As filed with the Securities and Exchange Commission on June 3, 1996
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
ENTERGY ARKANSAS CAPITAL I
ENTERGY ARKANSAS, INC. ENTERGY ARKANSAS CAPITAL II
(Exact name of registrant as ENTERGY ARKANSAS CAPITAL III
specified in its charter) (Exact name of each registrant
as specified in Trust
Arkansas Agreements)
(State or other jurisdiction of
incorporation or organization) Delaware
(State or other jurisdiction of
72-0245590 incorporation or organization
(I.R.S. Employer Identification of each registrant)
Number)
Each to be Applied for
425 West Capitol Avenue (I.R.S. Employer Identification
Little Rock, Arkansas 72201 Numbers)
(501) 377-4000
(Address, including zip code, and c/o Entergy Arkansas, Inc.
telephone number, including 639 Loyola Avenue
area code, of registrant's New Orleans, Louisiana 70113
principal executive offices) 504-576-4308
(Address, including zip code,
and telephone number, including
area code, of each registrants'
principal executive offices)
R. DRAKE KEITH WILLIAM J. REGAN, JR.
President Vice President and Treasurer
Entergy Arkansas, Inc. Entergy Arkansas, Inc.
425 West Capitol Avenue 639 Loyola Avenue
Little Rock, Arkansas New Orleans, Louisiana 70113
501-377-4000 504-576-4308
LAURENCE M. HAMRIC, Esq. THOMAS J. IGOE, JR., Esq.
DENISE C. REDMANN, Esq. KEVIN STACEY, Esq.
Entergy Services, Inc. Reid & Priest LLP
639 Loyola Avenue 40 West 57th Street
New Orleans, Louisiana 70113 New York, New York 10019
504-576-2272 212-603-2000
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective when
warranted by market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
__________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]__________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate Amount of
securities being registered registered per unit(1) offering price(1) registration fee
<S> <C> <C> <C> <C>
Entergy Arkansas,Inc. Junior
Subordinated Deferrable Interest
Debentures
Entergy Arkansas Capital I, II and
III Preferred Securities
Entergy Arkansas,Inc. Guarantees
with respect to Entergy Arkansas
Capital I, II and III Preferred
Securities and Entergy Arkansas,
Inc. obligations with respect to
such Preferred Securities under a
Corresponding Indenture, Amended
and Restated Trust Agreements and
Expense Agreements
Total $150,000,000(2) 100% $150,000,000(2) $51,725
(1)Estimated solely for the purpose of computing the registration fee.
(2)Such amount represents the principal amount of the Junior Subordinated
Deferrable Interest Debentures. Such amount also represents the
proposed maximum aggregate initial public offering price of the Entergy
Arkansas Capital I, II and III Preferred Securities. No separate
consideration will be received for any Entergy Arkansas, Inc.
Guarantees and other obligations.
__________________
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 3, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED ___________________
__________________________ Preferred Securities
ENTERGY ARKANSAS CAPITAL I
___% Cumulative Quarterly Income Preferred Securities, Series A (QUIPSsm)*
(Liquidation preference $25 per preferred security)
Guaranteed to the extent the Series A Issuer has funds as set forth herein
by
ENTERGY ARKANSAS, INC.
The ___% Cumulative Quarterly Income Preferred Securities, Series A
(the "Series A Preferred Securities") offered hereby represent undivided
beneficial interests in the assets of Entergy Arkansas Capital I, a trust
created under the laws of the State of Delaware (the "Series A Issuer").
Entergy Arkansas, Inc. (formerly Arkansas Power & Light Company), an
Arkansas corporation (the "Company"), will be the owner of the beneficial
interests represented by common securities of the Series A Issuer (the
"Series A Common Securities"). The Bank of New York is the Property
Trustee of the Series A Issuer. The Series A Issuer exists for the sole
purpose of issuing the Series A Preferred Securities and the Series A
Common Securities and investing the proceeds thereof in ___% Junior
Subordinated Deferrable Interest Debentures, Series A, Due _____ (the
"Series A Debentures") to be issued by the Company. The Series A
Preferred Securities will have a preference under certain circumstances
with respect to cash distributions and amounts payable on liquidation,
redemption or otherwise over the Series A Common Securities. See
"Description of Preferred Securities--Subordination of Common Securities"
in the accompanying Prospectus.
(Continued on next page)
__________
SEE "RISK FACTORS" BEGINNING ON PAGE S-___ HEREOF FOR CERTAIN INFORMATION
RELEVANT TO INVESTMENT IN THE SERIES A PREFERRED SECURITIES.
___________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS TO WHICH IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
__________
Proceeds to
Initial Public Underwriting the Series A
Offering Price Commission (1) Issuer (2)(3)
Per Series A Preferred Security (2)
Total (2)
__________
(1) The Series A Issuer and the Company have agreed to
indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities
Act of 1933, as amended. See "Underwriting" .
(2) In view of the fact that the proceeds of the sale of the
Series A Preferred Securities will be used to purchase the
Series A Debentures, the Underwriting Agreement provides
that the Company will pay to the Underwriters, as
compensation ("Underwriters' Compensation") for their
arranging the investment therein of such proceeds, $_____
per Series A Preferred Security (or $ __ in the
aggregate). See "Underwriting" .
(3) Expenses of the offering, which are payable by the
Company, are estimated to be $________.
__________
The Series A Preferred Securities offered hereby are offered severally
by the Underwriters, as specified herein and subject to receipt and
acceptance by them and subject to their right to reject any order in whole
or in part. It is expected that delivery of the Series A Preferred
Securities will be made only in book entry form through the facilities of
The Depository Trust Company in New York, New York on or about ___________,
1996, against payment therefor in immediately available funds.
__________
*QUIPS is a servicemark of Goldman, Sachs & Co.
_________
Goldman, Sachs & Co.
The date of this Prospectus Supplement is _____________________.
<PAGE>
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes
effective. This Prospectus Supplement and the accompanying
Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation
or sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
<PAGE>
F1(Continued from previous page)
Holders of the Series A Preferred Securities will be entitled to receive
preferential cumulative cash distributions accruing from the date of original
issuance and payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing _____, 1996, at the annual rate of ___% of
the liquidation preference of $25 per Series A Preferred Security
("Distributions"). The Company has the right to defer the payment of interest
on the Series A Debentures at any time or from time to time for one or more
periods (each, an "Extension Period"), provided that such Extension Period,
together with all previous and further extensions thereof prior to its
termination, does not exceed 20 consecutive quarters and does not extend beyond
the maturity of the Series A Debentures. Upon the termination of any such
Extension Period and the payment of all amounts then due, the Company may elect
to begin a new Extension Period subject to the requirements set forth herein.
If interest payments are so deferred, Distributions on the Series A Preferred
Securities will also be deferred and the Company will not be permitted, subject
to certain exceptions set forth herein, to declare or pay any cash distributions
with respect to the Company's capital stock or debt securities that rank pari
passu with or junior to the Series A Debentures or make any guarantee payments
with respect to the foregoing. During an Extension Period, interest on the
Series A Debentures will continue to accrue (and the Series A Preferred
Securities will accumulate additional Distributions thereon at the rate of ___%
per annum, compounded quarterly), and holders of Series A Preferred Securities
will be required to accrue interest income for United States Federal income tax
purposes. See "Certain Terms of the Series A Debentures--Option to Extend
Interest Payment Period" and "Certain United States Federal Income Tax
Considerations--Potential Extension of Interest Payment Period and Original
Issue Discount".
The Company has, through the Series A Guarantee, the Series A Trust
Agreement, the Series A Debentures, the Corresponding Indenture and the Series A
Expense Agreement (each as defined herein), taken together, fully, irrevocably
and unconditionally guaranteed all of the Series A Issuer's obligations under
the Series A Preferred Securities. The Series A Guarantee of the Company
guarantees the payment of Distributions and payments on liquidation of the
Series A Issuer or redemption of the Series A Preferred Securities as set forth
below, in each case out of funds held by the Series A Issuer, to the extent
described herein (the "Series A Guarantee"). See "Description of Guarantees" in
the accompanying Prospectus. If the Company does not make interest payments on
the Series A Debentures held by the Series A Issuer, the Series A Issuer will
have insufficient funds to pay Distributions on the Series A Preferred
Securities. The Series A Guarantee does not cover payment of Distributions when
the Series A Issuer does not have sufficient funds to pay such Distributions.
The obligations of the Company under the Series A Guarantee are subordinate and
junior in right of payment to all Senior Debt (as defined in "Description of
Junior Subordinated Debentures--Subordination" in the accompanying Prospectus)
of the Company.
The Series A Preferred Securities are subject to mandatory redemption, in
whole or in part, upon repayment of the Series A Debentures at maturity or their
earlier redemption in an amount equal to the amount of related Series A
Debentures maturing or being redeemed at a redemption price equal to the
aggregate liquidation preference of such Series A Preferred Securities plus
accumulated and unpaid Distributions thereon to the date of redemption. The
Series A Debentures are redeemable prior to maturity at the option of the
Company (i) on or after ___________________, 2001, in whole at any time or
in part from time to time, at a redemption price equal to the accrued and unpaid
interest on the Series A Debentures so redeemed to the date fixed for redemption
plus 100% of the principal amount thereof, or (ii) at any time, in whole (but
not in part), upon the occurrence and continuation of a Special Event (as
defined herein), at a redemption price equal to the accrued and unpaid interest
on the Series A Debentures so redeemed to the date fixed for redemption plus
100% of the principal amount thereof, in each case subject to the further
conditions described under "Description of Junior Subordinated
Debentures--Redemption" and "Description of Corresponding Junior Subordinated
Debentures--Optional Redemption" in the accompanying Prospectus.
The Series A Debentures are subordinate and junior in right of payment to
all Senior Debt of the Company. As of March 31, 1996, the Company had
approximately $1.5 billion of Senior Debt outstanding. The terms of the Series
A Debentures place no limitation on the amount of Senior Debt that may be
incurred by the Company. See "Description of Junior Subordinated Debentures--
Subordination" in the accompanying Prospectus.
In the event of the liquidation of the Series A Issuer, the holders of the
Series A Preferred Securities will be entitled to receive a liquidation
preference of $25 per Series A Preferred Security plus accumulated and unpaid
Distributions thereon to the date of payment, which may be in the form of a
distribution of such amount in Series A Debentures, subject to certain
limitations. See "Description of Preferred Securities--Liquidation Distribution
Upon Termination" in the accompanying Prospectus.
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange (the "NYSE"). If the Series A Debentures are
distributed to the holders of Series A Preferred Securities upon the liquidation
of the Series A Issuer, the Company will use its best efforts to list the Series
A Debentures on the NYSE or such other stock exchanges, if any, on which the
Series A Preferred Securities are then listed.
The Series A Preferred Securities will be represented by one or more global
certificates registered in the name of The Depository Trust Company ("DTC") or
its nominee. Beneficial interests in the Series A Preferred Securities will be
shown on, and transfers thereof will be effected only through, records
maintained by participants in DTC. Except as described in the accompanying
Prospectus, Series A Preferred Securities in certificated form will not be
issued in exchange for the global certificates. See "Description of Preferred
Securities--Book-Entry Issuance" in the accompanying Prospectus.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SERIES A
PREFERRED SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE
OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
__________________________
The following information supplements, and to the extent is inconsistent
with, replaces, the information contained in the accompanying Prospectus, and
should be read in conjunction therewith. As used herein, (i) the "Corresponding
Indenture" means the Indenture for Unsecured Subordinated Debt Securities
relating to Trust Securities, as the same may be amended and supplemented from
time to time, dated as of July 1, 1996, between the Company and The Bank of New
York, as Corresponding Debenture Trustee, pursuant to which the Series A
Debentures will be issued, and (ii) the "Series A Trust Agreement" means the
Amended and Restated Trust Agreement, dated as of ________________, 1996, among
the Company, as Depositor, The Bank of New York, as Property Trustee, The Bank
of New York (Delaware), as Delaware Trustee, and the Administrative Trustees
named therein (collectively, with the Property Trustee and the Delaware Trustee,
the "Issuer Trustees"). Each of the other capitalized terms used in this
Prospectus Supplement has the meaning set forth in this Prospectus Supplement or
in the accompanying Prospectus.
RISK FACTORS
Prospective purchasers of the Series A Preferred Securities should carefully
review the information contained elsewhere in this Prospectus Supplement and in
the accompanying Prospectus and should particularly consider the following
matters.
Ranking of Subordinated Obligations Under the Series A Guarantee and the Series
A Debentures
The obligations of the Company under the Series A Guarantee issued by the
Company for the benefit of the holders of Series A Preferred Securities are
unsecured and rank subordinate and junior in right of payment to all Senior Debt
of the Company. The obligations of the Company under the Series A Debentures
are subordinate and junior in right of payment to all such Senior Debt. At
March 31, 1996, Senior Debt of the Company aggregated approximately $1.5
billion. None of the Corresponding Indenture, the Series A Guarantee or the
Series A Trust Agreement place any limitation on the amount of secured or
unsecured debt, including Senior Debt, that may be incurred by the Company. See
"Description of Guarantees--Status of the Guarantees" and "Description of Junior
Subordinated Debentures--Subordination" in the accompanying Prospectus.
The ability of the Series A Issuer to pay amounts due on the Series A
Preferred Securities is solely dependent upon the Company making payments on the
Series A Debentures as and when required.
Option to Extend Interest Payment Period; Tax Consequences; Potential Market
Volatility During Extension Period
The Company has the right under the Corresponding Indenture to defer the
payment of interest on the Series A Debentures at any time or from time to time
for one or more Extension Periods, each of which, together with all previous and
further extensions of such Extension Period prior to its termination, may not
exceed 20 consecutive quarters and may not extend beyond the maturity of the
Series A Debentures. As a consequence of any such election, quarterly
Distributions on the Series A Preferred Securities would be deferred (but would
continue to accumulate additional Distributions thereon at the rate of ___% per
annum, compounded quarterly) by the Series A Issuer during any such Extension
Period. In the event that the Company exercises this right, during any such
Extension Period, the Company may not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities (including other Junior Subordinated Debentures) that rank pari
passu with or junior in interest to the Series A Debentures or make any
guarantee payments with respect to the foregoing (other than (a) dividends or
distributions in shares of capital stock of the Company and (b) payments under
any Guarantee). Upon the termination of any Extension Period and the payment of
all amounts then due, the Company may elect to begin a new Extension Period,
subject to the above requirements. Consequently, there could be multiple
Extension Periods of varying lengths throughout the term of the Series A
Debentures. See "Certain Terms of the Series A Preferred
Securities--Distributions" and "Certain Terms of the Series A Debentures--Option
to Extend Interest Payment Period".
Should an Extension Period occur, a holder of Series A Preferred Securities
will continue to accrue interest income in respect of its pro rata share of the
Series A Debentures held by the Series A Issuer for United States Federal income
tax purposes. As a result, a holder of Series A Preferred Securities will
include such interest in gross income for United States Federal income tax
purposes in advance of the receipt of cash, and will not receive the cash
related to such income from the Series A Issuer if the holder disposes of the
Series A Preferred Securities prior to the record date for the payment of
Distributions. See "Certain United States Federal Income Tax Considerations--
Potential Extension of Interest Payment Period and Original Issue Discount" and
"--Sale, Exchange and Redemption of the Series A Preferred Securities".
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Series A
Debentures. However, should the Company elect to exercise such right in the
future, the market price of the Series A Preferred Securities is likely to be
affected. A holder that disposes of its Series A Preferred Securities during an
Extension Period, therefore, might not receive the same return on its investment
as a holder that continues to hold its Series A Preferred Securities. In
addition, as a result of the existence of the Company's right to defer interest
payments, the market price of the Series A Preferred Securities (which represent
a preferred undivided beneficial interest in the Series A Debentures) may be
more volatile than other securities on which original issue discount accrues
that do not have such rights.
Special Event Redemption or Distribution
Upon the occurrence and continuation of a Special Event, as described in
"Description of Preferred Securities--Redemption--Special Event Redemption or
Distribution" in the accompanying Prospectus, the Company has the right to (i)
redeem the Series A Debentures in whole (but not in part) and therefore cause a
mandatory redemption of the Series A Preferred Securities and Series A Common
Securities at a redemption price equal to the accrued and unpaid interest on the
Series A Debentures so redeemed to the date fixed for redemption plus 100% of
the principal amount thereof, within 90 days following the occurrence of such
Special Event, or (ii) terminate the Series A Issuer and, after satisfaction of
creditors of the Series A Issuer, if any, as provided by applicable law, cause
the Series A Debentures to be distributed to the holders of the Series A
Preferred Securities and Series A Common Securities in liquidation of the Series
A Issuer. If at any time the Series A Issuer is not or will not be taxed as a
grantor trust but a Tax Event (as defined in "Description of Preferred
Securities--Redemption--Special Event Redemption or Distribution" in the
accompanying Prospectus) in respect of the Series A Preferred Securities has not
occurred, the Company has the right to terminate the Series A Issuer and, after
satisfaction of creditors of the Series A Issuer, if any, as provided by
applicable law, cause the Series A Debentures to be distributed to the holders
of the Series A Preferred Securities in liquidation of the Series A Issuer. See
"Description of Preferred Securities--Redemption--Special Event Redemption or
Distribution" in the accompanying Prospectus.
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill"), the
revenue portion of President Clinton's budget proposal, was released. The Bill
would, among other things, generally deny interest deductions for interest on an
instrument issued by a corporation that has a maximum weighted average maturity
of more than 40 years. The Bill would also generally treat as equity an
instrument, issued by a corporation, that has a maximum term of more than 20
years and that is not shown as indebtedness on the separate balance sheet of the
issuer or, where the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the issuer's consolidated
balance sheet. The above-described provisions were proposed to be effective
generally for instruments issued on or after December 7, 1995. If either
provision were to apply to the Series A Debentures, the Company would be unable
to deduct interest on the Series A Debentures. However, on March 29, 1996, the
Chairmen of the Senate Finance and House Ways and Means Committees issued a
joint statement to the effect that it was their intention that the effective
date of the President's legislative proposals, if adopted, would be no earlier
than the date of appropriate Congressional action. There can be no assurance,
however, that current or future legislative proposals or final legislation will
not affect the ability of the Company to deduct interest on the Series A
Debentures. If legislation were enacted limiting, in whole or in part, the
deductibility by the Company of interest on the Series A Debentures for United
States Federal income tax purposes, such enactment could give rise to a Tax
Event or a Debenture Tax Event. A Tax Event would permit the Company to cause a
redemption of the Series A Preferred Securities or a distribution of such Series
A Debentures in liquidation of the Series A Issuer, as described more fully
under "Description of Preferred Securities--Redemption--Special Event Redemption
or Distribution" in the accompanying Prospectus. A Debenture Tax Event would
permit the Company to redeem the Series A Debentures, as described more fully
under "Description of Corresponding Junior Subordinated Debentures--Optional
Redemption" and "Description of Junior Subordinated Debentures--Redemption" in
the accompanying Prospectus.
