exhibit F-3 (a) - Post-effective opinion of
Richards, Layton & Finger, P.A.,
Counsel for the Company.
IN WITNESS WHEREOF, Entergy Arkansas, Inc. has
caused this certificate to be executed this 26th day of
August, 1996.
ENTERGY ARKANSAS, INC.
By: /s/William J. Regan,Jr.
William J. Regan, Jr.
Vice President
and Treasurer
Exhibit A-1 (a)
__________________________________________
ENTERGY ARKANSAS, INC.
TO
THE BANK OF NEW YORK
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities
relating to Trust Securities)
Dated as of August 1, 1996
__________________________________________
TABLE OF CONTENTS
PARTIES 1
RECITAL OF THE COMPANY 1
ARTICLE ONE 1
Definitions and Other Provisions of General Application 1
SECTION 101. Definitions 1
Act 2
Additional Interest 2
Affiliate 2
Authenticating Agent 2
Authorized Officer 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 3
Company 3
Company Request or Company Order 3
Corporate Trust Office 3
corporation 3
Defaulted Interest 3
Dollar or $ 3
Event of Default 3
Governmental Authority 3
Government Obligations 3
Guarantee 4
Holder 4
Indenture 4
Interest Payment Date 4
Maturity 4
Officer's Certificate 4
Opinion of Counsel 4
Outstanding 4
Paying Agent 5
Person 5
Place of Payment 5
Predecessor Security 5
Preferred Securities 6
Property Trustee 6
Redemption Date 6
Redemption Price 6
Regular Record Date 6
Responsible Officer 6
Securities 6
Security Register and Security Registrar 6
Senior Indebtedness 6
Special Record Date 7
Stated Maturity 7
Trust 7
Trust Agreement 7
Trust Indenture Act 7
Trustee 7
United States 7
SECTION 102. Compliance Certificates and Opinions 7
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 12
SECTION 109. Successors and Assigns 12
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 20
SECTION 305. Registration, Registration of
Transfer and Exchange 21
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities 22
SECTION 307. Payment of Interest; Interest Rights
Preserved 23
SECTION 308. Persons Deemed Owners 24
SECTION 309. Cancellation by Security Registrar 24
SECTION 310. Computation of Interest 24
SECTION 311. Extension of Interest Payment 24
SECTION 312. Additional Interest. 25
SECTION 313. CUSIP Numbers 25
ARTICLE FOUR 25
Redemption of Securities 25
SECTION 401. Applicability of Article 25
SECTION 402. Election to Redeem; Notice to
Trustee 25
SECTION 403. Selection of Securities to Be
Redeemed 26
SECTION 404. Notice of Redemption 26
SECTION 405. Securities Payable on Redemption
Date 28
SECTION 406. Securities Redeemed in Part 28
ARTICLE FIVE 28
Sinking Funds 28
SECTION 501. Applicability of Article 28
SECTION 502. Satisfaction of Sinking Fund
Payments with Securities 29
SECTION 503. Redemption of Securities for Sinking
Fund 29
ARTICLE SIX 30
Covenants 30
SECTION 601. Payment of Principal, Premium and
Interest 30
SECTION 602. Maintenance of Office or Agency 30
SECTION 603. Money for Securities Payments to Be
Held in Trust 31
SECTION 604. Corporate Existence 32
SECTION 605. Maintenance of Properties 32
SECTION 606. Annual Officer's Certificate as to
Compliance. 32
SECTION 607. Waiver of Certain Covenants 33
SECTION 608. Restriction on Payment of Dividends 33
SECTION 609. Maintenance of Trust Existence 34
SECTION 610. Rights of Holders of Preferred
Securities 34
ARTICLE SEVEN 34
Satisfaction and Discharge 34
SECTION 701. Satisfaction and Discharge of
Securities 34
SECTION 702. Satisfaction and Discharge of
Indenture 37
SECTION 703. Application of Trust Money 37
ARTICLE EIGHT 38
Events of Default; Remedies 38
SECTION 801. Events of Default 38
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 41
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities 42
SECTION 806. Application of Money Collected 42
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 44
SECTION 811. Delay or Omission Not Waiver 44
SECTION 812. Control by Holders of Securities 45
SECTION 813. Waiver of Past Defaults 45
SECTION 814. Undertaking for Costs 46
SECTION 815. Waiver of Stay or Extension Laws 46
ARTICLE NINE 46
The Trustee 46
SECTION 901. Certain Duties and Responsibilities 46
SECTION 902. Notice of Defaults 48
SECTION 903. Certain Rights of Trustee 48
SECTION 904. Not Responsible for Recitals or
Issuance of Securities 49
SECTION 905. May Hold Securities 49
SECTION 906. Money Held in Trust 50
SECTION 907. Compensation and Reimbursement 50
SECTION 908. Disqualification; Conflicting
Interests. 50
SECTION 909. Corporate Trustee Required;
Eligibility 51
SECTION 910. Resignation and Removal; Appointment
of Successor 51
SECTION 911. Acceptance of Appointment by
Successor 53
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business 54
SECTION 913. Preferential Collection of Claims
Against Company 55
SECTION 914. Co-trustees and Separate Trustees. 55
SECTION 915. Appointment of Authenticating Agent 56
ARTICLE TEN 58
Holders' Lists and Reports by Trustee and Company 58
SECTION 1001. Lists of Holders 58
SECTION 1002. Reports by Trustee and Company 59
ARTICLE ELEVEN 59
Consolidation, Merger, Conveyance or Other Transfer 59
SECTION 1101. Company May Consolidate, etc., Only
on Certain Terms 59
SECTION 1102. Successor Corporation Substituted 60
ARTICLE TWELVE 60
Supplemental Indentures 60
SECTION 1201. Supplemental Indentures Without
Consent of Holders 60
SECTION 1202. Supplemental Indentures With
Consent of Holders 62
SECTION 1203. Execution of Supplemental
Indentures 64
SECTION 1204. Effect of Supplemental Indentures 64
SECTION 1205. Conformity With Trust Indenture Act 64
SECTION 1206. Reference in Securities to
Supplemental Indentures 64
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 65
SECTION 1303. Persons Entitled to Vote at
Meetings 66
SECTION 1304. Quorum; Action 66
SECTION 1305. Attendance at Meetings;
Determination of Voting Rights;
Conduct and Adjournment of Meetings 67
SECTION 1306. Counting Votes and Recording Action
of Meetings 68
SECTION 1307. Action Without Meeting 68
ARTICLE FOURTEEN 69
Immunity of Incorporators, Stockholders, Officers and
Directors 69
SECTION 1401. Liability Solely Corporate 69
ARTICLE FIFTEEN 69
Subordination of Securities 69
SECTION 1501. Securities Subordinate to Senior
Indebtedness. 69
SECTION 1502. Payment Over of Proceeds of
Securities 70
SECTION 1503. Disputes with Holders of Certain
Senior Indebtedness 72
SECTION 1504. Subrogation 72
SECTION 1505. Obligation of the Company
Unconditional 72
SECTION 1506. Priority of Senior Indebtedness
Upon Maturity 73
SECTION 1507. Trustee as Holder of Senior
Indebtedness 73
SECTION 1508. Notice to Trustee to Effectuate
Subordination 73
SECTION 1509. Modification, Extension, etc. of
Senior Indebtedness 74
SECTION 1510. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness 74
SECTION 1511. Paying Agents Other Than the
Trustee 74
SECTION 1512. Rights of Holders of Senior
Indebtedness Not Impaired 74
SECTION 1513. Effect of Subordination Provisions;
Termination 75
Testimonium 76
Signatures and Seals 76
Acknowledgements 78
<PAGE>
ENTERGY ARKANSAS, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of August 1, 1996
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
<PAGE>
INDENTURE, dated as of August 1, 1996, between
ENTERGY ARKANSAS, INC., a corporation duly organized and
existing under the laws of the State of Arkansas (herein
called the "Company"), having its principal office at 425
West Capitol, Little Rock, Arkansas 72201, and THE BANK OF
NEW YORK, a New York banking corporation, having its
principal corporate trust office at 101 Barclay Street, New
York, New York 10286, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured subordinated debentures, notes
or other evidences of indebtedness (herein called the
"Securities"), in an unlimited aggregate principal amount to
be issued in one or more series as contemplated herein; and
all acts necessary to make this Indenture a valid agreement
of the Company have been performed.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the
meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions
upon which the Securities are to be authenticated, issued
and delivered and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which
are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to
them therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles
as are generally accepted in the United States at the
date of such computation or, at the election of the
Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that
in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation
of any 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.
"Additional Interest" has the meaning specified in
Section 312.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such
specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person
means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person (other than
the Company or an Affiliate of the Company) authorized by
the Trustee to act on behalf of the Trustee to authenticate
one or more series of Securities.
"Authorized Officer" means the Chairman of the
Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, or any other duly authorized officer of
the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly
authorized to act in respect of matters relating to this
Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or
other location are generally authorized or required by law,
regulation or executive order to remain closed, except as
may be otherwise specified as contemplated by Section 301.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, as amended, or, if at
any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act,
then the body, if any, performing such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor
Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at
the date of execution and delivery of this Indenture is
located at 101 Barclay Street, 21 West, New York, New York
10286.
"corporation" means a corporation, association,
company, joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Dollar" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States as at the
time shall be legal tender for the payment of public and
private debts.
"Event of Default" with respect to Securities of a
particular series has the meaning specified in Section 801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any
department, agency, authority or other instrumentality of
any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are
unconditionally guaranteed by, the United States and
entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or
other instruments the full amount received by such
custodian in respect of such obligations or specific
payments and shall not be permitted to make any
deduction therefrom.
"Guarantee" means the guarantee agreement delivered
from the Company to a Trust, for the benefit of the
holders of Preferred Securities issued by such Trust.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms
of a particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment
of interest on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
provided in such Security or in this Indenture, whether at
the Stated Maturity, by declaration of acceleration, upon
call for redemption or otherwise.
"Officer's Certificate" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series, have given any
request, demand, authorization, direction, notice,
consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities, Securities
owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this
Indenture, or (except for purposes of actions to be taken
by Holders generally under Section 812 or 813) all
Outstanding Securities of each such series, as the case
may be, determined without regard to this provision)
shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or
upon any such determination as to the presence of a
quorum, only Securities which the Trustee knows to be so
owned shall be so disregarded; provided, however, that
Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor; and provided, further, that, in the case
of any Security the principal of which is payable from
time to time without presentment or surrender, the
principal amount of such Security that shall be deemed to
be Outstanding at any time for all purposes of this
Indenture shall be the original principal amount thereof
less the aggregate amount of principal thereof
theretofore paid.
"Paying Agent" means any Person, including the
Company, authorized by the Company to pay the principal
of, and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability
company, limited liability partnership or unincorporated
organization or any Governmental Authority.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places,
specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any,
and interest, if any, on the Securities of such series are
payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed (to the extent lawful) to
evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Preferred Securities" means any preferred trust
interests issued by a Trust or similar securities issued
by permitted successors to such Trust in accordance with
the Trust Agreement pertaining to such Trust.
"Property Trustee" has the meaning specified in
Section 111.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other
than non-recourse obligations and the indebtedness issued
under this Indenture) of, or guaranteed or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other than
the Securities), or for the payment of money relating to
any lease which is capitalized on the consolidated balance
sheet of the Company and its subsidiaries in accordance
with generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations,
whether existing as of the date of this Indenture or
subsequently incurred by the Company unless, in the case
of any particular indebtedness, obligation, renewal,
extension or refunding, the instrument creating or
evidencing the same or the assumption or guarantee of the
same expressly provides that such indebtedness,
obligation, renewal, extension or refunding is not
superior in right of payment to or is pari passu with the
Securities; provided that the Company's obligations under
the Guarantee shall not be deemed to be Senior
Indebtedness.
"Special Record Date" for the payment of any
Defaulted Interest on the Securities of any series means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Trust" means Entergy Arkansas Capital I, Entergy
Arkansas Capital II, Entergy Arkansas Capital III, each a
statutory business trust created under the laws of the
State of Delaware, or any other Trust designated pursuant
to Section 301 hereof or any permitted successor under the
Trust Agreement pertaining to such Trust.
"Trust Agreement" means the Amended and Restated
Trust Agreement, dated as of August 14, 1996, relating to
Entergy Arkansas Capital I, the Amended and Restated Trust
Agreement relating to Entergy Arkansas Capital II, the
Amended and Restated Trust Agreement relating to Entergy
Arkansas Capital III or an Amended and Restated Trust
Agreement relating to a Trust designated pursuant to
Section 301 hereof, in each case, among the Company, as
Depositor, the trustees named therein and several holders
referred to therein as they may be amended from time to
time.
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, or any successor statute, as
in effect at such time.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor
Trustee shall have become such with respect to one or more
series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities
of that series.
"United States" means the United States of America,
its Territories, its possessions and other areas subject
to its political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action
(including any covenants compliance with which constitutes
a condition precedent) have been complied with and an
Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of
this Indenture relating to such particular application or
request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each Person signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each
such Person, such Person has made such examination
or investigation as is necessary to enable such
Person to express an informed opinion as to whether
or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion
of each such Person, such condition or covenant has
been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers
of the Company stating that the information with respect
to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or
opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect
as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect
to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at
the request of the Company which could not have been
taken had the original document or instrument not
contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and
effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities
issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding
Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and
evidenced by one or more instruments of
substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and evidenced
by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and
any such record. Except as herein otherwise
expressly provided, such action shall become
effective when such instrument or instruments or
record or both are delivered to the Trustee and,
where it is hereby expressly required, to the
Company. Such instrument or instruments and any
such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Sec
tion 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall
be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be
proved by the affidavit of a witness of such
execution or by a certificate of a notary public or
other officer authorized by law to take
acknowledgments of deeds, certifying that the
individual signing such instrument or writing
acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the
Company deem sufficient. Where such execution is by
a signer acting in a capacity other than his
individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his
authority.
(c) The principal amount and serial numbers of
Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder
of the same Security and the Holder of every
Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to
be done by the Trustee or the 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 authenticated and
delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form
approved by the Trustee as to any action taken by
such Act of Holders. If the Company shall so
determine, new Securities of any series so modified
as to conform, in the opinion of the Trustee and the
Company, to such action may be prepared and executed
by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities
of such series.
(g) If the Company shall solicit from Holders
any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company
may, at its option, by Board Resolution, fix in
advance a record date for the determination of
Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation
to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or
after such record date, but only the Holders of
record at the close of business on the record date
shall be deemed to be Holders for the purposes of
(i) determining whether Holders of the requisite
proportion of the Outstanding Securities have
authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the
record date or (ii) determining which Holders may
revoke any such Act (notwithstanding Section
104(e)).
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or
other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company, or the Company
by the Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered
personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission,
telex or other direct written electronic means to such
telephone number or other electronic communications
address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such
party's name below or to such other address as either
party hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-2745
Telecopy: (212) 815-5915
If to the Company, to:
Entergy Arkansas, Inc.
425 West Capitol
Little Rock, Arkansas 72201
Attention: Treasurer
Telephone: (504) 576-4308
Telecopy: (504) 576-4455
With a copy to:
Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Legal Department - Corporate and
Securities Law Division
Telephone: (504) 576-2272
Telecopy: (504) 576-4150
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if
transmitted by facsimile transmission or other direct
written electronic means, on the date of transmission,
and if transmitted by registered mail, on the date of
receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given, and
shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail,
then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of
such notice with respect to other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive such
notice, either before or after the event otherwise to be
specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this
Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in
the Securities shall for any reason be held to be
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than
the parties hereto, their successors hereunder, the
Holders and, so long as the notice described in Section
1513 hereof has not been given, the holders of Senior
Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture; provided,
however, if the property trustee under the related Trust
Agreement (the "Property Trustee") fails to enforce its
rights with respect to the Securities or the related
Trust Agreement, a holder of Preferred Securities may
institute a legal proceeding directly against the Company
to enforce the Property Trustee's rights with respect to
the Securities or such Trust Agreement, to the fullest
extent permitted by law, without first instituting any
legal proceeding against the Property Trustee or any
other person or entity.
SECTION 112. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of New York, except to the extent that the law
of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of
any series, or in the Board Resolution or Officer's
Certificate which establishes the terms of the Securities
of such series, which specifically states that such
provision shall apply in lieu of this Section) payment of
interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of
Payment, except that if such Business Day is in the next
succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with
the same force and effect, and in the same amount, as if
made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, as the case may be, and, if such
payment is made or duly provided for on such Business
Day, no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be,
to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall
be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series,
or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case
with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of
Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as
shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of
the series designated therein referred to in
the within-mentioned Indenture.
Dated:
_________________________________
as Trustee
By:
_____________________________
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited; provided, however, that all
Securities shall be issued to a Trust in exchange for
securities of the Company or to evidence loans by a Trust
of the proceeds of the issuance of Preferred Securities
of such Trust plus the amount deposited by the Company
with such Trust from time to time.
The Securities may be issued in one or more
series. Prior to the authentication, issuance and
delivery of Securities of any series there shall be
established by specification in a supplemental indenture
or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board
Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such
series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 406 or 1206 and
except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of
such series shall be payable on any Interest Payment
Date, if other than the Persons in whose names such
Securities (or one or more Predecessor Securities)
are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal
of the Securities of such series is payable or any
formulary or other method or other means by which
such date or dates shall be determined, by reference
to an index or other fact or event ascertainable
outside this Indenture or otherwise (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities
of such series shall bear interest, if any
(including the rate or rates at which overdue
principal shall bear interest, if different from the
rate or rates at which such Securities shall bear
interest prior to Maturity, and, if applicable, the
rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or
other method or other means by which such rate or
rates shall be determined, by reference to an index
or other fact or event ascertainable outside this
Indenture or otherwise; the date or dates from which
such interest shall accrue; the Interest Payment
Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment
Date; the right of the Company, if any, to extend
the interest payment periods and the duration of any
such extension as contemplated by Section 311; and
the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series shall
be payable, (2) registration of transfer of
Securities of such series may be effected, (3)
exchanges of Securities of such series may be
effected and (4) notices and demands to or upon the
Company in respect of the Securities of such series
and this Indenture may be served; the Security
Registrar and Paying Agent or Agents for such
series; and if such is the case, and if acceptable
to the Trustee, that the principal of such
Securities shall be payable without presentment or
surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the
Securities of such series may be redeemed, in whole
or in part, at the option of the Company and any
restrictions on such redemptions, including but not
limited to a restriction on a partial redemption by
the Company of the Securities of any series,
resulting in delisting of such Securities from any
national exchange;
(h) the obligation or obligations, if any, of
the Company to redeem or purchase the Securities of
such series pursuant to any sinking fund or other
analogous mandatory redemption provisions or at the
option of a Holder thereof and the period or periods
within which or the date or dates on which, the
price or prices at which and the terms and
conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant
to such obligation, and applicable exceptions to the
requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the
Holder;
(i) the denominations in which Securities of
such series shall be issuable if other than
denominations of $25 and any integral multiple
thereof;
(j) the currency or currencies, including com
posite currencies, in which payment of the principal
of and premium, if any, and interest, if any, on the
Securities of such series shall be payable (if other
than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series
are to be payable, at the election of the Company or
a Holder thereof, in a coin or currency other than
that in which the Securities are stated to be
payable, the period or periods within which and the
terms and conditions upon which, such election may
be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series
are to be payable, or are to be payable at the
election of the Company or a Holder thereof, in
securities or other property, the type and amount of
such securities or other property, or the formulary
or other method or other means by which such amount
shall be determined, and the period or periods
within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series may be
determined with reference to an index or other fact
or event ascertainable outside this Indenture, the
manner in which such amounts shall be determined to
the extent not established pursuant to clause (e) of
this paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series which shall be payable
upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to the
Securities of such series, and any covenants of the
Company for the benefit of the Holders of the
Securities of such series, in addition to those set
forth in Article Six and whether any such covenants
may be waived pursuant to Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series may be converted into or
exchanged for shares of capital stock or other
securities of the Company or any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Government
Obligations in respect of the Securities of such
series denominated in a currency other than Dollars
or in a composite currency, and any additional or
alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as
provided in Section 701;
(r) if the Securities of such series are to be
issued in global form, (i) any limitations on the
rights of the Holder or Holders of such Securities
to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in
definitive form in lieu of global form and (iii) any
and all other matters incidental to such Securities;
(s) if the Securities of such series are to be
issuable as bearer securities, any and all matters
incidental thereto which are not specifically
addressed in a supplemental indenture as
contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such
Series to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if
a service charge will be made for the registration
of transfer or exchange of Securities of such series
the amount or terms thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series;
(v) the designation of the Trust to which
Securities of such series are to be issued; and
(w) any other terms of the Securities of such
series not inconsistent with the provisions of this
Indenture.
The Securities of each series shall be
subordinated in right of payment to Senior Indebtedness
as provided in Article Fifteen.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, the
Securities of each series shall be issuable in
denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, the
Securities shall be executed on behalf of the Company by
an Authorized Officer and may have the corporate seal of
the Company affixed thereto or reproduced thereon
attested by any other Authorized Officer or by the
Secretary or an Assistant Secretary of the Company. The
signature of any or all of these officers on the Secu
rities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers or the Secretary or an
Assistant Secretary of the Company shall bind the
Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time
or from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing
the form or forms and terms of such series, as
provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities and,
to the extent that the terms of such Securities
shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated
by Sections 201 and 301, establishing such terms;
(c) the Securities of such series, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture;
(ii) the terms of such Securities
have been duly authorized by the Company and
have been established in conformity with the
provisions of this Indenture; and
(iii) such Securities, when
authenticated and delivered by the Trustee and
issued and delivered by the Company in the
manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute
valid and legally binding obligations of the
Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance
with their terms, subject, as to enforcement,
to laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will materially or
adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable
to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities,
each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, no
Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of
authentication substantially in the form provided for
herein executed by the Trustee or an Authenticating Agent
by manual signature of an authorized officer thereof, and
such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has
been duly authenticated and made available for delivery
hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and made available
for delivery hereunder to the Company, or any Person
acting on its behalf, but shall never have been issued
and sold by the Company, and the Company shall deliver
such Security to the Trustee for cancellation as provided
in Section 309 together with a written statement (which
need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and made
available for delivery hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive
Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which
are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities
in lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine,
as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or
exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
after the preparation of definitive Securities of such
series, the temporary Securities of such series shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series upon surrender of
such temporary Securities at the office or agency of the
Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of
temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and
make available for delivery in exchange therefor
definitive Securities of the same series, of authorized
denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove
provided, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and
of like tenor authenticated and made available for
delivery hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in one of
the offices designated pursuant to Section 602, with
respect to the Securities of each series, a register (the
register kept in accordance with this Section being
referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities
of such series and the registration of transfer thereof.
The Company shall designate one Person to maintain the
Security Register for the Securities of each series, and
such Person is referred to herein, with respect to such
series, as the "Security Registrar." Anything herein to
the contrary notwithstanding, the Company may designate
one of its offices as the office in which the register
with respect to the Securities of one or more series
shall be maintained, and the Company may designate itself
the Security Registrar with respect to one or more of
such series. The Security Register shall be open for
inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, upon surrender for registration of transfer of
any Security of such series at the office or agency of
the Company maintained pursuant to Section 602 in a Place
of Payment for such series, the Company shall execute,
and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same
series, of authorized denominations and of like tenor and
aggregate principal amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, any Security of such series may be exchanged at
the option of the Holder, for one or more new Securities
of the same series, of authorized denominations and of
like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, no
service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in
connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section
304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or
to provide for the registration of transfer of or the
exchange of (a) Securities of any series during a period
of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of such series
called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 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 make available for delivery in exchange
therefor a new Security of the same series, and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the 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 make available for delivery, in lieu of
any such destroyed, lost or stolen Security, a new
Security of the same series, and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone other than the Holder of
such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest.
Subject to Section 311, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on a date (herein called a "Special
Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the
proposed payment, such money when deposited to be
held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall
promptly cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date and shall be
no longer payable pursuant to the following clause
(b).
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which
such Securities may be listed, and upon such notice
as may be required by such exchange, if, after
notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to
Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if
not theretofore canceled, shall be promptly canceled by
the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar
shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned
to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance
with this Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, interest on
the Securities of each series shall be computed on the
basis of a 360-day year consisting of twelve 30-day
months.
SECTION 311. Extension of Interest Payment.
The Company shall have the right at any time, so
long as no Event of Default shall have occurred and be
continuing with respect to the Securities of any series
hereunder, to extend interest payment periods on all
Securities of one or more series, if so specified as
contemplated by Section 301 with respect to such
Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such
Securities.
SECTION 312. Additional Interest.
So long as any Preferred Securities remain
outstanding, if the Trust which issued such Preferred
Securities shall be required to pay, with respect to its
income derived from the interest payments on the
Securities of any series, any amounts for or on account
of any taxes, duties, assessments or governmental charges
of whatever nature imposed by the United States, or any
other taxing authority, then, in any such case, the
Company will pay as interest on such series such
additional interest ("Additional Interest") as may be
necessary in order that the net amounts received and
retained by such Trust after the payment of such taxes,
duties, assessments or governmental charges shall result
in such Trust's having such funds as it would have had in
the absence of the payment of such taxes, duties,
assessments or governmental charges.
SECTION 313. CUSIP Numbers.
The Company in issuing Securities of any series
may use a "CUSIP" number (if then generally in use) and,
if so, the Trustee shall use the CUSIP number in notices
of redemption or exchange as a convenience to the Holders
of the Securities of such series; provided, that any such
notice may state that no such representation is made as
to the correctness or accuracy of the CUSIP number
printed in the notice or in the Securities of such
series, and that reliance may be placed only on the other
identification numbers printed on the Securities of such
series.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities
of such series) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemp
tion Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction
on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant
to an election of the Company which is subject to a
condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction
or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series
are to be redeemed, the particular Securities to be
redeemed shall be selected by the Security Registrar from
the Outstanding Securities of such series not previously
called for redemption, by such method as shall be
provided for any particular series, or, in the absence of
any such provision, by such method of random selection as
the Security Registrar shall deem fair and appropriate
and which may, in any case, provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Securities of such series or any
integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of
such series; provided, however, that if, as indicated in
an Officer's Certificate, the Company shall have offered
to purchase all or any principal amount of the Securities
then Outstanding of any series, and less than all of such
Securities as to which such offer was made shall have
been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order,
shall select for redemption all or any principal amount
of such Securities which have not been so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any
series are to be redeemed, the identification of the
particular Securities to be redeemed and the portion
of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to
the Redemption Date, will become due and payable
upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities
are to be surrendered for payment of the Redemption
Price and accrued interest, if any, unless it shall
have been specified as contemplated by Section 301
with respect to such Securities that such surrender
shall not be required,
(f) that the redemption is for a sinking or
other fund, if such is the case, and
(g) such other matters as the Company shall
deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice,
such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that
such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any,
and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall
be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that
such notice of redemption contains such a condition and
such money is not so received, the redemption shall not
be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of
redemption was given, that such money was not so received
and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to
have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to
such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the terms
of such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series, of any authorized
denomination requested by such Holder and of like tenor
and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, except as otherwise specified
as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series,
the cash amount of any mandatory sinking fund payment may
be subject to reduction as provided in Section 502. Each
sinking fund payment shall be applied to the redemption
of Securities of the series in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called
for redemption) of a series in respect of which a
mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series which have
been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of such mandatory sinking
fund payment; provided, however, that no Securities shall
be applied in satisfaction of a mandatory sinking fund
payment if such Securities shall have been previously so
applied. Securities so applied shall be received and
credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for the Securities of any series, the
Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by the
payment of cash;
(e) the portion, if any, of such mandatory
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series
pursuant to Section 502 and stating the basis for
such credit and that such Securities have not
previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such
Officer's Certificate, the next mandatory sinking
fund payment for such series shall be made entirely
in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such
sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 403
and cause notice of the redemption thereof to be
given in the name of and at the expense of the
Company in the manner provided in Section 404. Such
notice having been duly given, the redemption of
such Securities shall be made upon the terms and in
the manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and
premium, if any, and interest, if any (including
Additional Interest), on the Securities of each series in
accordance with the terms of such Securities and this
Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of
Payment for the Securities of each series an office or
agency where payment of such Securities shall be made,
where the registration of transfer or exchange of such
Securities may be effected and where notices and demands
to or upon the Company in respect of such Securities and
this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency
and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the
Company shall fail to maintain any such required office
or agency in respect of Securities of any series, or
shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, for any
or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that,
unless otherwise specified as contemplated by Section 301
with respect to the Securities of such series, no such
designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency
for such purposes in each Place of Payment for such
Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to
the Trustee, and prompt notice to the Holders in the
manner specified in Section 106, of any such designation
or rescission and of any change in the location of any
such other office or agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company, in
which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any
series, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any,
on any of such Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and premium or interest
so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The
Company shall promptly notify the Trustee of any failure
by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any,
or interest, if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, it shall,
on or before each due date of the principal of and
premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify
the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for
the Securities of any series, other than the Company or
the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section,
that such Paying Agent shall:
(a) hold all sums held by it for the payment
of the principal of and premium, if any, or
interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any failure by
the Company (or any other obligor upon such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any
failure referred to in the preceding paragraph (b),
upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such
Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent and, if so stated in a Company Order
delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any,
or interest has become due and payable shall be paid to
the Company on Company Request, or, if then held by the
Company, shall be discharged from such trust; and, upon
such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and
remaining unpaid, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be done
all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or,
with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried on
in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any
of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business.
SECTION 606. Annual Officer's Certificate as to
Compliance.
Not later than June 30 in each year, commencing
June 30, 1997, 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) any covenant or restriction specified with respect
to the Securities of any series, as contemplated by
Section 301 as being subject to waiver pursuant to this
Section 607, if before the time for such compliance the
Holders of at least a majority in aggregate principal
amount of the Outstanding Securities of all series with
respect to which compliance with such covenant or
restriction is to be omitted, considered as one class,
shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance
with such term, provision or condition and (b) Section
604, 605 or Article Eleven if before the time for such
compliance the Holders of at least a majority in
principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive
such compliance in such instance or generally waive
compliance with such term, provision or condition; but,
in the case of (a) or (b), no such waiver shall extend to
or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and
effect; provided, however, so long as a Trust holds
Securities of any series, such Trust may not waive
compliance or waive any default in compliance by the
Company with any covenant or other term contained in this
Indenture or the Securities of such series without the
approval of the holders of at least a majority in
aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected,
obtained as provided in the Trust Agreement pertaining to
such Trust.
SECTION 608. Restriction on Payment of Dividends.
The Company shall not (a) declare or pay any
dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or (b) make any
payment of principal of or, interest or premium, if any,
on or repay or repurchase or redeem any debt securities
(including other Securities) that rank pari passu with or
junior in interest to the Securities or make any
guarantee payments with respect to the foregoing (other
than dividends or distributions in common stock of the
Company and payments under the Guarantee relating to any
Preferred Securities) if at such time (i) there shall
have occurred and be continuing a payment default
pursuant to Section 801(a) or 801(b) (whether before or
after expiration of any period of grace) or an Event of
Default hereunder, or (ii) the Company shall be in
default with respect to its payment or other obligations
under the Guarantee relating to such Preferred
Securities, or (iii) the Company shall have elected to
extend any interest payment period as provided in Section
311, and any such period, or any extension thereof, shall
be continuing.
SECTION 609. Maintenance of Trust Existence.
So long as Preferred Securities of any series
remain outstanding, the Company shall (a) maintain direct
or indirect ownership of all interests in the Trust which
issued such Preferred Securities, other than such
Preferred Securities, (b) not voluntarily (to the extent
permitted by law) dissolve, liquidate or wind up such
Trust, except in connection with a distribution of the
Securities to the holders of the Preferred Securities in
liquidation of such Trust, (c) remain the sole Depositor
under the Trust Agreement (the "Depositor") of such Trust
and timely perform in all material respects all of its
duties as Depositor of such Trust, and (d) use reasonable
efforts to cause such Trust to remain a business trust
and otherwise continue to be treated as a grantor trust
for Federal income tax purposes provided that any
permitted successor to the Company under this Indenture
may succeed to the Company's duties as Depositor of such
Trust; and provided further that the Company may permit
such Trust to consolidate or merge with or into another
business trust or other permitted successor under the
Trust Agreement pertaining to such Trust so long as the
Company agrees to comply with this Section 609 with
respect to such successor business trust or other
permitted successor.
SECTION 610. Rights of Holders of Preferred Securities.
The Company agrees that, for so long as any
Preferred Securities remain outstanding, its obligations
under this Indenture will also be for the benefit of the
holders from time to time of Preferred Securities, and
the Company acknowledges and agrees that if the Property
Trustee fails to enforce its rights with respect to the
Securities or the related Trust Agreement, a holder of
Preferred Securities may institute a legal proceeding
directly against the Company to enforce the Property
Trustee's rights with respect to the Securities or such
Trust Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against
the Property Trustee or any other person or entity.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof,
Government Obligations, which shall not contain
provisions permitting the redemption or other
prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which
when due, without any regard to reinvestment
thereof, will provide moneys which, together with
the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient,
or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of
any series, such Securities or portions thereof shall
have been selected by the Security Registrar as provided
herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have
been given or irrevocable authority shall have been given
by the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the
Trustee and such Paying Agent:
(x) if such deposit shall have been
made prior to the Maturity of such Securities,
a Company Order stating that the money and
Government Obligations deposited in accordance
with this Section shall be held in trust, as
provided in Section 703; and
(y) if Government Obligations shall
have been deposited, an Opinion of Counsel that
the obligations so deposited constitute
Government Obligations and do not contain
provisions permitting the redemption or other
prepayment at the option of the issuer thereof,
and an opinion of an independent public
accountant of nationally recognized standing,
selected by the Company, to the effect that the
requirements set forth in clause (b) above have
been satisfied; and
(z) if such deposit shall have been
made prior to the Maturity of such Securities,
an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of
such Securities or portions thereof will have
been satisfied and discharged as contemplated
in this Section.
Upon the deposit of money or Government Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security
or Securities or portions thereof with respect to which
such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section.
In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect
of any Securities or portions thereof except that, for
any reason, the Officer's Certificate specified in clause
(z), if required, shall not have been delivered, such
Securities or portions thereof shall nevertheless be
deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions
thereof shall nevertheless be no longer entitled to the
benefits of this Indenture or of any of the covenants of
the Company under Article Six (except the covenants
contained in Sections 602 and 603) or any other covenants
made in respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the Holders
of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all
of the Securities of any series is to be provided for in
the manner and with the effect provided in this Section,
the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner
specified by Section 403 for selection for redemption of
less than all the Securities of a series.
In the event that Securities which shall be
deemed to have been paid for purposes of this Indenture,
and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature
and are not to be redeemed within the 60 day period
commencing with the date of the deposit of moneys or
Government Obligations, as aforesaid, the Company shall,
as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the
effect that such deposit has been made and the effect
thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this Indenture,
as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602,
603, 907 and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Government
Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on
or assessed against such Government Obligations or the
principal or interest received in respect of such
Government Obligations, including, but not limited to,
any such tax payable by any entity deemed, for tax
purposes, to have been created as a result of such
deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Government Obligations,
or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable
Federal or State bankruptcy, insolvency or other similar
law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been
effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall
be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease
to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed
to have been paid for purposes of this Indenture, shall
be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture as aforesaid, the obligations of the
Company and the Trustee under Sections 304, 305, 306,
404, 503 (as to notice of redemption), 602, 603, 907 and
915 and this Article Seven shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee shall
assign, transfer and turn over to the Company, subject to
the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee
for the benefit of the Holders of the Securities other
than money and Government Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Government Obligations nor the
money deposited pursuant to Section 701, nor the
principal or interest payments on any such Government
Obligations, shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment
of the principal of and premium, if any, and interest, if
any, on the Securities or portions of principal amount
thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 603;
provided, however, that, so long as there shall not have
occurred and be continuing an Event of Default any cash
received from such principal or interest payments on such
Government Obligations, if not then needed for such pur
pose, shall, to the extent practicable, be invested upon
Company Request and upon receipt of the documents
referred to in clause (y) of Section 701 in Government
Obligations of the type described in clause (b) in the
first paragraph of Section 701 maturing at such times and
in such amounts as shall be sufficient together with any
other moneys and the principal of and interest on any
other Government Obligations then held by the Trustee to
pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge
under this Indenture except the lien provided by Section
907; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default,
any moneys held in accordance with this Section on the
Maturity of all such Securities in excess of the amount
required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be
paid over to the Company free and clear of any trust,
lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that if
an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one or
more of the following events which has occurred and is
continuing:
(a) failure to pay interest, if any, including
any Additional Interest, on any Security of such
series within 60 days after the same becomes due and
payable (whether or not payment is prohibited by the
provisions of Article Fifteen hereof); provided,
however, that a valid extension of the interest
payment period by the Company as contemplated in
Section 311 of this Indenture shall not constitute a
failure to pay interest for this purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series
(whether or not payment is prohibited by the
provisions of Article Fifteen hereof) when due and
payable; or
(c) failure to perform or breach of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or more
series of Securities other than such series) for a
period of 60 days after there has been given, by
registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the
Outstanding Securities of such series, a written
notice specifying such default or breach and
requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless
the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not
less than the principal amount of Securities the
Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such
period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action
is initiated by the Company within such period and
is being diligently pursued; or
(d) the entry by a court having jurisdiction
in the premises of (1) a decree or order for relief
in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons
other than the Company seeking reorganization,
arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any
such decree or order for relief or any such other
decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company
in a case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by
it to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or
of any substantial part of its property, or the
making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due, or the authorization of such action by the
Board of Directors; or
(f) any other Event of Default specified with
respect to Securities of such series as contemplated
by Section 301.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default due to the default in
payment of principal of, or interest on, any series of
Securities or due to the default in the performance or
breach of any other covenant or warranty of the Company
applicable to the Securities of such series but not
applicable to all outstanding Securities shall have
occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal
of all Securities of such series and interest accrued
thereon to be due and payable immediately (provided that
the payment of principal and interest on such Securities
shall remain subordinated to the extent provided in
Article Fifteen hereof). If the Trustee or the Holders of
not less than 33% in principal amount of the Securities
of such series fail to make such declaration, and the
Preferred Securities issued by the Trust to which such
series of Securities relate are still outstanding, then
the holders of not less than 33% in aggregate liquidation
preference of such series of Preferred Securities may
make such declaration. If an Event of Default due to
default in the performance of any other of the covenants
or agreements herein applicable to all Outstanding
Securities or an Event of Default specified in Section
801(d) or (e) shall have occurred and be continuing,
either the Trustee or the Holders of not less than 33% in
principal amount of all Securities then Outstanding
(considered as one class), and not the Holders of the
Securities of any one of such series, may declare the
principal of all Securities and interest accrued thereon
to be due and payable immediately (provided that the
payment of principal and interest on such Securities
shall remain subordinated to the extent provided in the
Indenture).
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the
Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company shall have paid or deposited
with the Trustee a sum sufficient to pay
(1) all overdue interest on all
Securities of such series;
(2) the principal of and premium, if
any, on any Securities of such series which
have become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest is lawful, interest upon overdue
interest, if any, at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, other than the
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 con
tinuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securi
ties 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 per
mitted 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 ef
fectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal, premium, if any, and interest,
if any, owing and unpaid in respect of the
Securities and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section
907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the
Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which
such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee with respect to a
particular series of Securities pursuant to this Article
shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit
of which such money shall have been collected and the
notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the
Trustee under Section 907;
Second: To the payment of the amounts then due
and unpaid upon the Securities for principal of and
premium, if any, and interest, if any, in respect of
which or for the benefit of which such money has
been collected, ratably, without preference or
priority of any kind, according to the amounts due
and payable on such Securities for principal,
premium, if any, and interest, if any, respectively;
and
Third: To the payment of the remainder, if
any, to the Company or to whomsoever may be lawfully
entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given
written notice to the Trustee of a continuing Event
of Default with respect to the Securities of such
series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding
Securities of all series in respect of which an
Event of Default shall have occurred and be
continuing, considered as one class, shall have made
written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered
to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall
have failed to institute any such proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the Trustee
during such 60-day period by the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive
Principal,
Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 311) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemp
tion, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
Any holder of related Preferred Securities shall have the
right to institute suit for the enforcement of any such
payment to such holder with respect to Securities
relating to such Preferred Securities having a principal
amount equal to the aggregate liquidation preference
amount of the related Preferred Securities held by such
holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy 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;
provided, however, that so long as a Trust holds the
Securities of any series, such Trust may not waive any
past default without the consent of at least a majority
in aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected,
obtained as provided in the Trust Agreement pertaining to
such Trust.
Upon any such waiver, such default shall cease
to exist, and any and all Events of Default arising
therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to
any suit instituted by any Holder for the enforcement of
the payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event
of Default with respect to Securities of any series,
(1) the Trustee undertakes to
perform, with respect to Securities of such
series, such duties and only such duties as are
specifically set forth in this Indenture, and
no implied covenants or obligations shall be
read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on
its part, the Trustee may, with respect to
Securities of such series, conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed therein,
upon certificates or opinions furnished to the
Trustee and conforming to the requirements of
this Indenture; but in the case of any such
certificates or opinions which by any provision
hereof are specifically required to be
furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements
of this Indenture (but need not confirm or
investigate the accuracy of mathematical
calculations or other facts stated therein).
(b) In case an Event of Default with respect
to Securities of any series shall have occurred and
be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the
rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this subsection shall not be
construed to limit the effect of subsection (a)
of this Section;
(2) the Trustee shall not be liable
for any error of judgment made in good faith by
a Responsible Officer, unless it shall be
proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable
with respect to any action taken or omitted to
be taken by it in good faith in accordance with
the direction of the Holders of a majority in
principal amount of the Outstanding Securities
of any one or more series, as provided herein,
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee, or exercising any
trust or power conferred upon the Trustee,
under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk its
own funds or otherwise incur any financial
liability in the performance of any of its
duties hereunder, or in the exercise of any of
its rights or powers, if it shall have
reasonable grounds for believing that repayment
of such funds or adequate indemnity against
such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 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 conclusively rely and
shall be protected in acting or refraining from
acting in good faith upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to
be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an
Officer's Certificate;
(d) the Trustee may consult with counsel of
its selection and the written advice of such counsel
or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer
of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such Event
of Default shall have been given to the Trustee by
the Company, any other obligor on such Securities or
by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on or investment of any moneys
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit
of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such
expense, disbursement or advance may be attributable
to its negligence, wilful misconduct or bad faith;
and
(c) indemnify the Trustee for, and hold it
harmless from and against, any loss, liability or
expense reasonably incurred by it arising out of or
in connection with the acceptance or administration
of the trust or trusts hereunder or the performance
of its duties hereunder, including the reasonable
costs and expenses of defending itself against any
claim or liability in connection with the exercise
or performance of any of its powers or duties
hereunder, except to the extent any such loss,
liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that
the negligence, wilful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in
the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect
of the Securities of any other series. The Trust
Agreement and the Guarantee Agreement pertaining to each
Trust shall be deemed to be specifically described in
this Indenture for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing business
under the laws of the United States, any State or
Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such 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 condi
tion so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to
this Article shall become effective until the
acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of
Section 911.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by
giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered
to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to
the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to
the Trustee and to the Company; provided that so long
as any Preferred Securities remain outstanding, the
Trust which issued such Preferred Securities shall
not execute any Act to remove the Trustee without the
consent of the holders of a majority in aggregate
liquidation preference of Preferred Securities issued
by such Trust outstanding, obtained as provided in
the Trust Agreement pertaining to such Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to resign
after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee ap
pointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have
been so appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates; but, on request of the Company or any succes
sor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against
Company.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise
previously constituting the security, provided the
security is received by the Trustee simultaneously
with the creation of the creditor relationship with
the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least 33% in principal
amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee,
jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company
does not join in such appointment within 15 days after
the receipt by it of a request so to do, or if an Event
of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the
Company.
Every co-trustee or separate trustee shall, to
the extent permitted by law, but to such extent only, be
appointed subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held
by, or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations
hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee
and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall
be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and
obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument
in writing executed by it, with the concurrence of
the Company, may accept the resignation of or remove
any co-trustee or separate trustee appointed under
this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have
power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the
concurrence of the Company. Upon the written
request of the Trustee, the Company shall join with
the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of
any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents with respect to the Securities of one or more
series, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued
upon original issuance and upon exchange, registration of
transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation
organized and doing business under the laws of the United
States, any State or territory thereof or the District of
Columbia or the Commonwealth of Puerto Rico, authorized
under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so pub
lished. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authen
ticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series shall be made pursuant to this
Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
Dated:
________________________
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than December 31 and
June 30 in each year, commencing June 30, 1997, and at
such other times as the Trustee may request in writing,
the Company shall furnish or cause to be furnished to the
Trustee information as to the names and addresses of the
Holders, and the Trustee shall preserve such information
and similar information received by it in any other
capacity and afford to the Holders access to information
so preserved by it, all to such extent, if any, and in
such manner as shall be required by the Trust Indenture
Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than June 30 in each year, commencing
June 30, 1997, the Trustee shall transmit to the Holders
and the Commission a report, dated as of the next
preceding April 30, with respect to any events and other
matters described in Section 313(a) of the Trust Indenture
Act, in such manner and to the extent required by the
Trust Indenture Act. The Trustee shall transmit to the
Holders and the Commission, and the Company shall file
with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the
Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders,
such other information, reports and other documents, if
any, at such times and in such manner, as shall be
required by the Trust Indenture Act.
To the extent required by the Trust Indenture
Act, the Company shall file with the Trustee the following
documents and reports within 30 days after such documents
or reports (or consolidated documents or reports
containing such documents or reports) are filed with the
Commission:
(a) The Company's annual reports on Form 10-K;
(b) The Company's quarterly reports on Form 10-Q;
(c) The Company's current reports on Form 8-K; and
(d) Any other documents filed with the
Commission which are filed with or incorporated
by reference in the foregoing reports, related
to the Company, and have not previously been
filed with the Trustee.
To the extent that any of the foregoing documents or
reports are consolidated with similar documents or reports
filed by an affiliate, the Company may file such
consolidated document or report with the Trustee in lieu
of the separate document or report.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms.
The Company shall not consolidate with or merge
into any other corporation, or convey or otherwise
transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the corporation formed by such
consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Com
pany substantially as an entirety shall be a Person
organized and validly existing under the laws of the
United States, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and premium,
if any, and interest, if any, on all Outstanding
Securities and the performance of every covenant of
this Indenture on the part of the Company to be per
formed or observed;
(b) immediately after giving effect to such
transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation
formed by such consolidation or into which the Company is
merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company
under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants
under this Indenture and the Securities Outstanding
hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Eleven;
or
(b) to add one or more covenants of the Company
or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding,
Securities of one or more specified series, or to
surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of Default
with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
Outstanding on the date of such indenture
supplemental hereto in any material respect, such
change, elimination or addition shall become
effective with respect to such series only pursuant
to the provisions of Section 1202 hereof or when no
Security of such series remains Outstanding; or
(e) to provide collateral security for the
Securities; or
(f) to establish the form or terms of
Securities of any series as contemplated by Sections
201 and 301; or
(g) to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all
other matters incidental thereto; or
(h) to evidence and provide for the acceptance
of appointment hereunder by a separate or successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to
permit the Company to utilize, at its option, a non-
certificated system of registration for all, or any
series of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Securities shall be
payable, (2) all or any series of Securities may be
surrendered for registration of transfer, (3) all or
any series of Securities may be surrendered for
exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities
and this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series in any
material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall
require one or more changes to any provisions
hereof or the inclusion herein of any additional
provisions, or shall by operation of law be
deemed to effect such changes or incorporate
such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect
or evidence such changes or additional
provisions; or
(y) if any such amendment shall
permit one or more changes to, or the
elimination of, any provisions hereof which, at
the date of the execution and delivery hereof or
at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended
to effect such changes or elimination, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
SECTION 1202. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of,
this Indenture or modifying in any manner the rights of
the Holders of Securities of such series under the
Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be
required; and provided, further, that no such supplemental
indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on
(except as provided in Section 311 hereof), any
Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method
of calculating such rate or reduce any premium
payable upon the redemption thereof, or change the
coin or currency (or other property), in which any
Security or any premium or the interest thereon is
payable, or impair the right to institute suit for
the enforcement of any such payment on or after the
Stated Maturity of any Security (or, in the case of
redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder
of such Security, or
(b) reduce the percentage in principal amount
of the Outstanding Securities of any series (or, if
applicable, in liquidation preference of any series
of Preferred Securities), the consent of the Holders
of which is required for any such supplemental in
denture, or the consent of the Holders of which is
required for any waiver of compliance with any
provision of this Indenture or of any default
hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders
of each Outstanding Security of such series, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, except to increase the
percentages in principal amount referred to in this
Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, how
ever, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this pro
viso, in accordance with the requirements of Sections
911(b) and 1201(h).
Notwithstanding the foregoing, so long as any of the
Preferred Securities remain outstanding, the Trustee may
not consent to a supplemental indenture under this Section
1202 without the prior consent, obtained as provided in a
Trust Agreement pertaining to a Trust which issued such
Preferred Securities, of the holders of not less than a
majority in aggregate liquidation preference of all
Preferred Securities issued by such Trust affected,
considered as one class, or, in the case of changes
described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred
Securities then outstanding which would be affected
thereby, considered as one class. A supplemental
indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and
delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such
series.
SECTION 1207. Modification Without Supplemental
Indenture.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate pursuant to a Board
Resolution as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or
the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate
shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or
more, or all, series may be called at any time and from
time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting
of Holders of Securities of one or more, or all,
series for any purpose specified in Section 1301, to
be held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee
shall determine, or, with the approval of the
Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such
meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series by the Company or by the Holders
of 33% in aggregate principal amount of all of such
series, considered as one class, for any purpose
specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities
of such series in the amount above specified, as the
case may be, may determine the time and the place in
the Borough of Manhattan, The City of New York, or in
such other place as shall be determined or approved
by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one
or more, or all, series shall be valid without notice
if the Holders of all Outstanding Securities of such
series are present in person or by proxy and if rep
resentatives of the Company and the Trustee are
present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series a Person
shall be (a) a Holder of one or more Outstanding
Securities of such series, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled
to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series with respect to which a meeting shall have
been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders
of Securities of such series; provided, however, that if
any action is to be taken at such meeting which this
Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority,
in principal amount of the Outstanding Securities of such
series, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series, considered as one
class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In
any other case the meeting may be adjourned for such
period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for such period as may be
determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any
meeting adjourned for more than 30 days shall be given as
provided in Section 1302(a) not less than 10 days prior to
the date on which the meeting is scheduled to be recon
vened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of the series with respect to which
such meeting shall have been called, considered as one
class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such
series, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such
series, considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series with respect to which such
meeting shall have been held, whether or not present or
represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder (except as provided in Section
104(g)), of such Securities before being voted.
(b) Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting
of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties
of inspectors of votes, the submission and
examination of proxies, certificates and other
evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of
Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all
series represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall
be entitled to one vote for each $1 principal amount
of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series represented at
the meeting, considered as one class; and the meeting
may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series with respect to which the meeting shall have been
called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with
the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared
by the secretary of the meeting and there shall be
attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided
in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Dire
ctors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any
predecessor or successor corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional pro
vision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior
Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on
each and all of the Securities is hereby expressly
subordinated and subject to the extent and in the manner
set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by
its acceptance thereof, authorizes and directs the Trustee
on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-
fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect of
the Company or a substantial part of its property, or of
any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the provisions
of Section 1503, that (i) a default shall have occurred
with respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or
interest or other monetary amounts due and payable) in
respect of any Senior Indebtedness, as defined therein or
in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for
such payment in money or money's worth,
before the Holders of any of the Securities
are entitled to receive a payment on
account of the principal of or interest on
the indebtedness evidenced by the
Securities, including, without limitation,
any payments made pursuant to Articles Four
and Five;
(2) any payment by, or distribution
of assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the
Trustee would be entitled except for the
provisions of this Article, shall be paid
or delivered by the person making such
payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any of such Senior Indebtedness
may have been issued, ratably according to
the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or
represented by each, to the extent
necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
Holders of the indebtedness evidenced by
the Securities or to the Trustee under this
Indenture; and
(3) in the event that,
notwithstanding the foregoing, any payment
by, or distribution of assets of, the
Company of any kind or character, whether
in cash, property or securities, in respect
of principal of or interest on the
Securities or in connection with any
repurchase by the Company of the
Securities, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision
is made for such payment in money or
money's worth, such payment or distribution
in respect of principal of or interest on
the Securities or in connection with any
repurchase by the Company of the Securities
shall be paid over to the holders of such
Senior Indebtedness or their representative
or representatives or to the trustee or
trustees under any indenture under which
any instruments evidencing any such Senior
Indebtedness may have been issued, ratably
as aforesaid, for application to the
payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full,
after giving effect to any concurrent
payment or distribution (or provision
therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
Government Obligations pursuant to Section 701 (provided
all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation, those
arising under this Article Fifteen; provided that no event
described in clauses (d) and (e) of Section 801 with
respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or
readjustment which are subordinate in right of payment to
all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in
this Article. The consolidation of the Company with, or
the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article Eleven
hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this
Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness.
Any failure by the Company to make any payment
on or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by the
Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral,
renewal, extension or refunding thereof) or any other
obligation as to which the provisions of this Section
shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default under clause (b)
of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company which
is in full force and effect and is not subject to further
review, including a judgment that has become final by
reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or
appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such
appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have
been paid in full unless the holders thereof shall have
received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Subject to the
prior payment in full of all Senior Indebtedness, the
rights of the Holders of the Securities shall be
subrogated to the rights of the holders of Senior
Indebtedness to receive any further payments or
distributions of cash, property or securities of the
Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions
of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of
such Senior Indebtedness shall, as between the Company,
its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it
being understood that the provisions of this Article are
and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the Holders,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of
any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in
which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this
Article.
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise,
all matured principal of Senior Indebtedness and interest
and premium, if any, thereon shall first be paid in full
before any payment of principal or premium, if any, or
interest, if any, is made upon the Securities or before
any Securities can be acquired by the Company or any
sinking fund payment is made with respect to the
Securities (except that required sinking fund payments may
be reduced by Securities acquired before such maturity of
such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as
such holder.
SECTION 1508. Notice to Trustee to Effectuate
Subordination.
Notwithstanding the provisions of this Article
or any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee
shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior
Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to
Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose,
or in the event of the execution of an instrument pursuant
to Section 702 acknowledging satisfaction and discharge of
this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice
provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply
the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which
may be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons receiving
such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment
of the principal of and premium, if any, and interest, if
any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any
Senior Indebtedness, or amend or supplement any instrument
pursuant to which any Senior Indebtedness is issued, or
exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without
notice to or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of
Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or deliver to the Holders
or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully
for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the
Trustee; provided, however, that Sections 1507, 1508 and
1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired.
No right of any present or future holder of
Senior Indebtedness to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or
by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 1513. Effect of Subordination Provisions;
Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be
of no further effect, and the Securities shall no longer
be subordinated in right of payment to the prior payment
of Senior Indebtedness, if the Company shall have
delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ENTERGY ARKANSAS, INC.
By: /s/William J. Regan, Jr.