There can be no assurance as to the market prices for Series A Preferred
Securities or Series A Debentures that may be distributed in exchange for Series
A Preferred Securities if a termination or liquidation of the Series A Issuer
were to occur. Accordingly, the Series A Preferred Securities that an investor
may purchase, whether pursuant to the offer made hereby or in the secondary
market, or the Series A Debentures that a holder of Series A Preferred
Securities may receive on termination or liquidation of the Series A Issuer, may
trade at a discount to the price that the investor paid to purchase the Series A
Preferred Securities offered hereby. Because holders of Series A Preferred
Securities may receive Series A Debentures upon the occurrence of a Special
Event, prospective purchasers of Series A Preferred Securities are also making
an investment decision with regard to the Series A Debentures and should
carefully review all the information regarding the Series A Debentures contained
herein. See "Description of Preferred Securities--Redemption--Special Event
Redemption or Distribution" and "Description of Corresponding Junior
Subordinated Debentures--General" in the accompanying Prospectus.
Rights under the Series A Guarantee
The Series A Guarantee will be qualified as an indenture under the Trust
Indenture Act. The Bank of New York will act as Guarantee Trustee for the
purposes of compliance with the Trust Indenture Act and will hold the Series A
Guarantee for the benefit of the holders of the Series A Preferred Securities.
The Bank of New York will also act as Debenture Trustee for the Series A
Debentures and as Property Trustee under the Series A Trust Agreement. The Bank
of New York (Delaware) will act as Delaware Trustee under the Series A Trust
Agreement. The Series A Guarantee guarantees to the holders of the Series A
Preferred Securities the following payments, to the extent not paid by the
Series A Issuer: (i) any accumulated and unpaid Distributions required to be
paid on the Series A Preferred Securities, to the extent that the Series A
Issuer has funds on hand available therefor, (ii) the redemption price with
respect to any Series A Preferred Securities called for redemption to the extent
that the Series A Issuer has funds on hand available therefor, and (iii) upon a
voluntary or involuntary dissolution, winding up or liquidation of the Series A
Issuer (unless the Series A Debentures are distributed to holders of the Series
A Preferred Securities), the lesser of (a) the aggregate of the liquidation
preference amount and all accumulated and unpaid Distributions to the date of
payment and (b) the amount of assets of the Series A Issuer remaining available
for distribution to holders of the Series A Preferred Securities. The holders
of not less than a majority in aggregate liquidation preference amount of the
Series A Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of the Series A Guarantee or to direct the exercise of any
trust power conferred upon the Guarantee Trustee under the Series A Guarantee.
Any holder of the Series A Preferred Securities may institute a legal proceeding
directly against the Company to enforce its rights under the Series A Guarantee
without first instituting a legal proceeding against the Series A Issuer, the
Guarantee Trustee or any other person or entity. If the Company were to default
on its obligation to pay amounts payable under the Series A Debentures, the
Series A Issuer would lack funds for the payment of Distributions or amounts
payable on redemption of the Series A Preferred Securities or otherwise, and, in
such event, holders of the Series A Preferred Securities would not be able to
rely upon the Series A Guarantee for payment of such amounts. If the Property
Trustee fails to enforce its rights under the Series A Debentures or the Series
A Trust Agreement, a holder of Series A Preferred Securities may institute a
legal proceeding directly against the Company to enforce the Property Trustee's
rights under the Series A Debentures or the Series A Trust Agreement, to the
fullest extent permitted by law, without first instituting any legal proceeding
against the Property Trustee or any other person or entity. Notwithstanding the
foregoing, a holder of Series A Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder of principal of or interest
on the Series A Debentures having a principal amount equal to the aggregate
liquidation preference amount of the Series A Preferred Securities of such
holder on or after the due dates specified in the Series A Debentures. See
"Description of Guarantees" and "Description of Corresponding Junior
Subordinated Debentures" in the accompanying Prospectus. The Series A Trust
Agreement provides that each holder of Series A Preferred Securities, by
acceptance thereof, agrees to the provisions of the Series A Guarantee and the
Corresponding Indenture.
Limited Voting Rights
Holders of Series A Preferred Securities will generally have limited voting
rights relating only to the modification of the Series A Preferred Securities
and the dissolution, winding-up or termination of the Series A Issuer. Holders
of Series A Preferred Securities will not be entitled to vote to appoint, remove
or replace the Property Trustee or the Delaware Trustee, which voting rights are
vested exclusively in the holder of the Series A Common Securities except upon
the occurrence of certain events described herein. The Administrative Trustees
and the Company may amend the Series A Trust Agreement to ensure that the Series
A Issuer will be classified for United States Federal income tax purposes as a
grantor trust without the consent of holders, unless such action adversely
affects in any material respect the interests of holders. See "Description of
Preferred Securities--Voting Rights; Amendment of Trust Agreement" and "--
Removal of Issuer Trustees" in the accompanying Prospectus.
Trading Characteristics of Series A Preferred Securities
Application will be made to list the Series A Preferred Securities on the
NYSE. If approved for listing, the Series A Preferred Securities may trade at a
price that does not fully reflect the value of accrued but unpaid interest with
respect to the underlying Series A Debentures. A holder of Series A Preferred
Securities who disposes of its Series A Preferred Securities between record
dates for payments of Distributions will nevertheless be required to include
accrued but unpaid interest on the Series A Debentures through the date of
disposition in income as ordinary income and to add such amount to its adjusted
tax basis in its Series A Preferred Securities disposed of. Such holder will
recognize a capital loss to the extent that the selling price (which may not
fully reflect the value of accrued but unpaid interest) is less than its
adjusted tax basis (which will include accrued but unpaid interest). Subject to
certain limited exceptions, capital losses cannot be applied to offset ordinary
income for United States Federal income tax purposes. See "Certain United
States Federal Income Tax Considerations--Sale, Exchange and Redemption of the
Series A Preferred Securities".
ENTERGY ARKANSAS CAPITAL I
Entergy Arkansas Capital I is a statutory business trust created under
Delaware law pursuant to (i) a trust agreement executed by the Company, as
depositor of the Series A Issuer, the Property Trustee, the Delaware Trustee and
an Administrative Trustee who is an officer of the Company and (ii) the filing
of a certificate of trust with the Delaware Secretary of State. Such trust
agreement will be amended and restated in its entirety substantially in the form
of the Series A Trust Agreement filed as an exhibit to the Registration
Statement of which this Prospectus Supplement is a part. The Series A Trust
Agreement will be qualified as an indenture under the Trust Indenture Act. The
Series A Issuer's business and affairs will be conducted by five Issuer
Trustees: The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, and three individual Administrative Trustees
who are employees or officers of or affiliated with the Company. The Series A
Issuer exists for the exclusive purposes of (i) issuing and selling the Series A
Preferred Securities and Series A Common Securities, (ii) using the proceeds
from the sale of such securities to acquire Series A Debentures issued by the
Company and (iii) engaging in only those other activities necessary, convenient
or incidental thereto. Accordingly, the Series A Debentures will be the sole
assets of the Series A Issuer, and payments under the Series A Debentures will
be the sole revenue of the Series A Issuer. All of the Series A Common
Securities will be owned by the Company. The Series A Common Securities will
rank pari passu, and payments will be made thereon pro rata, with the Series A
Preferred Securities, except that upon the occurrence and continuance of a
Debenture Event of Default, the rights of the Company as holder of the Series A
Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Series A Preferred Securities. See "Description of Preferred
Securities--Subordination of Common Securities" in the accompanying Prospectus.
The Company will acquire Series A Common Securities having an aggregate
liquidation amount equal to 3% of the total capital of the Series A Issuer. The
Series A Issuer has a term of approximately 54 years, but may terminate earlier
as provided in the Series A Trust Agreement. The principal executive office of
the Series A Issuer is 639 Loyola Avenue, New Orleans, LA 70113, Attention:
Treasurer, and its telephone number is (504) 576-4308. See "The Issuers" in the
accompanying Prospectus.
USE OF PROCEEDS
All of the proceeds from the sale of the Series A Preferred Securities will
be invested by the Series A Issuer in Series A Debentures. The Company intends
to use the proceeds from the sale of such Series A Debentures to redeem shares
of its preferred stock as follows: [ ].
__________________
SELECTED FINANCIAL INFORMATION
(Dollars in Thousands)
The selected financial information of the Company set forth below has been
derived from and should be read in conjunction with the financial statements and
other financial information contained in the Incorporated Documents.
</TABLE>
<TABLE>
<CAPTION>
For the Twelve Months Ended
December 31
March 31,
1996 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues $1,691,718 $1,648,233 $1,590,742 $1,591,568, $1,521,129 $1,528,270
Operating Income 226,613 217,931 216,633 236,222 179,773 219,418
Interest Expense 108,793 112,914 107,138 117,172 120,728 132,300
(net)
Net Income 145,219 172,080(1) 142,263 205,297(2) 130,529 143,451
Ratio of Earnings to
Fixed Charges 2.70 2.56 2.32 3.11(2) 2.28 2.25
</TABLE>
(1) Net income for the year ended December 31, 1995 includes $58 million ($35
million after tax) related to a change in the method of accounting for
nuclear refueling outage costs.
(2) Net income for the year ended December 31, 1993 includes $81 million ($50
million after tax) related to a change in accounting principle to provide
for the accrual of estimated unbilled revenues.
CAPITALIZATION
(Dollars in Thousands)
The following table sets forth the consolidated capitalization of the
Company as of March 31, 1996. The following data is qualified in its entirety
by the financial statements of the Company and other information contained
elsewhere in this Prospectus Supplement and the accompanying Prospectus or
incorporated herein or therein by reference.
As of March 31, 1996
Actual
Amount Percent
Common Stock and Paid-in Capital $ 591,264 23.1
Retained Earnings 491,896 19.2
Total Common Shareholder's Equity 1,083,160 42.3
Preferred Stock (without sinking fund) 176,350 6.9
Preferred Stock (with sinking fund) 49,027 1.9
Company Obligated Mandatorily
Redeemable Preferred Securities
of Subsidiary Trust (1) - -
First Mortgage Bonds (2) 850,136 33.2
Other Long-Term Debt (2) 399,986 15.7
Total Capitalization $ 2,558,659 100.0
(1) As described herein, all of the assets of the Series A Issuer will be $____
million of the Series A Debentures. The Company owns all of the Series A
Common Securities of the Series A Issuer.
(2) Excludes current maturities of First Mortgage Bonds and Other Long-Term
Debt of $113.3 million and $2.5 million, respectively.
CERTAIN TERMS OF THE SERIES A PREFERRED SECURITIES
General
The following summary of certain terms and provisions of the Series A
Preferred Securities supplements, and, to the extent inconsistent with,
replaces, the description of the terms and provisions of the Preferred
Securities set forth in the accompanying Prospectus under the heading
"Description of Preferred Securities", to which description reference is hereby
made. This summary of certain terms and provisions of the Series A Preferred
Securities does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the Series A Trust Agreement. The form of the
Series A Trust Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus Supplement and accompanying Prospectus are a
part.
Distributions
The Series A Preferred Securities represent undivided beneficial interests
in the assets of the Series A Issuer and Distributions on each Series A
Preferred Security will be payable at the annual rate of ___% of the stated
liquidation preference amount of $25, payable quarterly in arrears on March 31,
June 30, September 30 and December 31 of each year. Distributions that are in
arrears for more than one quarter will accumulate additional Distributions
thereon at the rate per annum of _____% thereof, compounded quarterly
("Additional Amounts"). The term "Distributions" as used herein shall include
any such Additional Amounts. Distributions will accumulate from ____________,
1996, the date of original issuance. The first Distribution payment date for
the Series A Preferred Securities will be _______ __, 1996, and such
Distribution will be cumulative from the date of original issuance. The amount
of Distributions payable for any period will be computed on the basis of a
360-day year of twelve 30-day months. See "Description of Preferred Securities-
- -Distributions" in the accompanying Prospectus.
So long as no Debenture Event of Default under the Corresponding Indenture
has occurred and is continuing, the Company has the right under the
Corresponding Indenture to defer the payment of interest on the Series A
Debentures at any time and from time to time, for one or more Extension Periods,
each of which, together with all previous and further extensions of such
Extension Period prior to its termination, may not exceed 20 consecutive
quarters and may not extend beyond the maturity of the Series A Debentures. As
a consequence of any election, quarterly Distributions on the Series A Preferred
Securities would be deferred (but would continue to accumulate additional
Distributions thereon at the rate of ___% per annum, compounded quarterly) by
the Series A Issuer during any such Extension Period. In the event that the
Company exercises this right, during any such Extension Period, the Company may
not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock or (ii) make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any debt securities (including other
Junior Subordinated Debentures) that rank pari passu with or junior in interest
to the Series A Debentures or make any guarantee payments with respect to the
foregoing (other than (a) dividends or distributions in shares of capital stock
of the Company and (b) payments under any Guarantee). Upon the termination of
any such Extension Period and the payment of all amounts then due, the Company
may elect to begin a new Extension Period, subject to the above requirements.
See "Certain Terms of the Series A Debentures--Option to Extend Interest Payment
Period" and "Certain United States Federal Income Tax Consequences--Potential
Extension of Interest Payment Period and Original Issue Discount".
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Series A
Debentures.
Redemption
Upon the repayment or redemption, in whole or in part, of the Series A
Debentures, whether at maturity or upon earlier redemption as provided in the
Corresponding Indenture, the proceeds from such repayment or redemption shall be
applied by the Property Trustee to redeem a Like Amount of the Series A
Preferred Securities, upon not less than 30 nor more than 60 days notice, at a
Redemption Price equal to the aggregate liquidation preference of such Series A
Preferred Securities plus accumulated and unpaid Distributions thereon to the
Redemption Date. See "Description of Preferred Securities--Redemption" in the
accompanying Prospectus and "Certain Terms of the Series A Debentures--
Redemption". The Company will have the right to redeem the Series A Debentures
(i) on or after ___________, 2001, in whole at any time or in part from time to
time, at a redemption price equal to the accrued and unpaid interest on the
Series A Debentures so redeemed to the date fixed for redemption plus 100% of
the principal amount thereof, or (ii) at any time, in whole (but not in part),
upon the occurrence of a Special Event, at a redemption price equal to the
accrued and unpaid interest on the Series A Debentures so redeemed to the date
fixed for redemption plus 100% of the principal amount thereof, in each case
subject to the further conditions described under "Description of Junior
Subordinated Debentures--Redemption" and "Description of Corresponding Junior
Subordinated Debentures--Optional Redemption" in the accompanying Prospectus.
Liquidation Value
The amount payable on the Series A Preferred Securities in the event of any
liquidation of the Series A Issuer is $25 per Series A Preferred Security plus
accumulated and unpaid Distributions, unless, subject to certain exceptions, in
connection with such liquidation, the Series A Debentures are distributed to the
holders of the Series A Preferred Securities. See "Description of Preferred
Securities--Liquidation Distribution upon Termination" in the accompanying
Prospectus.
CERTAIN TERMS OF THE SERIES A DEBENTURES
General
The following summary of certain terms and provisions of the Series A
Debentures supplements, and to the extent inconsistent with, replaces, the
description of the terms and provisions of the Corresponding Junior Subordinated
Debentures set forth in the accompanying Prospectus under the headings
"Description of Junior Subordinated Debentures" and "Description of
Corresponding Junior Subordinated Debentures", to which description reference is
hereby made. The summary of certain terms and provisions of the Series A
Debentures set forth below does not purport to be complete and is subject to,
and qualified in its entirety by reference to, the Corresponding Indenture. The
Corresponding Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus Supplement and accompanying Prospectus are a
part.
Concurrently with the issuance of the Series A Preferred Securities, the
Series A Issuer will invest the proceeds thereof and the consideration paid by
the Company for the Series A Common Securities in the Series A Debentures issued
by the Company. The Series A Debentures will bear interest at the annual rate
of ____% of the principal amount thereof, payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (each, an "Interest
Payment Date"), commencing _______ __, 1996, to the person in whose name each
Series A Debenture is registered, subject to certain exceptions, at the close of
business on the Business Day (as defined in the Corresponding Indenture) next
preceding such Interest Payment Date. Each Series A Debenture will be held in
the name of the Series A Property Trustee in trust for the benefit of the
holders of the Series A Preferred Securities. The amount of interest payable
for any period will be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on the Series A
Debentures is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date such payment was originally
payable. Interest that is in arrears for more than one quarter will bear the
additional interest on the amount thereof (to the extent permitted by law) at
the rate per annum of ___% thereof, compounded quarterly. The term "interest"
as used herein shall include quarterly interest payments, interest on quarterly
interest payments in arrears and Additional Interest, as applicable.
The Series A Debentures will be issued as a series of Junior Subordinated
Debentures under the Corresponding Indenture. The Series A Debentures will
mature on ____________, _____. The Series A Debentures will be unsecured and
will rank junior and be subordinate in right of payment to all Senior Debt of
the Company. The Corresponding Indenture does not limit the incurrence or
issuance of other secured or unsecured debt of the Company, whether under the
Corresponding Indenture, any other indenture that the Company may enter into in
the future or otherwise. See "Description of Junior Subordinated
Debentures--Subordination" in the accompanying Prospectus.
Option to Extend Interest Payment Period
So long as no Debenture Event of Default under the Corresponding Indenture
has occurred and is continuing, the Company has the right under the
Corresponding Indenture at any time during the term of the Series A Debentures
to defer the payment of interest at any time or from time to time for one or
more Extension Periods, each of which, together with all previous and further
extensions of such Extensions Period prior to its termination, may not exceed 20
consecutive quarters and may not extend beyond the maturity of the Series A
Debentures. At the end of such Extension Period, the Company must pay all
interest then accrued and unpaid (together with interest thereon at the annual
rate of _____% to the extent permitted by applicable law). During an Extension
Period, interest will continue to accrue and holders of Series A Debentures will
be required to accrue interest income for United States Federal income tax
purposes. See "Certain United States Federal Income Tax Considerations-
Potential Extension of Interest Payment Period and Original Issue Discount".
In the event that the Company exercises this right, during any such
Extension Period, the Company may not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities (including other Junior Subordinated Debentures) that rank pari
passu with or junior in interest to the Series A Debentures or make any
guarantee payments with respect to the foregoing (other than (a) dividends or
distributions in shares of capital stock of the Company and (b) payments under
any Guarantee). Upon the termination of any such Extension Period and the
payment of all amounts then due, the Company may elect to begin a new Extension
Period, subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof. The Company must give
the Property Trustee, the Administrative Trustees and the Corresponding
Debenture Trustee notice of its selection of such Extension Period at least one
Business Day prior to the earlier of (i) the date the Distributions on the
Series A Preferred Securities are payable and (ii) the date the Administrative
Trustees are required to give notice to the NYSE or other applicable
self-regulatory organization or to holders of such Series A Preferred Securities
of the record date or the date such Distributions are payable, but in any event
not less than one Business Day prior to such record date. An Administrative
Trustee shall give notice of the Company's election to begin such Extension
Period to the holders of the Series A Preferred Securities within five Business
Days of the receipt of notice thereof. See "Description of Junior Subordinated
Debentures--Option to Extend Interest Payment Period" in the accompanying
Prospectus.