Vice President and Treasurer
ATTEST:
/s/ Christopher T. Screen
Assistant Secretary
THE BANK OF NEW YORK, Trustee
By: /s/Nancy B. Gill
Assistant Treasurer
ATTEST:
/s/ Vivian Georges
Assistant Vice President
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
On the 9th day of August, 1996, before me
personally came William J. Regan, Jr., to me known, who,
being by me duly sworn, did depose and say that he is the
Vice President and Treasurer of Entergy Arkansas, 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.
/s/ Denise C. Redmann
Denise C. Redmann
Notary Public
Parish of Orleans, State of
Louisiana
My Commission is Issued for
Life
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 8th day of August, 1996, before me
personally came Nancy Gill, to me known, who, being by me
duly sworn, did depose and say that she is an Assistant
Treasurer of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument;
that she 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 she signed her name thereto by
like authority.
/s/ William J. Cassels
William J. Cassels
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York County
Commission Expires May 16, 1998
Exhibit A-2 (a)
No. R-1
ENTERGY ARKANSAS, INC.
8 1/2% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, SERIES A,
DUE SEPTEMBER 30, 2045
ENTERGY ARKANSAS, INC., a corporation duly organized and
existing under the laws of the State of Arkansas (herein referred
to as the "Company", which term includes any successor Person
under the Indenture), for value received, hereby promises to pay
to THE BANK OF NEW YORK, as Property Trustee of Entergy Arkansas
Capital I, or registered assigns, the principal sum of SIXTY-ONE
MILLION EIGHT HUNDRED FIFTY-FIVE SIX HUNDRED SEVENTY-FIVE DOLLARS
on September 30, 2045, and to pay interest on said principal sum,
from and including, August 14, 1996 or from, and excluding, the
most recent Interest Payment Date through which interest has been
paid or duly provided for, quarterly on March 31, June 30,
September 30 and December 31 of each year, commencing September
30, 1996 at the rate of 8 1/2% per annum until the principal hereof
is paid or made available for payment. The amount of interest
payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months. Interest on the
Securities of this series will accrue from, and including, August
14, 1996 through the first Interest Payment Date, and thereafter
will accrue, from, and excluding, the last Interest Payment Date
through which interest has been paid or duly provided for. In
the event that any Interest Payment Date is not a Business Day,
then payment of the interest payable on such date will be made on
the next succeeding day which is a Business Day (and without any
interest or other payment in respect of such delay), except that,
if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on
the Interest Payment Date. 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 Regular
Record Date for such interest, which shall be the Business Day
next preceding such Interest Payment 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.
ENTERGY ARKANSAS, INC.
By: /s/ William J. Regan, Jr.
Vice President and Treasurer
ATTEST:
/s/ Christopher T. Screen
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
Dated: August 14, 1996
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:/s/ Marie E. Trimboli
Authorized Signatory
REVERSE OF 8 1/2% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE, SERIES A, DUE SEPTEMBER 30, 2045
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of August 1, 1996 (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 August 14, 1996 creating the series
designated on the face hereof, for a statement of the respective
rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal
amount to $61,855,675.
The Securities of this series are subject to redemption
upon not less than 30 nor more than 60 days' notice by mail, at
any time on or after August 14, 2001 as a whole or in part, at
the election of the Company, at a redemption price equal to 100%
of the principal amount, together in the case of any such
redemption with accrued and unpaid interest, including Additional
Interest, if any, to, but not including, the redemption date, but
interest installments whose Stated Maturity is on or prior to
such redemption date will be payable to the Holder of such
Security, or one or more Predecessor Securities, of record at the
close of business on the related Regular Record Date referred to
on the face hereof, all as provided in the Indenture.
The Securities of this series will also be redeemable
at the option of the Company if a Tax Event or an Investment
Company Event shall occur and be continuing, in whole but not in
part on any date within 90 days of the occurrence of such Tax
Event or Investment Company Event, at a redemption price equal to
100% of the principal amount of the Securities of this series
then Outstanding plus any accrued and unpaid interest, including
Additional Interest, if any, to the redemption date, upon not
less than 30 nor more than 60 days' notice given as provided in
the Indenture. "Tax Event" means the receipt by Entergy Arkansas
Capital I, a Delaware statutory business trust (the "Trust") of
an opinion of counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a
result of any official administrative pronouncement or decision
interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or
decision is announced on or after the date of original issuance
of the 8 1/2% Cumulative Quarterly Income Preferred Securities,
Series A (the "Preferred Securities") under the Trust Agreement,
there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income received or
accrued on the Securities of this series, (ii) interest payable
by the Company on the Securities of this series not, or within 90
days of the date thereof will not be, deductible by the Company,
in whole or in part, for United States Federal income tax
purposes, or (iii) the Trust is, or will be within 90 days of the
date thereof, subject to more than a de minimis amount of other
taxes, duties or other governmental charges. "Investment Company
Event" means the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory
authority to the effect that the Trust is or will be considered
an "investment company" that is required to be registered under
the Investment Company Act of 1940, as amended, which change in
law becomes effective on or after the date of original issuance
of the Preferred Securities.
In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
So long as the Company is not in default under the
Indenture the Company has the right, at any time and from time to
time during the term of the Securities of this series, to extend
the interest payment period to a period not exceeding 20
consecutive quarters (an "Extended Interest Payment Period").
Prior to the termination of the Extended Interest Payment Period
the Company may, and at the end of such Extended Interest Payment
Period the Company shall, pay all interest then accrued and
unpaid (together with interest thereon at the annual rate of 8 1/2%
to the extent permitted by applicable law) and upon such payment
in full, such Extended Interest Payment Period shall terminate.
However, during such Extended Interest Payment Period the Company
shall not declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, or make any payment of
principal on, interest or premium if any, on or repay, repurchase
or redeem any indebtedness that is pari passu with or junior in
interest to the Securities of this series (including other
Securities issued under the Indenture), or make any guarantee
payments with respect to the foregoing (other than dividends or
distributions in common stock of the Company and payments under
any Guarantee). Prior to the termination of any such Extended
Interest Payment Period, the Company may further extend the
interest payment period, provided that such Extended Interest
Payment Period, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarters or
extend beyond the Stated Maturity of the Securities of this
series. Upon termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest
then due, the Company may elect to begin a new Extended Interest
Payment Period, subject to the above requirements. No interest
shall be due and payable during an Extended Interest Payment
Period, except at the end thereof. The Company shall give the
Property Trustee, the administrative trustees named in the Trust
Agreement and the Trustee written notice of (i) any election by
the Company to initiate an Extended Interest Payment Period and
the duration thereof, (ii) any election by the Company to extend
an Extended Interest Payment Period beyond the date on which that
Extended Interest Payment Period is then scheduled to terminate
and the duration of such extension and (iii) any election by the
Company to make a full payment of interest accrued on the
Securities of this series on any date during an Extended Interest
Payment Period. The Company shall give such notice at least one
Business Day prior to the earlier of (i) the date distributions
on the Preferred Securities are payable and (ii) the date the
Administrative Trustees are required to give notice to the New
York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities of the
record date or the date such distributions are payable, but in
any event not less than one Business Day prior to such record
date.
The Securities of this series are issuable only in
registered form without coupons in denominations of $25 and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
As provided in the Indenture, the Company shall not be
required to make transfers or exchanges of Securities of this
series for a period of 15 days immediately preceding the date of
the mailing of any notice of redemption of such Securities and
the Company shall not be required to make transfers or exchanges
of any Securities of this series so selected for redemption in
whole or in part (except the unredeemed portion of thereof).
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the 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 A-3 (a)
AMENDED AND RESTATED
TRUST AGREEMENT
among
ENTERGY ARKANSAS, INC., as Depositor
and
THE BANK OF NEW YORK, as Property Trustee
THE BANK OF NEW YORK (DELAWARE), as Delaware Trustee
Steven C. McNeal,
William J. Regan, Jr.
and
Frank Williford IV, as Administrative Trustees
Dated as of August 14, 1996
ENTERGY ARKANSAS CAPITAL I
Entergy Arkansas Capital I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) 8.07
(a)(2) 8.07
(a)(3) 8.09
(a)(4) Not Applicable
(b) 8.08
Section 311(a) 8.13
(b) 8.13
Section 312(a) 5.07
(b) 5.07
(c) 5.07
Section 313(a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 8.14(a)
(d) 8.14(a), 8.14(b)
Section 314(a) Not Applicable
(b) Not Applicable
(c)(1) Not Applicable
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) Not Applicable
Section 315(a) 8.01
(b) 8.02,8.14(b)
(c) 8.01(a)
(d) 8.01, 8.03
(e) Not Applicable
Section 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) Not Applicable
Section 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.09
Section 318(a) 10.10
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name 11
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business 11
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses 11
Section 2.04. Issuance of the Preferred Securities 11
Section 2.05. Subscription and Purchase of Debentures;
Issuance of the Common Securities 12
Section 2.06. Declaration of Trust; Appointment of
Additional Administrative Trustees 12
Section 2.07. Authorization to Enter into Certain
Transactions 12
Section 2.08. Assets of Trust 16
Section 2.09. Title to Trust Property 16
ARTICLE III.
Payment Account
Section 3.01. Payment Account 17
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions 17
Section 4.02. Redemption 18
Section 4.03. Subordination of Common Securities 20
Section 4.04. Payment Procedures 21
Section 4.05. Tax Returns and Reports 21
Section 4.06. Payment of Taxes, Duties, Etc. of the
Trust 21
Section 4.07. Payments under Subordinated Indenture 21
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership 22
Section 5.02. The Trust Securities Certificates 22
Section 5.03. Execution and Delivery of Trust
Securities Certificates 22
Section 5.04. Registration of Transfer and Exchange of
Preferred Securities Certificates 22
Section 5.05. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates 23
Section 5.06. Persons Deemed Securityholders 24
Section 5.07. Access to List of Securityholders' Names
and Addresses 24
Section 5.08. Maintenance of Office or Agency 24
Section 5.09. Appointment of Paying Agent 24
Section 5.10. Ownership of Common Securities by
Depositor; Common Securities Certificate 25
Section 5.11. Book-Entry Preferred Securities
Certificates 26
Section 5.12. Notices to Securities Depository 26
Section 5.13. Definitive Preferred Securities
Certificates 26
Section 5.14. Rights of Securityholders 27
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights 27
Section 6.02. Notice of Meetings 29
Section 6.03. Meetings of Holders of Preferred
Securities 29
Section 6.04. Voting Rights 29
Section 6.05. Proxies, etc. 30
Section 6.06. Securityholder Action by Written
Consent 30
Section 6.07. Record Date for Voting and Other
Purposes 30
Section 6.08. Acts of Securityholders 30
Section 6.09. Inspection of Records 31
ARTICLE VII.
Representations and Warranties of the Property
Trustee, the Delaware Trustee and the Depositor
Section 7.01. Property Trustee 32
Section 7.02. Delaware Trustee 32
Section 7.03. Depositor 33
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities 33
Section 8.02. Certain Notices 35
Section 8.03. Certain Rights of Property Trustee 35
Section 8.04. Not Responsible for Recitals or Issuance
of Securities 38
Section 8.05. May Hold Securities 38
Section 8.06. Compensation; Fees; Indemnity. 38
Section 8.07. Certain Trustees Required; Eligibility 39
Section 8.08. Conflicting Interests 40
Section 8.09. Co-Trustees and Separate Trustee 40
Section 8.10. Resignation and Removal; Appointment of
Successor 41
Section 8.11. Acceptance of Appointment by Successor 43
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business 43
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust 43
Section 8.14. Reports by Property Trustee 44
Section 8.15. Reports to the Property Trustee 44
Section 8.16. Evidence of Compliance With Conditions
Precedent 44
Section 8.17. Number of Trustees. 44
Section 8.18. Delegation of Power. 45
Section 8.19. Fiduciary Duty 45
Section 8.20. Voting 46
ARTICLE IX.
Termination, Liquidation and Merger
Section 9.01. Termination Upon Expiration Date 46
Section 9.02. Early Termination 46
Section 9.03. Termination 47
Section 9.04. Liquidation 47
Section 9.05. Mergers, Consolidations, Amalgamations
or Replacements of
the Trust 49
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and
Assumption of Obligations 50
Section 10.02. Limitation of Rights of Securityholders
50
Section 10.03. Amendment 51
Section 10.04. Separability 52
Section 10.05. Governing Law 52
Section 10.06. Successors 52
Section 10.07. Headings 52
Section 10.08. Notice and Demand 52
Section 10.09. Agreement Not to Petition 53
Section 10.10. Conflict with Trust Indenture Act 53
Section 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture 54
Section 10.12. Counterparts 54
EXHIBIT A Certificate of Trust of Entergy Arkansas Capital I A-1
EXHIBIT B Certificate Evidencing Common Securities of
Entergy Arkansas Capital I B-1
EXHIBIT C Agreement as to Expenses and Liabilities C-1
EXHIBIT D Certificate Evidencing Preferred Securities of
Entergy Arkansas Capital I D-1
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
August 14, 1996, between (i) Entergy Arkansas, Inc., an Arkansas
corporation (the "Depositor"), (ii) The Bank of New York, a
banking corporation duly organized and existing under the laws of
New York, as trustee (the "Property Trustee"), (iii) The Bank of
New York (Delaware), a banking corporation duly organized under
the laws of Delaware, as trustee (the "Delaware Trustee") and
(iv) Steven C. McNeal, William J. Regan, Jr. and Frank Williford
IV, each an individual, as trustee, and each of whose address is
c/o Entergy Arkansas, Inc., 639 Loyola Avenue, New Orleans,
Louisiana 70113 (each, an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property
Trustee, the Delaware Trustee and the Administrative Trustees
referred to collectively as the "Trustees") and (v) the several
Holders (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and William J. Regan, Jr., as Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act (as hereinafter
defined) by the entering into of that certain Trust Agreement,
dated as of May 13, 1996 (the "Original Trust Agreement"), and by
the execution by the Property Trustee, the Delaware Trustee and
William J. Regan, Jr., as Administrative Trustee and filing with
the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on May 13, 1996, the form of which is
attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware
Trustee and William J. Regan, Jr., as Administrative Trustee,
desire to amend and restate the Original Trust Agreement in its
entirety as set forth herein to provide for, among other things,
(i) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Debentures (as hereinafter
defined), (ii) the issuance of the Common Securities (as
hereinafter defined) by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities (as hereinafter defined) by
the Trust pursuant to the Underwriting Agreement (as hereinafter
defined) and (iv) the appointment of additional Administrative
Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other parties and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
I. Defined Terms
Section 1.01. (a) Definitions. For all purposes of this
Trust Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
<b) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(c) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(d) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(e) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and for a given period,
the amount of additional interest accrued on interest in arrears
and paid by the Depositor on a Like Amount of Debentures for such
period.
"Administrative Trustee" means each of the
individuals identified as an "Administrative Trustee" in the
preamble to this Trust Agreement solely in their capacities as
Administrative Trustees of the Trust created hereunder and not in
their individual capacities, or such trustee's successor in
interest in such capacity, or any successor trustee appointed as
herein provided.
"Affiliate" of any specified Person means any
other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bankruptcy Event" means, with respect to any
Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a receiver, liqui
dator, assignee, trustee sequestrator or other similar official
of such Person or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under Federal bankruptcy law or
any other applicable Federal or State law, or the consent by it
to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due.
"Bankruptcy Laws" has the meaning specified in
Section 10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof or officers of
the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect
on the date of such certification, and delivered to the
appropriate Trustee.
"Book-Entry Preferred Securities Certificates"
mean certificates representing Preferred Securities issued in
global, fully registered form to the Securities Depository (as
hereinafter defined) as described in Section 5.11.
"Business Day" means a day other than (x) a
Saturday or a Sunday, (y) a day on which banks in New York, New
York are authorized or obligated by law or executive order to
remain closed or (z) a day on which the Property Trustee's
Corporate Trust Office or the Debenture Trustee's principal
corporate trust office is closed for business.
"Certificate Depository Agreement" means the
agreement among the Trust, the Depositor and The Depository Trust
Company, as the initial Securities Depository, dated as of the
Closing Date, relating to the Trust Securities Certificate, as
the same may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified
in Section 2.07(d).
"Closing Date" means the date of delivery of this
Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a
certificate evidencing ownership of Common Securities,
substantially in the form attached as Exhibit B.
"Corporate Trust Office" means the principal
corporate trust office of the Property Trustee located in New
York, New York.
"Covered Person" means: (a) any officer,
director, shareholder, beneficial owner, partner, member,
representative, employee or agent of the Trust or the Trust's
Affiliates; and (b) any Holder of Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Redemption Date" means "Redemption
Date" as defined in the Subordinated Indenture with respect to
the Debentures.
"Debenture Trustee" means The Bank of New York, a
New York banking corporation organized under the laws of the
State of New York and any successor thereto, as trustee under the
Subordinated Indenture.
"Debentures" means the $61,855,675 aggregate
principal amount of the Depositor's 8 1/2% Junior Subordinated
Deferrable Interest Debentures, Series A, due 2045, issued
pursuant to the Subordinated Indenture.
"Definitive Preferred Securities Certificates"
means Preferred Securities Certificates issued in certificated,
fully registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of
Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq.,
as it may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the
preamble to this Trust Agreement.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect
of the Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning
specified in Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of
Default; or
(ii) default by the Trust in the payment of
any Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(iii) default by the Trust in the payment of
any Redemption Price (as hereinafter defined) when it becomes due
and payable; or
(iv) default in the performance, or breach,
in any material respect of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant or
warranty a default in whose performance or breach is specifically
dealt with in clause (ii) or (iii), above) and continuation of
such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the defaulting
Trustee or Trustees by the Holders of at least 10% in Liquidation
Amount of the Outstanding Preferred Securities a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
or
(v) the occurrence of a Bankruptcy Event with
respect to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c)(iv).
"Expense Agreement" means the Agreement as to
Expenses and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified
in Section 9.01.
"Guarantee" means the Guarantee Agreement executed
and delivered by the Depositor and The Bank of New York, a New
York banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any
Affiliate of any Trustee, or any officer, director, shareholder,
member, partner, employee, representative or agent of any
Trustee, or any employee or agent of the Trust or its Affiliates.
"Investment Company Event" means the occurrence of
a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority to the effect that
the Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), which change in
law becomes effective on or after the date of original issuance
of the Preferred Securities.
"Lien" means any lien, pledge, charge,
encumbrance, mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) with respect to a
redemption of Trust Securities, Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to
be contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities and (ii) with respect
to a distribution of Debentures to the Holders of Trust
Securities in connection with a termination and liquidation of
the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed.
"Liquidation Amount" means the stated amount of
$25 per Trust Security.
"Liquidation Date" means the date on which
Debentures are to be distributed to Holders of Trust Securities
in connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning
specified in Section 9.04(e).
"Officers' Certificate" means a certificate signed
by the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of
the examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made
such examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of
each such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning
specified in the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by
the Property Trustee or delivered to the Property Trustee for
cancellation;
(ii) Preferred Securities for whose payment
or redemption money in the necessary amount has been theretofore
deposited with the Property Trustee or any Paying Agent for the
Holders of such Preferred Securities; provided that, if such
Preferred Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust Agreement;
and
(iii) Preferred Securities in exchange for or
in lieu of which other Preferred Securities have been delivered
pursuant to this Trust Agreement, including pursuant to Sections
5.04, 5.05, 5.11 or 5.13;
provided, however, that in determining whether the Holders
of the requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in conclusively relying upon any such
request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which such Trustee knows to be
so owned shall be so disregarded and (b) the foregoing shall not
apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial
owner of a Book-Entry Preferred Securities Certificate as
reflected in the records of the Securities Depository or, if a
Securities Depository Participant is not the beneficial owner,
then as reflected in the records of a Person maintaining an
account with such Securities Depository (directly or indirectly),
in accordance with the rules of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee at The Bank of New York, or such other banking
institution as the Depositor shall select in its trust department
for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to
the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a cumulative quarterly
income preferred security representing an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a
certificate evidencing ownership of Preferred Securities,
substantially in the form attached as Exhibit D.
"Property Trustee" means the commercial bank or
trust company identified as the "Property Trustee" in the
preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust formed and continued hereunder and
not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date and Maturity (as defined in the Subordinated
Indenture as hereinafter defined) of the Debentures shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any
Redemption Date of any Trust Security, the Liquidation Amount of
such Trust Security, plus accumulated and unpaid Distributions
thereon to the Redemption Date and the related amount of the
premium, if any, paid by the Depositor upon the concurrent
redemption of a Like Amount of Debentures, allocated on a pro
rata basis (based on Liquidation Amount) among the Trust
Securities.
"Registrar" shall mean the registrar for the
Preferred Securities appointed by the Trust and shall be
initially The Bank of New York.
"Relevant Trustee" shall have the meaning
specified in Section 8.10.
"Responsible Officer," when used with respect to
the Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matters.
"Securities Depository" shall be The Depository
Trust Company, or a successor thereto.
"Securities Depository Participant" means an
institution which deposits securities with a Securities
Depository for holding thereby and for whom from time to time a
Securities Depository effects book-entry transfers and pledges of
such securities.
"Securities Register" shall mean the Securities
Register described in Section 5.04.
"Securityholder" or "Holder" means a Person in
whose name a Trust Security or Securities is registered in the
Securities Register; any such Person is a beneficial owner within
the meaning of the Delaware Business Trust Act.
"Special Event" means either a Tax Event or an
Investment Company Event.
"Subordinated Indenture" means the Indenture,
dated as of June 1, 1996, between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to
time.
"Tax Event" means the receipt by the Trust of an
Opinion of Counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a
result of any official administrative or judicial pronouncement
or decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or
decision is announced on or after the date of original issuance
of the Preferred Securities under this Trust Agreement, there is
more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date thereof, subject to United States
Federal income tax with respect to income received or accrued on
the Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or within 90 days of the date thereof, will
not be, deductible by the Depositor, in whole or in part, for
United States Federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more
than a de minimis amount of other taxes, duties or other
governmental charges.
"Transfer Agent" shall mean one or more transfer
agents for the Preferred Securities appointed by the
Administrative Trustees on behalf of the Trust and shall be
initially The Bank of New York.
"Trust" means the Delaware business trust created
by the Original Trust Agreement and continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated
Trust Agreement, as the same may be modified, amended or
supplemented in accordance with the applicable provisions hereof,
including all exhibits hereto, including, for all purposes of
this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern
this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture
Act of 1939 as in force at the date as of which this instrument
was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii)
any cash on deposit in, or owing to, the Payment Account and
(iii) all proceeds and rights in respect of the foregoing and any
other property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common
Securities or the Preferred Securities.
"Trust Securities Certificate" means any one of
the Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of August 8, 1996, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE I. Establishment of the Trust
ARTICLE II.Section 1Section 1. Name. The Trust created
hereby shall be known as "Entergy Arkansas Capital I", as such
name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may
conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and sue and be sued.
ARTICLE II.Section 1Section 2. Office of the Delaware
Trustee; Principal Place of Business. The office of the Delaware
Trustee in the State of Delaware is White Clay Center, Route 273,
Newark, Delaware 19711, or at such other address in Delaware as
the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Entergy Arkansas, Inc., 425 West
Capitol Avenue, 40th Floor, Little Rock, Arkansas 72201.
ARTICLE II.Section 1Section 3. Initial Contribution of
Trust Property; Organizational Expenses. The Property Trustee
acknowledges receipt in trust from the Depositor in connection
with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon
request of any Trustee, promptly reimburse such Trustee for any
such expenses paid by such Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
ARTICLE II.Section 1Section 4. Issuance of the Preferred
Securities. The Depositor, on behalf of the Trust, executed and
delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Trust Agreement, one of the
Administrative Trustees, on behalf of the Trust in accordance
with Section 5.02 and the Underwriting Agreement, shall execute
manually and deliver a Preferred Securities Certificate,
registered in the name of the nominee of the Securities
Depository, in an aggregate amount of 2,400,000 Preferred
Securities having an aggregate Liquidation Amount of $60,000,000
against receipt of the aggregate purchase price of such Preferred
Securities of $60,000,000, which amount such Administrative
Trustee shall promptly deliver to the Property Trustee.
ARTICLE II.Section 1Section 5. Subscription and Purchase of
Debentures; Issuance of the Common Securities. Contemporaneously
with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee, on behalf of the Trust, and having
an aggregate principal amount equal to $61,855,675, and, in
satisfaction of the purchase price for such Debentures, (x) one
of the Administrative Trustees, on behalf of the Trust, shall
execute and deliver to the Depositor Common Securities
Certificates in accordance with Section 5.02, registered in the
name of the Depositor, in an aggregate amount of 74,227 Common
Securities having an aggregate Liquidation Amount of $1,855,675,
and (y) the Administrative Trustees, on behalf of the Trust,
shall deliver to the Depositor the sum of $60,000,000
representing the proceeds from the sale of the Preferred
Securities pursuant to the Underwriting Agreement.
ARTICLE II.Section 1Section 6. Declaration of Trust;
Appointment of Additional Administrative Trustees. The exclusive
purposes and functions of the Trust are (i) to issue and sell
Trust Securities and invest the proceeds thereof in Debentures,
and (ii) to engage in those activities necessary or incidental
thereto. The Depositor hereby appoints the Trustees as trustees
of the Trust, to have all the rights, powers and duties to the
extent set forth herein. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to
the conditions set forth herein for the benefit of the
Securityholders. The Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust.
Anything in this Trust Agreement to the contrary notwithstanding
the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act.
ARTICLE II.Section 1Section 7. Authorization to Enter into
Certain Transactions. (a) The Trustees shall conduct the affairs
of the Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b)
of this Section 2.07 and Article VIII and in accordance with the
following provisions (A) and (B), the Trustees shall have the
authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees, acting
singly or jointly, shall have the power, duty and authority to
act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to cause the Trust
to enter into and to execute, deliver and perform on behalf of
the Trust, the Expense Agreement, and such agreements or other
documents as may be necessary or desirable in connection with the
purposes and function of the Trust;
(iii) to qualify the Trust to do business in any jurisdiction
as may be necessary or desirable;
(iv) to take all action that may be necessary or appropriate
for the preservation and continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory
business trust under the laws of the State of Delaware and of
each other jurisdiction in which such existence is necessary to
protect the limited liability of the Holders of Preferred
Securities or to enable the Trust to effect the purposes for
which the Trust was created;
(v) the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(vi) the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;
(vii) the appointments of a Paying Agent (subject to Section
5.09), a Transfer Agent and a Registrar in accordance with this
Trust Agreement;
(viii) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(ix) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(x) the taking of any action incidental to the foregoing as
the Administrative Trustees may from time to time determine is
necessary or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of
the effect of any such action on any particular Securityholder);
and
(xi) the sending of notices (other than notices of default)
and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust
Agreement.
(B) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with
respect to the following ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(iv) the distribution of amounts owed to the Securityholders
in respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(v) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust
Agreement;
(vi) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust; and
(viii) the taking of any ministerial action incidental to the
foregoing as the Property Trustee may from time to time determine
is necessary or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustees set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the
Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders
of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of this Trust
Agreement.
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify
as a "grantor trust" for United States Federal income tax
purposes, (iv) incur any indebtedness for borrowed money or (v)
take or consent to any action that would result in the placement
of a Lien on any of the Trust Property. To the extent required
under this Trust Agreement and the Trust Indenture Act, the
Property Trustee shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust
Property adverse to the interests of the Trust or the
Securityholders in their capacity as Securityholders. The
Administrative Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interests of the Trust or the
Securityholders in their capacity as Securityholders to the
extent not required to be done by the Property Trustee in the
preceding sentence.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility
to assist the Trust with respect to, or effect on behalf of the
Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution by the Trust of a registration
statement on Form S-3 in relation to the Preferred Securities,
the Debentures, the Guarantee and certain related obligations,
including any amendments thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of
the Preferred Securities and the taking of any and all such acts,
other than actions which must be taken by or on behalf of the
Trust, and the advising of the Trustees of actions they must take
on behalf of the Trust, and the preparation for execution and
filing of any documents to be executed and filed by the Trust or
on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) the preparation for filing by the Trust and the
execution by the Trust of an application to the New York Stock
Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any
Preferred Securities and to file or cause the Administrative
Trustees to file thereafter with such exchange such notifications
and documents as may be necessary from time to time to maintain
such listing;
(iv) the preparation for filing by the Trust with the
Commission and the execution by the Trust of a registration
statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including
any amendments thereto;
(v) the selection of the investment banker or bankers to
act as underwriters with respect to the offer and sale by the
Trust of Preferred Securities and the negotiation of the terms of
and the execution and delivery of on behalf of the Trust the
Underwriting Agreement and such other agreements as may be
necessary or desirable in connection with the consummation
thereof; and
(vi) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct
the affairs of the Trust and to operate the Trust so that the
Trust will not be deemed to be an "investment company" required
to be registered under the Investment Company Act or classified
other than as a "grantor trust" for United States Federal income
tax purposes so that the Debentures will be treated as
indebtedness of the Depositor for United States Federal income
tax purposes. In this connection, subject to the provisions of
Section 10.03, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable
law, the certificate of trust filed with the Secretary of State
of the State of Delaware with respect to the Trust (as amended or
restated from time to time, the "Certificate of Trust") or this
Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action
does not materially adversely affect the interests of the Holders
of the Preferred Securities.
ARTICLE II.Section 1Section 8. Assets of Trust. The assets
of the Trust shall consist of the Trust Property.
ARTICLE II.Section 1Section 9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in
the Property Trustee (in its capacity as such) and shall be held
and administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III. Payment Account
ARTICLE III.Section 1Section 1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and
the Paying Agent appointed by the Administrative Trustees shall
have exclusive control and sole right of withdrawal with respect
to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this
Trust Agreement. All monies and other property deposited or held
from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit
of the Holders of Trust Securities and for distribution as herein
provided, including (and subject to) any priority of payments
provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on,
and any other payments or proceeds with respect to, the
Debentures. Amounts held in the Payment Account shall not be
invested by the Property Trustee pending distribution thereof.
ARTICLE IV. Distributions; Redemption
ARTICLE IV.Section 1Section 1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accrue from the Closing Date, and, except in the event that the
Depositor exercises its right to extend the interest payment
period for the Debentures pursuant to Section 311 of the
Subordinated Indenture, shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year,
commencing on September 30, 1996. If any date on which
Distributions are otherwise payable on the Trust Securities is
not a Business Day, then the payment of such Distribution shall
be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such distribution shall be
made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date (each date
on which distributions are payable in accordance with this
Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be
fixed at a rate of 8 1/2% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any
full quarterly period shall be computed on the basis of twelve 30-
day months and a 360-day year and for any period shorter than a
full month, on the basis of the actual number of days elapsed.
If the interest payment period for the Debentures is extended
pursuant to Section 311 of the Subordinated Indenture, then
Distributions on the Preferred Securities will be deferred for
the period equal to the extension of the interest payment period
for the Debentures and the rate per annum at which Distributions
on the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such extended
interest payment period is equal to the aggregate amount of
interest (including, to the extent permitted by law, interest
payable on unpaid interest at the percentage rate per annum set
forth above, compounded quarterly) that accrues during any such
extended interest payment period on the Debentures. The amount
of Distributions payable for any period shall include the
Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the
extent that the Trust has funds then on hand and immediately
available in the Payment Account for the payment of such
Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date, which shall be one Business Day prior to
such Distribution Date; provided, however, that in the event that
the Preferred Securities do not remain in book-entry only form,
the relevant record date shall be 15 days prior to the relevant
Distribution Date.
ARTICLE IV.Section 1Section 2. Redemption.
(a) On each Debenture Redemption Date and at Maturity for the
Debentures, the Property Trustee will be required to redeem a
Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date to
each Holder of Trust Securities to be redeemed, at such Holder's
address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be
redeemed and that interest thereon will cease to accrue on and
after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from
the contemporaneous redemption of Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be
deemed payable on each Redemption Date only to the extent that
the Trust has funds immediately available in the Payment Account
for such payment.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New
York time, on the Redemption Date, subject to Section 4.02(c),
the Property Trustee will, so long as the Preferred Securities
are in book-entry only form, deposit with the Securities
Depository for the Preferred Securities funds sufficient to pay
the applicable Redemption Price and will give such Securities
Depository irrevocable instructions and authority to pay the
applicable Redemption Price to the holders thereof. If the
Preferred Securities are no longer in book-entry only form, the
Property Trustee, subject to Section 4.02(c), will deposit with
the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the
Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the redemption date for any Trust
Securities called for redemption shall be payable to the Holders
of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption
shall have been given and funds deposited as required, then on
the Redemption Date, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price, but
without interest thereon, and such Trust Securities will cease to
be outstanding. In the event that any Redemption Date is not a
Business Day, then payment of the Redemption Price payable on
such date shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day
falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be deemed the
date fixed for redemption for purposes of calculating the
Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
and any distribution of Debentures to the Holders shall be made
to the Holders as they appear on the Securities Register for the
Trust Securities on the relevant record date, which shall be one
Business Day prior to such Redemption Date; provided, however,
that in the event that the Preferred Securities do not remain in
book-entry only form, the relevant record date shall be the
fifteenth day prior to the relevant Redemption Date.
(f) Subject to Section 4.03(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities
to be redeemed shall be allocated 3% to the Common Securities and
97% to the Preferred Securities. The particular Preferred
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for
a redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Securities selected for redemption and, in the case
of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or
to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities which has been or is to be
redeemed.
ARTICLE IV.Section 1Section 3. Subordination of Common
Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price plus accumulated and
unpaid distributions of, the Trust Securities, as applicable,
shall be made pro rata based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing,
no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on
all Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or
provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of
all Distributions (including Additional Amounts, if applicable)
on, or Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the Holder of Common
Securities will be deemed to have waived any such Event of
Default under this Trust Agreement until the effect of all such
Events of Default with respect to the Preferred Securities shall
have been cured, waived or otherwise eliminated. Until any such
Events of Default under this Trust Agreement with respect to the
Preferred Securities shall have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Preferred Securities and not the
Holder of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
ARTICLE IV.Section 1Section 4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made
by check mailed to the address of the Person entitled thereto as
such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Securities Depository, such
Distributions shall be made to the Securities Depository, which
shall credit the relevant Persons' accounts at such Securities
Depository on the applicable distribution dates. Payments in
respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the
Holder of the Common Securities.
ARTICLE IV.Section 1Section 5. Tax Returns and Reports. The
Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense and direction, and file all United
States Federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In
this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the Internal Revenue
Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the related Internal Revenue Service Form
1099, or any successor form or the information required to be
provided on such form. The Administrative Trustees shall provide
the Depositor with a copy of all such returns and reports
promptly after such filing or furnishing. The Property Trustee
shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust
Securities.
ARTICLE IV.Section 1Section 6. Payment of Taxes, Duties,
Etc. of the Trust. Upon receipt under the Debentures of
Additional Interest (as defined in the Subordinated Indenture),
the Property Trustee at the direction of an Administrative
Trustee or the Depositor shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding
taxes) imposed on the Trustee by the United States or any other
taxing authority.
ARTICLE IV.Section 1Section 7. Payments under Subordinated
Indenture. Any amount payable hereunder to any Holder of
Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant
to Section 808 of the Subordinated Indenture. Notwithstanding
the provisions hereunder to the contrary, Securityholders
acknowledge that any Holder of Preferred Securities that receives
payment under Section 808 of the Subordinated Indenture may
receive amounts greater than the amount such Holder may be
entitled to receive pursuant to the other provisions of this
Trust Agreement.
ARTICLE V. Trust Securities Certificates
ARTICLE V.Section 1Section 1. Initial Ownership. Upon the
creation of the Trust and the contribution by the Depositor
pursuant to Section 2.03 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
ARTICLE V.Section 1Section 2. The Trust Securities
Certificates. The Trust Securities Certificates shall be issued
in denominations of $25 Liquidation Amount and integral multiples
thereof. Subject to Section 2.04 relating to the original
issuance of the Preferred Securities Certificate registered in
the name of the nominee of the Securities Depository, the Trust
Securities Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of at least one Administrative
Trustee and, if executed on behalf of the Trust by facsimile
signature, countersigned by a Transfer Agent or its agent. Trust
Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust and, if
executed on behalf of the Trust by facsimile signature,
countersigned by a Transfer Agent or its agent, shall be validly
issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date
of delivery of such Trust Securities Certificates. A transferee
of a Trust Securities Certificate shall become a Securityholder,
and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration
of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.04, 5.11 or 5.13.
ARTICLE V.Section 1Section 3. Execution and Delivery of Trust
Securities Certificates. On the Closing Date, the Administrative
Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 2.04 and
2.05, to be executed on behalf of the Trust by at least one of
the Administrative Trustees, and in the case of Preferred
Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred
without negligence arising out of or in connection with any such
countersigning by it.
ARTICLE V.Section 1Section 4. Registration of Transfer and
Exchange of Preferred Securities Certificates. The Registrar
shall keep or cause to be kept, at its principal corporate
office, a Securities Register in which, subject to such
reasonable regulations as it may prescribe, the Registrar shall
provide for the registration of Preferred Securities Certificates
and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent
to countersign and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented
or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and a Transfer Agent
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Administrative
Trustees in accordance with customary practice. The Trust shall
not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange
any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
No service charge shall be made for any
registration of transfer or exchange of Preferred Securities
Certificates, but a Transfer Agent may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
ARTICLE V.Section 1Section 5. Mutilated, Destroyed, Lost or
Stolen Trust Securities Certificates. If (a) any mutilated Trust
Securities Certificate shall be surrendered to a Transfer Agent,
or if a Transfer Agent shall receive evidence to its satisfaction
of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Transfer
Agent and the Administrative Trustees such security or indemnity
as may be required by them to save each of them and the Depositor
harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on
behalf of the Trust, shall execute by manual or facsimile
signature and, if executed on behalf of the Trust by facsimile
signature, cause a Transfer Agent or its agent to countersign and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section 5.05, the
Administrative Trustees or the Transfer Agent may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section 5.05 shall constitute conclusive evidence of an
ownership interest in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate
shall be found at any time.
ARTICLE V.Section 1Section 6. Persons Deemed Securityholders.
Prior to due presentation of a Trust Securities Certificate for
registration of transfer, the Trustees, the Paying Agent and the
Registrar shall be entitled to treat the Person in whose name any
Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the
Registrar shall be bound by any notice to the contrary.
ARTICLE V.Section 1Section 7. Access to List of
Securityholders' Names and Addresses. The Administrative
Trustees shall furnish or cause to be furnished (x) to the
Depositor, within 15 days after receipt by any Administrative
Trustee of a request therefor from the Depositor in writing and
(y) to the Property Trustee, promptly after receipt by any
Administrative Trustee of a request therefor from the Property
Trustee in writing in order to enable the Property Trustee to
discharge its obligations under this Trust Agreement, a list, in
such form as the Depositor or the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of
the most recent record date. If Holders of Trust Securities
Certificates evidencing ownership at such time and for the
previous six months not less than 25% of the outstanding
aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the
applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the
Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current
list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
ARTICLE V.Section 1Section 8. Maintenance of Office or Agency.
The Depositor shall or shall cause the Transfer Agent to maintain
in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Depositor
or the Transfer Agent in respect of the Trust Securities
Certificates may be served. The Depositor initially designates
The Bank of New York at its principal corporate trust office for
such purposes. The Depositor shall or shall cause the Transfer
Agent to give prompt written notice to the Property Trustee and
to the Securityholders of any change in any such office or
agency.
ARTICLE V.Section 1Section 9. Appointment of Paying Agent. The
Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such
Distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent in its
sole discretion. The Paying Agent may choose any co-paying agent
that is acceptable to the Administrative Trustees and the
Depositor. The Paying Agent shall be permitted to resign upon 30
days' written notice to the Administrative Trustees and the
Depositor. In the event of the removal or resignation of the
Paying Agent, the Administrative Trustees shall appoint a
successor that is reasonably acceptable to the Property Trustee
and the Depositor to act as Paying Agent (which shall be a bank,
trust company or an Affiliate of the Depositor). The
Administrative Trustees shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06
shall apply to the Paying Agent appointed hereunder, and the
Paying Agent shall be bound by the requirements with respect to
paying agents of securities issued pursuant to the Trust
Indenture Act. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context
requires otherwise.
ARTICLE V.Section 2 0. Ownership of Common Securities by
Depositor; Common Securities Certificate. On the Closing Date,
the Depositor shall acquire, and thereafter retain, beneficial
and record ownership of the Common Securities. Any attempted
transfer of the Common Securities (other than a transfer in
connection with a merger or consolidation of the Depositor into
another corporation pursuant to Section 1101 of the Subordinated
Indenture) shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Depositor
to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE". A single Common Securities Certificate
representing the Common Securities shall be issued to the
Depositor in the form of a definitive Common Securities
Certificate.
ARTICLE V.Section 2Section 1. Book-Entry Preferred Securities
Certificates. The Preferred Securities Certificates, upon
original issuance, will be issued in the form of a typewritten
Preferred Securities Certificate or Certificates representing
Book-Entry Preferred Securities Certificates, to be delivered to
or held on behalf of The Depository Trust Company, the initial
Securities Depository, by, or on behalf of, the Trust. Such Book-
Entry Preferred Securities Certificate or Certificates shall
initially be registered on the Securities Register in the name of
Cede & Co., the nominee of the initial Securities Depository, and
no beneficial owner will receive a Definitive Preferred
Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to beneficial owners pursuant to
Section 5.13:
(a) the provisions of this Section 5.11 shall be
in full force and effect;
(b) the Registrar, the Paying Agent and the
Trustees shall be entitled to deal with the Securities Depository
for all purposes of this Trust Agreement relating to the Book-
Entry Preferred Securities Certificates (including the payment of
the Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities) as the sole Holder of the Book-Entry
Preferred Securities and shall have no obligations to the Owners
thereof;
(c) to the extent that the provisions of this
Section 5.11 conflict with any other provisions of this Trust
Agreement, the provisions of this Section 5.11 shall control; and
(d) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only through
the Securities Depository and shall be limited to those
established by law and agreements between such Owners and the
Securities Depository and/or the Securities Depository
Participants. Pursuant to the Certificate Depository Agreement,
unless and until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.13, the initial Securities
Depository will make book-entry transfers among the Securities
Depository Participants and receive and transmit payments on the
Preferred Securities to such Securities Depository. Any
Securities Depository designated pursuant hereto will not be
deemed an agent of the Trustees for any purpose.
ARTICLE V.Section 2Section 2. Notices to Securities Depository.
To the extent that a notice or other communication to the Owners
is required under this Trust Agreement, unless and until
Definitive Preferred Securities Certificates shall have been
issued pursuant to Section 5.13, the Trustees shall give all such
notices and communications specified herein to be given to Owners
to the Securities Depository, and shall have no obligations to
the Owners.
ARTICLE V.Section 2Section 3. Definitive Preferred Securities
Certificates. If (a) the Depositor advises the Trustees in
writing that the Securities Depository is no longer willing or
able to properly discharge its responsibilities with respect to
the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its
option advises the Trustees in writing that it elects to
terminate the book-entry system through the Securities
Depository, or (c) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing
beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Property Trustee in writing that
the continuation of a book-entry system through the Securities
Depository is no longer in the best interests of the Owners of
Preferred Securities Certificates, then the Property Trustee
shall notify the Securities Depository, and the Securities
Depository shall notify all Owners of Preferred Securities
Certificates, of the occurrence of any such event and of the
availability of the Definitive Preferred Securities Certificates
to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Property Trustee of the typewritten
Preferred Securities Certificate or Certificates representing the
Book-Entry Preferred Securities Certificates by the Securities
Depository, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with
the instructions of the Securities Depository. Neither the
Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the
Trustees shall recognize the Holders of the Definitive Preferred
Securities Certificates as Securityholders. The Definitive
Preferred Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof in accordance with Section
5.02.
ARTICLE V.Section 2Section 4. Rights of Securityholders. The
legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with
Section 2.09, and the Securityholders shall not have any right or
title therein other than an undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they
shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Preferred
Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable interests in the Trust.
ARTICLE VI. Acts of Securityholders; Meetings; Voting
ARTICLE VI.Section 1Section 1. Limitations on Voting
Rights.
(a) Except as provided in this Section 6.01, in Section 10.03
and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of
the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an
association. If the Property Trustee fails to enforce its rights
under the Debentures or this Trust Agreement, a Holder of
Preferred Securities may institute a legal proceeding directly
against the Depositor to enforce the Property Trustee's rights
under the Debentures or this Trust Agreement, to the fullest
extent permitted by law, without first instituting any legal
proceeding against the Property Trustee or any other person.
Notwithstanding the foregoing, to the fullest extent permitted by
law, a Holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder directly of
principal of or interest on the Debentures having a principal
amount equal to the aggregate liquidation preference amount of
the Preferred Securities of such Holder on or after the due dates
specified in the Debentures. So long as any Preferred Securities
remain Outstanding, if, upon a Debenture Event of Default, the
Debenture Trustee fails or the holders of not less than 33% in
principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 33% in Liquidation Amount of the
Preferred Securities then Outstanding shall have such right by a
notice in writing to the Depositor and the Debenture Trustee; and
upon any such declaration such principal amount of and the
accrued interest on all of the Debentures shall become
immediately due and payable, provided that the payment of
principal and interest on such Debentures shall remain
subordinated to the extent provided in the Subordinated
Indenture.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or executing any trust or power conferred
on the Debenture Trustee with respect to such Debentures, (ii)
waive any past default which is waivable under Section 813 of the
Subordinated Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the
Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of a
majority of the aggregate Liquidation Amount of the Outstanding
Preferred Securities; provided, however, that where a consent
under the Subordinated Indenture would require the consent of
each holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of each
holder of Preferred Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the
Preferred Securities, except pursuant to a subsequent vote of the
Preferred Securities. The Property Trustee shall notify all
Holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of
the foregoing actions, the Property Trustee shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in
such matters to the effect that the Trust will be classified as a
"grantor trust" and not as an association taxable as a
corporation for United States Federal income tax purposes on
account of such action.
(c) Subject to Section 10.03(c), if any proposed amendment to
the Trust Agreement provides for, or the Trustees otherwise
propose to effect, (i) any action that would materially adversely
affect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities
as a class will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with
the approval of the Holders of a majority in Liquidation Amount
of the Outstanding Preferred Securities. No amendment to this
Trust Agreement may be made if, as a result of such amendment,
the Trust would not be classified as a "grantor trust" but as an
association taxable as a corporation for United States Federal
income tax purposes.
ARTICLE VI.Section 1Section 2. Notice of Meetings. Notice
of all meetings of the Holders of Preferred Securities, stating
the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.08 to each Holder of a
Preferred Security, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further
notice.
ARTICLE VI.Section 1Section 3. Meetings of Holders of
Preferred Securities. No annual meeting of Securityholders is
required to be held. The Administrative Trustees, however, shall
call a meeting of Securityholders to vote on any matter upon the
written request of the Holders of 25% of the then Outstanding
Preferred Securities (based upon their aggregate Liquidation
Amount) and may, at any time in their discretion, call a meeting
of Holders of Preferred Securities to vote on any matters as to
which the Holders of Preferred Securities are entitled to vote.
Holders of 50% of the then Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders.
If a quorum is present at a meeting, an
affirmative vote by the Holders of Preferred Securities present,
in person or by proxy, holding more than the lesser of (x) 66
2/3% of the then Outstanding Preferred Securities (based upon
their aggregate Liquidation Amount) held by the Holders of then
Outstanding Preferred Securities present, either in person or by
proxy, at such meeting and (y) 50% of the Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount) shall
constitute the action of the Securityholders, unless this Trust
Agreement requires a greater number of affirmative votes.
ARTICLE VI.Section 1Section 4. Voting Rights.
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are
entitled to vote.
ARTICLE VI.Section 1Section 5. Proxies, etc. At any
meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted
at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, or, if earlier, until eleven months after
it is sent and the burden of proving invalidity shall rest on the
challenger.
ARTICLE VI.Section 1Section 6. Securityholder Action by
Written Consent. Any action which may be taken by
Securityholders at a meeting may be taken without a meeting if
Securityholders holding more than a majority of all Outstanding
Trust Securities entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any
express provision of this Trust Agreement) shall consent to the
action in writing (based upon their aggregate Liquidation
Amount).
ARTICLE VI.Section 1Section 7. Record Date for Voting and
Other Purposes. For the purposes of determining the
Securityholders who are entitled to notice of and to vote at any
meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record
date is not otherwise provided for in this Trust Agreement, or
for the purpose of any other action, the Administrative Trustees
may from time to time fix a date, not more than 90 days prior to
the date of any meeting of Securityholders or the payment of
Distribution or other action, as the case may be, as a record
date for the determination of the identity of the Securityholders
of record for such purposes.
ARTICLE VI.Section 1Section 8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust
Agreement to be given, made or taken by Securityholders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in
person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in
the manner provided in this Section 6.08.
The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing
the same, may also be proved in any other manner which any
Trustee deems sufficient.
The ownership of Preferred Securities shall be
proved by the Securities Register.
Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Securityholder of any
Trust Security shall bind every future Securityholder of the same
Trust Security and the Securityholder of every Trust Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
A Securityholder may institute a legal proceeding
directly against the Depositor under the Guarantee to enforce its
rights under the Guarantee without first instituting a legal
proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust or any Person or entity.
ARTICLE VI.Section 1Section 9. Inspection of Records.
Subject to Section 5.07 concerning access to the list of
Securityholders, upon reasonable notice to the Administrative
Trustees and the Property Trustee, the other records of the Trust
shall be open to inspection by Securityholders during normal
business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII. Representations and Warranties of the Property
Trustee, the Delaware Trustee
and the Depositor
ARTICLE VII.Section 1Section 1. Property Trustee. The
Property Trustee hereby represents and warrants for the benefit
of the Depositor and the Securityholders that:
(a) the Property Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing
under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations
under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid
and legally binding agreement of the Property Trustee enforceable
against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement will not violate, conflict with
or constitute a breach of the Property Trustee's charter or by-
laws; and
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee contemplated
herein require the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any
existing Federal or New York law governing the banking or trust
powers of the Property Trustee.
ARTICLE VII.Section 1Section 2. Delaware Trustee. The
Delaware Trustee hereby represents and warrants for the benefit
of the Depositor and the Securityholders that:
(a) the Delaware Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations
under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the valid
and legally binding agreement of the Delaware Trustee enforceable
against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement will not violate, conflict with
or constitute a breach of the Delaware Trustee's charter or by-
laws; and
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Delaware Trustee contemplated
herein require the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any
existing Federal or Delaware law governing the banking or trust
powers of the Delaware Trustee.
ARTICLE VII.Section 1Section 3. Depositor. The
Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on
the Closing Date on behalf of the Trust have been duly authorized
and will have been duly and validly executed, issued and
delivered by the Administrative Trustees pursuant to the terms
and provisions of, and in accordance with the requirements of,
this Trust Agreement and the Securityholders will be, as of such
date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental
charges payable by the Trust (or the Trustees) under the laws of
the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the
Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII.
The Trustees
ARTICLE VIII.Section 1Section 1. Certain Duties and
Responsibilities.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the
Property Trustee, the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Trust Agreement
against any of the Trustees. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the
Trustees to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Notwithstanding anything
contained in this Trust Agreement to the contrary, the duties and
responsibilities of the Property Trustee under this Trust
Agreement shall be subject to the protections, exculpations and
limitations on liability afforded to the Property Trustee under
the provisions of the Trust Indenture Act and, to the extent
applicable, Rule 3A-7 under the Investment Company Act or any
successor rule thereunder. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Section
8.01.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from
the income and proceeds from the Trust Property and only to the
extent that there shall be sufficient income or proceeds from the
Trust Property to enable the Property Trustee or Paying Agent to
make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees
that it will look solely to the income and proceeds from the
Trust Property to the extent available for distribution to it as
herein provided and that the Trustees are not personally liable
to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust
Security. This Section 8.01(b) does not limit the liability of
the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust
Property shall be to deal with such property in a similar manner
as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement, the
Trust Indenture Act and, to the extent applicable, Rule 3a-7
under the Investment Company Act;
(ii) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or
sufficiency of the Trust Property or the payment of any taxes or
assessments levied thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor. Money held by the Property Trustee
need not be segregated from other funds held by it except in
relation to the Payment Account established by the Property
Trustee pursuant to this Trust Agreement and except to the extent
otherwise required by law; and
(iv) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Administrative Trustees or the
Depositor.
ARTICLE VIII.Section 1Section 2. Certain Notices.
(a) Within five Business Days after the occurrence of
any Event of Default known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of any Event of Default to the
Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
(b) Within five Business Days after receipt of notice
of the Depositor's exercise of its right to defer the payment of
interest on the Debentures pursuant to the Subordinated
Indenture, an Administrative Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of
such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
ARTICLE VIII.Section 1Section 3. Certain Rights of Property
Trustee. Subject to the provisions of Section 8.01 and except as
provided by law:
(i) the Property Trustee may conclusively rely and shall be
protected in acting or refraining from acting in good faith upon
any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of auditors
or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action or (B) in construing any of the
provisions in this Trust Agreement the Property Trustee finds the
same ambiguous or inconsistent with any other provisions
contained herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then,
except as to any matter as to which the Preferred Securityholders
are entitled to vote under the terms of this Trust Agreement, the
Property Trustee shall deliver a written notice to the Depositor
requesting written instructions of the Depositor as to the course
of action to be taken. The Property Trustee shall take such
action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the
Depositor within ten Business Days after it has delivered such
notice, or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not be less
than two Business Days), it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with
this Trust Agreement as it shall deem advisable and in the best
interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any
action hereunder, the Property Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith
on its part, request and rely conclusively upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative
Trustees;
(iv) the Property Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon;
(v) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying with such
request or direction;
(vi) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, unless requested in
writing to do so by one or more Securityholders, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Property Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Depositor personally or by
agent or attorney;
(vii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through its agents or attorneys, and the Property
Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by
it hereunder, provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect
to selection of any agent or attorney appointed by it hereunder;
(viii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Trust
Agreement;
(ix) the Property Trustee shall not be charged with
knowledge of any default or Event of Default with respect to the
Trust Securities unless either (1) a Responsible Officer of the
Property Trustee shall have actual knowledge of the default or
Event of Default or (2) written notice of such default or Event
of Default shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder of the
Trust Securities;
(x) no provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or
obligation; and no permissive or discretionary power or authority
available to the Property Trustee shall be construed to be a
duty;
(xi) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
the Property Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Trust Agreement or adequate
indemnity against such risk or liability is not reasonably
assured to it;
(xii) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any tax or securities)
(or any rerecording, refiling or registration thereof);
(xiii) the Property Trustee shall have the right at any time
to seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction; and
(xiv) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder the Property Trustee (i) may
request instructions from the Holders of the Trust Securities,
which instructions may only be given by the Holders of the same
proportion of Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of
this Trust Agreement in respect of such remedies, rights or
actions, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received,
and (iii) shall be protected in acting in accordance with such
instructions.
ARTICLE VIII.Section 1Section 4. Not Responsible for Recitals
or Issuance of Securities. The recitals contained herein and in
the Trust Securities Certificates shall be taken as the
statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of
the Trust or any part thereof or as to the title of the Trust
thereto or as to the security afforded thereby or hereby, or as
to the validity or genuineness of any securities at any time
pledged and deposited with any Trustees hereunder, nor as to the
validity or sufficiency of this Trust Agreement or the Trust
Securities. The Trustees shall not be accountable for the use or
application by the Trust of the proceeds of the Trust Securities
in accordance with Section 2.05.
ARTICLE VIII.Section 1Section 5. May Hold Securities. Any
Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Trust Securities and, except as provided in the definition of
the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee
or such other agent.