Redemption
The Series A Debentures are redeemable prior to maturity at the option of
the Company (i) on or after ________, 2001, in whole at any time or in part from
time to time, at a redemption price equal to the accrued and unpaid interest on
the Series A Debentures so redeemed to the date fixed for redemption plus 100%
of the principal amount thereof, or (ii) at any time, in whole (but not in
part), upon the occurrence of a Special Event, at a redemption price equal to
the accrued and unpaid interest on the Series A Debentures so redeemed to the
date fixed for redemption plus 100% of the principal amount thereof, in each
case subject to the further conditions described under "Description of Junior
Subordinated Debentures--Redemption" and "Description of Corresponding Junior
Subordinated Debentures--Optional Redemption" in the accompanying Prospectus.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary describes certain United States Federal income tax
consequences relevant to the purchase, ownership and disposition of the Series A
Preferred Securities as of the date hereof and represents the opinion of Reid &
Priest LLP, counsel to the Company, insofar as it relates to matters of law or
legal conclusions. Except where noted, it deals only with Series A Preferred
Securities held as capital assets and does not deal with special situations,
such as those of dealers in securities or currencies, financial institutions,
life insurance companies, persons holding Series A Preferred Securities as part
of a hedging or conversion transaction or a straddle, United States Holders (as
defined herein) whose "functional currency" is not the United States dollar, or
persons who are not United States Holders. In addition, this discussion does
not address the tax consequences to persons who purchase Series A Preferred
Securities other than pursuant to their initial issuance and distribution.
Furthermore, the discussion below is based upon the provisions of the Internal
Revenue Code of 1986, as amended, and regulations, rulings and judicial
decisions thereunder as of the date hereof, and such authorities may be
repealed, revoked or modified at any time so as to result in United States
Federal income tax consequences different from those discussed below. These
authorities are subject to various interpretations and it is therefore possible
that the United States Federal income tax treatment of the Series A Preferred
Securities may differ from the treatment described below.
PROSPECTIVE PURCHASERS OF SERIES A PREFERRED SECURITIES, INCLUDING PERSONS
WHO ARE NOT UNITED STATES HOLDERS AND PERSONS WHO PURCHASE SERIES A PREFERRED
SECURITIES IN THE SECONDARY MARKET, ARE ADVISED TO CONSULT WITH THEIR TAX
ADVISORS AS TO THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE
PURCHASE, OWNERSHIP AND DISPOSITION OF SERIES A PREFERRED SECURITIES IN LIGHT OF
THEIR PARTICULAR CIRCUMSTANCES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR
OTHER TAX LAWS.
United States Holders
As used herein, a "United States Holder" means a Series A Preferred
Security holder that is a citizen or a resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source.
Classification of Entergy Arkansas Capital I
Reid & Priest LLP, counsel to the Company and the Series A Issuer, is of
the opinion that, under current law and assuming full compliance with the terms
of the Corresponding Indenture and the instruments establishing the Series A
Issuer (and certain other documents), the Series A Issuer will be classified as
a "grantor trust" for United States Federal income tax purposes and will not be
classified as an association taxable as a corporation. Each United States
Holder will be treated as owning an undivided beneficial interest in the Series
A Debentures. Accordingly, each United States Holder will be required to
include in its gross income interest (in the form of original issue discount
("OID")) accrued with respect to its allocable share of Series A Debentures as
described below. No amount included in income with respect to the Series A
Preferred Securities will be eligible for the dividends received deduction.
Investors should be aware that the opinion of Reid & Priest LLP is not binding
on the Internal Revenue Service (the "IRS") or the courts.
Classification of the Series A Debentures
Based on the advice of its counsel, the Company believes and intends to
take the position that the Series A Debentures will constitute indebtedness for
United States Federal income tax purposes. No assurance can be given that such
position will not be challenged by the IRS, or, if challenged, that such
challenge will not be successful. By purchasing and accepting Series A
Preferred Securities, each holder thereof covenants to treat the Series A
Debentures as indebtedness and the Series A Preferred Securities as evidence of
an indirect beneficial ownership in the Series A Debentures. The remainder of
this discussion assumes that the Series A Debentures will be classified as
indebtedness of the Company for United States Federal income tax purposes.
Possible Tax Law Changes
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill"),
the revenue portion of President Clinton's budget proposal, was released. The
Bill would, among other things, generally deny interest deductions for interest
on an instrument issued by a corporation that has a maximum weighted average
maturity of more than 40 years. The Bill would also generally treat as equity
an instrument, issued by a corporation, that has a maximum term of more than 20
years and that is not shown as indebtedness on the separate balance sheet of the
issuer or, where the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the issuer's consolidated
balance sheet. The above-described provisions were proposed to be effective
generally for instruments issued on or after December 7, 1995. If either
provision were to apply to the Series A Debentures, the Company would be unable
to deduct interest on the Series A Debentures. However, on March 29, 1996, the
Chairmen of the Senate Finance and House Ways and Means Committees issued a
joint statement to the effect that it was their intention that the effective
date of the President's legislative proposals, if adopted, will be no earlier
than the date of appropriate Congressional action. There can be no assurance,
however, that current or future legislative proposals or final legislation will
not affect the ability of the Company to deduct interest on the Series A
Debentures. If legislation were enacted limiting, in whole or in part, the
deductibility by the Company of interest on the Series A Debentures for United
States Federal income tax purposes, such enactment could give rise to a Tax
Event or a Debenture Tax Event. A Tax Event would permit the Company to cause a
redemption of the Series A Preferred Securities or a distribution of such Series
A Debentures in liquidation of the Series A Issuer, as described more fully
under "Description of Preferred Securities--Redemption-Special Event Redemption
or Distribution". A Debenture Tax Event would permit the Company to redeem the
Series A Debentures, as described more fully under "Description of Corresponding
Junior Subordinated Debentures--Optional Redemption" and "Description of Junior
Subordinated Debentures--Redemption" in the accompanying Prospectus.
Potential Extension of Interest Payment Period and Original Issue Discount
Under the terms of the Series A Debentures, the Company has the option to
defer payments of interest for up to 20 consecutive quarterly interest payment
periods and to pay as a lump sum at the end of such period all of the interest
that has accrued during such period. During any such Extension Period,
Distributions on the Series A Preferred Securities will also be deferred.
Because of this option to extend the interest payment periods, the Series A
Debentures will be treated as having been issued with OID for United States
Federal income tax purposes. As a result, United States Holders will be
required to accrue interest income (in the form of OID) on an economic accrual
basis even if they use the cash method of accounting. In the event of an
Extension Period, a United States Holder will be required to continue to include
OID in income notwithstanding that the Series A Issuer will not make any
Distribution on the Series A Preferred Securities during such Extension Period.
As a result, any United States Holder who disposes of Series A Preferred
Securities prior to the record date for the payment of Distributions following
such Extension Period will include interest in gross income but will not receive
any Distributions related thereto from the Series A Issuer. The tax basis of a
Series A Preferred Security will be increased by the amount of any OID that is
included in income, and will be decreased when and if Distributions are
subsequently received from the Series A Issuer by such holders.
Receipt of Series A Debentures or Cash Upon Liquidation of the Series A Issuer
Under certain circumstances, as described under the caption "Description of
Preferred Securities--Redemption-Special Event Redemption or Distribution" in
the accompanying Prospectus, Series A Debentures may be distributed to holders
of Series A Preferred Securities in exchange for the Series A Preferred
Securities and in liquidation of the Series A Issuer. Under current law, for
United States Federal income tax purposes, if the Series A Issuer is treated as
a grantor trust at the time of distribution, such distribution would be treated
as a non-taxable event to each United States Holder, and each United States
Holder would receive an aggregate tax basis in the Series A Debentures equal to
such Holder's aggregate tax basis in its Series A Preferred Securities. A
United States Holder's holding period for the Series A Debentures received in
liquidation of the Series A Issuer would include the period during which such
holder held the Series A Preferred Securities.
Under certain circumstances, as described under the caption "Description of
Preferred Securities--Redemption" in the accompanying Prospectus, the Series A
Debentures may be redeemed for cash and the proceeds of such redemption
distributed to holders of Series A Preferred Securities in redemption of the
Series A Preferred Securities. Under current law, such a redemption would, for
United States Federal income tax purposes, constitute a taxable disposition of
the Series A Preferred Securities, and a United States Holder would recognize
gain or loss as if such holder had sold such redeemed Series A Preferred
Securities. See "Sale, Exchange and Redemption of the Series A Preferred
Securities" below.
Sale, Exchange and Redemption of the Series A Preferred Securities
Upon the sale, exchange or redemption of Series A Preferred Securities, a
United States Holder will recognize gain or loss equal to the difference between
the amount realized upon the sale, exchange or redemption and such holder's
adjusted tax basis in the Series A Preferred Securities. A United States
Holder's adjusted tax basis will, in general, be the issue price of the Series A
Preferred Securities, increased by the OID previously included in income by the
United States Holder and reduced by any Distributions on the Series A Preferred
Securities. Such gain or loss will be capital gain or loss and will be long-
term capital gain or loss if at the time of sale, exchange or redemption, the
Series A Preferred Securities have been held for more than one year. Under
current law, net capital gains of individuals are, under certain circumstances,
taxed at lower rates than items of ordinary income. The deductibility of
capital losses is subject to limitations.
Information Reporting and Backup Withholding
Subject to the qualification discussed below, income on the Series A
Preferred Securities will be reported to holders on Form 1099, which should be
mailed to such holders by January 31 following each calendar year.
The Series A Issuer will be obligated to report annually to Cede & Co., as
holder of record of the Series A Preferred Securities, the OID related to the
Series A Debentures that accrued during the year. The Series A Issuer currently
intends to report such information on Form 1099 prior to January 31 following
each calendar year. The Underwriters have indicated to the Series A Issuer
that, to the extent that they hold Series A Preferred Securities as nominees for
beneficial holders, they currently expect to report the OID that accrued during
the calendar year on such Series A Preferred Securities to such beneficial
holders on Form 1099 by January 31 following each calendar year. Under current
law, holders of Series A Preferred Securities who hold as nominees for
beneficial holders will not have any obligation to report information regarding
the beneficial holders to the Series A Issuer. The Series A Issuer, moreover,
will not have any obligation to report to beneficial holders who are not also
record holders. Thus, beneficial holders of Series A Preferred Securities who
hold their Series A Preferred Securities through the Underwriters will receive
Forms 1099 reflecting the income on their Series A Preferred Securities from
such Underwriters rather than from the Series A Issuer.
Payments made in respect of, and proceeds from the sale of, Series A
Preferred Securities (or Series A Debentures distributed to holders of Series A
Preferred Securities) may be subject to "backup" withholding tax of 31% unless
the holder complies with certain identification requirements or if such holder
has previously failed to report in full dividend and interest income. Any
withheld amounts will be allowed as a refund or a credit against the holder's
United States Federal income tax liability, provided the required information is
provided to the IRS.
These information reporting and backup withholding tax rules are subject to
temporary Treasury Regulations. Accordingly, the application of such rules to
the Series A Preferred Securities could be changed.
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, the
Company and the Series A Issuer have agreed that the Series A Issuer will sell
to each of the Underwriters named below (for whom Goldman, Sachs & Co.,
__________________________ and _________________________ are acting as
Representatives) and each of the Underwriters has severally agreed to purchase
from the Series A Issuer the respective number of Series A Preferred Securities
set forth opposite its name below:
Number of
Series A
Preferred
Underwriters Securities
Goldman, Sachs & Co.
Subject to the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all such Series A Preferred
Securities offered hereby, if any are taken.
The Underwriters propose to offer the Series A Preferred Securities in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and in part to certain securities
dealers at such price less a concession of $_______ per Series A Preferred
Security. The Underwriters may allow, and such dealers may reallow, a
concession not in excess of $_______ per Series A Preferred Security to certain
brokers and dealers. After the Series A Preferred Securities are released for
sale to the public, the offering price and other selling terms may from time to
time be varied by the Representatives.
In view of the fact that the proceeds from the sale of the Series A
Preferred Securities will be used to purchase the Series A Debentures, the
Underwriting Agreement provides that the Company will pay as Underwriters'
Compensation for the Underwriters arranging the investment therein of such
proceeds an amount of $ _______ per Series A Preferred Security for the accounts
of the several Underwriters.
The Company and the Series A Issuer have agreed, during the period beginning
from the date of the Underwriting Agreement and continuing to and including the
earlier of (i) the termination of trading restrictions on the Series A Preferred
Securities, as determined by the Underwriters, and (ii) 30 days after the
closing date, not to offer, sell, contract to sell or otherwise dispose of any
Series A Preferred Securities, any other beneficial interests in the assets of
the Series A Issuer, or any preferred securities or any other securities of the
Series A Issuer or the Company that are substantially similar to the Series A
Preferred Securities, including any guarantee of such securities, or any
securities convertible into or exchangeable for or that represent the right to
receive securities, preferred securities or any such substantially similar
securities of either the Series A Issuer or the Company, without the prior
written consent of the Representatives.
The Company and the Series A Issuer have agreed to indemnify the several
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended.
Prior to this offering, there has been no public market for the Series A
Preferred Securities. Application will be made to list the Series A Preferred
Securities on the NYSE. In order to meet one of the requirements for listing
the Series A Preferred Securities on the NYSE, the Underwriters will undertake
to sell lots of 100 or more Series A Preferred Securities to a minimum of 400
beneficial holders. Trading of the Series A Preferred Securities on the NYSE is
expected to commence within a seven-day period after the initial delivery of the
Series A Preferred Securities. The Representatives have advised the Company
that they intend to make a market in the Series A Preferred Securities prior to
commencement of trading on the NYSE, but are not obligated to do so and may
discontinue any such market making at any time without notice.
Certain of the Underwriters or their affiliates have provided from time to
time, and expect to provide in the future, investment or commercial banking
services to the Company and its affiliates, for which such Underwriters or their
affiliates have received or will receive customary fees and commissions.
EXPERTS
The Company's balance sheets as of December 31, 1995 and 1994 and the
statements of income, retained earnings, and cash flows and the related
financial statement schedule for each of the two years ended December 31, 1995,
incorporated by reference in the Prospectus accompanying this Prospectus
Supplement, have been incorporated by reference therein in reliance on the
reports, which include an emphasis paragraph relating to the Company's 1995
change in its method of accounting for incremental nuclear plant outage
maintenance costs, of Coopers & Lybrand L.L.P., independent accountants, given
on the authority of that firm as experts in accounting and auditing.
The statements of income, retained earnings, and cash flows and the related
financial statement schedule for the year ended December 31, 1993, incorporated
in the Prospectus accompanying this Prospectus Supplement by reference to the
Company's Annual Report on Form 10-K for the year ended December 31, 1995, have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
reports dated February 11, 1994, which expressed an unqualified opinion and
included an explanatory paragraph relating to the Company's change in method of
accounting for revenues, also incorporated by reference therein and have been so
included in reliance upon the reports of such firm given upon their authority as
experts in accounting and auditing.
<PAGE>
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the Series A
Preferred Securities, the enforceability of the Series A Trust Agreement and the
creation of the Series A Issuer are being passed upon by Richards, Layton &
Finger, P.A., special Delaware counsel to the Company and the Series A Issuer.
The validity of the Series A Guarantee and the Series A Debentures will be
passed upon for the Company by Friday, Eldredge & Clark, general counsel to the
Company and by Reid & Priest LLP, New York counsel to the Company. Matters
pertaining to New York law will be passed upon by Reid & Priest LLP, New York
counsel to the Company, and matters pertaining to Arkansas law will be passed
upon by Friday, Eldredge & Clark, Arkansas counsel to the Company. Certain
legal matters will be passed upon for the Underwriters by Winthrop, Stimson,
Putnam & Roberts, New York, New York. Certain matters relating to United States
Federal income tax considerations are being passed upon by Reid & Priest LLP,
special counsel to the Company and the Series A Issuer.
SUBJECT TO COMPLETION, DATED JUNE 3, 1996
P R O S P E C T U S
$150,000,000
ENTERGY ARKANSAS CAPITAL I
ENTERGY ARKANSAS CAPITAL II
ENTERGY ARKANSAS, INC. ENTERGY ARKANSAS CAPITAL III
Junior Subordinated Deferrable Preferred Securities guaranteed
Interest Debentures to the extent the Issuer has
funds as set forth herein by
ENTERGY ARKANSAS, INC.
Entergy Arkansas, Inc. (formerly Arkansas Power & Light Company), an
Arkansas corporation (the "Company"), may from time to time offer in one or
more series or issuances its junior subordinated deferrable interest
debentures (the "Junior Subordinated Debentures"). The Junior Subordinated
Debentures will be unsecured and subordinate and junior in right of payment
to Senior Debt (as defined in "Description of Junior Subordinated Debentures
- -- Subordination") of the Company. If provided in an accompanying Prospectus
Supplement, the Company will have the right to defer payments of interest on
any series of Junior Subordinated Debentures by extending the interest
payment period thereon at any time or from time to time for such number of
consecutive interest payment periods (which shall not extend beyond the
maturity of the Junior Subordinated Debentures) with respect to each deferral
period as may be specified in such Prospectus Supplement (each, an "Extension
Period"). See "Description of Junior Subordinated Debentures -- Option to
Extend Interest Payments".
Entergy Arkansas Capital I, Entergy Arkansas Capital II and Entergy
Arkansas Capital III, each a statutory business trust created under the laws
of the State of Delaware (each, an "Issuer", and collectively, the
"Issuers"), may severally offer, from time to time, its respective preferred
securities (the "Preferred Securities") representing preferred undivided
beneficial interests in the assets of each Issuer. The Company will be the
owner of the common securities (the "Common Securities") representing common
undivided beneficial interests in the assets of each Issuer. The payment of
periodic cash distributions ("Distributions") with respect to the Preferred
Securities of each Issuer and payments on liquidation or redemption with
respect to such Preferred Securities, in each case out of funds held by such
Issuer, are each irrevocably guaranteed by the Company to the extent
described herein (each, a "Guarantee", and collectively, the "Guarantees").
See "Description of Guarantees". The obligations of the Company under each
Guarantee will be subordinate and junior in right of payment to all Senior
Debt of the Company. Concurrently with the issuance by an Issuer of its
Preferred Securities, such Issuer will invest the proceeds thereof and any
contributions made in respect of the Common Securities in a corresponding
series of the Company's Junior Subordinated Debentures (the "Corresponding
Junior Subordinated Debentures") with terms corresponding to the terms of
that Issuer's Preferred Securities. The Corresponding Junior Subordinated
Debentures will be the sole assets of each Issuer, and payments under the
Corresponding Junior Subordinated Debentures will be the only revenue of each
Issuer. Upon the occurrence of certain events as described herein and in an
accompanying Prospectus Supplement, the Company may redeem the Corresponding
Junior Subordinated Debentures or may terminate each Issuer and, after
satisfaction of creditors of each Issuer, if any, as required by applicable
law, cause the Corresponding Junior Subordinated Debentures to be distributed
to the holders of Preferred Securities in liquidation of their interest in
such Issuer. See "Description of Preferred Securities -- Liquidation
Distribution Upon Termination".