ARTICLE VIII.Section 1Section 6. Compensation; Fees;
Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the Trustees
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or made
by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence (gross negligence, in the case of any Administrative
Trustee), bad faith or willful misconduct; and
(3) to indemnify each Trustee for, and to hold
each Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad faith
or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of this Trust
Agreement, including the reasonable costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations
of the Depositor under this Section 8.06, each of the Trustees
shall have a lien prior to the Trust Securities upon all property
and funds held or collected by such Trustee as such, except funds
held in trust for the payment of Distributions on the Trust
Securities.
The provisions of this Section 8.06 shall survive
the termination of this Trust Agreement.
ARTICLE VIII.Section 1Section 7. Certain Trustees Required;
Eligibility.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall
be a Person that has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section 8.07(a), the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at
any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the
provisions of this Section 8.07(a), it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
with its principal place of business in the State of Delaware
that otherwise meets the requirements of applicable Delaware law
and that shall act through one or more persons authorized to bind
such entity.
ARTICLE VIII.Section 1Section 8. Conflicting Interests.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Subordinated Indenture and the Guarantee
Agreement shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE VIII.Section 1Section 9. Co-Trustees and Separate
Trustee.
Unless an Event of Default shall have occurred and
be continuing, at any time or times, for the purpose of meeting
the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section 8.09. If the Depositor does not
join in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
Should any written instrument from the Depositor
be required by any co-trustee or separate trustee so appointed
for more fully confirming to such co-trustee or separate trustee
such property, title, right, or power, any and all such
instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and other
personal property held by, or required to be deposited or pledged
with, the Trustees designated for such purpose hereunder, shall
be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations
hereby conferred or imposed upon the Property Trustee in respect
of any property covered by such appointment shall be conferred or
imposed upon and exercised or performed by the Property Trustee
or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event
such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(3) The Property Trustee at any time, by an
instrument in writing executed by it, with the written
concurrence of the Depositor, may accept the resignation of or
remove any co-trustee or separate trustee appointed under this
Section 8.09, and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power
to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon
the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper
to effectuate such resignation or removal. A successor to any co-
trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section 8.09.
(4) No co-trustee or separate trustee hereunder
shall be personally liable by reason of any act or omission of
the Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by
reason of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such co-
trustee and separate trustee.
ARTICLE VIII.Section 2 0. Resignation and Removal; Appointment
of Successor. No resignation or removal of any Trustee (as the
case may be, the "Relevant Trustee") and no appointment of a
successor Relevant Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Relevant Trustee in accordance with the applicable requirements
of Section 8.11.
Subject to the immediately preceding paragraph,
the Relevant Trustee may resign at any time by giving written
notice thereof to the Securityholders. If the instrument of
acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
An Administrative Trustee may be removed by the
Holder of Common Securities at any time. Unless a Debenture
Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee may be removed at any
time by Act of the Common Securityholder. If a Debenture Event
of Default shall have occurred and be continuing, the Relevant
Trustee may be removed at such time by Act of the Securityholders
of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed
or become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or
Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Relevant Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing,
the Preferred Securityholders, by Act of the Preferred
Securityholders of a majority in Liquidation Amount of the
Outstanding Preferred Securities delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and the Relevant Trustee shall comply with
the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common
Securityholders or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of
each resignation and each removal of the Relevant Trustee and
each appointment of a successor Trustee to all Securityholders in
the manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other
provision of this Trust Agreement, in the event any
Administrative Trustee or a Delaware Trustee who is a natural
person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled
by (i) the unanimous act of remaining Administrative Trustees if
there are at least two of them or (ii) otherwise by the Depositor
(with the successor in each case being an individual who
satisfies the eligibility requirements for Administrative
Trustees or Delaware Trustee, as the case may be, set forth in
Section 8.07). Additionally, notwithstanding the foregoing or
any other provision of this Trust Agreement, in the event the
Depositor reasonably believes that any Administrative Trustee who
is a natural person has become incompetent or incapacitated, the
Depositor, by notice to the remaining Trustees, may terminate the
status of such Person as an Administrative Trustee (in which case
the vacancy so created will be filled in accordance with the
preceding sentence).
ARTICLE VIII.Section 2Section 1. Acceptance of Appointment by
Successor. In case of the appointment hereunder of a successor
Relevant Trustee, the retiring Relevant Trustee and each
successor Trustee shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such
appointment and which (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest
in, each successor Relevant Trustee all the rights, powers,
trusts and duties of the retiring Relevant Trustee with respect
to the Trust Securities and the Trust and (2) shall add to or
change any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees of the same trust
and that each such Relevant Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Relevant Trustee and
upon the execution and delivery of such amendment the resignation
or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor
Relevant Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the
Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor
Trustee all Trust Property, all proceeds thereof and money held
by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.
Upon request of any such successor Relevant
Trustee, the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
ARTICLE VIII.Section 2Section 2. Merger, Conversion,
Consolidation or Succession to Business. Any Person into which
the Property Trustee or the Delaware Trustee or any
Administrative Trustee or any Trustee that is not a natural
person may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion
or consolidation to which such Relevant Trustee shall be a party,
or any Person succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this
Article VIII, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
ARTICLE VIII.Section 2Section 3. Preferential Collection of
Claims Against Depositor or Trust. If and when the Property
Trustee shall be or become a creditor of the Depositor or the
Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or Trust (or any such other
obligor).
ARTICLE VIII.Section 2Section 4. Reports by Property Trustee.
(a) The Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided
pursuant thereto. Such of those reports as are required to be
transmitted by the Property Trustee pursuant to Section 313(a) of
the Trust Indenture Act shall be so transmitted within 60 days
after June 30 of each year, commencing June 30, 1997.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with
each stock exchange upon which the Trust Securities are listed,
with the Commission and with the Depositor. The Depositor will
notify the Property Trustee when any Trust Securities are listed
on any stock exchange.
ARTICLE VIII.Section 2Section 5. Reports to the Property
Trustee. The Depositor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such
documents, reports and information as required by Section 314 (if
any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
ARTICLE VIII.Section 2Section 6. Evidence of Compliance With
Conditions Precedent. Each of the Depositor and the
Administrative Trustees on behalf of the Trust shall provide to
the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust
Agreement (including any covenants compliance with which
constitutes a condition precedent) that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may be
given in the form of an Officers' Certificate.
ARTICLE VIII.Section 2Section 7. Number of Trustees.
(a) The number of Trustees shall be five, provided that the
Depositor, by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the
Delaware Trustee may be the same person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to
Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee
shall not operate to annul the Trust. Whenever a vacancy in the
number of Administrative Trustees shall occur, until such vacancy
is filled by the appointment of an Administrative Trustee in
accordance with Section 8.10, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted
to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
ARTICLE VIII.Section 2Section 8. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.07(a),
including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such
things and the execution of such instruments either in the name
of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
ARTICLE VIII.Section 2Section 9. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Trust Agreement shall not be
liable to the Trust or to any other Covered Person for its good
faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties
imposed on the Property Trustee under the Trust Indenture Act),
are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that are,
fair and reasonable to the Trust or any Holder of Trust
Securities, the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, considering in
each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation
and the benefits and burdens relating to such interests, any
customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Trust Agreement or
any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise; and
(c) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act, whenever in this Trust
Agreement an Indemnified Person is permitted or required to make
a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider
such interests and factors as it reasonably desires, including
its own interests, and shall have no duty or obligation to give
any consideration to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard imposed
by this Trust Agreement or by applicable law.
Section 8.20 Voting. Except as otherwise provided in
this Trust Agreement, the consent or vote of the Administrative
Trustees shall be approved by not less than a majority of the
Administrative Trustees.
ARTICLE IX.
Termination, Liquidation and Merger
ARTICLE IX.Section 1Section 1. Termination Upon Expiration
Date. Unless terminated earlier, the Trust shall automatically
terminate on December 31, 2050 (the "Expiration Date") and the
Trust Property shall be distributed in accordance with Section
9.04.
ARTICLE IX.Section 1Section 2. Early Termination. Upon the
first to occur of any of the following events (such first
occurrence, an "Early Termination Event"):
(a) the occurrence of a Bankruptcy Event in
respect of, or the dissolution or liquidation of, the Depositor;
(b) the delivery of written direction to the
Property Trustee to terminate the Trust (which direction is
optional and wholly within the discretion of the Depositor);
(c) the redemption of all of the Preferred
Securities; and
(d) an order for judicial termination of the
Trust having been entered by a court of competent jurisdiction;
the Trust shall automatically terminate and the Trustees
shall take such action as is required by Section 9.04.
ARTICLE IX.Section 1Section 3. Termination. The respective
obligations and responsibilities of the Trust and the Trustees
created hereby shall terminate upon the latest to occur of the
following: (i) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to
Section 9.04, or upon the redemption of all of the Trust
Securities pursuant to Section 4.02 or 9.04(d), of all amounts
required to be distributed hereunder upon the final payment of
the Trust Securities; (ii) the payment of any expenses owed by
the Trust; and (iii) the discharge of all administrative duties
of the Administrative Trustees, including the performance of any
tax reporting obligations with respect to the Trust or the
Securityholders.
ARTICLE IX.Section 1Section 4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 9.02 occurs or upon the Expiration Date, after
satisfaction of creditors of the Trust, if any, as provided by
applicable law, the Trust shall be liquidated by the Property
Trustee as expeditiously as the Property Trustee determines to be
appropriate by distributing to each Securityholder a Like Amount
of Debentures, subject to Section 9.04(e). Notice of liquidation
shall be given by the Administrative Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be outstanding and
any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.04(e) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property
Trustee shall deem appropriate.
(b) Except where Section 9.02(c) or Section 9.04(e) applies,
in order to effect any liquidation of the Trust hereunder, and
any resulting distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall
establish such procedures as it shall deem appropriate to effect
the distribution of Debentures in exchange for the Outstanding
Trust Securities Certificates.
(c) Except where Section 9.02(c) or Section 9.04(e) applies,
after any Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) certificates (or, at the
election of the Depositor, Debentures in global form, subject to
the provisions of the Subordinated Indenture) representing a Like
Amount of Debentures will be issued to Holders of Trust
Securities Certificates, upon surrender of such Trust Securities
Certificates to the Administrative Trustees or their agent for
exchange, (iii) the Depositor shall use its reasonable efforts to
have the Debentures listed on the New York Stock Exchange or on
such other stock exchange or other organization as the Preferred
Securities are then listed or traded, (iv) any Trust Securities
Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures, accruing interest at the
rate provided for in the Debentures from the last Distribution
Date on which a Distribution was made on such Trust Certificates
until such Trust Securities Certificates are so surrendered (and
until such Trust Securities Certificates are so surrendered, no
payments or interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Debentures)
and (v) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to redeem the Debentures
in whole but not in part and therefore cause a mandatory
redemption of all the Preferred Securities at the Redemption
Price within 90 days following the occurrence of such Special
Event. The Common Securities will be redeemed on a pro rata
basis with the Preferred Securities, except that if a Debenture
Event of Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price.
(e) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for termination
entered by a court of competent jurisdiction or otherwise,
distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be dissolved,
wound-up or terminated, by the Property Trustee in such manner as
the Property Trustee determines. In such event, on the date of
the dissolution, winding-up or other termination of the Trust,
Securityholders will be entitled to receive out of the assets of
the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any, as
provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If, upon any such dissolution,
winding up or termination, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution,
then, subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be paid on a
pro rata basis (based upon Liquidation Amounts). The Holder of
Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture Event of
Default has occurred and is continuing or if a Debenture Event of
Default has not occurred solely by reason of a requirement that
time lapse or notice be given, the Preferred Securities shall
have a priority over the Common Securities.
ARTICLE IX.Section 1Section 5. Mergers, Consolidations,
Amalgamations or Replacements of the Trust.
The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any
corporation or other Person, except pursuant to this Trust
Agreement. At the request of the Depositor, with the consent of
the Administrative Trustees and without the consent of the
Holders of the Preferred Securities, the Trust may merge with or
into, consolidate, amalgamate, be replaced by or convey, transfer
or lease its properties and assets substantially as an entirety
to a trust organized as such under the laws of any state;
provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms
as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred
Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity
possessing substantially the same powers and duties as the
Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed or traded, or any Successor
Securities will be listed or traded upon notification of
issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed,
if any, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of
Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Depositor has received an Opinion of
Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor
Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor any successor entity
will be required to register as an investment company under the
Investment Company Act and (viii) the Depositor or any permitted
successor or assignee owns all of the Common Securities of such
successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the
Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an
entirety to any other Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other
than a grantor trust for United States Federal income tax
purposes.
ARTICLE X. Miscellaneous Provisions
ARTICLE X.Section 1Section 1. Guarantee by the Depositor and
Assumption of Obligations. Subject to the terms and conditions
hereof, the Depositor irrevocably and unconditionally guarantees
to each Person to whom the Trust is now or hereafter becomes
indebted or liable (the "Beneficiaries"), and agrees to assume
liability for, the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to
pay to Holders or other similar interests in the Trust the
amounts due such Holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be.
This guarantee and assumption is intended to be for the benefit,
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
ARTICLE X.Section 1Section 2. Limitation of Rights of
Securityholders. The death or incapacity of any Person having an
interest, beneficial or otherwise, in a Trust Security shall not
operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such Person or any Securityholder for
such Person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any
of them.
ARTICLE X.Section 1Section 3. Amendment.
(a) This Trust Agreement may be amended from time to time by
the Trust (on approval of a majority of the Administrative
Trustees and the Depositor, without the consent of any
Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, that shall not be
inconsistent with the other provisions of this Trust Agreement,
(ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax
purposes other than as a "grantor trust" and not as an
association taxable as a corporation at any time that any Trust
Securities are Outstanding or to ensure the Trust's exemption
from the status of an "investment company" under the Investment
Company Act, or (iii) to effect the acceptance of a successor
Relevant Trustee's appointment; provided, however, that, except
in the case of clause (ii), such action shall not adversely
affect in any material respect the interests of any
Securityholder and, in the case of clause (i), any amendments of
this Trust Agreement shall become effective when notice thereof
is given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and 10.03(c), any
provision of this Trust Agreement may be amended by the
Administrative Trustees and the Depositor with (i) the consent of
Holders of Trust Securities representing not less than a majority
(based upon Liquidation Amounts) of the Outstanding Trust
Securities and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or the Trust's exemption from
status of an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with
Section 6.03 or 6.06), this Trust Agreement may not be amended to
(i) change the amount or timing of any Distribution on the Trust
Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Trust
Securities as of a specified date, (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such
payment on or after such date, or (iii) change the provisions of
this Section 10.03(c).
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status of an
"investment company" under the Investment Company Act afforded by
Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor and the Trustees,
this Trust Agreement may not be amended in a manner which imposes
any additional obligation on the Depositor or any Trustee.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) The Property Trustee is entitled to receive an Opinion of
Counsel as conclusive evidence that any amendment to this Trust
Agreement executed pursuant to this Section 10.03 is authorized
or permitted by, and conforms to, the terms of this Section
10.03, has been duly authorized by and lawfully executed and
delivered on behalf of the other requisite parties, and that it
is proper for the Property Trustee under the provisions of this
Section 10.03 to join in the execution thereof.
ARTICLE X.Section 1Section 4. Separability. In case any
provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
ARTICLE X.Section 1Section 5. Governing Law. This Trust
Agreement and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this
Trust Agreement and the Trust Securities shall be construed in
accordance with and governed by the laws of the State of Delaware
(without regard to conflict of laws principles).
ARTICLE X.Section 1Section 6. Successors. This Trust Agreement
shall be binding upon and shall inure to the benefit of any
successor to the Trust or the Relevant Trustees or any of them,
including any successor by operation of law.
ARTICLE X.Section 1Section 7. Headings. The Article and
Section headings are for convenience only and shall not affect
the construction of this Trust Agreement.
ARTICLE X.Section 1Section 8. Notice and Demand. Any notice,
demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to
or upon any Securityholder or the Depositor may be given or
served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Preferred
Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities
Register and (ii) in the case of the Common Securityholder or the
Depositor, to Entergy Arkansas, Inc., 639 Loyola Avenue, New
Orleans, Louisiana 70113, Attention: Treasurer, facsimile no.
(504) 576-4455, with a copy to the Secretary, facsimile no. (504)
576-2106. Such notice, demand or other communication to or upon
a Securityholder shall be deemed to have been sufficiently given
or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, 101 Barclay Street, 21 West, New York, New
York 10286 marked "Attention: Corporate Trust Trustee
Administration" with a copy to: The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711 and (ii)
with respect to the Trust or the Administrative Trustees, at the
address above for notice to the Depositor, marked "Attention:
Administrative Trustees for Entergy Arkansas Capital I". Such
notice, demand or other communication to or upon the Trust or the
Property Trustee shall be deemed to have been sufficiently given
or made only upon actual receipt of the writing by the Trust or
the Property Trustee.
ARTICLE X.Section 1Section 9. Agreement Not to Petition. Each
of the Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders and at the expense of the Depositor, which
expense shall be paid prior to filing an answer, that it shall
file an answer with the bankruptcy court or otherwise properly
contest the filing of such petition by the Depositor against the
Trust or the commencement of such action and raise the defense
that the Depositor has agreed in writing not to take such action
and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Property Trustee or the
Trust may assert. The provisions of this Section 10.09 shall
survive the termination of this Trust Agreement.
ARTICLE X.Section 2 0. Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required or deemed to be part of
this Trust Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required or deemed to be
included in this Trust Agreement by any of the provisions of the
Trust Indenture Act, such required or deemed provision shall
control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as
equity securities representing interests in the Trust.
Section 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY
BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION
OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
Section 10.12. Counterparts. This Trust Agreement may
be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all counterparts
shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Trust
Agreement to be duly executed, all as of the day and year first
above written.
ENTERGY ARKANSAS, INC.
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Vice President and
Treasurer
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Nancy B. Gill
Title: Assistant Treasurer
Name: Nancy B. Gill
THE BANK OF NEW YORK
(DELAWARE),
as Delaware Trustee
By: /s/ Melissa J. Beneduce
Title: Assistant Vice
President
Name: Melissa J. Beneduce
/s/ Steven C. McNeal
Steven C. McNeal
solely in his capacity as
Administrative Trustee
/s/ William J. Regan, Jr.
William J. Regan, Jr.
solely in his capacity as
Administrative Trustee
/s/ Frank Williford IV
Frank Williford IV
solely in his capacity as
Administrative Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENTERGY ARKANSAS CAPITAL I
THIS CERTIFICATE OF TRUST of Entergy Arkansas Capital I (the "Trust"), dated
as of , 1996, is being duly executed and filed by the undersigned, as trustees,
to create a business trust under the Delaware Business Trust Act (12 Del. C.
3801, et seq.).
1. Name. The name of the business trust being created hereby is Entergy
Arkansas Capital I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711.
3. Effective Date. This Certificate of Trust shall be effective as of its
filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
THE BANK OF NEW YORK (DELAWARE) [_________________________],
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By: By:
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number
Number of Common Securities
C-[ ]
Certificate Evidencing Common Securities of
ENTERGY ARKANSAS CAPITAL I
8 1/2% Common Securities (liquidation amount $25 per Common Security)
Entergy Arkansas Capital I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Entergy Arkansas,
Inc. (the "Holder") is the registered owner of _____ (_____) common securities
of the Trust representing undivided beneficial interests in the assets of the
Trust and designated the 8 1/2% Common Securities (liquidation amount $25 per
Common Security) (the "Common Securities"). In accordance with Section 5.10
of the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities are set forth in, and this certificate
and the Common Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of August 14, 1996, as the same may be
amended from time to time (the "Trust Agreement"), including the designation
of the terms of the Common Securities as set forth therein. The Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has executed this
certificate for and on behalf of the Trust this ____ day of _________, 199_.
ENTERGY ARKANSAS CAPITAL I
By:
not in his (her) individual
capacity, but solely as
Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1996, between Entergy Arkansas, Inc., an
Arkansas corporation ("Entergy Arkansas"), and Entergy Arkansas Capital I, a
Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from Entergy Arkansas and to issue its
8 1/2% Cumulative Quarterly Income Preferred Securities, Series A(the"Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust
dated as of August 14, 1996 as the same may be amended from time to time (the
"Trust Agreement");
WHEREAS, Entergy Arkansas will directly own all of the Common Securities and
will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase Entergy Arkansas hereby agrees shall
benefit Entergy Arkansas and which purchase Entergy Arkansas acknowledges
will be made in reliance upon the execution and delivery of this Agreement,
Entergy Arkansas, including in its capacity as holder of the Common Securities,
and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by Entergy Arkansas. Subject to the terms and
conditions hereof, Entergy Arkansas hereby irrevocably and unconditionally
guarantees the full payment, when and as due, of any and all Obligations (as
hereinafter defined) to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries"). As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than (i) obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be and (ii) obligations arising out of the
negligence, willful misconduct or bad faith of the Trustees of the Trust.
This Agreement is intended to be for the benefit of, and to be enforceable
by, all such Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be
effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by Entergy Arkansas and The Bank
of New York, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.03. Waiver of Notice. Entergy Arkansas hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and Entergy Arkansas hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and
all other notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements and
duties of Entergy Arkansas under this Agreement shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of all or any portion
of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of
debt of, or other similar proceedings affecting, the Trust or any of the
assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Entergy Arkansas with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement directly
against Entergy Arkansas and Entergy Arkansas waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against Entergy Arkansas.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of Entergy Arkansas and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any Beneficiary or any
Preferred Securities of any series are outstanding, this Agreement shall not
be modified or amended in any manner adverse to such Beneficiary or to the
holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering
the same against receipt therefor by facsimile transmission (confirmed by
mail), telex or by registered or certified mail, addressed as follows (and if
so given, shall be deemed given when mailed or upon receipt of an answer-back,
if sent by telex), to wit:
Entergy Arkansas Capital I
c/o Steven C. McNeal, Administrative Trustee
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No.: (504) 576-4455
Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No.: (504) 576-4455
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first above written.
ENTERGY ARKANSAS, INC.
By:
Name:
Title:
ENTERGY ARKANSAS CAPITAL I
By:
[_________________]
not in his individual
capacity, but solely
as Administrative Trustee
<PAGE>
[Securities Depository Legend]
EXHIBIT D
Certificate Number Number of
Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities of
ENTERGY ARKANSAS CAPITAL I
8 1/2% Cumulative
Quarterly Income Preferred Securities, Series A
(liquidation amount $25 per Preferred Security)
Entergy Arkansas Capital I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that ____________
(the "Holder") is the registered owner of _____ (_____) preferred securities
of the Trust representing an undivided beneficial interest in the assets of
the Trust and designated the Entergy Arkansas Capital I % Cumulative
Quarterly Income Preferred Securities, Series A (liquidation amount $25 per
Preferred Security) (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.04 or 5.11 of the
Trust Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject
to the terms and provisions of, the Amended and Restated Trust Agreement of
the Trust dated as of August 14, 1996, as the same may be amended from time
to time (the "Trust Agreement"). The holder of this certificate is entitled
to the benefits of the Guarantee Agreement of Entergy Arkansas, Inc., an
Arkansas corporation, and The Bank of New York, as guarantee trustee, dated
as of August 14, 1996 (the "Guarantee") to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the Guarantee to the
holder of this certificate without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate is bound by
the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative
Trustees of the Trust has executed this certificate for and on
behalf of the Trust.
Dated:
ENTERGY ARKANSAS CAPITAL I
By:
[ ]
not in his (her) individual
capacity, but solely as
Administrative Trustee
Countersigned by:
Transfer Agent
ASSIGNMENT
FOR VALUE RECEIVED, the
undersigned assigns and transfers this Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred Securi
ties Certificate and irrevocably appoints
attorney to transfer such Preferred Securities Certificate on the
books of the Trust. The attorney may substitute another to act
for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Pre
ferred Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this Pre
ferred Securities Certificate)
08/26/96/MTL/00240/183/AGREE/71188.1
Exhibit A-4 (a)
GUARANTEE AGREEMENT
Between
Entergy Arkansas, Inc.
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
August 14, 1996
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.01 Definitions 1
ARTICLE II TRUST INDENTURE ACT 4
SECTION 2.01 Trust Indenture Act; Application 4
SECTION 2.02Lists of Holders of Preferred Securities 4
SECTION 2.03 Reports by the Guarantee Trustee 4
SECTION 2.04 Periodic Reports to Guarantee Trustee 4
SECTION 2.05Evidence of Compliance with Conditions Precedent 5
SECTION 2.06 Events of Default; Waiver 5
SECTION 2.07 Event of Default; Notice 5
SECTION 2.08 Conflicting Interests 5
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE 5
SECTION 3.01Powers and Duties of the Guarantee Trustee 5
SECTION 3.02 Certain Rights of Guarantee Trustee 7
ARTICLE IV GUARANTEE TRUSTEE 9
SECTION 4.01 Guarantee Trustee; Eligibility 9
SECTION 4.02 Compensation and Reimbursement 10
SECTION 4.03Appointment, Removal and
Resignation of
Guarantee Trustee 10
ARTICLE V GUARANTEE 11
SECTION 5.01 Guarantee 11
SECTION 5.02 Waiver of Notice and Demand 11
SECTION 5.03 Obligations Not Affected 12
SECTION 5.04 Rights of Holders 12
SECTION 5.05 Guarantee of Payment 13
SECTION 5.06 Subrogation 13
SECTION 5.07 Independent Obligations 13
ARTICLE VI SUBORDINATION 13
SECTION 6.01 Subordination 13
ARTICLE VII TERMINATION 14
SECTION 7.01 Termination 14
ARTICLE VIII MISCELLANEOUS 14
SECTION 8.01 Successors and Assigns 14
SECTION 8.02 Amendments 15
SECTION 8.03 Notices 15
SECTION 8.04 Benefit 16
SECTION 8.05 Interpretation 16
SECTION 8.06 Governing Law 16
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act
Guarantee
of 1939, as amended
Agreement
310(a) 4.01(a)
310(b) 4.01(c),
2.08
310(c)
Inapplicable
311(a) 2.02(b)
311(b) 2.02(b)
311(c)
Inapplicable
312(a) 2.02(a)
312(b) 2.02(b)
313 2.03
314(a) 2.04
314(b)
Inapplicable
314(c) 2.05
314(d)
Inapplicable
314(e) 1.01,
2.05, 3.02
314(f) 2.01, 3.02
315(a) 3.01(d)
315(b) 2.07
315(c) 3.01
315(d) 3.01(d)
316(a) 5.04(a),
2.06
316(b) 5.03
316(c) 2.02
317(a)
Inapplicable
317(b)
Inapplicable
318(a) 2.01(b)
318(b) 2.01
318(c) 2.01(a)
_____________
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of August 14, 1996, is executed and delivered by Entergy
Arkansas, Inc., an Arkansas corporation (the "Guarantor"), and
The Bank of New York, as trustee (the "Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to time
of the Preferred Securities (as defined herein) of Entergy
Arkansas Capital I, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of August 14, 1996
between the Trustees of the Issuer named therein, Entergy
Arkansas, Inc., as Depositor, and the several Holders (as defined
therein), the Issuer is issuing as of the date hereof 2,400,000
of its 8 1/2% Cumulative Quarterly Income Preferred Securities,
Series A ($60,000,000 in aggregate liquidation amount) (the
"Preferred Securities") representing preferred undivided
beneficial ownership interests in the Issuer and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities are to be issued by
the Issuer and the proceeds thereof, together with the proceeds
from the issuance of the Issuer's Common Securities (as defined
below), are to be used to purchase the Debentures (as defined in
the Trust Agreement) which will be deposited with The Bank of New
York, as Property Trustee under the Trust Agreement, as trust
assets; and
WHEREAS, in order to enhance the value of the Preferred
Securities, the Guarantor desires to irrevocably and
unconditionally agree, to the extent set forth herein, to pay to
the Holders the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase by
each Holder of the Preferred Securities, which purchase the
Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time.
I DEFINITIONS
I.11 Definitions. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise
requires, have the following meanings. Capitalized or otherwise
defined terms used but not otherwise defined herein shall have
the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the
foregoing.