Holders of the Preferred Securities will be entitled to receive
preferential cumulative Distributions accruing from the date of original
issuance and payable periodically as specified in an accompanying Prospectus
Supplement. If provided in an accompanying Prospectus Supplement, the
Company will have the right to defer payments of interest on any series of
Corresponding Junior Subordinated Debentures by extending the interest
payment period thereon at any time or from time to time for one or more
Extension Periods (which shall not extend beyond the maturity of the
Corresponding Junior Subordinated Debentures). If interest payments are so
deferred, Distributions on the corresponding series of Preferred Securities
will also be deferred and the Company will not be permitted, subject to
certain exceptions set forth herein, to declare or pay any cash distributions
with respect to the Company's capital stock or debt securities that rank pari
passu with or junior to the Corresponding Junior Subordinated Debentures or
make any guarantee payments with respect to the foregoing. During an
Extension Period, Distributions will continue to accumulate (and the
Preferred Securities will accumulate additional Distributions thereon at the
rate per annum set forth in the related Prospectus Supplement). See
"Description of Preferred Securities -- Distributions".
The Junior Subordinated Debentures and Preferred Securities may be
offered in amounts, at prices and on terms to be determined at the time of
offering provided, however, that the aggregate initial public offering price
of all Junior Subordinated Debentures (other than Corresponding Junior
Subordinated Debentures) and Preferred Securities (including the
Corresponding Junior Subordinated Debentures) issued pursuant to the
Registration Statement of which this Prospectus forms a part shall not exceed
$150,000,000. Certain specific terms of the Junior Subordinated Debentures
or Preferred Securities in respect of which this Prospectus is being
delivered will be described in an accompanying Prospectus Supplement,
including without limitation and where applicable and to the extent not set
forth herein, (a) in the case of Junior Subordinated Debentures, the specific
designation, aggregate principal amount, denominations, maturity, interest
payment dates, interest rate (which may be fixed or variable) or method of
calculating interest, applicable Extension Period or interest deferral terms,
if any, place or places where principal, premium, if any, and interest, if
any, will be payable, any terms of redemption, any sinking fund provisions,
terms for any conversion or exchange into other securities, initial offering
or purchase price, methods of distribution and any other special terms, and
(b) in the case of Preferred Securities, the identity of the Issuer, specific
title, aggregate amount, stated liquidation preference, number of securities,
Distribution rate, applicable Extension Period or Distribution deferral
terms, if any, place or places where Distributions will be payable, any terms
of redemption, initial offering or purchase price, methods of distribution
and any other special terms.
An accompanying Prospectus Supplement also will contain information, as
applicable, about certain United States Federal income tax considerations
relating to the Junior Subordinated Debentures or Preferred Securities.
The Junior Subordinated Debentures and Preferred Securities may be sold
to or through underwriters, through dealers, remarketing firms or agents
involved in the sale of Junior Subordinated Debentures or Preferred
Securities in respect of which this Prospectus is being delivered and any
applicable fee, commission or discount arrangements with them will be set
forth in an accompanying Prospectus Supplement. Such Prospectus Supplement
will state whether the Junior Subordinated Debentures or Preferred Securities
will be listed on any national securities exchange. If the Junior
Subordinated Debentures or Preferred Securities are not listed on any
national securities exchange, there can be no assurance that there will be a
secondary market for the Junior Subordinated Debentures or Preferred
Securities.
This Prospectus may not be used to consummate sales of Junior
Subordinated Debentures or Preferred Securities unless accompanied by a
Prospectus Supplement.
__________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1996.
<PAGE>
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes
effective. This Prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any
sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements
and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549 and at the
regional offices of the Commission located at 7 World Trade
Center, 13th Floor, Suite 1300, New York, New York 10048 and
Suite 1400, Citicorp Center, 14th Floor, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material can also be
obtained at prescribed rates by writing to the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549. In addition, such reports, proxy
statements and other information concerning the Company can be
inspected at the offices of The New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005 (the "NYSE").
The Company and the Issuers have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments
and exhibits thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities offered hereby. This Prospectus does
not contain all the information set forth in the Registration
Statement and the exhibits thereto, certain portions of which
have been omitted as permitted by the rules and regulations of
the Commission. For further information with respect to the
Company, the Issuers and the securities offered hereby, reference
is made to the Registration Statement and the exhibits and the
financial statements, notes and schedules filed as a part thereof
or incorporated by reference therein, which may be inspected at
the public reference facilities of the Commission, at the
addresses set forth above. Statements made in this Prospectus
concerning the contents of any documents referred to herein are
not necessarily complete, and in each instance are qualified in
all respects by reference to the copy of such document filed as
an exhibit to the Registration Statement.
No separate financial statements of any Issuer have been
included herein. The Company and the Issuers do not consider
that such financial statements would be material to holders of
the Preferred Securities because each Issuer is a newly formed
special purpose entity, has no operating history or independent
operations and is not engaged in and does not propose to engage
in any activity other than its holding, as trust assets, the
Corresponding Junior Subordinated Debentures of the Company and
its issuance of the Preferred and Common Securities. The Issuers
intend not to file separate reports under the Exchange Act but
must apply for and be granted relief by the Commission to avoid
the requirement to file such reports. See "The Issuers",
"Description of Preferred Securities", "Description of
Guarantees" and "Description of Corresponding Junior Subordinated
Debentures".
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission are incorporated into this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the year
ended December 31, 1995.
2. The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996.
In addition, each document or report filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date hereof and prior to the termination of the
offering described herein shall be deemed to be incorporated by
reference into this Prospectus and to be a part of this
Prospectus from the date of filing of such document (such
documents, and the documents enumerated above, being herein
referred to as "Incorporated Documents"). Any statement
contained herein, or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of the
Registration Statement and this Prospectus to the extent that a
statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
The Company will provide without charge to any person to whom
this Prospectus is delivered, on the written or oral request of
such person, a copy of any or all of the foregoing documents
incorporated by reference herein (other than exhibits not
specifically incorporated by reference into the texts of such
documents). Requests for such documents should be directed to:
Christopher T. Screen, P.O. Box 61000, New Orleans, Louisiana
70161, telephone: (504) 576-4212.
THE COMPANY
Entergy Arkansas, Inc. (formerly Arkansas Power & Light
Company) was incorporated under the laws of the State of Arkansas
in 1926. The Company's principal executive offices are located
at 425 West Capitol Avenue, Little Rock, Arkansas 72201. Its
telephone number is 501-377-4000.
The Company is an electric public utility company with
substantially all of its operations in the State of Arkansas.
The Company also has minor operations in the State of Tennessee.
All of the outstanding common stock of the Company is owned by
Entergy Corporation ("Entergy"), a Delaware corporation. Entergy
is a registered public utility holding company under the Public
Utility Holding Company Act of 1935, as amended ("Holding Company
Act"). The Company, Entergy Gulf States, Inc., Entergy
Louisiana, Inc., Entergy Mississippi, Inc. and Entergy New
Orleans, Inc. are operating electric utility subsidiaries of
Entergy. Entergy also owns, among other things, all of the
common stock of System Energy Resources, Inc., a generating
company, Entergy Operations, Inc., a nuclear management services
company, Entergy Power, Inc., through which Entergy provides
wholesale electricity to other utilities and indirectly all of
the common stock of CitiPower Ltd., a retail electric
distribution company serving Melbourne, Australia and surrounding
suburbs.
The Company, Entergy Louisiana, Inc., Entergy Mississippi,
Inc. and Entergy New Orleans, Inc. own all of the capital stock
of System Fuels, Inc., a special purpose company which implements
and/or maintains certain programs for the procurement, delivery
and storage of fuel supplies for Entergy subsidiaries, including
the Company.
The foregoing information relating to the Company does not
purport to be comprehensive and should be read together with the
financial statements and other information contained in the
Incorporated Documents.
THE ISSUERS
Each Issuer is a statutory business trust created under
Delaware law pursuant to (i) a trust agreement executed by the
Company, as depositor of each Issuer, the Property Trustee and
the Delaware Trustee (each as defined herein) and an
Administrative Trustee (as defined herein) of each Issuer and
(ii) the filing of a certificate of trust with the Delaware
Secretary of State. Each trust agreement will be amended and
restated in its entirety (each, as so amended and restated, a
"Trust Agreement" and collectively, the "Trust Agreements")
substantially in the forms filed as exhibits to the Registration
Statement of which this Prospectus forms a part. Each Trust
Agreement will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
Each Issuer exists for the exclusive purposes of (i) issuing and
selling its Preferred Securities and Common Securities, (ii)
using the proceeds from the sale of such Preferred Securities and
Common Securities to acquire the related series of Corresponding
Junior Subordinated Debentures and (iii) engaging in only those
other activities necessary, convenient or incidental thereto.
Accordingly, the Corresponding Junior Subordinated Debentures
will be the sole assets of each Issuer, and payments under the
Corresponding Junior Subordinated Debentures will be the sole
source of revenue of each Issuer.
All of the Common Securities will be owned by the Company.
The Common Securities of an Issuer will rank pari passu, and
payments will be made thereon pro rata, with the Preferred
Securities of such Issuer, except that upon the occurrence and
continuance of a Debenture Event of Default, the rights of the
Company as holder of the Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption or
otherwise will be subordinated to the rights of the holders of
the Preferred Securities of such Issuer. See "Description of
Preferred Securities--Subordination of Common Securities". The
Company will acquire Common Securities in an aggregate
liquidation amount equal to not less than 3% of the total capital
of each Issuer.
Unless otherwise specified in the applicable Prospectus
Supplement, each Issuer has a term of approximately 54 years, but
may terminate earlier as provided in the applicable Trust
Agreement. Each Issuer's business and affairs are conducted by
its trustees, each appointed by the Company as holder of the
Common Securities: The Bank of New York, as the Property Trustee
(the "Property Trustee"), The Bank of New York (Delaware), as the
Delaware Trustee (the "Delaware Trustee"), and three individual
trustees (the "Administrative Trustees") who are employees or
officers of or affiliated with the Company (collectively, the
"Issuer Trustees"). The Bank of New York, as Property Trustee,
will act as sole indenture trustee under each Trust Agreement for
purposes of compliance with the Trust Indenture Act. The Bank of
New York will also act as Guarantee Trustee under the Guarantees,
and Corresponding Debenture Trustee under the Corresponding
Indenture (each as defined herein). See "Description of
Guarantees" and "Description of Junior Subordinated Debentures".
The holder of the Common Securities, or the holders of a majority
in liquidation preference of the Preferred Securities, if a
Debenture Event of Default has occurred and is continuing, will
be entitled to appoint, remove or replace the Property Trustee
and/or the Delaware Trustee. In no event will the holders of the
Preferred Securities have the right to vote to appoint, remove or
replace the Administrative Trustees; such voting rights are
vested exclusively in the holder of the Common Securities. The
duties and obligations of each Issuer Trustee are governed by the
applicable Trust Agreement. The Company will pay all fees and
expenses related to each Issuer and the offering of the Preferred
Securities and will pay, directly or indirectly, all ongoing
costs, expenses and liabilities of each Issuer. The principal
executive office of each Issuer is 425 West Capitol Avenue,
Little Rock, Arkansas 72201, Attention: Treasurer, and its
telephone number is (501) 377-4000.
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus
Supplement, the Company intends to use the proceeds from the sale
of the Junior Subordinated Debentures (including Corresponding
Junior Subordinated Debentures issued to the Issuers in
connection with the investment by the Issuers of all of the
proceeds from the sale of Preferred Securities) for general
corporate purposes, including working capital, capital
expenditures, refinancing of debt, including outstanding
commercial paper and other short term bank indebtedness, the
redemption of outstanding series of preferred stock, the
satisfaction of other obligations or for such other purposes as
may be specified in the applicable Prospectus Supplement. Except
as otherwise set forth in the applicable Prospectus Supplement,
all of the proceeds from the sale of Preferred Securities will be
invested by the Issuers in Corresponding Junior Subordinated
Debentures to be issued by the Company. A more detailed
description of the use of proceeds of any specific offering shall
be set forth in the Prospectus Supplement pertaining to such
offering.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued in one or
more series under the Indenture for Unsecured Subordinated Debt
Securities, dated as of June 1, 1996 (the "Indenture") between
the Company and The Bank of New York, as debenture trustee (the
"Debenture Trustee"). The Corresponding Junior Subordinated
Debentures are to be issued in one or more series of Junior
Subordinated Debentures under the Indenture for Unsecured
Subordinated Debt Securities relating to Trust Securities dated
as of June 1, 1996 (the "Corresponding Indenture") between the
Company and The Bank of New York, as corresponding debenture
trustee (the "Corresponding Debenture Trustee"). This summary of
certain terms and provisions of the Junior Subordinated
Debentures and the Indenture does not purport to be complete and
is subject to, and is qualified in its entirety by reference to
the Indenture, the form of which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part, and
to the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Except as otherwise provided herein, this
summary of certain terms and provisions of Junior Subordinated
Debentures and the Indenture is also applicable to the
Corresponding Junior Subordinated Debentures and the
Corresponding Indenture. For additional terms and provisions
applicable only to the Corresponding Junior Subordinated
Debentures, see "Description of Corresponding Junior Subordinated
Debentures". Whenever particular defined terms of the Indenture
(as supplemented or amended from time to time) are referred to
herein or in a Prospectus Supplement, such defined terms are
incorporated herein or therein by reference.
General
Each series of Junior Subordinated Debentures will rank pari
passu with all other series of Junior Subordinated Debentures,
will be unsecured and subordinate and junior in right of payment
to the extent and in the manner set forth in the Indenture to all
Senior Debt (as defined below) of the Company. See
"Subordination". Except as otherwise provided in the applicable
Prospectus Supplement, the Indenture does not limit the
incurrence or issuance of other secured or unsecured debt of the
Company, whether under the Indenture, any other indenture that
the Company may enter into in the future or otherwise. See
"Subordination" and the Prospectus Supplement relating to any
offering of Preferred Securities or Junior Subordinated
Debentures.
The Junior Subordinated Debentures will be issuable in one or
more series pursuant to an indenture supplemental to the
Indenture or a resolution of the Board of Directors or an
Officer's Certificate.
The applicable Prospectus Supplement or Prospectus
Supplements will describe the following terms of the Junior
Subordinated Debentures: (1) the title of the Junior Subordinated
Debentures; (2) any limit upon the aggregate principal amount of
the Junior Subordinated Debentures; (3) the date or dates on
which the principal of the Junior Subordinated Debentures is
payable or the method of determination thereof; (4) the rate or
rates, if any, or the method by which such rate or rates shall be
determined, at which the Junior Subordinated Debentures shall
bear interest, if any, the date or dates from which any such
interest will accrue, the Interest Payment Dates on which any
such interest shall be payable, the right, if any, of the Company
to defer or extend an Interest Payment Date, and the Regular
Record Date for any interest payable on any Interest Payment Date
and the person or persons to whom interest on such Junior
Subordinated Debentures shall be payable on any Interest Payment
Date, if other than the persons in whose names such Junior
Subordinated Debentures are registered at the close of business
on the Regular Record Date for such interest; (5) the place or
places where, subject to the terms of the Indenture as described
below under "Payment and Paying Agents", the principal of and
premium, if any, and interest on the Junior Subordinated
Debentures will be payable and where, subject to the terms of the
Indenture as described below under "Denominations, Registration
and Transfer", the Junior Subordinated Debentures may be
presented for registration of transfer or exchange and the place
or places where notices and demands to or upon the Company in
respect of the Junior Subordinated Debentures and the Indenture
may be served; the Security Registrar and Paying Agents for such
Junior Subordinated Debentures and, if such is the case, that the
principal of such Junior Subordinated Debentures shall be payable
without presentation or surrender thereof; (6) any period or
periods within, or date or dates on, which, the price or prices
at which and the terms and conditions upon which Junior
Subordinated Debentures may be redeemed, in whole or in part, at
the option of the Company; (7) the obligation or obligations, if
any, of the Company to redeem or purchase any of the Junior
Subordinated Debentures pursuant to any sinking fund or other
analogous mandatory redemption provisions or at the option of
holder thereof, and the period or periods within which, the price
or prices at which, and the terms and conditions upon which the
Junior Subordinated Debentures shall be redeemed or purchased, in
whole or in part, pursuant to such obligation, and applicable
exceptions to the requirements of a notice of redemption in the
case of mandatory redemption or redemption at the option of the
holder; (8) the denominations in which any Junior Subordinated
Debentures shall be issuable if other than denominations of
$1,000 and any integral multiple thereof (in the case of
Corresponding Junior Subordinated Debentures, the denominations
in which any Corresponding Junior Subordinated Debentures shall
be issuable if other than denominations of $25 and any integral
multiple thereof); (9) if other than in U.S. Dollars, the
currency or currencies (including composite currencies) in which
the principal of and premium, if any and interest, if any, on the
Junior Subordinated Debentures shall be payable; (10) if the
principal of or any premium or interest on any of the Junior
Subordinated Debentures is to be payable, at the election of the
Company or the holder thereof, in a coin or currency other than
in which such Junior Subordinated Debentures are stated to be
payable, the period or periods within which and the terms and
conditions upon which, such election is to be made; (11) if the
principal of or premium or interest on such Junior Subordinated
Debentures are to be payable, or are to be payable at the
election of the Company or a holder thereof, in securities or
other property, the type and amount of such securities or other
property, or the methods by which such amount shall be
determined, and the period or periods within which, and the terms
and conditions upon which, any such election is to be made;
(12) if the amount payable in respect of principal of or any
premium or interest on any of such Junior Subordinated Debentures
may be determined with reference to an index or other fact
ascertainable outside the Indenture, the manner in which such
amounts are determined; (13) if other than the principal amount
thereof, the portion of the principal amount of Junior
Subordinated Debentures that shall be payable upon declaration of
acceleration of the Maturity thereof; (14) any additions to the
Events of Default or covenants of the Company with respect to the
Junior Subordinated Debentures; (15) the terms, if any, pursuant
to which the Junior Subordinated Debentures may be converted into
or exchanged for shares of capital stock or other securities of
the Company or any other Person; (16) the obligations or
instruments, if any, which shall be considered to be Government
Obligations in respect of the Junior Subordinated Debentures
denominated in a currency other than Dollars or in a composite
currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of such
Junior Subordinated Debentures after such satisfaction and
discharge thereof; (17) if the Junior Subordinated Debentures are
to be issued in global form, any limitations on the rights of the
holder or holders of such Junior Subordinated Debentures to
transfer or exchange the same or to obtain the registration of
transfer thereof, any limitations of the rights of the holder or
holders thereof to obtain certificates therefor in definitive
form in lieu of a temporary Global Security and any and all other
matters incidental to such Junior Subordinated Debentures; (18)
if such Junior Subordinated Debentures are to be issuable as
bearer securities; (19) any limitations on the rights of the
holders of the Junior Subordinated Debentures to transfer or
exchange such Junior Subordinated Debentures or to obtain the
registration of transfer thereof, and if a service charge will be
made for the registration of transfer or exchange of the Junior
Subordinated Debentures, the amount or terms thereof; (20) any
exceptions to the provisions governing payments due on legal
holidays or any variations in the definition of Business Day with
respect of such Junior Subordinated Debentures; (21) in the case
of Corresponding Junior Subordinated Debentures, the designation
of the Issuer to which Corresponding Junior Subordinated
Debentures are to be issued; and (22) any other terms of the
Junior Subordinated Debentures not inconsistent with the
provisions of the Indenture.
Junior Subordinated Debentures may be sold at a substantial
discount below their stated principal amount, bearing no interest
or interest at a rate which at the time of issuance is below
market rates. Certain Federal income tax consequences and
special considerations applicable to any such Junior Subordinated
Debentures will be described in the applicable Prospectus
Supplement.