"Common Securities" means the securities representing
common undivided beneficial ownership interests in the assets of
the Issuer.
"Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Guarantee
Agreement.
"Guarantee Payments" shall mean the following payments
or distributions, without duplication, with respect to the
Preferred Securities, to the extent not paid or made by or on
behalf of the Issuer: (i) any accrued and unpaid Distributions
that are required to be paid on such Preferred Securities but
only if and to the extent that the Property Trustee has available
in the Payment Account funds sufficient to make such payment,
(ii) the redemption price (the "Redemption Price"), and all
accrued and unpaid Distributions to the date of redemption, with
respect to the Preferred Securities called for redemption by the
Issuer but only if and to the extent that the Property Trustee
has available in the Payment Account funds sufficient to make
such payment, (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection
with a redemption of all of the Preferred Securities), the lesser
of (a) the aggregate of the Liquidation Amount and all accrued
and unpaid Distributions on the Preferred Securities to the date
of payment, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee
Trustee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Preferred Securities then
outstanding; provided, however, that in determining whether the
holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indenture" means the Indenture dated as of August 1,
1996, among the Guarantor (the "Debenture Issuer") and The Bank
of New York, as trustee, pursuant to which the Debentures are
issued.
"Majority in liquidation amount of the Preferred
Securities" means a vote by Holders, voting separately as a
class, of more than 50% of the aggregate liquidation amount of
all Preferred Securities.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall
include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any vice-president, any assistant vice-
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Corporate Trust Department of
the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
II TRUST INDENTURE ACT
II.11 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required or deemed to be part of
this Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
II.12 Lists of Holders of Preferred Securities.
(a) The Guarantor shall furnish or cause to be furnished to
the Guarantee Trustee (a) semiannually, not later than December
31 and June 30 in each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not
more than 15 days prior to the delivery thereof, and (b) at such
other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days
prior to the time such list is furnished; provided that, the
Guarantor shall not be obligated to provide such List of Holders
at any time the List of Holders does not differ from the most
recent List of Holders given to the Guarantee Trustee by the
Guarantor. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Section 311(a) of the Trust Indenture Act, subject to the
provisions of Section 311(b) and Section 312(b) of the Trust
Indenture Act.
II.13 Reports by the Guarantee Trustee. Within 60 days
after December 31 of each year, commencing December 31, 1996, the
Guarantee Trustee shall provide to the Holders such reports, if
any, as are required by Section 313(a) of the Trust Indenture Act
in the form and in the manner provided by Section 313(a) of the
Trust Indenture Act. The Guarantee Trustee shall also comply
with the requirements of Sections 313(b), (c) and (d) of the
Trust Indenture Act.
II.14 Periodic Reports to Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
II.15 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such
evidence of compliance with any conditions precedent provided for
in this Guarantee Agreement as and to the extent required by
Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of
an Officers' Certificate.
II.16 Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by
vote, on behalf of all of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent thereon.
II.17 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notices of all Events of Default
known to the Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided that, the
Guarantee Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust committee of directors or Responsible
Officers of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a Responsible Officer
charged with the administration of the Trust Agreement shall have
obtained written notice, of such Event of Default.
II.18 Conflicting Interests. The Trust Agreement and
the Indenture shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture
Act.
III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
III.11 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee
shall not transfer this Guarantee Agreement or any rights
hereunder to any Person except a Holder exercising his or her
rights pursuant to Section 5.04 or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee. The right,
title and interest of the Guarantee Trustee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) The Guarantee Trustee, prior to the occurrence of any
Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Guarantee Agreement,
and no implied covenants or obligations shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.06), the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee
Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically required
to be furnished to the Guarantee Trustee, the Guarantee Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee or such Responsible Officer was negligent in ascertaining
the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a
Majority in liquidation amount of the Preferred Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Guarantee Agreement or
adequate indemnity against such risk or liability is not
reasonably assured to it.
III.12 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall
be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with counsel of its
choice, and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with such
advice or opinion; such counsel may be counsel to the Guarantor
or any of its Affiliates and may include any of its employees;
the Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction;
(v) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee
such adequate security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
provided that, nothing contained in this Section 3.02(a)(v) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement;
(vi) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(vii) the Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, and the Guarantee
Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by
it hereunder;
(viii) whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Guarantee Trustee
(1) may request instructions from the Holders, (2) may refrain
from enforcing such remedy or right or taking such other action
until such instructions are received, and (3) shall be protected
in acting in accordance with such instructions; and
(ix) the Guarantee Trustee shall not be liable for any
action taken, suffered or omitted to be taken by it in good faith
and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Guarantee.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed
to be a duty.
IV GUARANTEE TRUSTEE
IV.11 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to act
as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for
the purposes of this Section 4.01(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 4.03(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
IV.12 Compensation and Reimbursement.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time such
reasonable compensation as the Guarantor and the Guarantee
Trustee shall from time to time agree in writing for all services
rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with the provisions of
this Guarantee (including the reasonable compensation and
expenses of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless from
and against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based upon the income
of the Guarantee Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance of the administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any its powers or duties hereunder.
As security for the performance of the obligations of
the Guarantor under this Section, the Guarantee Trustee shall
have a lien prior to the Preferred Securities upon all the
property and funds held or collected by the Guarantee Trustee as
such, except funds held in trust for the payment of principal of,
and premium (if any) or interest on, particular obligations of
the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
IV.13 Appointment, Removal and Resignation of Guarantee
Trustee.
(a) Subject to Section 4.03(b), unless an Event of Default
shall have occurred and be continuing, the Guarantee Trustee may
be appointed or removed without cause at any time by the
Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold
office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.03 within 60 days after delivery to the Guarantor of an
instrument of resignation, the resigning Guarantee Trustee may
petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) The Guarantor shall give notice of each resignation and
each removal of the Guarantee Trustee and each appointment of a
successor Guarantee Trustee to all Holders in the manner provided
in Section 8.03 hereof. Each notice shall include the name of
the successor Guarantee Trustee and the address of its Corporate
Trust Office.
V GUARANTEE
V.11 Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
V.12 Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of this Guarantee Agreement and of
any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against
the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
V.13 Obligations Not Affected. The obligation of the
Guarantor to make the Guarantee Payments under this Guarantee
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of, or
in connection with, the Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from
the extension of any interest payment period on the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Preferred Securities, or any action on the part
of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.03 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
V.14 Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited
with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders
of a Majority in liquidation amount of the Preferred Securities
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee
in respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement without first instituting a legal proceeding
against the Issuer or any other person or entity.
V.15 Guarantee of Payment. This Guarantee Agreement creates
a guarantee of payment and not of collection. This Guarantee
Agreement will not be discharged except by payment of the
Guarantee Payments in full (without duplication).
V.16 Subrogation. The Guarantor shall be subrogated to all
(if any) rights of the Holders against the Issuer in respect of
any amounts paid to the Holders by the Guarantor under this
Guarantee Agreement; provided, however, that the Guarantor shall
not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any
amounts of Guarantee Payments are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
V.17 Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Preferred Securities and that
the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of
this Guarantee Agreement notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of
Section 5.03.
VI SUBORDINATION
VI.11 Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all Senior Debt
of the Guarantor (which is defined as all obligations (other than
non-recourse obligations and the indebtedness issued under the
Indenture) of, or guaranteed or assumed by, the Guarantor for
borrowed money, including both senior and subordinated
indebtedness for borrowed money (other than the Debentures), or
for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Guarantor
and its subsidiaries in accordance with generally accepted
accounting principles as in effect from time to time, or
evidenced by bonds, debentures, notes or other similar
instruments, and in each case, amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligations, whether existing as of the date of the Indenture or
subsequently incurred by the Guarantor unless, in the case of any
particular indebtedness, obligation, renewal, extension or
refunding, the instrument creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such
indebtedness, renewal, extension or refunding is not superior in
right of payment to or is pari passu with the Debentures;
provided that the Guarantor's obligations under this Guarantee or
any guarantee issued by the Guarantor on behalf of the holders of
Preferred Securities issued by Entergy Arkansas Capital II and/or
Entergy Arkansas Capital III shall not be deemed to be Senior
Debt of the Guarantor), and (ii) pari passu with any similar
guarantee now or hereafter issued by the Guarantor on behalf of
the holders of preferred securities issued by Entergy Arkansas
Capital II or Entergy Arkansas Capital III. Nothing in this
Section 6.01 shall apply to claims of, or payments to, the
Guarantee Trustee under or pursuant to Section 4.02 hereof.
VII TERMINATION
VII.11 Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full
payment of the Redemption Price of all Preferred Securities, (ii)
the distribution of Debentures to Holders in exchange for all of
the Preferred Securities or (iii) full payment of the amounts
payable in accordance with the Trust Agreement upon liquidation
of the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment
of any sums paid with respect to the Preferred Securities or
under this Guarantee Agreement.
VIII MISCELLANEOUS
VIII.11 Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of
the Preferred Securities then outstanding. Except in connection
with a consolidation, merger or sale involving the Guarantor that
is permitted under Article Eleven of the Indenture and pursuant
to which the assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
VIII.12 Amendments. This Guarantee Agreement may be
amended only by an instrument in writing entered into by the
Guarantor and the Guarantee Trustee. Except with respect to any
changes which do not materially adversely affect the rights of
Holders (in which case no consent of Holders will be required),
this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a majority in aggregate
liquidation amount of all the outstanding Preferred Securities.
The provisions of Article VI of the Trust Agreement concerning
meetings of Holders shall apply to the giving of such approval.
Nothing herein contained shall be deemed to require that the
Guarantee Trustee enter into any amendment of this Guarantee
Agreement.
VIII.13 Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities:
Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No: (504) 576-4455
Attention: Treasurer
(b) if given to the Issuer, in care of the Administrative
Trustees, at the Issuer's (and the Administrative Trustee's)
address set forth below or such other address as the
Administrative Trustees on behalf of the Issuer may give notice
of to the Holders:
Entergy Arkansas Capital I
c/o Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No: (504) 576-4455
Attention: Administrative Trustees
(c) if given to the Guarantee Trustee, to the address set
forth below or such other address as the Guarantee Trustee may
give notice of to the Holders of the Preferred Securities:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been
given when received in person, telecopied with receipt confirmed,
or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
VIII.14 Benefit. This Guarantee Agreement is solely for
the benefit of the Holders and, subject to Section 3.01(a), is
not separately transferable from the Preferred Securities.
VIII.15 Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings
assigned to them in Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise
defined in this Guarantee Agreement or unless the context
otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
VIII.16 Governing Law. This Guarantee Agreement shall be
governed by and construed and interpreted in accordance with the
laws of the State of New York.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and
year
first above written.
Entergy Arkansas, Inc.
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Vice President and
Treasurer
The Bank of New York,
as Guarantee Trustee
By: /s/ Nancy B. Gill
Name: Nancy B. Gill
Title: Assistant Treasurer
Exhibit B-1(a)
2,400,000 Preferred Securities
Entergy Arkansas Capital I
8 1/2% Cumulative Quarterly Income Preferred Securities, Series A
("QUIPS"_)
(liquidation preference $25 per preferred security)
fully and unconditionally guaranteed, as set forth herein, by
Entergy Arkansas, Inc.
UNDERWRITING AGREEMENT
August 8, 1996
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Smith Barney Inc.
Stephens Inc.
As representatives of the several
Underwriters named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies & Gentlemen:
The undersigned, Entergy Arkansas Capital I (the
"Trust"), a statutory business trust created under the Business
Trust Act of the State of Delaware (Title 12, Chapter 38 of the
Delaware Code, 12 Del. C. Section 3801 et seq.) (the "Delaware
Act"), proposes to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters," which term, when
the context permits, shall also include any underwriters
substituted as hereinafter in Section 11 provided), for whom you
are acting as representatives (in such capacity, you shall
hereinafter be referred to as the "Representatives"), 2,400,000
of its 8 1/2% Cumulative Quarterly Income Preferred Securities,
Series A (liquidation preference $25 per preferred security),
representing undivided beneficial interests in the assets of the
Trust (the "Preferred Securities"), as follows:
__________________________
_ QUIPS is a servicemark of Goldman, Sachs & Co.
1.
Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Trust shall issue
and sell to each of the Underwriters named in Schedule I hereto,
and each Underwriter shall purchase from the Trust at the time
and place herein specified, severally and not jointly, the number
of Preferred Securities set forth opposite the name of such
Underwriter in Schedule I hereto at a purchase price of $25.00
per Preferred Security.
2.
The Company (as defined herein) (a) agrees to issue the
Company Securities (as defined herein) concurrently with the
issue and sale of the Preferred Securities as contemplated herein
and (b) guarantees the timely performance by the Trust of its
obligations under this Section 1. The Trust agrees to purchase
the Debentures (as defined herein) with the proceeds of the Trust
Securities (as defined herein) as contemplated herein.
Because the proceeds of the sale of the Preferred
Securities, together with the proceeds from the sale by the Trust
to the Company of the Common Securities (as defined herein), will
be used to purchase the Debentures, the Company hereby agrees to
pay on the Closing Date (as defined herein) to Goldman, Sachs &
Co., for the accounts of the several Underwriters, as
compensation for their arranging the investment therein of such
proceeds, an amount equal to $0.7875 per Preferred Security;
provided, that such compensation will be $0.5000 per Preferred
Security sold to certain institutions.
2. Description of Preferred Securities. The Preferred
Securities will be guaranteed by Entergy Arkansas, Inc., an
Arkansas corporation (the "Company" and, together with the Trust,
the "Offerors"), with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Guarantee") pursuant
to, and to the extent set forth in, the Guarantee Agreement (the
"Guarantee Agreement"), dated as of August 14, 1996, between the
Company and The Bank of New York, as trustee (the "Guarantee
Trustee"). Under an agreement as to expenses and liabilities
between the Company and the Trust, pursuant to the Trust
Agreement (as defined herein), dated as of August 14, 1996 (the
"Expense Agreement"), the Company will irrevocably and
unconditionally guarantee to each person or entity to whom the
Trust becomes indebted or liable the full payment of any costs,
expenses or liabilities of the Trust, subject to certain
exceptions therein.
The proceeds from the sale of the Preferred Securities
will be combined with the proceeds from the sale by the Trust to
the Company of its common securities representing undivided
beneficial interests in the assets of the Trust (the "Common
Securities" and, together with the Preferred Securities, the
"Trust Securities"), and will be used by the Trust to purchase
$61,855,675 aggregate principal amount of 8 1/2% Junior Subordinated
Deferrable Interest Debentures, Series A, due September 30, 2045
issued by the Company (the "Debentures" and, together with the
Guarantee, the "Company Securities"). The Trust Securities will
be issued pursuant to the Amended and Restated Trust Agreement of
the Trust, dated as of August 14, 1996 (the "Trust Agreement"),
among the Company, as depositor, the Administrative Trustees (as
defined herein), The Bank of New York, as property trustee (the
"Property Trustee"), The Bank of New York (Delaware), as Delaware
trustee (the "Delaware Trustee"), and the holders, from time to
time, of undivided beneficial interests in the assets of the
Trust. The Debentures will be issued pursuant to an Indenture,
dated as of August 1, 1996, as supplemented by a supplemental
indenture, resolutions of the Board of Directors of the Company
or in a certificate of an officer of the Company pursuant to such
supplemental indenture or resolutions (the "Indenture"), between
the Company and The Bank of New York, as trustee (the
"Corresponding Debenture Trustee"). The Preferred Securities and
the Company Securities are referred to herein as the
"Securities."
3. Representations and Warranties of the Offerors. Each of
the Offerors jointly and severally represents and warrants to the
several Underwriters, and covenants and agrees with the several
Underwriters, that:
(a) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Arkansas and has the necessary corporate power and authority to
conduct the business that it is described in the Prospectus (as
defined herein) as conducting, to own and operate the properties
owned and operated by it in such business, to issue the Company
Securities, to enter into and perform its obligations under this
Underwriting Agreement, the Trust Agreement, the Indenture, the
Guarantee Agreement, the Expense Agreement and the Company
Securities, to purchase, own, and hold the Common Securities
issued by the Trust and to consummate the transactions herein and
therein contemplated.
(b) The Trust has been duly created and is validly
existing as a business trust in good standing under the Delaware
Act, has the power and authority to own its property, to conduct
its business as described in the Prospectus, to issue and sell
the Trust Securities, to enter into and perform its obligations
under this Underwriting Agreement and the Trust Securities and to
consummate the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Trust; the Trust has conducted and will
conduct no business other than the transactions contemplated by
this Underwriting Agreement and described in the Prospectus; the
Trust is not a party to or otherwise bound by any agreement other
than those described in the Prospectus, and is not a party to any
action, suit or proceeding of any nature; the Trust is not and
will not be classified as an association taxable as a corporation
for United States federal income tax purposes; and the Trust is
and will be treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(c) The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File Nos. 333-05045 and 333-05045-01) for the
registration of $150,000,000 aggregate offering price of the
Company's and the Trust's securities, including the Securities,
under the Securities Act of 1933, as amended (the "Securities
Act") (all of which securities remain unsold), and such
registration statement has become effective. The Offerors
qualify for use of Form S-3 for the registration of the
Securities. The prospectus forming a part of the registration
statement, at the time such registration statement (or the most
recent amendment thereto filed prior to the time of effectiveness
of this Underwriting Agreement) became effective, including all
documents incorporated by reference therein at that time pursuant
to Item 12 of Form S-3, is hereinafter referred to as the "Basic
Prospectus". In the event that (i) the Basic Prospectus shall
have been amended, revised or supplemented (but excluding any
amendments, revisions or supplements to the Basic Prospectus
relating solely to securities other than the Securities) prior to
the time of effectiveness of the Underwriting Agreement,
including without limitation by any preliminary prospectus
supplement relating to the Securities, or (ii) the Company shall
have filed documents pursuant to Section 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after the time the registration statement became effective and
prior to the time of effectiveness of this Underwriting Agreement
(but excluding documents incorporated therein by reference
relating solely to securities other than the Securities), which
documents are deemed to be incorporated by reference in the Basic
Prospectus pursuant to Item 12 of Form S-3, the term "Basic
Prospectus" as used herein shall also mean such prospectus as so
amended, revised or supplemented and reflecting such
incorporation by reference. The Registration Statement in the
form in which it became effective and as it may have been amended
by all amendments thereto as of the time of effectiveness of this
Underwriting Agreement (including, for these purposes, as an
amendment any document incorporated by reference in the Basic
Prospectus), and the Basic Prospectus as it shall be supplemented
to reflect the terms of the offering and sale of the Preferred
Securities and the Debentures by a prospectus supplement (a
"Prospectus Supplement") to be filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b) under the
Securities Act ("Rule 424(b)"), are hereinafter referred to as
the "Registration Statement" and the "Prospectus," respectively.
(d) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Offerors will not file any amendment to the
Registration Statement or supplement to the Prospectus (except
any amendment or supplement relating solely to securities other
than the Securities), and (ii) between the time of effectiveness
of this Underwriting Agreement and the Closing Date, the Company
will not file any document that is to be incorporated by
reference in, or any supplement to, the Prospectus, in either
case, without prior notice to the Underwriters and to Winthrop,
Stimson, Putnam & Roberts ("Counsel for the Underwriters"), or
any such amendment or supplement to which said Counsel shall
reasonably object on legal grounds in writing. For purposes of
this Underwriting Agreement, any document that is filed with the
Commission after the time of effectiveness of this Underwriting
Agreement and is incorporated by reference in the Prospectus
(except documents incorporated by reference relating solely to
securities other than the Securities) pursuant to Item 12 of Form
S-3 shall be deemed a supplement to the Prospectus.
(e) The Registration Statement, at the time it became
effective, and the Indenture, the Trust Agreement and the
Guarantee Agreement, at such time, fully complied, and the
Prospectus, when delivered to the Underwriters for their use in
making confirmations of sales of the Preferred Securities and at
the Closing Date, as it may then be amended or supplemented, will
fully comply, in all material respects with the applicable
provisions of the Securities Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder or pursuant to said
rules and regulations did or will be deemed to comply therewith.
The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, on the date filed with the
Commission pursuant to the Exchange Act, fully complied or will
fully comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of
the Commission thereunder or pursuant to said rules and
regulations did or will be deemed to comply therewith. On the
later of (i) the date the Registration Statement was declared
effective by the Commission under the Securities Act and (ii) the
date that the Company's most recent Annual Report on Form 10-K
was filed with the Commission under the Exchange Act (the date
described in either clause (i) or (ii) is hereinafter referred to
as the "Effective Date"), the Registration Statement did not, and
on the date that any post-effective amendment to the Registration
Statement became or becomes effective (but excluding any post-
effective amendment relating solely to securities other than the
Securities), the Registration Statement, as amended by any such
post-effective amendment, did not or will not, as the case may
be, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading. At the time that
the Basic Prospectus relating to the Preferred Securities was
delivered to the Underwriters for their use in marketing the
Preferred Securities, such Basic Prospectus did not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading and, at such times, the documents then incorporated by
reference in such Basic Prospectus pursuant to Item 12 of Form
S-3, when read together with such Basic Prospectus, did not
contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. At the time the Prospectus is delivered to
the Underwriters for their use in making confirmations of sales
of the Preferred Securities and at the Closing Date, the
Prospectus, as it may then be amended or supplemented, will not
contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are
made, not misleading. The documents 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, did 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 (e) shall not apply to statements or omissions made in
reliance upon and in conformity with written information
furnished to the Offerors by the Underwriters or on behalf of any
Underwriter specifically for use in connection with the
preparation of the Registration Statement or the Prospectus, as
they may be then amended or supplemented, or to any statements in
or omissions from the statements of eligibility on Form T-1 of
the Property Trustee, the Guarantee Trustee and the Corresponding
Debenture Trustee, respectively, as they may be amended, filed as
exhibits to the Registration Statement (the "Form T-1s").
(f) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to
the Company against payment therefor as described in the
Registration Statement and Prospectus, will constitute validly
issued undivided beneficial interests in the assets of the Trust
and will be entitled to the benefits of the Trust Agreement; the
issuance of the Common Securities is not subject to preemptive or
other similar rights; at the Closing Date, all of the Common
Securities will be directly owned by the Company free and clear
of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and the Common Securities will conform to the
description thereof contained in the Prospectus.
(g) This Agreement has been duly authorized, executed and
delivered by each of the Trust and the Company.
(h) The Trust Agreement has been duly qualified under the
Trust Indenture Act, has been duly authorized by the Company and,
at the Closing Date, will have been duly executed and delivered
by the Company and each of the Administrative Trustees, and
assuming due authorization, execution and delivery of the Trust
Agreement by the Property Trustee and the Delaware Trustee, will
constitute a valid and binding instrument of the Company and the
Administrative Trustees, enforceable against the Company and the
Administrative Trustees in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law); and the Trust Agreement will conform to the
description thereof in the Prospectus.
(i) The Guarantee Agreement has been duly qualified under
the Trust Indenture Act, has been duly authorized by the Company
and, at the Closing Date, will have been duly executed and
delivered by the Company, and assuming due authorization,
execution and delivery of the Guarantee Agreement by the
Guarantee Trustee, will constitute a valid and binding instrument
of the Company, enforceable against the Company in accordance
with its terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and by general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law); and the Guarantee and the
Guarantee Agreement will conform to the descriptions thereof
contained in the Prospectus.
(j) The Preferred Securities have been duly authorized by
the Trust Agreement and, on the Closing Date, will have been duly
executed by an Administrative Trustee and, when issued and
delivered against payment therefor in accordance with the
provisions of this Agreement and the Trust Agreement, will
constitute validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will be entitled to the
benefits of the Trust Agreement; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights;
holders of Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; and the Preferred
Securities will conform to the description thereof contained in
the Prospectus.
(k) The Indenture has been duly qualified under the Trust
Indenture Act, has been duly authorized by the Company and, at
the Closing Date, will have been duly executed and delivered by
the Company, and assuming due authorization, execution and
delivery of the Indenture by the Corresponding Debenture Trustee,
will constitute a valid and binding instrument of the Company,
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law); and the Indenture will conform
to the description thereof contained in the Prospectus.
(l) The Debentures have been duly authorized and, on the
Closing Date, will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture
and delivered against payment therefor by the Trust as described
in the Prospectus, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance
with their terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and by general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law) and will be entitled to the
benefits of the Indenture; and the Debentures will conform to the
description thereof contained in the Prospectus.
(m) The Expense Agreement has been duly authorized by the
Company and, at the Closing Date, will have been duly executed
and delivered by the Company, and will constitute a valid and
binding instrument of the Company, enforceable against the
Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law); and the Expense Agreement will conform to the description
thereof contained in the Prospectus.
(n) William J. Regan, Jr., Steven C. McNeal and Frank
Williford IV, in their capacities as administrative trustees (the
"Administrative Trustees") under the Trust Agreement, are
employees of the Company and have been duly authorized by the
Company to execute and deliver the Trust Agreement.
(o) The Trust is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(p) The Trust is not in violation of its Certificate of
Trust filed with the State of Delaware on May 13, 1996 or the
Trust Agreement; the execution, delivery and performance by the
Company and the Trust of their respective obligations under this
Underwriting Agreement, the Trust Agreement, the Trust
Securities, the Indenture, the Guarantee Agreement, the Company
Securities and the Expense Agreement will not result in a breach
of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust or other agreement
or instrument to which the Company or the Trust is now a party.
(q) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes.
(r) Except as set forth or contemplated in the Prospectus,
as it may then be amended or supplemented, the Company possesses
adequate franchises, licenses, permits, and other rights to
conduct its respective business and operations as now conducted,
without any known conflicts with the rights of others that could
have an adverse effect on the Company.
4. Offering. The Offerors are advised by the
Representatives that the Underwriters propose to make a public
offering of their respective portions of the Preferred Securities
as soon after the effectiveness of this Underwriting Agreement as
in their judgment the Underwriters deem advisable. The Offerors
are further advised by the Representatives that the Preferred
Securities will be offered to the public at the initial public
offering price specified in the Prospectus Supplement.
SECTION 5. Time and Place of Closing; Delivery to
Underwriters. Delivery of certificates for the Preferred
Securities and payment of the purchase price therefor by wire
transfer of immediately available funds shall be made at the
offices of Reid & Priest LLP, 40 West 57th Street, New York, New
York, at 10:00 A.M., New York time, on August 14, 1996, or at
such other time on the same or such other day as shall be agreed
upon by the Offerors and the Representatives, or as may be
established in accordance with Section 11 hereof. The hour and
date of such delivery and payment are herein called the "Closing
Date."
Certificates for the Preferred Securities shall be in
definitive form and registered in such names and in such
denominations as the Underwriters shall request not later than
two full business days prior to the Closing Date. The
certificates evidencing the Preferred Securities shall be
delivered to the Representatives through the facilities of The
Depository Trust Company in New York, New York ("DTC") for the
account of the Representatives with any transfer taxes payable in
connection with the transfer of the Preferred Securities duly
paid, against payment of the purchase price therefor.
On the Closing Date, the Company will pay, or cause to
be paid, the compensation payable at such time to the
Underwriters pursuant to Section 1 hereof by wire transfer in
immediately available funds to an account designated by Goldman,
Sachs & Co., for the accounts of the several Underwriters.
6. Covenants of the Offerors. Each of the Offerors jointly
and severally covenants and agrees with the several Underwriters
that:
(a) Not later than the Closing Date, the Company will
deliver to the Representatives a copy of the Registration
Statement relating to the Securities as originally filed with the
Commission, and of all amendments or supplements thereto relating
to the Securities, or a conformed copy thereof, certified by an
officer of the Company to be in the form filed.