If the purchase price of any of the Junior Subordinated
Debentures is payable in one or more foreign currencies or
currency units or if any Junior Subordinated Debentures are
denominated in one or more foreign currencies or currency units
or if the principal of, premium, if any, or interest, if any, on
any Junior Subordinated Debentures is payable in one or more
foreign currencies or currency units, the restrictions,
elections, certain Federal income tax considerations, specific
terms and other information with respect to such issue of Junior
Subordinated Debentures and such foreign currency or currency
units will be set forth in the applicable Prospectus Supplement.
If any index is used to determine the amount of payments of
principal of, premium, if any, or interest on any series of
Junior Subordinated Debentures, special Federal income tax,
accounting and other considerations applicable thereto will be
described in the applicable Prospectus Supplement.
Denominations, Registration and Transfer
Unless otherwise specified in the applicable Prospectus
Supplement, the Junior Subordinated Debentures will be issuable
only in registered form without coupons in denominations of
$1,000 and any integral multiple thereof ($25 in the case of
Corresponding Junior Subordinated Debentures). Junior
Subordinated Debentures of any series will be exchangeable for
other Junior Subordinated Debentures of the same series, of any
authorized denominations, and of like tenor and aggregate
principal amount.
Subject to the terms of the Indenture and the limitations
applicable to Global Junior Subordinated Debentures, Junior
Subordinated Debentures may be presented for exchange as provided
above, and may be presented for registration of transfer (with
the form of transfer endorsed thereon, or a satisfactory written
instrument of transfer, duly executed), at the office of the
appropriate Securities Registrar or at the office of any transfer
agent designated by the Company for such purpose with respect to
any series of Junior Subordinated Debentures and referred to in
the applicable Prospectus Supplement, without service charge, but
the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
If the applicable Prospectus Supplement refers to any transfer
agents (in addition to the Securities Registrar) initially
designated by the Company with respect to any series of Junior
Subordinated Debentures, the Company may at any time rescind the
designation of any such transfer agent or approve a change in the
location through which any such transfer agent acts, provided
that the Company maintains a transfer agent in each Place of
Payment for such series. The Company may at any time designate
additional transfer agents with respect to any series of Junior
Subordinated Debentures.
In the event of any redemption, the Company shall not be
required to (i) issue, register the transfer of or exchange
Junior Subordinated Debentures of any series during a period
beginning at the opening of business 15 days before the day of
selection for redemption of Junior Subordinated Debentures of
that series and ending at the close of business on the day of
mailing of the relevant notice of redemption or (ii) register the
transfer or exchange of any Junior Subordinated Debentures so
selected for redemption, except, in the case of any Junior
Subordinated Debentures being redeemed in part, any portion
thereof not to be redeemed.
Global Junior Subordinated Debentures
The Junior Subordinated Debentures of a series may be issued
in whole or in part in the form of one or more global securities
("Global Junior Subordinated Debentures") that will be deposited
with, or on behalf of, a depositary (the "Depositary") identified
in the Prospectus Supplement relating to such series. Global
Junior Subordinated Debentures may be issued only in fully
registered form and in either temporary or permanent form.
Unless and until it is exchanged in whole or in part for the
individual Junior Subordinated Debentures represented thereby, a
Global Junior Subordinated Debenture may not be transferred
except as a whole by the Depositary for such Global Junior
Subordinated Debenture to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee
of such Depositary or by the Depositary or any nominee to a
successor Depositary or any nominee of such successor.
The specific terms of the depositary arrangement with respect
to a series of Junior Subordinated Debentures will be described
in the Prospectus Supplement relating to such series. The
Company anticipates that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a Global Junior Subordinated Debenture,
and the deposit of such Global Junior Subordinated Debenture with
or on behalf of the Depositary, the Depositary for such Global
Junior Subordinated Debenture or its nominee will credit on its
book-entry registration and transfer system, the respective
principal amounts of the individual Junior Subordinated
Debentures represented by such Global Junior Subordinated
Debenture to the accounts of persons that have accounts with such
Depositary ("Participants"). Such accounts shall be designated
by the dealers, underwriters or agents with respect to such
Junior Subordinated Debentures or by the Company if such Junior
Subordinated Debentures are offered and sold directly by the
Company. Ownership of beneficial interests in a Global Junior
Subordinated Debenture will be limited to Participants or persons
that may hold interests through Participants. Ownership of
beneficial interests in such Global Junior Subordinated Debenture
will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable
Depositary or its nominee (with respect to interests of
Participants) and the records of Participants (with respect to
interests of persons who hold through Participants). The laws of
some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer
beneficial interests in a Global Junior Subordinated Debenture.
So long as the Depositary for a Global Junior Subordinated
Debenture, or its nominee, is the registered owner of such Global
Junior Subordinated Debenture, such Depositary or such nominee,
as the case may be, will be considered the sole owner or holder
of the Junior Subordinated Debentures represented by such Global
Junior Subordinated Debenture for all purposes under the
Indenture governing such Junior Subordinated Debentures. Except
as provided below, owners of beneficial interests in a Global
Junior Subordinated Debenture will not be entitled to have any of
the individual Junior Subordinated Debentures of the series
represented by such Global Junior Subordinated Debenture
registered in their names, will not receive or be entitled to
receive physical delivery of any such Junior Subordinated
Debentures of such series in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest
on individual Junior Subordinated Debentures represented by a
Global Junior Subordinated Debenture registered in the name of a
Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the
Global Junior Subordinated Debenture representing such Junior
Subordinated Debentures. None of the Company, the Debenture
Trustee, any Paying Agent, or the Securities Registrar for such
Junior Subordinated Debentures will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interest of the Global
Junior Subordinated Debenture for such Junior Subordinated
Debentures or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of
Junior Subordinated Debentures or its nominee, upon receipt of
any payment of principal, premium or interest in respect of a
permanent Global Junior Subordinated Debenture representing any
of such Junior Subordinated Debentures, immediately will credit
Participants' accounts with payments in amounts proportionate to
their respective beneficial interest in the principal amount of
such Global Junior Subordinated Debenture for such Junior
Subordinated Debentures as shown on the records of such
Depositary or its nominee. The Company also expects that
payments by Participants to owners of beneficial interests in
such Global Junior Subordinated Debenture held through such
Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for
the accounts of customers in bearer form or registered in "street
name." Such payments will be the responsibility of such
Participants.
Unless otherwise specified in the applicable Prospectus
Supplement, if a Depositary for a series of Junior Subordinated
Debentures is at any time unwilling, unable or ineligible to
continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue
individual Junior Subordinated Debentures of such series in
exchange for the Global Junior Subordinated Debenture
representing such series of Junior Subordinated Debentures. In
addition, the Company may at any time and in its sole discretion,
subject to any limitations described in the Prospectus Supplement
relating to such Junior Subordinated Debentures, determine not to
have any Junior Subordinated Debentures of such series
represented by one or more Global Junior Subordinated Debentures
and, in such event, will issue individual Junior Subordinated
Debentures of such series in exchange for the Global Junior
Subordinated Debenture or Securities representing such series of
Junior Subordinated Debentures. Further, if the Company so
specifies with respect to the Junior Subordinated Debentures of a
series, an owner of a beneficial interest in a Global Junior
Subordinated Debenture representing Junior Subordinated
Debentures of such series may, on terms acceptable to the
Company, the Debenture Trustee and the Depositary for such Global
Junior Subordinated Debenture, receive individual Junior
Subordinated Debentures of such series in exchange for such
beneficial interests, subject to any limitations described in the
Prospectus Supplement relating to such Junior Subordinated
Debentures. In any such instance, an owner of a beneficial
interest in a Global Junior Subordinated Debenture will be
entitled to physical delivery of individual Junior Subordinated
Debentures of the series represented by such Global Junior
Subordinated Debenture equal in principal amount to such
beneficial interest and to have such Junior Subordinated
Debentures registered in its name. Individual Junior
Subordinated Debentures of such series so issued will be issued
in denominations, unless otherwise specified by the Company, of
$1,000 and integral multiples thereof ($25 in the case of
Corresponding Junior Subordinated Debentures).
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of (and premium, if any) and any
interest on Junior Subordinated Debentures will be made at the
office of the Debenture Trustee in The City of New York or at the
office of such Paying Agent or Paying Agents as the Company may
designate from time to time in the applicable Prospectus
Supplement. Unless otherwise indicated in the applicable
Prospectus Supplement, payment of any interest on Junior
Subordinated Debentures will be made to the Person in whose name
such Junior Subordinated Debenture is registered at the close of
business on the Regular Record Date for such interest, except in
the case of Defaulted Interest. The Company may at any time
designate additional Paying Agents or rescind the designation of
any Paying Agent; however the Company will at all times be
required to maintain a Paying Agent in each Place of Payment for
each series of Junior Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any Paying
Agent, or then held by the Company in trust, for the payment of
the principal of (and premium, if any) or interest on any Junior
Subordinated Debenture and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become
due and payable shall, at the request of the Company, be repaid
to the Company and the holder of such Junior Subordinated
Debenture shall thereafter look, as a general unsecured creditor,
only to the Company for payment thereof.
Redemption
Unless otherwise indicated in the applicable Prospectus
Supplement, Junior Subordinated Debentures will not be subject to
any sinking fund and will not be redeemable prior to their Stated
Maturity except as described below.
Except as otherwise specified in the applicable Prospectus
Supplement, if a Debenture Tax Event (as defined below) in
respect of a series of Junior Subordinated Debentures shall occur
and be continuing, the Company may, at its option, redeem such
series of Junior Subordinated Debentures in whole (but not in
part) on any date within 90 days of the occurrence of such
Debenture Tax Event, at a redemption price equal to 100% of the
principal amount of such Junior Subordinated Debentures then
outstanding plus accrued and unpaid interest to the date fixed
for redemption.
"Debenture Tax Event" means the receipt by the Company of an
opinion of counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a
result of any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or
decision is announced on or after the date of issuance of the
applicable series of Junior Subordinated Debentures under the
Indenture, there is more than an insubstantial risk that interest
payable by the Company on such series of Junior Subordinated
Debentures is not, or within 90 days of the date thereof, will
not be, deductible, in whole or in part, for United States
Federal income tax purposes.
Notice of any redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each holder
of Junior Subordinated Debentures to be redeemed at his
registered address. Unless the Company defaults in payment of
the redemption price, on and after the redemption date interest
ceases to accrue on such Junior Subordinated Debentures or
portions thereof called for redemption.
Option to Extend Interest Payment Period
If provided in the applicable Prospectus Supplement, the
Company shall have the right at any time or from time to time
during the term of any series of Junior Subordinated Debentures
to defer the payment of interest for such number of consecutive
interest payment periods with respect to each deferred period as
may be specified in the applicable Prospectus Supplement (each,
an "Extension Period"), subject to the terms, conditions and
covenants, if any, specified in such Prospectus Supplement,
provided that such Extension Period may not extend beyond the
maturity of the Junior Subordinated Debentures. Certain United
States Federal income tax consequences and special considerations
applicable to any such Junior Subordinated Debentures will be
described in the applicable Prospectus Supplement.
In the event that the Company exercises this right, during
any such Extension Period the Company may not, and may not permit
any subsidiary of the Company to, (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of the Company's
capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt
securities that rank pari passu with or junior in interest to the
Junior Subordinated Debentures or make any guarantee payments
with respect to the foregoing (other than (a) dividends or
distributions in shares of capital stock of the Company and (b)
payments under Guarantee).
Modification of Indenture
Without the consent of any holder of Junior Subordinated
Debentures, the Company and the Debenture Trustee may enter into
one or more supplemental indentures for any of the following
purposes: (a) to evidence the assumption by any permitted
successor to the Company of the covenants of the Company in the
Indenture and in the Junior Subordinated Debentures; or (b) to
add one or more covenants of the Company or other provisions for
the benefit of the holders of outstanding Junior Subordinated
Debentures or to surrender any right or power conferred upon the
Company by the Indenture; or (c) to add any additional Debenture
Events of Default with respect to outstanding Junior Subordinated
Debentures; or (d) to change or eliminate any provision of the
Indenture or to add any new provision to the Indenture, provided
that if such change, elimination or addition will adversely
affect the interests of the holders of Junior Subordinated
Debentures of any series in any material respect, such change,
elimination or addition will become effective with respect to
such series only (1) when the consent of the holders of Junior
Subordinated Debentures of such series has been obtained in
accordance with the Indenture, or (2) when no Junior Subordinated
Debentures of such series remain outstanding under the Indenture;
or (e) to provide collateral security for all but not part of the
Junior Subordinated Debentures; or (f) to establish the form or
terms of Junior Subordinated Debentures of any other series as
permitted by the Indenture; or (g) to provide for the
authentication and delivery of bearer securities and coupons
appertaining thereto representing interest, if any, thereon and
for the procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the solicitation of
the vote or consent of, the holders thereof, and for any and all
other matters incidental thereto; or (h) to evidence and provide
for the acceptance of appointment of a successor Debenture
Trustee under the Indenture with respect to the Junior
Subordinated Debentures of one or more series and to add to or
change any of the provisions of the Indenture as shall be
necessary to provide for or to facilitate the administration of
the trusts under the Indenture by more than one trustee; or
(i) to provide for the procedures required to permit the
utilization of a noncertificated system of registration for the
Junior Subordinated Debentures of all or any series; or (j) to
change any place where (1) the principal of and premium, if any,
and interest, if any, on all or any series of Junior Subordinated
Debentures shall be payable, (2) all or any series of Junior
Subordinated Debentures may be surrendered for registration of
transfer or exchange and (3) notices and demands to or upon the
Company in respect of Junior Subordinated Debentures and the
Indenture may be served; or (k) to cure any ambiguity or
inconsistency or to add or change any other provisions with
respect to matters and questions arising under the Indenture,
provided such changes or additions shall not adversely affect the
interests of the holders of Junior Subordinated Debentures of any
series in any material respect. The Indenture contains
provisions permitting the Company and the Debenture Trustee, with
the consent of the holders of not less than a majority in
principal amount of each outstanding series of Junior
Subordinated Debentures affected, to modify the Indenture in a
manner affecting the rights of the holders of such series of the
Junior Subordinated Debentures; provided, that no such
modification may, without the consent of the holder of each
outstanding Junior Subordinated Debenture so affected, (i) change
the Stated Maturity of any series of Junior Subordinated
Debentures, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon (except
such extension as is contemplated thereby), (ii) reduce the
percentage of principal amount of Junior Subordinated Debentures
of any series, the holders of which are required to consent to
any such modification of the Indenture, or (iii) modify certain
of the provisions of the Indenture relating to supplemental
indentures, waivers of certain covenants and waivers of past
defaults with respect to the Junior Subordinated Debentures of
any series, without the consent of the holder of each outstanding
Junior Subordinated Debentures affected thereby, provided that,
in the case of Corresponding Junior Subordinated Debentures, so
long as any of the corresponding series of Preferred Securities
remain outstanding, no such modification may be made that
adversely affects the holders of such Preferred Securities, and
no termination of the Indenture may occur, and no waiver of any
Debenture Event of Default or compliance with any covenant under
the Indenture may be effective, without the prior consent of the
holders of at least a majority of the aggregate liquidation
preference amount of such Preferred Securities unless and until
the principal of the Corresponding Junior Subordinated Debentures
and all accrued and unpaid interest thereon have been paid in
full and certain other conditions are satisfied.
Debenture Events of Default
The Indenture provides that any one or more of the following
described events with respect to a series of Junior Subordinated
Debentures that has occurred and is continuing constitutes a
"Debenture Event of Default" with respect to such series of
Junior Subordinated Debentures:
(i) failure for 60 days to pay any interest on such
series of the Junior Subordinated Debentures, when due and
payable (subject to the deferral of any interest payments in
the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on
such series of Junior Subordinated Debentures when due and
payable; or
(iii) failure to perform, or breach of, any covenant or
warranty of the Company contained in the Indenture for 60
days after written notice to the Company from the Debenture
Trustee or to the Company and the Debenture Trustee by the
holders of at least 33% in principal amount of such series of
outstanding Junior Subordinated Debentures as provided in the
Indenture; or
(iv) certain events in bankruptcy, insolvency or
reorganization of the Company; or
(v) any other Event of Default specified with respect to
the Junior Subordinated Debentures.
If a Debenture Event of Default due to the default in
payment of principal of, or interest on, any series of Junior
Subordinated Debentures or due to the default in the performance
or breach of any other covenant or warranty of the Company
applicable to the Junior Subordinated Debentures of such series
but not applicable to all series occurs and is continuing, then
either the Debenture Trustee or the holders of not less than 33%
in aggregate principal amount of the outstanding Junior
Subordinated Debentures of such series may declare the principal
of all of the Junior Subordinated Debentures of such series and
interest accrued thereon to be due and payable immediately
(subject to the subordination provisions of the Indenture). If a
Debenture Event of Default due to the default in the performance
of any other covenants or agreements in the Indenture applicable
to all outstanding Junior Subordinated Debentures or due to
certain events of bankruptcy, insolvency or reorganization of the
Company has occurred and is continuing, either the Debenture
Trustee or the holders of not less than 33% in aggregate
principal amount of all outstanding Junior Subordinated
Debentures, considered as one class, and not the holders of the
Junior Subordinated Debentures of any one of such series may make
such declaration of acceleration (subject to the subordination
provisions of the Indenture).
At any time after such a declaration of acceleration with
respect to the Junior Subordinated Debentures of any series has
been made and before a judgment or decree for payment of the
money due has been obtained, the Debenture Event or Events of
Default giving rise to such declaration of acceleration will,
without further act, be deemed to have been waived, and such
declaration and its consequences will, without further act, be
deemed to have been rescinded and annulled, if
(a) the Company has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(1) all overdue interest on all Junior Subordinated
Debentures of such series;
(2) the principal of and premium, if any, on any
Junior Subordinated Debentures of such series which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Junior Subordinated Debentures;
(3) interest upon overdue interest at the rate or
rates prescribed therefor in such Junior Subordinated Debentures,
to the extent that payment of such interest is lawful; and
(4) all amounts due to the Debenture Trustee under the
Indenture;
(b) any other Debenture Event or Events of Default with
respect to Junior Subordinated Debentures of such series, other
than the nonpayment of the principal of the Junior Subordinated
Debentures of such series which has become due solely by such
declaration of acceleration, have been cured or waived as
provided in the Indenture.
The holders of a majority in aggregate principal amount of
the Junior Subordinated Debentures of all series then outstanding
may waive compliance by the Company with certain restrictive
provisions of the Indenture. The holders of a majority in
outstanding principal amount of the Junior Subordinated
Debentures of any series may, on behalf of the holders of all the
Junior Subordinated Debentures of such series, waive any past
default under the Indenture with respect to such series, except a
default in the payment of principal or interest (unless such
default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a
default in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of
the holder of each outstanding Junior Subordinated Debenture of
such series affected. With respect to the Corresponding Junior
Subordinated Debentures held by an Issuer, such Issuer may not
waive compliance by the Company with certain restrictive
provisions of the Corresponding Indenture or waive any past
defaults thereunder without the consent of a majority in
aggregate liquidation preference amount of the outstanding
Preferred Securities issued by such Issuer.
The Company is required to file annually with the Debenture
Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it
under the Indenture.
In case a Debenture Event of Default shall occur and be
continuing as to a series of Corresponding Junior Subordinated
Debentures, the Property Trustee will have the right to declare
the principal of and the interest on such Corresponding Junior
Subordinated Debentures and any other amounts payable under the
Corresponding Indenture, to be forthwith due and payable and to
enforce its other rights as a creditor with respect to such
Corresponding Junior Subordinated Debentures. If the Property
Trustee fails to enforce its rights with respect to the
Corresponding Junior Subordinated Debentures or the related Trust
Agreement, a holder of Preferred Securities may institute a legal
proceeding directly against the Company to enforce the Property
Trustee's rights with respect to the Corresponding Junior
Subordinated Debentures or such Trust Agreement, to the fullest
extent permitted by law, without first instituting any legal
proceeding against the Property Trustee or any other person. See
"Description of Preferred Securities--Voting Rights; Amendment of
Trust Agreement". Notwithstanding the foregoing, a holder of
Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of principal of or interest
on the Corresponding Junior Subordinated Debentures having a
principal amount equal to the aggregate liquidation preference
amount of the Preferred Securities of such holder on or after the
due dates specified in the Junior Subordinated Debentures. See
"Description of Guarantees" and "Description of Corresponding
Junior Subordinated Debentures".
Certain Covenants of the Company
The Company will covenant, as to each series of Junior
Subordinated Debentures, that it will not, (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or
make a liquidation payment with respect to, any of the Company's
capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt
securities (including other Junior Subordinated Debentures) that
rank par passu with or junior in interest to the Junior
Subordinated Debentures or make any guarantee payments with
respect to the foregoing (other than (a) dividends or
distributions in common stock of the Company, and (b) payments
under any Guarantee) if at such time (i) there shall have
occurred and be continuing a payment default (whether before or
after expiration of any period of grace) or a Debenture Event of
Default with respect to Junior Subordinated Debentures of such
(ii) the Company shall be in default with respect to its payment
of any obligations under the Guarantee relating to the Preferred
Securities of the Issuer to which Junior Subordinated Debentures
of such series have been issued or (iii) the Company shall have
given notice of its selection of an Extension Period as provided
in the Indenture with respect to Junior Subordinated Debentures
of such series and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing.
Consolidation, Merger, Sale of Assets and Other Transactions
The Indenture provides that the Company shall not consolidate
with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to
any person, unless (i) in case the Company consolidates with or
merges into another corporation or conveys or transfers its
properties and assets substantially as an entirety to any person,
the successor corporation is organized under the laws of the
United States or any State or the District of Columbia, and such
successor corporation expressly assumes the Company's obligations
on all Junior Subordinated Debentures issued under the Indenture;
(ii) immediately after giving effect thereto, no Debenture Event
of Default, and no event which, after notice or lapse of time or
both, would become a Debenture Event of Default, shall have
occurred and be continuing; and (iii) certain other conditions as
prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders
of the Junior Subordinated Debentures protection in the event of
a highly leveraged or other transaction involving the Company
that may adversely affect holders of the Junior Subordinated
Debentures.
Satisfaction And Discharge
The principal amount of any series of Junior Subordinated
Debentures issued under the Indenture will be deemed to have been
paid for purposes of the Indenture and the entire indebtedness of
the Company in respect thereof will be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Debenture Trustee or any Paying Agent, in
trust: (a) money in an amount which will be sufficient, or
(b) in the case of a deposit made prior to the maturity of the
Junior Subordinated Debentures, Government Obligations (as
defined herein), which do not contain provisions permitting the
redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which when
due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or
held by the Debenture Trustee, will be sufficient, or (c) a
combination of (a) and (b) which will be sufficient, to pay when
due the principal of and premium, if any, and interest, if any,
due and to become due on the Junior Subordinated Debentures of
such series that are outstanding. For this purpose, Government
Obligations, include direct obligations of, or obligations
unconditionally guaranteed by, the United States of America
entitled to the benefit of the full faith and credit thereof and
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in such obligations or in
any specific interest or principal payments due in respect
thereof.
It is possible that for federal income tax purposes any
deposit contemplated in the preceding paragraph could be treated
as a taxable exchange of the Junior Subordinated Debentures
outstanding for an issue of obligations of a trust or a direct
interest in the cash and securities held in trust. In that case,
holders of the Junior Subordinated Debentures outstanding would
recognize a gain or loss for federal income tax purposes, as if
their share of trust obligations or the cash or securities
deposited, as the case may be, had actually been received by them
in exchange for their Junior Subordinated Debentures. In
addition, such holders thereafter would be required to include in
income a share of the income, gain or loss of the trust. The
amount so required to be included in income could be different
from the amount that would be includable in the absence of such
deposit. Prospective investors are urged to consult their own
tax advisors as to the specific consequences to them of such
deposit.
Conversion or Exchange
If so indicated in the applicable Prospectus Supplement, the
Junior Subordinated Debentures of any series may be convertible
or exchangeable into other securities. The specific terms on
which Junior Subordinated Debentures of any series may be so
converted or exchanged will be set forth in the applicable
Prospectus Supplement. Such terms may include provisions for
conversion or exchange, either mandatory, at the option of the
holder, or at the option of the Company, in which case the number
of shares of Preferred Securities or other securities to be
received by the holders of Junior Subordinated Debentures would
be calculated as of a time and in the manner stated in the
applicable Prospectus Supplement.
Subordination
In the Indenture, the Company has covenanted and agreed that
any Junior Subordinated Debentures issued thereunder will be
subordinate and junior in right of payment to all Senior Debt to
the extent provided in the Indenture. Upon any payment or
distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the
benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in
connection with any insolvency or bankruptcy proceeding of the
Company, the holders of Senior Debt will first be entitled to
receive payment in full of principal of (and premium, if any) and
interest, if any, on such Senior Debt before the holders of
Junior Subordinated Debentures or, in the case of Corresponding
Junior Subordinated Debentures, the Property Trustee on behalf of
the holders, will be entitled to receive or retain any payment in
respect of the principal of (and premium, if any) or interest, if
any, on the Junior Subordinated Debentures.
In the event of the acceleration of the maturity of any
Junior Subordinated Debentures, the holders of all Senior Debt
outstanding at the time of such acceleration will first be
entitled to receive payment in full of all amounts due thereon
(including any amounts due upon acceleration) before the holders
of Junior Subordinated Debentures will be entitled to receive any
payment upon the principal of (or premium, if any) or interest,
if any, on the Junior Subordinated Debentures.
No payments on account of principal (or premium, if any) or
interest, if any, in respect of the Junior Subordinated
Debentures may be made if there shall have occurred and be
continuing a default in any payment with respect to Senior Debt,
or an event of default with respect to any Senior Debt resulting
in the acceleration of the maturity thereof remaining uncured.
The term Senior Debt is defined in the Indenture to mean all
obligations (other than non-recourse obligations and the
indebtedness issued under the Indenture) of, or guaranteed or
assumed by, the Company for borrowed money, including both senior
and subordinated indebtedness for borrowed money (other than the
Junior Subordinated Debentures), or for the payment of money
relating to any lease which is capitalized on the consolidated
balance sheet of the Company and its subsidiaries in accordance
with generally accepted accounting principles as in effect from
time to time, or evidenced by bonds, debentures, notes or other
similar instruments, and in each case, amendments, renewals,
extensions, modifications and refundings of any such indebtedness
or obligations, whether existing as of the date of the Indenture
or subsequently incurred by the Company unless, in the case of
any particular indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness,
renewal, extension or refunding is not superior in right of
payment to or is pari passu with the Junior Subordinated
Debentures; provided that the Company's obligations under any
Guarantee shall not be deemed to be Senior Debt.
The Indenture places no limitation on the amount of
additional Senior Debt that may be incurred by the Company. The
Company expects from time to time to incur additional
indebtedness constituting Senior Debt.
Governing Law
The Indenture and the Junior Subordinated Debentures will be
governed by and construed in accordance with the laws of the
State of New York.
Information Concerning the Debenture Trustee
The Debenture Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an
indenture trustee under the Trust Indenture Act. Subject to such
provisions, the Debenture Trustee is under no obligation to
exercise any of the powers vested in it by the Indenture at the
request of any holder of Junior Subordinated Debentures, unless
offered reasonable indemnity by such holder against the costs,
expenses and liabilities which might be incurred thereby. The
Debenture Trustee is not required to expend or risk its own funds
or otherwise incur personal financial liability in the
performance of its duties if the Debenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably
assured to it.
DESCRIPTION OF PREFERRED SECURITIES
Pursuant to the terms of the Trust Agreement for each Issuer,
the Issuer Trustees on behalf of such Issuer will issue the
Preferred Securities and the Common Securities. The Preferred
Securities of a particular issue will represent preferred
undivided beneficial interests in the assets of the related
Issuer and the holders thereof will be entitled to a preference
in certain circumstances with respect to Distributions and
amounts payable on redemption or liquidation over the Common
Securities of such Issuer, as well as other benefits as described
in the corresponding Trust Agreement. This summary of certain
provisions of each Trust Agreement does not purport to be
complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of each Trust Agreement,
including the definitions therein of certain terms, and the Trust
Indenture Act. Wherever particular defined terms of the Trust
Agreement are referred to, such defined terms are incorporated
herein by reference. The form of the Trust Agreement has been
filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Each of the Issuers is a legally
separate entity and the assets of one are not available to
satisfy the obligations of any of the others.
General
The Preferred Securities of an Issuer will rank pari passu,
and payments will be made thereon pro rata, with the Common
Securities of that Issuer except as described under "--
Subordination of Common Securities". Legal title to the
Corresponding Junior Subordinated Debentures will be held by the
Property Trustee in trust for the benefit of the holders of the
related Preferred Securities and Common Securities. Each
Guarantee Agreement executed by the Company for the benefit of
the holders of an Issuer's Preferred Securities (each, a
"Guarantee") will be a guarantee on a subordinated basis with
respect to the related Preferred Securities but will not
guarantee payment of Distributions or amounts payable on
redemption or liquidation of such Preferred Securities when the
related Issuer does not have funds on hand available to make such
payments. See "Description of Guarantees".
Distributions
Each Issuer's Preferred Securities represent preferred
undivided beneficial interests in the assets of such Issuer, and
the Distributions on each Preferred Security will be payable at a
rate specified in the Prospectus Supplement for such Preferred
Securities. The amount of Distributions payable for any period
will be computed on the basis of a 360-day year of twelve 30-day
months unless otherwise specified in the applicable Prospectus
Supplement. Distributions that are in arrears may bear interest
on the amount thereof at the rate per annum if and as specified
in the applicable Prospectus Supplement ("Additional Amounts").
The term "Distributions" as used herein includes any Additional
Amounts unless otherwise stated.
Distributions on the Preferred Securities will be cumulative,
will accumulate from the date of original issuance and will be
payable on such dates as specified in the applicable Prospectus
Supplement. In the event that any date on which Distributions
are payable on the Preferred Securities is not a Business Day (as
defined below), payment of the Distribution payable on such date
will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect to any such
delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be
made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date (each date on
which Distributions are payable in accordance with the foregoing,
a "Distribution Date"). A "Business Day" shall mean any day
other than a Saturday or a Sunday, or a day on which banking
institutions in The City of New York are authorized or required
by law or executive order to remain closed or a day on which the
corporate trust office of the Property Trustee or the
Corresponding Debenture Trustee is closed for business.
If provided in the applicable Prospectus Supplement, the
Company has the right under the Corresponding Indenture to defer
the payment of interest on any series of the Corresponding Junior
Subordinated Debentures at any time or from time to time for one
or more Extension Periods, subject to the terms, conditions and
covenants, if any, specified in the applicable Prospectus
Supplement, provided that such Extension Period may not extend
beyond the maturity of the Corresponding Junior Subordinated
Debentures. As a consequence of any such deferral, Distributions
on the corresponding Preferred Securities would be deferred (but
would continue to accumulate additional Distributions thereon at
the rate per annum set forth in the Prospectus Supplement for
such Preferred Securities) by the Issuer of such Preferred
Securities during any such Extension Period. In the event that
the Company exercises this right, during such Extension Period
the Company may not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital
stock or (ii) make any payment of principal, interest or premium,
if any, on or repay, repurchase or redeem any debt securities
that rank pari passu with or junior in interest to the
Corresponding Junior Subordinated Debentures or make any
guarantee payments with respect to the foregoing (other than (a)
dividends or distributions in shares of capital stock of the
Company and (b) payments under any Guarantee).
It is anticipated that the revenue of each Issuer available
for distribution to holders of its Preferred Securities will be
limited to payments under the Corresponding Junior Subordinated
Debentures in which the Issuer will invest the proceeds from the
issuance and sale of its Preferred Securities and its Common
Securities. See "Description of Corresponding Junior
Subordinated Debentures". If the Company does not make interest
payments on such Corresponding Junior Subordinated Debentures,
the Property Trustee will not have funds available to pay
Distributions on the corresponding Preferred Securities. The
payment of Distributions (if and to the extent the Issuer has
funds available for the payment of such Distributions and cash
sufficient to make such payments) is guaranteed on a limited
basis as set forth herein under "Description of Guarantees".
Distributions on the Preferred Securities will be payable to
the holders thereof as they appear on the register of such Issuer
on the relevant record dates, which, as long as the Preferred
Securities remain in book-entry form, will be one Business Day
prior to the relevant Distribution Date. Subject to any
applicable laws and regulations and the provisions of the
applicable Trust Agreement, each such payment will be made as
described under "--Book-Entry Issuance". In the event any
Preferred Securities are not in book-entry form, the relevant
record date for such Preferred Securities shall be the date 15
days prior to the relevant Distribution Date.
Redemption
Mandatory Redemption. Upon the repayment or redemption, in
whole or in part, of any Corresponding Junior Subordinated
Debentures, whether at maturity or upon earlier redemption as
provided in the Corresponding Indenture, the proceeds from such
repayment or redemption shall be applied by the Property Trustee
to redeem a Like Amount (as defined below) of the related
Preferred Securities and Common Securities, upon not less than 30
nor more than 60 days notice prior to the date fixed for
repayment or redemption (the "Redemption Date"), at a redemption
price equal to the aggregate liquidation preference amount of
such Preferred Securities plus accumulated and unpaid
Distributions thereon to the Redemption Date and the related
amount of the premium, if any, paid by the Company upon the
concurrent redemption of such Corresponding Junior Subordinated
Debentures (the "Redemption Price"). See "Description of
Corresponding Junior Subordinated Debentures--Optional
Redemption". If less than all of any series of Corresponding
Junior Subordinated Debentures are to be repaid or redeemed on a
Redemption Date, then the proceeds from such repayment or
redemption shall be allocated to the redemption pro rata of the
Preferred Securities and the Common Securities. The amount of
premium, if any, paid by the Company upon the redemption of all
or any part of any series of any Corresponding Junior
Subordinated Debentures to be repaid or redeemed on a Redemption
Date shall be allocated to the redemption pro rata of the
Preferred Securities and the Common Securities.
The Company will have the right to redeem any series of
Corresponding Junior Subordinated Debentures (i) in whole at any
time or in part from time to time, subject to the conditions
described under "Description of Corresponding Junior Subordinated
Debentures--Optional Redemption", (ii) at any time, in whole (but
not in part), upon the occurrence of a Tax Event or an Investment
Company Event (each as defined below, a "Special Event") and
subject to the further conditions described under "Description of
Corresponding Junior Subordinated Debentures--Optional Re
demption", or (iii) as may be otherwise specified in the
applicable Prospectus Supplement.
Special Event Redemption or Distribution. Except as
otherwise specified in the applicable Prospectus Supplement, if a
Special Event in respect of a series of Preferred Securities and
Common Securities shall occur and be continuing, the Company has
the right to (i) redeem the Corresponding Junior Subordinated
Debentures in whole (but not in part) and therefore cause a
mandatory redemption of such Preferred Securities and Common
Securities in whole (but not in part) at the Redemption Price
within 90 days following the occurrence of such Special Event, or
(ii) terminate the related Issuer and, after satisfaction of
creditors of the Trust, if any, as provided by applicable law,
cause such Corresponding Junior Subordinated Debentures to be
distributed to the holders of such Preferred Securities and
Common Securities in liquidation of such Issuer. If at any time
an Issuer is not or will not be taxed as a grantor trust but a
Tax Event in respect of the related Preferred Securities has not
occurred, the Company has the right to terminate such Issuer and,
after satisfaction of creditors of the Trust, if any, as provided
by applicable law, cause the Corresponding Junior Subordinated
Debentures to be distributed to the holders of the Preferred
Securities in liquidation of such Issuer. If the Company does
not elect either option (i) or (ii) above, the applicable series
of Preferred Securities will remain outstanding and, in the event
a Tax Event has occurred and is continuing, Additional Interest
(as described under "Description of Corresponding Junior
Subordinated Debentures -- Certain Covenants of the Company")
will be payable on the Corresponding Junior Subordinated
Debentures.
"Tax Event" means the receipt by an Issuer of an opinion of
counsel experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or as a result
of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or
decision is announced on or after the date of issuance of the
series of Preferred Securities by such Issuer under the related
Trust Agreement, there is more than an insubstantial risk that
(i) such Issuer is, or will be within 90 days of the date
thereof, subject to United States Federal income tax with respect
to income received or accrued on the corresponding series of
Corresponding Junior Subordinated Debentures, (ii) interest
payable by the Company on such series of Corresponding Junior
Subordinated Debentures is not, or within 90 days of the date
thereof, will not be, deductible, in whole or in part, for United
States Federal income tax purposes, or (iii) such Issuer is, or
will be within 90 days of the date thereof, subject to more than
a de minimis amount of other taxes, duties or other governmental
charges.
"Investment Company Event" means the occurrence of a change
in law or regulation or a change in interpretation or application
of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law") to
the effect that the an Issuer is or will be considered an
"investment company" that is required to be registered under the
Investment Company Act of 1940, as amended (the "Investment
Company Act"), which Change in 1940 Act Law becomes effective on
or after the date of original issuance of the series of Preferred
Securities issued by such Issuer.
"Like Amount" means (i) with respect to a redemption of any
series of Preferred Securities, Preferred Securities and Common
Securities of such series having a Liquidation Preference Amount
(as defined below) equal to that portion of the principal amount
of Corresponding Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Corresponding
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Preferred Securities and Common
Securities. "Liquidation Preference Amount" means the stated
amount of $25 per Preferred Security and Common Security.
After the liquidation date fixed for any distribution of
Corresponding Junior Subordinated Debentures for any series of
Preferred Securities (i) such series of Preferred Securities will
no longer be deemed to be outstanding, (ii) The Depository Trust
Company ("DTC") or its nominee, as the record holder of such
series of Preferred Securities, will receive a registered global
certificate or certificates representing the Corresponding Junior
Subordinated Debentures to be delivered upon such distribution
and (iii) any certificates representing such series of Preferred
Securities not held by DTC or its nominee will be deemed to
represent the Corresponding Junior Subordinated Debentures having
a principal amount equal to the stated liquidation preference of
such series of Preferred Securities, and bearing accrued and
unpaid interest in an amount equal to the accrued and unpaid
Distributions on such series of Preferred Securities until such
certificates are presented to the Administrative Trustees or
their agent for transfer or reissuance.
There can be no assurance as to the market prices for the
Preferred Securities or the Corresponding Junior Subordinated
Debentures that may be distributed in exchange for Preferred
Securities if a dissolution and liquidation of an Issuer were to
occur. Accordingly, the Preferred Securities that an investor
may purchase, or the Corresponding Junior Subordinated Debentures
that the investor may receive on dissolution and liquidation of
an Issuer, may trade at a discount to the price that the investor
paid to purchase the Preferred Securities offered hereby.
Redemption Procedures
Preferred Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the applicable proceeds
from the contemporaneous redemption of the Corresponding Junior
Subordinated Debentures. Redemptions of the Preferred Securities
shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the related Issuer has
funds on hand available for the payment of such Redemption Price.
See also "--Subordination of Common Securities".
If an Issuer gives a notice of redemption in respect of its
Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, to the extent funds are available, the
Property Trustee will deposit irrevocably with DTC funds
sufficient to pay the applicable Redemption Price and will give
DTC irrevocable instructions and authority to pay the Redemption
Price to the holders of such Preferred Securities. See
"--Book-Entry Issuance". If such Preferred Securities are no
longer in book-entry form, the Issuer, to the extent funds are
available, will irrevocably deposit with the paying agent for
such Preferred Securities funds sufficient to pay the applicable
Redemption Price and will give such paying agent irrevocable
instructions and authority to pay the Redemption Price to the
holders thereof upon surrender of their certificates evidencing
such Preferred Securities. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any
Preferred Securities called for redemption shall be payable to
the holders of such Preferred Securities on the relevant record
dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required,
then upon the date of such deposit, all rights of the holders of
such Preferred Securities so called for redemption will cease,
except the right of the holders of such Preferred Securities to
receive the Redemption Price, but without interest on such
Redemption Price, and such Preferred Securities will cease to be
outstanding. In the event that any date fixed for redemption of
Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if
such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day. In the
event that payment of the Redemption Price in respect of
Preferred Securities called for redemption is improperly withheld
or refused and not paid either by the Issuer or by the Company
pursuant to the related Guarantee as described under "Description
of Guarantees", Distributions on such Preferred Securities will
continue to accrue at the then applicable rate, from the
Redemption Date originally established by the Issuer for such
Preferred Securities to the date such Redemption Price is
actually paid, in which case the actual payment date will be the
date fixed for redemption for purposes of calculating the
Redemption Price.
Subject to applicable law (including, without limitation,
United States Federal securities law), the Company or its
subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or
by private agreement.
Payment of the Redemption Price on the Preferred Securities
and any distribution of Corresponding Junior Subordinated
Debentures to holders of Preferred Securities shall be made to
the applicable recordholders thereof as they appear on the
register for such Preferred Securities on the relevant record
date, which shall be one Business Day prior to the relevant
Redemption Date or liquidation date, as applicable; provided,
however, that in the event that any Preferred Securities are not
in book-entry form, the relevant record date for such Preferred
Securities shall be the date 15 days prior to the Redemption Date
or liquidation date, as applicable.
If less than all of the Preferred Securities and Common
Securities issued by an Issuer are to be redeemed on a Redemption
Date, then the aggregate Liquidation Preference Amount of such
Preferred Securities and Common Securities to be redeemed shall
be allocated pro rata among the Preferred Securities and the
Common Securities. The particular Preferred Securities to be
redeemed shall be selected on a pro rata basis not more than 60
days prior to the Redemption Date by the Property Trustee from
the outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for
redemption of portions (equal to $25 or an integral multiple of
$25 in excess thereof) of the Liquidation Preference Amount of
Preferred Securities of a denomination larger than $25. The
Property Trustee shall promptly notify the transfer agent and
registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Preference Amount thereof
to be redeemed. For all purposes of each Trust Agreement, unless
the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part,
to the portion of the aggregate Liquidation Preference Amount of
Preferred Securities which has been or is to be redeemed.
Subordination of Common Securities
Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, each Issuer's
Preferred Securities and Common Securities, as applicable, shall
be made pro rata based on the Liquidation Preference Amount of
such Preferred Securities and Common Securities; provided,
however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default shall have occurred and be continuing,
no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any of the Issuer's
Common Securities, and no other payment on account of the
redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all of the Issuer's outstanding
Preferred Securities for all Distribution periods terminating on
or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all of the
Issuer's outstanding Preferred Securities, shall have been made
or provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on,
or Redemption Price of, the Issuer's Preferred Securities then
due and payable.
In the case of any Event of Default resulting from a
Debenture Event of Default, the Company, as holder of such
Issuer's Common Securities, will be deemed to have waived any
right to act with respect to any such Event of Default under the
related Trust Agreement until the effect of all such Events of
Default with respect to such Preferred Securities have been
cured, waived or otherwise eliminated. Until any such Events of
Default under such Trust Agreement with respect to such Preferred
Securities have been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the holders of
such Preferred Securities and not on behalf of the Company as
holder of the related Issuer's Common Securities, and only the
holders of such Preferred Securities will have the right to
direct the Property Trustee to act on their behalf.
Liquidation Distribution upon Termination
Pursuant to each Trust Agreement, each Issuer shall
automatically terminate upon expiration of its term and shall be
terminated on the first to occur of: (i) the occurrence of
certain events of bankruptcy, dissolution or liquidation of the
Company; (ii) the distribution of a Like Amount of the
Corresponding Junior Subordinated Debentures to the holders of
its Preferred Securities and Common Securities following the
occurrence of a Special Event or in the event such Issuer is not
or will not be taxed as a grantor trust but a Tax Event has not
occurred; (iii) the redemption of all of such Issuer's Preferred
Securities; and (iv) an order for the termination of such Issuer
shall have been entered by a court of competent jurisdiction.
If an early termination occurs as described in clause (i),
(ii) or (iv) above, such Issuer shall be liquidated by the Issuer
Trustees as expeditiously as the Issuer Trustees determine to be
possible by distributing, after satisfaction of liabilities to
creditors of such Issuer, if any, as provided by applicable law,
to the holders of such Preferred Securities and Common Securities
a Like Amount of the Corresponding Junior Subordinated
Debentures, unless such distribution is determined by the
Property Trustee not to be practical, in which event such holders
will be entitled to receive out of the assets of such Issuer
available for distribution to holders, after satisfaction of
liabilities to creditors of such Issuer, if any, as provided by
applicable law, an amount equal to, in the case of holders of
Preferred Securities, the aggregate of the Liquidation Preference
Amount plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution").
If such Liquidation Distribution can be paid only in part because
such Issuer has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable
directly by such Issuer on its Preferred Securities shall be paid
on a pro rata basis. The holder(s) of such Issuer's Common
Securities will be entitled to receive distributions upon any
such liquidation pro rata with the holders of its Preferred
Securities, except that if a Debenture Event of Default has
occurred and is continuing, the Preferred Securities shall have a
priority over the Common Securities. A supplemental indenture
may provide that if an early termination occurs as described in
clause (iv) above, the Corresponding Junior Subordinated
Debentures may be subject to optional redemption in whole (but
not in part).
Events of Default; Notice
Any one of the following events constitutes an "Event of
Default" under each Trust Agreement (an "Event of Default") with
respect to the Preferred Securities issued thereunder (whatever
the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(i) the occurrence of a Debenture Event of Default under
the Corresponding Indenture (see "Description of Junior
Subordinated Debentures--Debenture Events of Default"); or
(ii) default by the Issuer in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(iii) default by the Issuer in the payment of any
Redemption Price of any Preferred Security or Common Security
when it becomes due and payable; or
(iv) default in the performance, or breach, in any
material respect, of any covenant or warranty of the Issuer
Trustees in such Trust Agreement (other than a covenant or
warranty a default in the performance of which or the breach
of which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60
days after there has been given, by registered or certified
mail, to the defaulting Issuer Trustee or Trustees by the
holders of at least 10% in aggregate Liquidation Preference
Amount of the outstanding Preferred Securities of the
applicable Issuer, a written notice specifying such default
or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" under such Trust
Agreement; or
(v) the occurrence of certain events of bankruptcy with
respect to the Issuer.
Within five Business Days after the occurrence of any Event
of Default known to the Property Trustee, the Property Trustee
shall transmit notice of such Event of Default to the holders of
such Issuer's Preferred Securities, the Administrative Trustees
and the Company, as depositor, unless such Event of Default shall
have been cured or waived. The Company, as depositor, and the
Administrative Trustees are required to file annually with the
Property Trustee a certificate as to whether or not they are in
compliance with all the conditions and covenants applicable to
them under the Trust Agreement.
If a Debenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a preference over
the Common Securities upon termination of each Issuer as
described above. See "--Liquidation Distribution Upon
Termination".
Removal of Issuer Trustees
Unless a Debenture Event of Default shall have occurred and
be continuing, any Issuer Trustee may be removed at any time by
the holder of the Common Securities. If a Debenture Event of
Default has occurred and is continuing, the Property Trustee and
the Delaware Trustee may be removed at such time by the holders
of a majority in liquidation preference amount of the outstanding
Preferred Securities. In no event will the holders of the
Preferred Securities have the right to vote to appoint, remove or
replace the Administrative Trustees, which voting rights are
vested exclusively in the Company as the holder of the Common
Securities. No resignation or removal of an Issuer Trustee and
no appointment of a successor trustee shall be effective until
the acceptance of appointment by the successor trustee in
accordance with the provisions of the Trust Agreement.
Co-trustees and Separate Property Trustee
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Company, as the holder of the Common
Securities, and the Property Trustee shall have the power to
appoint one or more persons either to act as a co-trustee,
jointly with the Property Trustee, of all or any part of such
Trust Property, or to act as separate trustee of any such
property, in either case with such powers as may be provided in
the instrument of appointment, and to vest in such person or
persons in such capacity any property, title, right or power
deemed necessary or desirable, subject to the provisions of the
Trust Agreement. In case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
Merger or Consolidation of Issuer Trustees
Any entity into which the Property Trustee, the Delaware
Trustee or any Administrative Trustee that is not a natural
person may be merged or converted or with which it may be
consolidated, or any entity resulting from any merger, conversion
or consolidation to which such Trustee shall be a party, or any
entity succeeding to all or substantially all the corporate trust
business of such Trustee, shall be the successor of such Trustee
under any Trust Agreement, provided such entity shall be
otherwise qualified and eligible.
Mergers, Consolidations, Amalgamations or Replacements of the
Issuers
An Issuer may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any
corporation or other body, except as described below. An Issuer
may, at the request of the Company, with the consent of the
Administrative Trustees and without the consent of the holders of
the related Preferred Securities, merge with or into,
consolidate, amalgamate, or be replaced by a trust organized as
such under the laws of any State; provided, that (i) such
successor entity either (a) expressly assumes all of the
obligations of such Issuer with respect to such Preferred
Securities or (b) substitutes for such Preferred Securities other
securities (the "Successor Securities") so long as the Successor
Securities rank the same as such Preferred Securities rank in
priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee
as the holder of the related Corresponding Junior Subordinated
Debentures, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other
organization on which such Preferred Securities are then listed,
if any, (iv) such merger, consolidation, amalgamation or
replacement does not cause such Preferred Securities (including
any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of
such Preferred Securities (including any Successor Securities) in
any material respect, (vi) such successor entity has a purpose
substantially identical to that of such Issuer, (vii) prior to
such merger, consolidation, amalgamation or replacement, the
Company has received an opinion from independent counsel to such
Issuer experienced in such matters to the effect that (a) such
merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the
holders of such Preferred Securities (including any Successor
Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation or replacement, neither such
Issuer nor such successor entity will be required to register as
an investment company under the Investment Company Act and (viii)
the Company or any permitted successor or assignee owns all of
the related Common Securities of such successor entity and
guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the
related Guarantee. Notwithstanding the foregoing, an Issuer
shall not, except with the consent of holders of 100% in
liquidation preference amount of such Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by
any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause
such Issuer or the successor entity to be classified as other
than a grantor trust for United States Federal income tax
purposes.
Voting Rights; Amendment of Trust Agreement
Except as provided below and under "Description of Guarantees-
- -Amendments and Assignment" and as otherwise required by law and
each Trust Agreement, the holders of the Preferred Securities
will have no voting rights.
Each Trust Agreement may be amended from time to time by the
Company and the Administrative Trustees, without the consent of
the holders of the Preferred Securities (i) to cure any
ambiguity, correct or supplement any provisions in such Trust
Agreement which may be inconsistent with any other provision, or
to make any other provisions with respect to matters or questions
arising under such Trust Agreement, which shall not be
inconsistent with the other provisions of such Trust Agreement,
or (ii) to modify, eliminate or add to any provisions of such
Trust Agreement to such extent as shall be necessary to ensure
that such Issuer will be classified for United States Federal
income tax purposes as a grantor trust at all times that any of
its Preferred Securities and Common Securities are outstanding or
to ensure that such Issuer will not be required to register as an
"investment company" under the Investment Company Act; provided,
however, that in the case of clause (ii), such action shall not
adversely affect in any material respect the interests of any
holder of such Preferred Securities or Common Securities, and, in
the case of clause (i), any amendments of such Trust Agreement
shall become effective when notice thereof is given to the
holders of Preferred Securities and Common Securities. Each
Trust Agreement may be amended by the Administrative Trustees and
the Company with (i) the consent of holders representing not less
than a majority (based upon liquidation preference amounts) of
the related outstanding Preferred Securities and Common
Securities and (ii) receipt by the Issuer Trustees of an opinion
of counsel to the effect that such amendment or the exercise of
any power granted to the Issuer Trustees in accordance with such
amendment will not affect such Issuer's status as a grantor trust
for United States Federal income tax purposes or such Issuer's
exemption from status of an "investment company" under the
Investment Company Act, provided that without the consent of each
holder of such Preferred Securities and Common Securities, such
Trust Agreement may not be amended to (i) change the amount or
timing of any Distribution on such Preferred Securities and
Common Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of such Preferred
Securities and Common Securities as of a specified date or (ii)
restrict the right of a holder of such Preferred Securities and
Common Securities to institute suit for the enforcement of any
such payment on or after such date.
So long as any Corresponding Junior Subordinated Debentures
are held by the Property Trustee, the Issuer Trustees shall not
(i) direct the time, method and place of conducting any
proceeding for any remedy available to the Corresponding
Debenture Trustee, or executing any trust or power conferred on
the Property Trustee with respect to such Corresponding Junior
Subordinated Debentures, (ii) waive any past default that is
waiveable under Section 813 of the Corresponding Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Corresponding Junior Subordinated Debentures
shall be due and payable or (iv) consent to any amendment,
modification or termination of the Corresponding Indenture or
such Corresponding Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the
prior approval of the holders of a majority in aggregate
liquidation preference amount of all related outstanding
Preferred Securities; provided, however, that where a consent
under the Corresponding Indenture would require the consent of
each holder of Corresponding Junior Subordinated Debentures
affected thereby, no such consent shall be given by the Property
Trustee without the prior consent of each holder of the
corresponding Preferred Securities. The Issuer Trustees shall
not revoke any action previously authorized or approved by a vote
of the Preferred Securities except by subsequent vote of the
holders of the Preferred Securities. The Property Trustee shall
notify all holders of any series of Preferred Securities of any
notice of default with respect to the related Corresponding
Junior Subordinated Debentures. In addition to obtaining the
foregoing approvals of the holders of such Preferred Securities,
prior to taking any of the foregoing actions, the Issuer Trustees
shall obtain an opinion of counsel experienced in such matters to
the effect that the related Issuer will be classified as a
"grantor trust" and not as an association taxable as a
corporation for United States Federal income tax purposes on
account of such action.
If the Property Trustee fails to enforce its rights under the
Corresponding Junior Subordinated Debentures or the related Trust
Agreement, a holder of Preferred Securities may institute a legal
proceeding directly against the Company to enforce the Property
Trustee's rights with respect to the Corresponding Junior
Subordinated Debentures or such Trust Agreement, to the fullest
extent permitted by law, without first instituting any legal
proceeding against the Property Trustee or any other person.
Notwithstanding the foregoing, a holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to
such holder of principal of or interest on the Corresponding
Junior Subordinated Debentures having a principal amount equal to
the aggregate liquidation preference amount of the Preferred
Securities of such holder on or after the due dates specified in
the Junior Subordinated Debentures. See "Description of
Guarantees" and "Description of Corresponding Junior Subordinated
Debentures".
Any required approval of holders of one or more series of
Preferred Securities may be given at a meeting of holders of such
Preferred Securities convened for such purpose or pursuant to
written consent. The Property Trustee will cause a notice of any
meeting at which holders of such Preferred Securities are
entitled to vote, or of any matter upon which action by written
consent of such holders is to be taken, to be given to each
holder of record of such Preferred Securities in the manner set
forth in each Trust Agreement.
No vote or consent of the holders of Preferred Securities
will be required for an Issuer to redeem and cancel its Preferred
Securities in accordance with the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are owned
by the Company, the Issuer Trustees or any affiliate of the
Company or any Issuer Trustees, shall, for purposes of such vote
or consent, be treated as if they were not outstanding.
Payment and Paying Agency
Payments in respect of the Preferred Securities shall be made
to DTC, which shall credit the relevant accounts at DTC on the
applicable Distribution Dates or, if any Issuer's Preferred
Securities are not held by DTC, such payments shall be made by
check mailed to the address of the holder entitled thereto as
such address shall appear on the Securities Register. Unless
otherwise specified in the applicable Prospectus Supplement, the
paying agent (the "Paying Agent") shall initially be the Property
Trustee and any co-paying agent chosen by the Property Trustee
and acceptable to the Administrative Trustees and the Company.
The Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Property Trustee and the
Company. In the event that the Property Trustee shall no longer
be the Paying Agent, the Administrative Trustees shall appoint a
successor to act as Paying Agent (which shall be a bank or trust
company acceptable to the Administrative Trustees and the
Company).
Book-Entry Issuance
DTC will act as securities depositary for all of the
Preferred Securities. The Preferred Securities will be issued
only as fully-registered securities registered in the name of
Cede & Co. (DTC's nominee). One or more fully-registered global
certificates will be issued for the Preferred Securities of each
Issuer, representing the aggregate total number of such Issuer's
Preferred Securities, and will be deposited with DTC.
DTC is a limited purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning
of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other
organizations ("Direct Participants"). DTC is owned by a number
of its Direct Participants and by the NYSE, the American Stock
Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to
others such as securities brokers and dealers, banks and trust
companies that clear through or maintain custodial relationships
with Direct Participants, either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchases of Preferred Securities within the DTC system must
be made by or through Direct Participants, which will receive a
credit for the Preferred Securities on DTC's records. The
ownership interest of each actual purchaser of each Preferred
Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners
will not receive written confirmation from DTC of their
purchases, but Beneficial Owners are expected to receive written
confirmations providing details of the transactions, as well as
periodic statements of their holdings, from the Direct or
Indirect Participants through which the Beneficial Owners
purchased Preferred Securities. Transfers of ownership interests
in the Preferred Securities are to be accomplished by entries
made on the books of Participants acting on behalf of Beneficial
Owners. Beneficial Owners will not receive certificates
representing their ownership interests in Preferred Securities,
except in the event that use of the book-entry system for the
Preferred Securities of such Issuer is discontinued.