(b) The Company will deliver to the Underwriters as many
copies of the Prospectus (and any amendments or supplements
thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with,
or transmitted for filing to, the Commission pursuant to and in
compliance with Rule 424(b) and will advise the Representatives
promptly of the issuance of any stop order under the Securities
Act with respect to the Registration Statement or the institution
of any proceedings therefor of which either of the Offerors shall
have received notice. Each of the Offerors will use its best
efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are
required by law to deliver a prospectus after this Underwriting
Agreement has become effective, if any event relating to or
affecting the Company or the Trust, or of which the Company or
the Trust shall be advised by the Representatives in writing,
shall occur which in the opinion of the Company should be set
forth in a supplement or amendment to the Prospectus in order to
make the Prospectus not misleading in the light of the
circumstances when it is delivered to a purchaser of the
Preferred Securities, the Company will amend or supplement the
Prospectus by either (i) preparing and filing with the Commission
and furnishing to the Underwriters a reasonable number of copies
of a supplement or supplements or an amendment or amendments to
the Prospectus, or (ii) making an appropriate filing pursuant to
Section 13, 14 or 15(d) of the Exchange Act which will supplement
or amend the Prospectus, so that, as supplemented or amended, it
will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading. Unless
such event relates solely to the activities of the Underwriters
(in which case the Underwriters shall assume the expense of
preparing any such amendment or supplement), the expenses of
complying with this Section 6(d) shall be borne by the Company
until the expiration of nine months from the time of
effectiveness of this Underwriting Agreement, and such expenses
shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make
generally available to the Trust's security holders, as soon as
practicable, an earning statement (which need not be audited)
covering a period of at least twelve months beginning after the
"effective date of the registration statement" within the meaning
of Rule 158 under the Securities Act, which earning statement
shall be in such form, and be made generally available to
security holders in such a manner, as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the
Offerors will furnish such proper information as may be lawfully
required, and will otherwise cooperate in qualifying the
Preferred Securities and the Debentures for offer and sale, under
the blue sky laws of such jurisdictions as the Representatives
may reasonably designate, provided that the Offerors shall not be
required to qualify as a foreign corporation or dealer in
securities, to file any consents to service of process under the
laws of any jurisdiction, or to meet any other requirements
deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes incident to the performance of each
Offeror's obligations under this Underwriting Agreement
including, but not limited to, (i) the preparation and filing of
the Registration Statement and any post-effective amendment
thereto, (ii) the printing, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters,
(iii) legal counsel relating to the qualification of the
Preferred Securities and the Debentures under the blue sky laws
of various jurisdictions, in an amount not to exceed $6,000, (iv)
the printing and delivery to the Underwriters of reasonable
quantities of copies of the Registration Statement, the
preliminary (or any supplemental) blue sky survey, any
preliminary prospectus supplement relating to the Preferred
Securities and the Prospectus and any amendment or supplement
thereto, except as otherwise provided in paragraph (d) of this
Section 6, (v) the rating of the Preferred Securities and the
Debentures by one or more nationally recognized statistical
rating agencies, (vi) filings or other notices (if any) with or
to, as the case may be, the National Association of Securities
Dealers, Inc. (the "NASD") in connection with its review of the
terms of the offering, and (vii) the listing of the Preferred
Securities and, if applicable, the Debentures on the New York
Stock Exchange (the "NYSE") and the registration thereof under
the Exchange Act in accordance with Section 6(i) hereof. Except
as provided above, the Company shall not be required to pay any
expenses of the Underwriters, except that, if this Underwriting
Agreement shall be terminated in accordance with the provisions
of Section 7, 8 or 12 hereof, the Company will reimburse the
Underwriters for (A) the reasonable fees and expenses of
Counsel for the Underwriters, whose fees and expenses the
Underwriters agree to pay in any other event, and (B) reasonable
out-of-pocket expenses incurred in contemplation of the
performance of this Underwriting Agreement. The Company shall
not in any event be liable to the Underwriters for damages on
account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to
sell or otherwise dispose of any Preferred Securities, any other
beneficial interests in the assets of the Trust, or any preferred
securities or any other securities of the Trust or the Company
that are substantially similar to the Preferred Securities,
including any guarantee of such securities, or any securities
convertible into or exchangeable for or that represent the right
to receive securities, preferred securities or any such
substantially similar securities of either the Trust or the
Company, except for the Trust Securities and the Guarantee,
without the consent of the Representatives until the earlier to
occur of (i) thirty (30) days after the Closing Date and (ii) the
date of the termination of the trading restrictions on the
Preferred Securities, as determined by the Underwriters. The
Representatives agree to notify the Offerors of such termination
if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the
Preferred Securities to be duly authorized for listing on the
NYSE, subject to notice of issuance, and to be registered under
the Exchange Act; if the Preferred Securities are exchanged for
Debentures, the Company will use its best efforts to have the
Debentures listed on the exchange or other organization on which
the Preferred Securities were then listed, and to have the
Debentures registered under the Exchange Act.
7. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for the Preferred
Securities shall be subject to the accuracy on the date hereof
and on the Closing Date of the representations and warranties
made herein on the part of the Offerors and of any certificates
furnished by the Offerors on the Closing Date and to the
following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b)
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Offerors and the
Representatives.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Offerors or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of the Company and an authorized
representative of the Trust, to the effect that no such stop
order has been or is in effect and that no proceedings for such
purpose are pending before or, to the knowledge of the Company or
the Trust, as the case may be, threatened by the Commission.
(c) At the Closing Date, there shall have been issued and
there shall be in full force and effect orders of (i) the Public
Service Commissions of Arkansas and Tennessee and (ii) the
Commission under the Public Utility Holding Company Act of 1935,
as amended (the "1935 Act"), authorizing the issuance and sale of
the Securities.
(d) At the Closing Date, the Underwriters shall have
received from Friday, Eldredge & Clark and Reid & Priest LLP,
opinions, dated the Closing Date, substantially in the forms set
forth in Exhibits A and B hereto, respectively, (i) with such
changes therein as may be agreed upon by the Offerors and the
Representatives, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus shall be supplemented
after being furnished to the Underwriters for use in offering the
Preferred Securities, with changes therein to reflect such
supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Richards, Layton & Finger, P.A., special Delaware
counsel for the Company and the Trust, an opinion, dated the
Closing Date, substantially in the form set forth in Exhibit C
hereto (i) with such changes therein as may be agreed upon by the
Offerors and the Representatives, with the approval of Counsel
for the Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for use in
offering the Preferred Securities, with changes therein to
reflect such supplementation.
(f) At the Closing Date, the Underwriters shall have
received from Counsel for the Underwriters, an opinion, dated the
Closing Date, substantially in the form set forth in Exhibit D
hereto, with such changes therein as may be necessary to reflect
any supplementation of the Prospectus prior to the Closing Date.
(g) On or prior to the effective date of this Underwriting
Agreement, the Underwriters shall have received from Coopers &
Lybrand L.L.P., the Company's independent certified public
accountants (the "Accountants"), a letter dated the date hereof
and addressed to the Underwriters to the effect that (i) they are
independent certified public accountants with respect to the
Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules examined by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included or incorporated by reference in the Prospectus, a
reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the
Board of Directors of the Company, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 1995 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 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 Section 13, 14 or
15(d) of the Exchange Act as specified in Exhibit E hereto, in
each case, to the extent that such amounts, numbers, percentages
and information may be derived from the general accounting
records of the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from
the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(h) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that (i) the
representations and warranties of the Company contained herein
are true and correct, (ii) the Company has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Company at or prior to
the Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the Company
and there has not been any material transaction entered into by
the Company, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended or
supplemented.
(i) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by an
authorized representative of the Trust, to the effect that (i)
the representations and warranties of the Trust contained herein
are true and correct, (ii) the Trust has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Trust at or prior to the
Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the Trust and
there has not been any material transaction entered into by the
Trust, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended or
supplemented.
(j) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Trust Agreement, the
Guarantee Agreement, the Expense Agreement and the Indenture.
(k) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(g) hereof.
(l) Between the date hereof and the Closing Date, no event
shall have occurred with respect to or otherwise affecting the
Company or the Trust that, in the reasonable opinion of the
Representatives, materially impairs the investment quality of the
Preferred Securities.
(m) Between the date hereof and the Closing Date neither
Moody's Investors Service, Inc. nor Standard & Poor's shall have
lowered its rating of any of the Company's outstanding debt
securities in any respect.
(n) On or prior to the Closing Date, the Underwriters shall
have received from the Company evidence reasonably satisfactory
to Goldman, Sachs & Co. that Moody's Investors Service, Inc. and
Standard & Poor's have publicly assigned to the Preferred
Securities ratings of Baa3 and BBB-, respectively, which ratings
shall be in full force and effect on the Closing Date.
(o) On or prior to the Closing Date, (i) the Preferred
Securities shall have been duly listed, subject to notice of
issuance, on the NYSE and (ii) the Company's registration
statement on Form 8-A relating to the Preferred Securities shall
have become effective under the Exchange Act.
(p) All legal matters in connection with the issuance and
sale of the Preferred Securities shall be satisfactory in form
and substance to Counsel for the Underwriters.
(q) The Offerors will furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Offerors. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
8. Conditions of Obligations of the Offerors. The
obligations of the Offerors hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(b) At the Closing Date, there shall have been issued and
there shall be in full force and effect orders of (i) the Public
Service Commissions of Arkansas and Tennessee and (ii) the
Commission under the 1935 Act authorizing the issuance and sale
of the Securities.
In case any of the conditions specified in this Section
8 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Offerors upon notice thereof to the
Representatives. Any such termination shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
9. Indemnification.
(a) The Offerors shall indemnify, defend and hold harmless
each Underwriter and each person who controls each Underwriter
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses,
claims, damages or liabilities, joint or several, to which each
Underwriter or any or all of them may become subject under the
Securities Act or any other statute or common law and shall
reimburse each Underwriter and any such controlling person for
any legal or other expenses (including to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or
liabilities or in connection with defending any actions, insofar
as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, as amended or supplemented, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or upon any untrue statement or alleged untrue
statement of a material fact contained in the Basic Prospectus
(if used prior to the date the Prospectus is filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b)), or in the Prospectus, as each may be amended or
supplemented, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Offerors by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)) or the Prospectus or any amendment or supplement to
any thereof or arising out of, or based upon, statements in or
omissions from the Form T-1s; and provided further, that the
indemnity agreement contained in this subsection shall not inure
to the benefit of any Underwriter or to the benefit of any person
controlling any Underwriter on account of any such losses,
claims, damages, liabilities, expenses or actions arising from
the sale of the Preferred Securities to any person in respect of
the Basic Prospectus or the Prospectus as supplemented or
amended, furnished by any Underwriter to a person to whom any of
the Preferred Securities were sold (excluding in both cases,
however, any document then incorporated or deemed incorporated by
reference therein), insofar as such indemnity relates to any
untrue or misleading statement or omission made in the Basic
Prospectus or the Prospectus but eliminated or remedied prior to
the consummation of such sale in the Prospectus, or any amendment
or supplement thereto furnished on a timely basis by the Offerors
to the Underwriters pursuant to Section 6(d) hereof,
respectively, unless a copy of the Prospectus (in the case of
such a statement or omission made in the Basic Prospectus) or
such amendment or supplement (in the case of such a statement or
omission made in the Prospectus) (excluding, however, any
amendment or supplement to the Basic Prospectus relating solely
to securities other than the Securities and any document then
incorporated or deemed incorporated by reference in the
Prospectus or such amendment or supplement) is furnished by such
Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation (if it is made available to the
Underwriters prior to settlement of such sale).
(b) The Company shall indemnify, defend and hold harmless
the Trust against any and all losses, claims, damages or
liabilities that may become due from the Trust under Section 9(a)
hereof.
(c) Each Underwriter shall indemnify, defend and hold
harmless the Offerors, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b)) or in the Prospectus, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Offerors by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with or transmitted for filing to the Commission pursuant to Rule
424(b)) or the Prospectus, or any amendment or supplement
thereto.
(d) In case any action shall be brought, based upon the
Registration Statement, the Basic Prospectus or the Prospectus
(including amendments or supplements thereto), against any party
in respect of which indemnity may be sought pursuant to any of
the preceding paragraphs, such party (hereinafter called the
indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party and any person
controlling any indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(e) If the indemnification provided for under subsections
(a), (b), (c) or (d) in this Section 9 is unavailable to any
extent to an indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Offerors and the
Underwriters from the offering of the Preferred Securities or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Offerors on the one
hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Offerors
on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total proceeds from the
offering (after deducting underwriting discounts and commissions
but before deducting expenses) to the Offerors bear to the total
underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Offerors on
the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Offerors or by any of the
Underwriters and such parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(e) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(e), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Preferred
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(e) are several in
proportion to their respective underwriting obligations and not
joint. The obligations of the Company under this Section 9 shall
be in addition to any liability which the Company may otherwise
have.
10. Survival of Certain Representations and Obligations. Any
other provision of this Underwriting Agreement to the contrary
notwithstanding, (a) the indemnity and contribution agreements
contained in Section 9 of, and the representations and warranties
and other agreements of the Offerors contained in, this
Underwriting Agreement shall remain operative and in full force
and effect regardless of (i) any investigation made by or on
behalf of any Underwriter or by or on behalf of the Offerors or
its directors or officers, or any of the other persons referred
to in Section 9 hereof and (ii) acceptance of and payment for the
Preferred Securities and (b) the indemnity and contribution
agreements contained in Section 9 shall remain operative and in
full force and effect regardless of any termination of this
Underwriting Agreement.
11. Default of Underwriters. If any Underwriter shall fail
or refuse (otherwise than for some reason sufficient to justify,
in accordance with the terms hereof, the cancellation or
termination of its obligations hereunder) to purchase and pay for
the Preferred Securities that it has agreed to purchase and pay
for hereunder, and the number of Preferred Securities that such
defaulting Underwriter agreed but failed or refused to purchase
is not more than one-tenth of the number of the Preferred
Securities, the other Underwriters shall be obligated to purchase
the Preferred Securities that such defaulting Underwriter agreed
but failed or refused to purchase; provided that in no event
shall the number of Preferred Securities that any Underwriter has
agreed to purchase pursuant to Schedule I hereof be increased
pursuant to this Section 11 by an amount in excess of one-ninth
of such number of Preferred Securities without written consent of
such Underwriter. If any Underwriter shall fail or refuse to
purchase Preferred Securities and the number of Preferred
Securities with respect to which such default occurs is more than
one-tenth of the number of the Preferred Securities, the Offerors
shall have the right (a) to require the non-defaulting
Underwriters to purchase and pay for the respective number of
Preferred Securities that it had severally agreed to purchase
hereunder, and, in addition, the number of Preferred Securities
that the defaulting Underwriter shall have so failed to purchase
up to an amount thereof equal to one-ninth of the respective
number of Preferred Securities that such non-defaulting
Underwriters have otherwise agreed to purchase hereunder, and/or
(b) to procure one or more others, members of the NASD (or, if
not members of the NASD, who are foreign banks, dealers or
institutions not registered under the Exchange Act and who agree
in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
number of Preferred Securities that such defaulting Underwriter
had agreed to purchase, or that portion thereof that the
remaining Underwriters shall not be obligated to purchase
pursuant to the foregoing clause (a). In the event the Offerors
shall exercise its rights under clause (a) and/or (b) above, the
Offerors shall give written notice thereof to the Representatives
within 24 hours (excluding any Saturday, Sunday, or legal
holiday) of the time when the Offerors learn of the failure or
refusal of any Underwriter to purchase and pay for its respective
number of Preferred Securities, and thereupon the Closing Date
shall be postponed for such period, not exceeding three business
days, as the Offerors shall determine. In the event the Offerors
shall be entitled to but shall not elect (within the time period
specified above) to exercise its rights under clause (a) and/or
(b), the Offerors shall be deemed to have elected to terminate
this Underwriting Agreement. In the absence of such election by
the Offerors, this Underwriting Agreement will, unless otherwise
agreed by the Offerors and the non-defaulting Underwriters,
terminate without liability on the part of any non-defaulting
party except as otherwise provided in paragraph (g) of Section 6
and in Section 10. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
12. Termination. This Underwriting Agreement shall be
subject to termination by notice given by written notice from the
Representatives to the Offerors if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing
Date (i) trading of the Preferred Securities or trading in
securities generally shall have been suspended or materially
limited on the NYSE by The New York Stock Exchange, Inc., the
Commission or other governmental authority, (ii) minimum or
maximum ranges for prices shall have been generally established
on the NYSE by The New York Stock Exchange, Inc., the Commission
or other governmental authority, (iii) a general moratorium on
commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of
hostilities or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and (b) in the case
of any of the events specified in clauses (a)(i) through (iv),
such event singly or together with any other such event makes it,
in the reasonable judgment of the Representatives, impracticable
to market the Preferred Securities. This Underwriting Agreement
shall also be subject to termination, upon notice by the
Representatives as provided above, if, in the judgment of the
Representatives, the subject matter of any amendment or
supplement (prepared by the Offerors) to the Prospectus (except
for information relating solely to the manner of public offering
of the Preferred Securities, to the activity of the Underwriters
or to the terms of any series of securities of the Offerors other
than the Preferred Securities) filed or issued after the
effectiveness of this Underwriting Agreement by the Offerors
shall have materially impaired the marketability of the Preferred
Securities. Any termination hereof, pursuant to this Section 12,
shall be without liability of any party to any other party,
except as otherwise provided in paragraph (g) of Section 6 and in
Section 10.
13. Miscellaneous. THIS UNDERWRITING AGREEMENT SHALL BE A NEW
YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION SHALL BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This Underwriting
Agreement shall become effective when a fully executed copy
thereof is delivered to the Offerors and to the Representatives.
This Underwriting Agreement may be executed in any number of
separate counterparts, each of which, when so executed and
delivered, shall be deemed to be an original and all of which,
taken together, shall constitute but one and the same agreement.
This Underwriting Agreement shall inure to the benefit of each of
the Offerors, the Underwriters and, with respect to the
provisions of Section 9, each director, officer and other person
referred to in Section 9, and their respective successors.
Should any part of this Underwriting Agreement for any reason be
declared invalid, such declaration shall not affect the validity
of any remaining portion, which remaining portion shall remain in
full force and effect as if this Underwriting Agreement had been
executed with the invalid portion thereof eliminated. Nothing
herein is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of any provision in this
Underwriting Agreement. The term "successor" as used in this
Underwriting Agreement shall not include any purchaser, as such
purchaser, of any Preferred Securities from the Underwriters.
14. Notices. All communications hereunder shall be in writing
and, if to the Underwriters, shall be mailed or delivered to
Goldman, Sachs & Co. at the address set forth at the beginning of
this Underwriting Agreement (to the attention of its General
Counsel) or, if to the Offerors, shall be mailed or delivered to
it at 639 Loyola Avenue, New Orleans, Louisiana 70113, Attention:
Treasurer, or, if to Entergy Services, Inc., shall be mailed or
delivered to it at 639 Loyola Avenue, New Orleans, Louisiana
70113, Attention: Treasurer.
If the foregoing is in accordance with your
understanding, please sign and return to us counterparts of this
Underwriting Agreement, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this Underwriting Agreement
and such acceptance hereof, shall constitute a binding agreement
among each of the Underwriters, the Company and the Trust. It is
understood that your acceptance of this Underwriting Agreement on
behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company and the Trust
for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
Entergy Arkansas, Inc.
By:
Name:
Title:
Entergy Arkansas Capital I
By: Entergy Arkansas, Inc.,
as Depositor
By:
Name:
Title:
Accepted as of the date first above written:
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Smith Barney Inc.
Stephens Inc.
As representatives of the other several
Underwriters named in Schedule I hereto
By:
(Goldman, Sachs & Co.)
<PAGE>
SCHEDULE I
Entergy Arkansas Capital I
8 1/2% Cumulative Quarterly Income Preferred Securities, Series A
Number of
Underwriter Preferred
Securities
Goldman, Sachs & Co. 472,500
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 472,500
Smith Barney Inc. 472,500
Stephens Inc. 472,500
J.C. Bradford & Co. 30,000
Crews & Associates, Inc. 30,000
A.G. Edwards & Sons, Inc. 75,000
EVEREN Securities, Inc. 30,000
Legg Mason Wood Walker, Incorporated 30,000
McDonald & Company Securities, Inc. 30,000
Morgan Keegan & Company, Inc. 75,000
Olde Discount Corporation 30,000
Prudential Securities Incorporated 75,000
Raymond James & Associates, Inc. 30,000
Wheat, First Securities, Inc. 75,000
Total 2,400,000
<PAGE>
EXHIBIT A
[Letterhead of Friday, Eldredge & Clark]
August __, 1996
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Smith Barney Inc.
Stephens Inc.
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Ladies and Gentlemen:
We, together with Reid & Priest LLP, of New York, New
York, and Richards, Layton & Finger, P.A., Wilmington, Delaware,
have acted as counsel for Entergy Arkansas, Inc., an Arkansas
corporation (the "Company"), and Entergy Arkansas Capital I, a
statutory business trust organized under the laws of the State of
Delaware (the "Trust"), in connection with the issuance and sale
by the Trust to the several Underwriters pursuant to the
Underwriting Agreement, effective August __, 1996 (the
"Underwriting Agreement"), among the Company, the Trust and you,
as the representatives of the several Underwriters, of 2,400,000
__% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation preference $25 per preferred security) (the
"Preferred Securities"), guaranteed to the extent the Trust has
funds by the Company. This opinion is rendered to you at the
request of the Company and the Trust. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles
of Incorporation and Bylaws, each as amended; (b) the
Underwriting Agreement; (c) the Indenture; (d) the Trust
Agreement; (e) the Guarantee Agreement; (f) the Expense
Agreement; (g) the Registration Statement and Prospectus filed
under the Securities Act; (h) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Company Securities and the execution and delivery by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement and the Guarantee Agreement; and
(i) the proceedings before and the orders entered by the Public
Service Commissions of Arkansas and Tennessee and the Commission
under the 1935 Act relating to the issuance and sale of the
Securities. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. In such examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies. We
have not examined the Debentures, except a specimen thereof, and
we have relied upon a certificate of the Corresponding Debenture
Trustee as to the authentication and delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Arkansas, has due corporate power and authority to conduct the
business that it is described as conducting in the Prospectus, to
own and operate the properties owned and operated by it in such
business, to issue the Company Securities, to enter into and
perform its obligations under the Underwriting Agreement, the
Trust Agreement, the Indenture, the Expense Agreement, the
Guarantee Agreement and the Company Securities, to purchase, own,
and hold the Common Securities issued by the Trust and to
consummate the transactions therein contemplated, and is duly
qualified to conduct such business in the States of Arkansas,
Missouri and Tennessee.
(2) The statements made in the Prospectus under the
captions "Risk Factors", "Entergy Arkansas Capital I", "Certain
Terms of the Series A Preferred Securities", "Certain Terms of
the Series A Debentures", "The Issuers", "Description of Junior
Subordinated Debentures", "Description of Preferred Securities",
"Description of Guarantees", "Description of Corresponding Junior
Subordinated Debentures" and "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures and
the Guarantees" insofar as they purport to constitute summaries
of the documents referred to therein, constitute accurate
summaries of the terms of such documents in all material
respects.
(3) The Debentures have been duly and validly authorized by
all necessary corporate action on the part of the Company, and
are legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefits provided by the Indenture.
(4) The Indenture has been duly and validly authorized by
all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and is 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.
(5) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(6) The Expense Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company and is a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law).
(7) The Trust Agreement has been duly authorized, executed
and delivered by the Company; the Underwriting Agreement has been
duly authorized, executed and delivered by the Company on behalf
of itself and as depositor under the Trust Agreement; and the
Preferred Securities have been duly executed and delivered by an
Administrative Trustee.
(8) The Trust Agreement is duly qualified under the Trust
Indenture Act, and no proceedings to suspend such qualification
have been instituted or, to our knowledge, threatened by the
Commission.
(9) The issuance and sale by the Company of the Company
Securities and the execution, delivery and performance by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement and the Guarantee Agreement (a)
will not violate any provision of the Company's Amended and
Restated Articles of Incorporation or Bylaws, 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 us (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 our 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).
(10) Except in each case as to the financial statements and
other financial data included or incorporated by reference
therein, upon which we do not pass, the Registration Statement,
at the time it became effective, and the Prospectus, as of its
date, complied as to form in all material respects with the
applicable requirements of the Securities Act and (except with
respect to the Form T-1s, upon which we do not pass) the Trust
Indenture Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; 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; and the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act, and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
(11) Appropriate orders have been entered by the Public
Service Commissions of Arkansas and Tennessee and the Commission
under the 1935 Act authorizing the issuance and sale of the
Securities; to the best of our knowledge, said orders are 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, the Exchange Act and the
Trust Indenture Act, which have been duly obtained, or in
connection or compliance with the provisions of the securities or
blue sky laws of any jurisdiction) is legally required to permit
the issuance and sale of the Securities; and no further approval,
authorization, consent or other order of any governmental body is
legally required to permit the performance by the Trust of its
obligations with respect to the Preferred Securities, or by the
Company of its obligations with respect to the Company Securities
or under the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement or the Guarantee Agreement.
(12) All of the issued and outstanding Common Securities of
the Trust are owned of record by the Company.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and the Trust and information included or incorporated by
reference in the Registration Statement and the Prospectus and
take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraph (2) above.
In connection with the preparation by the Company and the Trust
of the Registration Statement and the Prospectus, we have had
discussions with certain of the officers and representatives of
the Company and the Trust, with other counsel for the Company and
the Trust, and with the independent certified public accountants
of the Company who examined certain of the financial statements
included or incorporated by reference in the Registration
Statement. Our examination of the Registration Statement and the
Prospectus and such discussions did not disclose to us any
information which gives us reason to believe that (i) the
Registration Statement, at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as
of its date and at the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, and (ii) the documents 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,
contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial data included or
incorporated by reference in the Registration Statement or the
Prospectus, as to the Form T-1s or as to the information
contained in the Prospectus under the caption "Certain United
States Federal Income Tax Considerations."
We have examined the opinions of even date herewith
rendered to you by Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts, and concur in the conclusions expressed therein
insofar as they involve questions of Arkansas law.
We are members of the Arkansas Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of New York law, we have relied, with your approval,
upon the opinion of even date herewith addressed to you by Reid &
Priest LLP of New York, New York, and, as to all matters of
Delaware law, we have relied, with your approval, upon the
opinion of even date herewith addressed to you by Richards,
Layton & Finger, P.A., of Wilmington, Delaware.
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 Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts may rely on this opinion as to all matters of
Arkansas law in rendering their opinions required to be delivered
under the Underwriting Agreement.
Very truly yours,
FRIDAY, ELDREDGE & CLARK
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
August __, 1996
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Smith Barney Inc.
Stephens Inc.
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We, together with Friday, Eldredge & Clark, Little
Rock, Arkansas, and Richards, Layton & Finger, P.A., Wilmington,
Delaware, have acted as counsel for Entergy Arkansas, Inc., an
Arkansas corporation (the "Company"), and Entergy Arkansas
Capital I, a statutory business trust organized under the laws of
the State of Delaware (the "Trust"), in connection with the
issuance and sale by the Trust to the several Underwriters
pursuant to the Underwriting Agreement, effective August __, 1996
(the "Underwriting Agreement"), among the Company, the Trust and
you, as the representatives of the several Underwriters, of
2,400,000 __% Cumulative Quarterly Income Preferred Securities,
Series A (liquidation preference $25 per preferred security) (the
"Preferred Securities"), guaranteed to the extent the Trust has
funds by the Company. This opinion is rendered to you at the
request of the Company and the Trust. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles
of Incorporation and Bylaws, each as amended; (b) the
Underwriting Agreement; (c) the Indenture; (d) the Trust
Agreement; (e) the Guarantee Agreement; (f) the Expense
Agreement; (g) the Registration Statement and Prospectus filed
under the Securities Act; (h) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Company Securities and the execution and delivery by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement and the Guarantee Agreement; and
(i) the proceedings before and the orders entered by the Public
Service Commissions of Arkansas and Tennessee and the Commission
under the 1935 Act relating to the issuance and sale of the
Securities. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. In such examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies.