To facilitate subsequent transfers, all of the Preferred
Securities deposited by the Participants with DTC are registered
in the name of DTC's nominee, Cede & Co. The deposit of
Preferred Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has
no knowledge of the actual Beneficial Owners of the Preferred
Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Preferred Securities are
credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to
Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. as the
registered holder of the Preferred Securities. If less than all
of an Issuer's Preferred Securities are being redeemed, DTC's
current practice is to determine by lot the amount of the
interest of each Direct Participant to be redeemed.
Although voting with respect to the Preferred Securities is
limited to the holders of record of the Preferred Securities, in
those instances in which a vote is required, neither DTC nor Cede
& Co. will itself consent or vote with respect to Preferred
Securities. Under its usual procedures, DTC would mail an
omnibus proxy (the "Omnibus Proxy") to the relevant Issuer as
soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts such Preferred Securities are
credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Distribution payments on the Preferred Securities will be
made to DTC. DTC's practice is to credit Direct Participants'
accounts on the relevant payment date in accordance with their
respective holdings shown on DTC's records unless DTC has reason
to believe that it will not receive payments on such payment
date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices and
will be the responsibility of such Participant and not of DTC,
the Property Trustee, the Issuer thereof or the Company, subject
to any statutory or regulatory requirements as may be in effect
from time to time. Payment of Distributions to DTC is the
responsibility of the relevant Issuer, disbursement of such
payments to Direct Participants is the responsibility of DTC, and
disbursements of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities
depositary with respect to any of the Preferred Securities at any
time by giving reasonable notice to the relevant Issuer and the
Company. In the event that a successor securities depositary is
not obtained, definitive Preferred Security certificates
representing such Preferred Securities are required to be printed
and delivered. The Company, at its option, may decide to
discontinue use of the system of book-entry transfers through DTC
(or a successor depositary). In any such event, definitive
certificates for such Issuer's Preferred Securities will be
printed and delivered.
The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Issuers
and the Company believe to be accurate, but the Issuers and the
Company assume no responsibility for the accuracy thereof.
Neither the Issuers nor the Company has any responsibility for
the performance by DTC or its Participants of their respective
obligations as described herein or under the rules and procedures
governing their respective operations.
Registrar and Transfer Agent
Unless otherwise specified in the applicable Prospectus
Supplement, the Property Trustee will act as registrar and
transfer agent for the Preferred Securities.
Registration of transfers of Preferred Securities will be
effected without charge by or on behalf of each Issuer, but upon
payment of any tax or other governmental charges that may be
imposed in connection with any transfer or exchange. The Issuers
will not be required to register or cause to be registered the
transfer of their Preferred Securities after such Preferred
Securities have been called for redemption.
Information Concerning the Property Trustee
The Property Trustee, other than during the occurrence and
continuance of an Event of Default, undertakes to perform only
such duties as are specifically set forth in each Trust Agreement
and, after such Event of Default, must exercise the same degree
of care and skill as a prudent person would exercise or use in
the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to
exercise any of the powers vested in it by the applicable Trust
Agreement at the request of any holder of Preferred Securities
unless it is offered reasonable indemnity against the costs,
expenses and liabilities that might be incurred thereby. If no
Event of Default has occurred and is continuing and the Property
Trustee is required to decide between alternative causes of
action, construe ambiguous provisions in a Trust Agreement or is
unsure of the application of any provision of the applicable
Trust Agreement, and the matter is not one on which holders of
Preferred Securities are entitled under such Trust Agreement to
vote, then the Property Trustee shall take such action as is
directed by the Company and if not so directed, shall take such
action as it deems advisable and in the best interests of the
holders of the Preferred Securities and the Common Securities and
will have no liability except for its own bad faith, negligence
or willful misconduct.
Miscellaneous
The Administrative Trustees are authorized and directed to
conduct the affairs of and to operate the Issuers in such a way
that no Issuer will be deemed to be an "investment company"
required to be registered under the Investment Company Act or
classified other than as a "grantor trust" for United States
Federal income tax purposes and so that the Corresponding Junior
Subordinated Debentures will be treated as indebtedness of the
Company for United States Federal income tax purposes. In this
connection, the Company and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable
law, the certificate of trust of each Issuer or each Trust
Agreement, that the Company and the Administrative Trustees
determine in their discretion to be necessary or desirable for
such purposes, as long as such action does not materially
adversely affect the interests of the holders of the related
Preferred Securities.
Holders of the Preferred Securities have no preemptive or
similar rights.
No Issuer may borrow money or issue debt or mortgage or
pledge any of its assets.
DESCRIPTION OF GUARANTEES
Each Guarantee will be executed and delivered by the Company
concurrently with the issuance by each Issuer of its Preferred
Securities for the benefit of the holders from time to time of
such Preferred Securities. The Bank of New York will act as
indenture trustee (the "Guarantee Trustee") under each Guarantee
for the purposes of compliance with the Trust Indenture Act and
each Guarantee will be qualified as an Indenture under the Trust
Indenture Act. This summary of certain provisions of the
Guarantees does not purport to be complete and is subject to, and
qualified in its entirety by reference to, all of the provisions
of each Guarantee Agreement, including the definitions therein of
certain terms, and the Trust Indenture Act. The form of each
Guarantee has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. Reference in
this summary to Preferred Securities means that Issuer's
Preferred Securities to which a Guarantee relates. The Guarantee
Trustee will hold each Guarantee for the benefit of the holders
of the related Issuer's Preferred Securities.
General
The Company will irrevocably agree to pay in full on a
subordinated basis, to the extent set forth herein, the Guarantee
Payments (as defined below) to the holders of the Preferred
Securities, as and when due, regardless of any defense, right of
set-off or counterclaim that the related Issuer of such Preferred
Securities may have or assert other than the defense of payment.
The following payments with respect to the Preferred Securities,
to the extent not paid by or on behalf of the related Issuer (the
"Guarantee Payments"), will be subject to the Guarantee: (i) any
accumulated and unpaid Distributions required to be paid on such
Preferred Securities, to the extent that such Issuer has funds on
hand available therefor, (ii) the Redemption Price with respect
to any Preferred Securities called for redemption to the extent
that such Issuer has funds on hand available therefor, or (iii)
upon a voluntary or involuntary dissolution, winding up or
liquidation of such Issuer (unless the Corresponding Junior
Subordinated Debentures are distributed to holders of such
Preferred Securities), the lesser of (a) the Liquidation
Distribution and (b) the amount of assets of such Issuer
remaining available for distribution to holders of Preferred
Securities. The Company's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the
Company to the holders of the applicable Preferred Securities or
by causing the related Issuer to pay such amounts to such
holders.
Each Guarantee will be an irrevocable guarantee on a
subordinated basis of the related Issuer's obligations under the
Preferred Securities, but will apply only to the extent that such
related Issuer has funds sufficient to make such payments, and is
not a guarantee of collection.
If the Company does not make interest payments on the
Corresponding Junior Subordinated Debentures held by an Issuer,
it is expected that such Issuer will not pay Distributions on the
related Preferred Securities and will not have funds available
therefor. Each Guarantee will rank subordinate and junior in
right of payment to all Senior Debt. See "--Status of
Guarantees". Except as otherwise provided in the applicable
Prospectus Supplement, none of the Guarantees will limit the
incurrence or issuance of other secured or unsecured debt of the
Company, whether under the Corresponding Indenture, any other
indenture that the Company may enter into in the future or
otherwise. See the Prospectus Supplement relating to any
offering of Preferred Securities.
The Company has, through the Guarantees, the Trust
Agreements, the Corresponding Junior Subordinated Debentures, the
Corresponding Indenture and the Expense Agreements, taken
together, fully, irrevocably and unconditionally guaranteed all
of the Issuers' obligations under the Preferred Securities. No
single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee.
It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional
guarantee of the Issuers' obligations under the Preferred
Securities. See "Relationship Among the Preferred Securities,
the Corresponding Junior Subordinated Debentures and the
Guarantees--General".
Status of the Guarantees
Each Guarantee will constitute an unsecured obligation of the
Company and will rank subordinate and junior in right of payment
to all Senior Debt.
Each Guarantee will rank pari passu with all other Guarantees
issued by the Company. Each Guarantee will constitute a
guarantee of payment and not of collection (i.e., the guaranteed
party may institute a legal proceeding directly against the
guarantor to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or
entity). Each Guarantee will be held for the benefit of the
holders of the related Preferred Securities. Each Guarantee will
not be discharged except by payment of the related Guarantee
Payments in full to the extent not paid by the related Issuer or
upon distribution to the holders of the related Preferred
Securities of the related Corresponding Junior Subordinated
Debentures. None of the Guarantees places a limitation on the
amount of additional Senior Debt that may be incurred by the
Company. The Company expects from time to time to incur
additional indebtedness constituting Senior Debt.
Amendments and Assignment
Except with respect to any changes that do not materially
adversely affect the rights of holders of the related Preferred
Securities (in which case no vote will be required), no Guarantee
may be amended without the prior approval of the holders of not
less than a majority of the aggregate Liquidation Preference
Amount of such outstanding Preferred Securities. The manner of
obtaining any such approval is set forth under "Description of
Preferred Securities--Voting Rights; Amendment of Trust
Agreement". All guarantees and agreements contained in each
Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Company and shall inure to the benefit
of the holders of the related Preferred Securities then
outstanding.
Events of Default
An event of default under each Guarantee will occur upon the
failure of the Company to perform any of its payment or other
obligations thereunder. The holders of not less than a majority
in aggregate Liquidation Preference Amount of the related
Preferred Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of such Guarantee or to
direct the exercise of any trust or power conferred upon the
Guarantee Trustee under such Guarantee.
Any holder of the related Preferred Securities may institute
a legal proceeding directly against the Company to enforce its
rights under such Guarantee without first instituting a legal
proceeding against the related Issuer, the Guarantee Trustee or
any other person or entity.
The Company, as guarantor, is required to file annually with
the Guarantee Trustee a certificate as to whether or not the
Company is in compliance with all the conditions and covenants
applicable to it under the Guarantees.
Information Concerning the Guarantee Trustee
The Guarantee Trustee, other than during the occurrence and
continuance of a default by the Company in performance of any
Guarantee, undertakes to perform only such duties as are
specifically set forth in each Guarantee and, after default with
respect to any Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision,
the Guarantee Trustee is under no obligation to exercise any of
the powers vested in it by any Guarantee at the request of any
holder of any Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities
that might be incurred thereby.
Termination of the Guarantees
Each Guarantee will terminate and be of no further force and
effect upon full payment of the Redemption Price of the related
Preferred Securities, upon full payment of the amounts payable
upon liquidation of the related Issuer or upon distribution of
related Corresponding Junior Subordinated Debentures to the
holders of the related Preferred Securities. Each Guarantee will
continue to be effective or will be reinstated, as the case may
be, if at any time any holder of the related Preferred Securities
must restore payment of any sums paid under such Preferred
Securities or such Guarantee.
Governing Law
Each Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
The Expense Agreements
Pursuant to the Expense Agreements entered into by the
Company under the Trust Agreements (the "Expense Agreements"),
the Company will irrevocably and unconditionally guarantee to
each person or entity to whom each Issuer becomes indebted or
liable, the full payment of any costs, expenses or liabilities of
such Issuer, other than obligations of such Issuer to pay to the
holders of the related Preferred Securities or other similar
interests in such Issuer the amounts due such holders pursuant to
the terms of such Preferred Securities or such other similar
interests, as the case may be.
DESCRIPTION OF CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
The Corresponding Junior Subordinated Debentures are to be
issued in one or more series of Junior Subordinated Debentures
under the Corresponding Indenture with terms corresponding to the
terms of the related Preferred Securities. For a summary of
certain terms and provisions of Junior Subordinated Debentures
that, except where noted, pertains in all respects to the
Corresponding Junior Subordinated Debentures, see "Description of
Junior Subordinated Debentures". This summary of certain
additional terms and provisions of the Corresponding Junior
Subordinated Debentures and the Corresponding Indenture pertains
only to the Corresponding Junior Subordinated Debentures and does
not purport to be complete and is subject to, and is qualified in
its entirety by reference to the Corresponding Indenture, the
form of which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, and to the Trust
Indenture Act. Whenever particular defined terms of the
Corresponding Indenture (as supplemented or amended from time to
time) are referred to herein or in a Prospectus Supplement, such
defined terms are incorporated herein or therein by reference.
General
Concurrently with the issuance of each Issuer's Preferred
Securities, the Issuer will invest the proceeds thereof and the
consideration paid by the Company for the Common Securities in a
series of Corresponding Junior Subordinated Debentures issued by
the Company to the Issuer. Each series of Corresponding Junior
Subordinated Debentures will be in the principal amount equal to
the aggregate stated Liquidation Preference Amount of the related
Preferred Securities plus the Company's concurrent investment in
the Common Securities and will rank pari passu with all other
series of Junior Subordinated Debentures. The Corresponding
Junior Subordinated Debentures will be unsecured and subordinate
and junior in right of payment to the extent and in the manner
set forth in the Corresponding Indenture to all Senior Debt of
the Company. See "Description of Junior Subordinated
Debentures--Subordination" and the Prospectus Supplement relating
to any offering of Preferred Securities.
Optional Redemption
Unless otherwise specified in the applicable Prospectus
Supplement, the Company may, at its option, redeem the
Corresponding Junior Subordinated Debentures of any series on any
Interest Payment Date with respect thereto, in whole at any time
or in part from time to time. Except as otherwise set forth in
the applicable Prospectus Supplement, the redemption price for
any Corresponding Junior Subordinated Debentures so redeemed
shall be equal to 100% of the principal amount of such
Corresponding Junior Subordinated Debentures then outstanding
plus accrued and unpaid interest to the date fixed for
redemption. See "Description of Junior Subordinated
Debentures--Redemption".
If a Special Event in respect of an Issuer or a Debenture Tax
Event shall occur and be continuing, the Company may, at its
option, redeem the Corresponding Junior Subordinated Debentures
at any time within 90 days of the occurrence of such Special
Event or Debenture Tax Event, in whole but not in part, subject
to the provisions of the Corresponding Indenture. The redemption
price for any Corresponding Junior Subordinated Debentures shall
be equal to 100% of the principal amount of such Corresponding
Junior Subordinated Debentures then outstanding plus accrued and
unpaid interest to the date fixed for redemption.
For so long as the applicable Issuer is the holder of all the
outstanding series of Corresponding Junior Subordinated
Debentures, the proceeds of any such redemption will be used by
the Issuer to redeem the related Preferred Securities in
accordance with their terms. The Company may not redeem less
than all of Corresponding Junior Subordinated Debentures unless
all accrued and unpaid interest if any, has been paid in full on
all outstanding Corresponding Junior Subordinated Debentures for
all interest periods terminating on or prior to the Redemption
Date.
Certain Covenants of the Company
The Company will covenant in the Corresponding Indenture as
to each series of Corresponding Junior Subordinated Debentures,
that so long as any Preferred Securities remain outstanding, if
the Issuer which issued such Preferred Securities shall be
required to pay, with respect to its income derived from the
interest payments on the Corresponding Junior Subordinated
Debentures of any series, any amounts for or on account of any
taxes, duties, assessments or governmental charges of whatever
nature imposed by the United States, or any other taxing
authority, then, in any such case, the Company will pay as
interest on such series such Additional Interest as may be
necessary in order that the net amounts received and retained by
such Issuer after the payment of such taxes, duties, assessments
or governmental charges shall result in such Issuer's having such
funds as it would have had in the absence of the payment of such
taxes, duties, assessments or governmental charges.
The Company will also covenant, as to each series of
Corresponding Junior Subordinated Debentures, (i) to maintain
directly or indirectly 100% ownership of the Common Securities of
the Issuer to which Corresponding Junior Subordinated Debentures
have been issued, provided that certain successors which are
permitted pursuant to the Corresponding Indenture may succeed to
the Company's ownership of the Common Securities, (ii) not to
voluntarily terminate, wind-up or liquidate any Issuer, except
(a) in connection with a distribution of Corresponding Junior
Subordinated Debentures to the holders of the Preferred
Securities in liquidation of such Issuer, or (b) in connection
with certain mergers, consolidations or amalgamations permitted
by the related Trust Agreement, (iii) to remain the sole
depositor under the related Trust Agreement of such Issuer and
timely perform in all material respects all of its duties as
depositor of such Issuer, and (iv) to use its reasonable efforts,
consistent with the terms and provisions of the related Trust
Agreement, to cause such Issuer to remain a business trust and
not to be classified as an association taxable as a corporation
for United States Federal income tax purposes.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE CORRESPONDING JUNIOR SUBORDINATED DEBENTURES AND THE
GUARANTEES
As long as payments of interest and other payments are made
when due on each series of Corresponding Junior Subordinated
Debentures, such payments will be sufficient to cover Distribu
tions and other payments due on the corresponding Preferred
Securities, primarily because (i) the aggregate principal amount
of each series of Corresponding Junior Subordinated Debentures
will be equal to the sum of the aggregate Liquidation Preference
Amount of the corresponding Preferred Securities and
corresponding Common Securities; (ii) the interest rate and
interest and other payment dates on each series of Corresponding
Junior Subordinated Debentures will match the Distribution rate
and Distribution and other payment dates for the corresponding
Preferred Securities; (iii) the Company shall pay for all and any
costs, expenses and liabilities of the related Issuer except such
Issuer's obligations to holders of its Preferred Securities under
such Preferred Securities; and (iv) each Trust Agreement further
provides that such Issuer will not engage in any activity that is
not consistent with the limited purposes of such Issuer.
Payments of Distributions and other amounts due on the
Preferred Securities (to the extent the Issuer has funds
available for the payment of such Distributions) are irrevocably
guaranteed by the Company as and to the extent set forth under
"Description of Guarantees". Taken together, the Company's
obligations under each series of Corresponding Junior
Subordinated Debentures, the Corresponding Indenture, the related
Trust Agreement, the related Expense Agreement, and the related
Guarantee provide a full, irrevocable and unconditional guarantee
of payments of distributions and other amounts due on the related
series of Preferred Securities. No single document standing
alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of
providing a full, irrevocable and unconditional guarantee of the
Issuer's obligations under the Preferred Securities. If and to
the extent that the Company does not make payments on any series
of Corresponding Junior Subordinated Debentures, such Issuer will
not pay Distributions or other amounts due on its Preferred
Securities.
Notwithstanding anything to the contrary in the Corresponding
Indenture, the Company has the right to set-off any payment it is
otherwise required to make thereunder with and to the extent the
Company has theretofore made, or is concurrently on the date of
such payment making, a payment under the related Guarantee.
A holder of any related Preferred Security may institute a
legal proceeding directly against the Company to enforce its
rights under the related Guarantee without first instituting a
legal proceeding against the Guarantee Trustee, the related
Issuer or any other person or entity.
Each Issuer's Preferred Securities evidence the rights of the
holders thereof to the benefits of such Issuer, and each Issuer
exists for the sole purpose of issuing its Preferred Securities
and Common Securities and investing the proceeds thereof in
Corresponding Junior Subordinated Debentures. A principal
difference between the rights of a holder of a Preferred Security
and a holder of a Corresponding Junior Subordinated Debenture is
that a holder of a Corresponding Junior Subordinated Debenture
will accrue, and (subject to the permissible extension of the
interest period) is entitled to receive, interest on the
principal amount of Corresponding Junior