We have not examined the Debentures, except a specimen thereof,
and we have relied upon a certificate of the Corresponding
Debenture Trustee as to the authentication and delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(13) The Indenture has been duly and validly authorized by
all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and is duly qualified under the Trust Indenture Act,
and no proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the Commission.
(14)
(14) The Debentures have been duly and validly authorized by
all necessary corporate action on the part of the Company, and
are legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefits provided by the Indenture.
(15) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(16) The Expense Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company and is a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law).
(17) The Trust Agreement is duly qualified under the Trust
Indenture Act, and no proceedings to suspend such qualification
have been instituted or, to our knowledge, threatened by the
Commission.
(18) The statements made in the Prospectus under the
captions "Risk Factors", "Entergy Arkansas Capital I", "Certain
Terms of the Series A Preferred Securities", "Certain Terms of
the Series A Debentures", "The Issuers", "Description of Junior
Subordinated Debentures", "Description of Preferred Securities",
"Description of Guarantees", "Description of Corresponding Junior
Subordinated Debentures" and "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures and
the Guarantees" insofar as they purport to constitute summaries
of the documents referred to therein, constitute accurate
summaries of the terms of such documents in all material
respects.
(19) The statements made in the Prospectus under the caption
"Certain United States Federal Income Tax Considerations"
constitute a fair and accurate summary of the matters addressed
therein, based upon current law and the assumptions stated or
referred to therein.
(20) The Trust is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(21) Except in each case as to the financial statements and
other financial data included or incorporated by reference
therein, upon which we do not pass, the Registration Statement,
at the time it became effective, and the Prospectus, as of its
date, complied as to form in all material respects with the
applicable requirements of the Securities Act and (except with
respect to the Form T-1s, upon which we do not pass) the Trust
Indenture Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; 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; and the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
(22) Appropriate orders have been entered by the Public
Service Commissions of Arkansas and Tennessee and the Commission
under the 1935 Act authorizing the issuance and sale of the
Securities; to the best of our knowledge, said orders are 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, the Exchange Act and the
Trust Indenture Act, which have been duly obtained, or in
connection or compliance with the provisions of the securities or
blue sky laws of any jurisdiction) is legally required to permit
the issuance and sale of the Securities; and no further approval,
authorization, consent or other order of any governmental body is
legally required to permit the performance by the Trust of its
obligations with respect to the Preferred Securities, or by the
Company of its obligations with respect to the Company Securities
or under the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement or the Guarantee Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and the Trust and information included or incorporated by
reference in the Registration Statement and the Prospectus and
take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraphs (6) and
(7) above. In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, we
have had discussions with certain officers and representatives of
the Company and the Trust, with other counsel for the Company and
the Trust, and with the independent certified public accountants
of the Company who examined certain of the financial statements
included or incorporated by reference in the Registration
Statement. Our examination of the Registration Statement and the
Prospectus and such discussions did not disclose to us any
information which gives us reason to believe that the
Registration Statement, at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as
of its date and at the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial data included or
incorporated by reference in the Registration Statement or the
Prospectus or as to the Form T-1s.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of Arkansas law, we have, with your consent, relied
upon the opinion of even date herewith of Friday, Eldredge &
Clark, counsel for the Company, and, as to all matters of
Delaware law, we have, with your consent, relied upon the opinion
of even date herewith of Richards, Layton & Finger, P.A.,
Wilmington, Delaware, special Delaware counsel for the Offerors.
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 Friday, Eldredge & Clark, Little Rock,
Arkansas, may rely on this opinion as to all matters of New York
law in rendering their opinion required to be delivered under the
Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Richards, Layton & Finger, P.A.]
August __, 1996
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Smith Barney Inc.
Stephens Inc.
As representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement
referred to below
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We have acted as special Delaware counsel for Entergy
Arkansas, Inc., an Arkansas corporation (the "Company"), and
Entergy Arkansas Capital I, a Delaware business trust (the
"Trust"), in connection with the matters set forth herein. At
your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(b) The Certificate of Trust of the Trust, dated as of May
13, 1996 (the "Certificate"), as filed in the office of the
Secretary of State of the State of Delaware (the "Secretary of
State") on May 13, 1996;
(c)
(c) The Trust Agreement of the Trust, dated as of May 13,
1996 among the Company, as depositor, and the trustees of the
Trust named therein;
(d) The Amended and Restated Trust Agreement of the Trust,
dated as of August 14, 1996 (including Exhibits A, B and D
thereto) (the "Trust Agreement"), among the Company, as
depositor, The Bank of New York, as property trustee, The Bank of
New York (Delaware), as Delaware trustee, William J. Regan, Jr.,
Steven C. McNeal and Frank Williford IV (each, an "Administrative
Trustee" and collectively, the "Administrative Trustees") and the
holders, from time to time, of undivided beneficial interests in
the assets of the Trust;
(e) The Underwriting Agreement, dated August __, 1996 (the
"Underwriting Agreement"), among the Trust, the Company and you,
as Representatives of the several underwriters named in Schedule
I to the Underwriting Agreement;
(f) The Prospectus, dated July 23, 1996 (the "Prospectus")
and the Prospectus Supplement, dated August __, 1996 (the
"Prospectus Supplement"), relating to 2,400,000 __% Cumulative
Quarterly Income Preferred Securities, Series A, of the Trust
representing preferred undivided beneficial interests in the
assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"); and
(g) A Certificate of Good Standing for the Trust, dated
August __, 1996, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined
are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (f) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our
own, but rather have relied solely upon the foregoing documents,
the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Trust Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Trust, and that the Trust Agreement and the Certificate
are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph (1) below, the due
creation, due organization or due formation, as the case may be,
and valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the
legal capacity of each natural person who is a party to the
documents examined by us, (iv) except to the extent provided in
paragraph (2) below, that each of the parties to the documents
examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents,
(v) except to the extent provided in paragraph (9) below, that
each of the parties to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Preferred Security is to be
issued by the Trust (the "Preferred Security Holders") of a
Preferred Securities Certificate for the Preferred Security and
the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement, and as described in the
Prospectus and the Prospectus Supplement, (vii) that the
Preferred Securities are issued and sold to the Preferred
Security Holders in accordance with the Trust Agreement, and as
described in the Prospectus and the Prospectus Supplement, (viii)
the receipt by the Person (the "Common Security Holder") to whom
a __% Common Security of the Trust representing common undivided
beneficial interests in the assets of the Trust (each, a "Common
Security" and collectively, the "Common Securities") (the
Preferred Securities and the Common Securities being hereinafter
collectively referred to as the "Trust Securities") is to be
issued by the Trust of a Common Securities Certificate for the
Common Security and the payment for the Common Security acquired
by it, in accordance with the Trust Agreement, and as described
in the Prospectus and the Prospectus Supplement, and (ix) that
the Common Securities are issued and sold to the Common Security
Holder in accordance with the Trust Agreement, and as described
in the Prospectus and the Prospectus Supplement. We have not
participated in the preparation of the Prospectus or the
Prospectus Supplement and assume no responsibility for their
contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
(1) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business
Trust Act, and all filings required under the Delaware Business
Trust Act with respect to the creation and valid existence of the
Trust as a business trust have been made.
(2) Under the Trust Agreement and the Delaware Business
Trust Act, the Trust has the trust power and authority (i) to own
property and conduct its business, all as described in the
Prospectus and the Prospectus Supplement, (ii) to issue and sell
the Trust Securities in accordance with the Trust Agreement, and
as described in the Prospectus and the Prospectus Supplement, and
to perform its other obligations under the Trust Agreement, the
Underwriting Agreement and the Trust Securities, (iii) to execute
and deliver the Underwriting Agreement, and (iv) to consummate
the transactions contemplated by the Underwriting Agreement.
(3) The Trust Agreement constitutes a valid and binding
obligation of the Company and the Administrative Trustees, and is
enforceable against the Company and the Administrative Trustees,
in accordance with its terms.
(4) The Common Securities have been duly authorized by the
Trust Agreement and are duly and validly issued undivided
beneficial interests in the assets of the Trust.
(5) The Preferred Securities have been duly authorized by
the Trust Agreement and are duly and validly issued and, subject
to the qualifications set forth in paragraph (6) below, fully
paid and nonassessable undivided beneficial interests in the
assets of the Trust.
(6) The Preferred Security Holders, as beneficial owners of
the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State
of Delaware. We note that the Preferred Security Holders may be
obligated, pursuant to the Trust Agreement, (i) to provide
indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of
Preferred Securities Certificates and the issuance of replacement
Preferred Securities Certificates, and (ii) to provide security
or indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the
Trust Agreement.
(7) Under the Trust Agreement and the Delaware Business
Trust Act, the issuance of the Trust Securities is not subject to
preemptive rights.
(8) The issuance and sale by the Trust of the Trust
Securities and the execution, delivery and performance by the
Trust of the Underwriting Agreement and the consummation of the
transactions contemplated by the Underwriting Agreement do not
violate (a) the Certificate or the Trust Agreement or (b) any
applicable Delaware law, rule or regulation.
(9) Under the Trust Agreement and the Delaware Business
Trust Act, (i) the issuance and sale by the Trust of the Trust
Securities and the execution and delivery by the Trust of the
Underwriting Agreement, and the performance by the Trust of its
obligations thereunder, have been duly authorized by all
necessary trust action on the part of the Trust and (ii) assuming
the due authorization, execution and delivery of the Underwriting
Agreement by the Company as depositor under the Trust Agreement
on behalf of the Trust and of the Preferred Securities
Certificates for the Preferred Securities by an Administrative
Trustee on behalf of the Trust, the Underwriting Agreement and
the Preferred Securities Certificates have been duly executed and
delivered by the Trust.
The opinion expressed in paragraph (3) above is
subject, as to enforcement, to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent transfer
and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless
of whether considered and applied in a proceeding in equity or at
law) and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with the Underwriting
Agreement. We also consent to the reliance upon this opinion as
to matters of Delaware law by Friday, Eldredge & Clark, Reid &
Priest LLP, and Winthrop, Stimson, Putnam & Roberts, as if it
were addressed to each of them, in rendering their opinions to
you of even date herewith. Except as stated above, without our
prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER, P.A.
<PAGE>
EXHIBIT D
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
August __, 1996
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Smith Barney Inc.
Stephens Inc.
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We have acted as counsel for the several Underwriters
of 2,400,000 __% Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per preferred
security) (the "Preferred Securities"), issued by Entergy
Arkansas Capital I, a statutory business trust organized under
the laws of the State of Delaware (the "Trust"), pursuant to the
agreement among you, as the representatives of the several
Underwriters, Entergy Arkansas, Inc., an Arkansas corporation
(the "Company"), and the Trust effective August __, 1996 (the
"Underwriting Agreement").
We are members of the New York Bar and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon (i)
an opinion of even date herewith addressed to you of Friday,
Eldredge & Clark, counsel for the Company and the Trust, as to
the matters covered in such opinion relating to Arkansas law and
(ii) an opinion of even date herewith addressed to you of
Richards, Layton & Finger, P.A., special Delaware counsel for the
Company and the Trust, as to the matters covered in such opinion
relating to Delaware law. We have reviewed said opinions and
believe that they are satisfactory. We have also reviewed the
opinion of Reid & Priest LLP required by Section 7(d) of the
Underwriting Agreement, and we believe said opinion to be
satisfactory.
We have also reviewed such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon
representations of the Company and the Trust and statements in
the Registration Statement. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, and the correctness of all statements of fact
contained in all such original or copied documents. We have not
examined the certificates representing the Preferred Securities
or the Debentures except in each case for specimens thereof, and
we have relied upon a certificate of an Administrative Trustee as
to the execution and delivery of the Preferred Securities and a
certificate of the Corresponding Debenture Trustee as to the
authentication and delivery of the Debentures. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(10) The Preferred Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and fully paid
and nonassessable undivided beneficial interests in the assets of
the Trust. The holders of the Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
holders of the Preferred Securities may be obligated, pursuant to
the Trust Agreement, (i) to provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities certificates
and the issuance of replacement Preferred Securities
certificates, and (ii) to provide security or indemnity in
connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
(11)
(11) The Indenture has been duly and validly authorized by all
necessary corporate action on the part of the Company, has been
duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and, to the best of our knowledge, the Indenture is duly
qualified under the Trust Indenture Act, and no proceedings to
suspend such qualification have been instituted or threatened by
the Commission.
(12) The statements made in the Prospectus under the captions
"Certain Terms of the Series A Preferred Securities", "Certain
Terms of the Series A Debentures", "Underwriting", "Description
of Junior Subordinated Debentures", "Description of Preferred
Securities", "Description of Guarantees", "Description of
Corresponding Junior Subordinated Debentures", "Relationship
Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees" and "Plan of
Distribution" 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.
(13) The Debentures have been duly and validly authorized by
all necessary corporate action on the part of the Company, and
are legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting creditors' rights and general
equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law), and are entitled
to the benefits provided by the Indenture.
(14) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or
at law), and, to the best of our knowledge, the Guarantee
Agreement is duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted or
threatened by the Commission.
(15) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(16) Appropriate orders have been issued by the Public Service
Commissions of Arkansas and Tennessee and the Commission under
the 1935 Act authorizing the issuance and sale of the Securities,
and to the best of our knowledge, such orders are 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, the Exchange Act and the
Trust Indenture Act, which have been duly obtained, or in
connection or compliance with the provisions of the securities or
blue sky laws of any jurisdiction) is legally required to permit
the issuance and sale of the Securities.
(17) Except in each case as to the financial statements and
other financial data included or incorporated by reference
therein, upon which we do not pass, the Registration Statement,
at the time it became effective, and the Prospectus, as of its
date, complied as to form in all material respects with the
applicable requirements of the Securities Act and (except with
respect to the Form T-1s, upon which we do not pass) the Trust
Indenture Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; 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; and, to the best of
our knowledge, the Registration Statement has become, and on the
date hereof is, effective under the Securities Act and no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and the Trust and the information included or
incorporated by reference in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in paragraph (3)
hereof. In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, we
had discussions with certain officers, employees and
representatives of the Company, the Trust and Entergy Services,
Inc., with counsel for the Company and the Trust, and with your
representatives. Our review of the Registration Statement and
the Prospectus, and such discussions, did not disclose to us any
information that gives us reason to believe that the Registration
Statement, at the Effective Date, contained an untrue statement
of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date and at the
date hereof, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
We do not express any opinion or belief as to the financial
statements or other financial data included or incorporated by
reference in the Registration Statement or Prospectus, as to the
Form T-1s or as to the information contained in the Prospectus
under the caption "Certain United States Federal Income Tax
Considerations."
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT E
ITEMS PURSUANT TO SECTION 7(g)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Page Items
Quarterly Report on Form 10-
Q for the quarter ended
June 30, 1996
"MANAGEMENT'S FINANCIAL` 4 The amounts of first
DISCUSSION AND ANALYSIS, mortgage bonds and
LIQUIDITY AND CAPITAL preferred stock issuable
RESOURCES" by the Company at June
30, 1996 based upon the
Company's most
restrictive applicable
tests and the assumed
annual interest and
dividend rates stated
therein.
"MANAGEMENT'S FINANCIAL 25 The amounts of electric
DISCUSSION AND ANALYSIS, operating revenues (by
RESULTS OF OPERATIONS" source) for the three
month periods ended June
30, 1996 and 1995.
EXHIBIT F-1(a)
[Letterhead of Friday Eldredge & Clark]
August 22, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration
("Application-Declaration") on Form U-1, as amended (File
No. 70-8723), filed by Entergy Arkansas, Inc. (formerly
Arkansas Power & Light Company, and herein referred to as
the "Company") with the Securities and Exchange Commission
("Commission") under the Public Utility Holding Company Act
of 1935, as amended, contemplating, among other things, the
issuance and sale by the Company, through a special purpose
subsidiary, of one or more new series of such subsidiary's
preferred securities, as well as the issuance and sale of
such subsidiary's common securities to the Company, the
guarantee by the Company of such subsidiary's payment
obligations under said preferred securities, and the
investment of the proceeds from the issuance and sale of
such subsidiary's preferred and common securities in junior
subordinated deferrable interest debentures of the Company
(collectively, the "Transactions"); (2) the Commission's
order dated January 18, 1996 ("Order") permitting the
Application-Declaration, as amended, to become effective
with respect to said Transactions; and (3) the issuance
and sale by the Company's subsidiary, a Delaware business
trust, Entergy Arkansas Capital I (the "Trust"), on August
14, 1996 of 2,4000,000 8 1/2% Cumulative Quarterly Income
Preferred Securities, Series A ($60,000,000 in aggregate
liquidation amount) (the "Preferred Securities"), and 74,227
8 1/2% Common Securities ($1,855,675 in aggregate liquidation
amount) (the "Common Securities") (the Preferred Securities
and Common Securities, collectively referred to as the
"Securities"), the execution and delivery by the Company of
a guarantee of the Trust's payment obligations under the
Preferred Securities (the "Guarantee"), and the investment
by the Trust of the proceeds from the issuance and sale of
the Securities in $61,855,675 in aggregate principal amount
of the Company's 8 1/2% Junior Subordinated Deferrable Interest
Debentures, Series A, due September 30, 2045 (the
"Debentures"), we advise you that in our opinion:
(a) the Company is a corporation duly
organized and validly existing under the laws of
the State of Arkansas;
(b) the issuance and sale of the Securities
and the execution and delivery of the Guarantee
have been consummated in accordance with the
Application-Declaration, as amended, and the
Order;
(c) all state laws that relate or are
applicable to the issuance and sale of the
Securities and the execution and delivery of the
Guarantee (other than so-called "blue sky" or
similar laws, with respect to which we express no
opinion) have been complied with;
(d) the Securities are valid and binding
obligations of the Trust and the Guarantee is a
valid and binding obligation of the Company, each
in accordance with their terms, except as limited
by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of mortgagees'
and other creditors' rights; and
(e) the consummation of the issuance and
sale of the Securities and of the execution and
delivery of the Guarantee has not violated the
legal rights of the holders of any securities
issued by the Company.
We are members of the Arkansas Bar and do not hold
ourselves out as experts on the laws of any other state. In
giving this opinion, we have relied, as to all matters
governed by the laws of the State of New York, upon the
opinion of Reid & Priest LLP, New York counsel for the
Company, and as to all matters governed by the laws of the
State of Delaware, upon the opinion of Richards, Layton &
Finger, P.A., Delaware counsel for the Company, which are to
be filed as exhibits to the Certificate pursuant to Rule 24.
Our consent is hereby given to the use of this opinion
as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Friday, Eldredge & Clark
Friday, Eldredge & Clark
New York, New York
August 26, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration
("Application-Declaration") on Form U-1, as amended (File No.
70-8723), filed by Entergy Arkansas, Inc. (formerly Arkansas
Power & Light Company, and herein referred to as the
"Company") with the Securities and Exchange Commission
("Commission") under the Public Utility Holding Company Act of
1935, as amended, contemplating, among other things, the
issuance and sale by the Company, through a special purpose
subsidiary, of one or more new series of such subsidiary's
preferred securities, as well as the issuance and sale of such
subsidiary's common securities to the Company, the guarantee
by the Company of such subsidiary's payment obligations under
said preferred securities, and the investment of the proceeds
from the issuance and sale of such subsidiary's preferred and
common securities in junior subordinated deferrable interest
debentures of the Company (collectively, the "Transactions");
(2) the Commission's order dated January 18, 1996 ("Order")
permitting the Application-Declaration, as amended, to become
effective with respect to said Transactions; and (3) the
issuance and sale by the Company's subsidiary, a Delaware
business trust, Entergy Arkansas Capital I (the "Trust"), on
August 14, 1996 of 2,400,000 8 1/2% Cumulative Quarterly Income
Preferred Securities, Series A ($60,000,000 in aggregate
liquidation amount) (the "Preferred Securities"), and of
74,227 8 1/2% Common Securities ($1,855,675 in aggregate
liquidation amount) (the "Common Securities") (the Preferred
Securities and the Common Securities, collectively referred to
as the "Securities"), the execution and delivery by the
Company of a guarantee of the Trust's payment obligations
under the Preferred Securities (the "Guarantee"), and the
investment by the Trust of the proceeds from the issuance and
sale of the Securities in $61,855,675 in aggregate principal
amount of the Company's 8 1/2% Junior Subordinated Deferrable
Interest Debentures, Series A, due September 30, 2045 (the
"Debentures"), we advise you that in our opinion:
(a) the Company is a corporation duly
organized and validly existing under the laws of the
State of Arkansas; the Trust has been duly created
and is validly existing in good standing as a
business trust under the laws of the State of
Delaware;
(b) the issuance and sale of the Securities
and the execution and delivery of the Guarantee have
been consummated in accordance with the Application-
Declaration, as amended, and the Order;
(c) all state laws that relate or are
applicable to the issuance and sale of the
Securities and the execution and delivery of the
Guarantee (other than so-called "blue sky" or
similar laws, with respect to which we express no
opinion) have been complied with;
(d) the Securities are valid and binding
obligations of the Trust and the Guarantee is a
valid and binding obligation of the Company, each in
accordance with their terms, except as limited by
bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of mortgagees'
and other creditors' rights; and
(e) the consummation of the issuance and sale
of the Securities and of the execution and delivery
of the Guarantee has not violated the legal rights
of the holders of any securities issued by the
Company or any associate company thereof.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. In
giving this opinion, we have relied, as to all matters
governed by the laws of the State of Arkansas, upon the
opinion of Friday, Eldredge & Clark, Arkansas counsel for the
Company, and as to all matters governed by the laws of the
State of Delaware, upon the opinion of Richards, Layton &
Finger, P.A., Delaware counsel for the Company, which are to
be filed as exhibits to the Certificate pursuant to Rule 24.
Our consent is hereby given to the use of this
opinion as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
Exhibit F-3 (a)
[Letterhead of Richards, Layton & Finger]
August 26, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Entergy Arkansas, Inc.
Application on Form U-1
SEC File No. 70-8723
Ladies and Gentlemen:
We have acted as special Delaware counsel for
Entergy Arkansas, Inc.(formerly Arkansas Power & Light
Company), an Arkansas corporation (the "Company"), and
Entergy Arkansas Capital I, a Delaware business trust (the
"Trust"), in connection with the matters set forth herein.
At the Trust's and the Company's request, this opinion is
being furnished to you.
The Application (as defined below) contemplates,
among other things, the issuance and sale by the Company,
through a special purpose subsidiary, of one or more new
series of such subsidiary's preferred securities, as well as
the issuance and sale of such subsidiary's common securities
to the Company, the guarantee by the Company of such
subsidiary's payment obligations under said preferred
securities, and the investment of the proceeds from the
issuance and sale of such subsidiary's preferred and common
securities in junior subordinated deferrable interest
debentures of the Company. This opinion relates to the
issuance and sale by the Trust on August 14, 1996, of
2,400,000 8 1/2% Cumulative Quarterly Income Preferred
Securities, Series A ($60,000,000 in aggregate liquidation
amount) (each, a "Preferred Security" and collectively, the
"Preferred Securities"), and 74,227 8 1/2% Common Securities
($1,855,675 in aggregate liquidation amount) (each, a "Common
Security" and collectively, the "Common Securities") (the
Preferred Securities and the Common Securities being
collectively referred to as the "Securities"), the execution
and delivery by the Company of a Guarantee Agreement, dated
as of August 14, 1996, between the Company and The Bank of
New York, as trustee, and the investment by the Trust of the
proceeds from the issuance and sale of the Securities in
$61,855,675 in aggregate principal amount of the Company's
8 1/2% Junior Subordinated Deferrable Interest Debentures,
Series A, due September 30, 2045.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
a) The Certificate of Trust of the Trust, dated as of
May 13, 1996 (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the
"Secretary of State") on May 13, 1996;
b) The Trust Agreement of the Trust, dated as of May
13, 1996, among the Company, as Depositor, and the trustees
of the Trust named therein;
c) The Amended and Restated Trust Agreement of the
Trust, dated as of August 14, 1996, among the Company, as
Depositor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, B and D
thereto) (the "Trust Agreement");
d) The Application on Form U-1, dated October 20, 1995
(without exhibits, the "Original Application") under the
Public Utility Holding Company Act of 1935, as amended, filed
by the Company with the Securities and Exchange Commission
and docketed in SEC File No. 70-8723, as amended by Amendment
No. 1 to the Original Application, dated November 20, 1995
(without exhibits, the "Amendment") (the Original Application
as amended by the Amendment being referred to as the
"Application"); and
e) A Certificate of Good Standing for the Trust, dated
August 26, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and
not otherwise defined are used as defined in the Trust
Agreement.
For purposes of this opinion, we have not
reviewed any documents other than the documents listed in
paragraphs (a) through (e) above. In particular, we have not
reviewed any document (other than the documents listed in
paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us.
We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied
solely upon the foregoing documents, the statements and
information set forth therein and the additional matters
recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us,
we have assumed (i) the authenticity of all documents
submitted to us as authentic originals, (ii) the conformity
with the originals of all documents submitted to us as copies
or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed
(i) that the Trust Agreement and the Certificate are in full
force and effect and have not been amended, (ii) except to
the extent provided in paragraph 1 below, the due creation or
due organization or due formation, as the case may be, and
valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to
the documents examined by us has the power and authority to
execute and deliver, and to perform its obligations under,
such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for
the Preferred Security acquired by it, in accordance with the
Trust Agreement, (vii) that the Preferred Securities have
been issued and sold to the Preferred Security Holders in
accordance with the Trust Agreement, (viii) the receipt by
the Person (the "Common Security Holder") (the Preferred
Security Holders and the Common Security Holder being
collectively referred to as the "Security Holders") to whom a
Common Security is to be issued by the Trust of a Common
Securities Certificate for the Common Security and the
payment for the Common Security acquired by it, in accordance
with the Trust Agreement, (ix) that the Common Securities
have been issued and sold to the Common Security Holder in
accordance with the Trust Agreement, and (x) that neither the
Trust nor the Company derives income from or connected with
sources within the State of Delaware or has any assets,
activities (other than the Trust's having a Delaware trustee
as required by the Delaware Business Trust Act and the filing
of documents with the Secretary of State) or employees in the
State of Delaware. We have not participated in the
preparation of the Application and assume no responsibility
for its contents.
This opinion is limited to the laws of the
State of Delaware (excluding the securities laws of the State
of Delaware), and we have not considered and express no
opinion on the laws of any other jurisdiction, including
federal laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and
rules, regulations and orders thereunder which are currently
in effect.
Based upon the foregoing, and upon our
examination of such questions of law and statutes of the
State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the
opinion that:
The Trust has been duly created and is validly
existing in good standing as a business trust under the laws
of the State of Delaware.
The Preferred Securities issued to the Preferred
Security Holders have been duly authorized by the Trust
Agreement and are validly issued and, subject to the
qualifications set herein, are fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
The Preferred Security Holders, as beneficial owners of the
Trust, are entitled to the same limitation of personal
liability extended to stockholders of private corporations
for profit organized under the General Corporation Law of the
State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the
Trust Agreement. The Common Securities have been duly
authorized by the Trust Agreement and are validly issued
undivided beneficial interests in the assets of the Trust.
All laws of the State of Delaware that relate or
are applicable to the issuance and sale of the Securities
have been complied with.
The Securities are valid and binding obligations of
the Trust in accordance with their terms.
The opinion expressed in paragraph 4 above is
subject to (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent
transfer or conveyance and similar laws relating to or
affecting the rights and remedies of creditors generally, and
(ii) principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law). In
rendering the opinions expressed herein, we express no
opinion regarding applicable law relating to fiduciary
duties.
We consent to the filing of this opinion with
the Securities and Exchange Commission in connection with the
Application. We also consent to Friday, Eldredge & Clark's
and Reid & Priest LLP's relying as to matters of Delaware law
upon this opinion in connection with opinions to be rendered
by them to you in connection with the Application. Except as
stated above, without our prior written consent, this opinion
may not be furnished or quoted to, or relied upon by, any other
Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger P.A.
Richards, Layton & Finger P.A.
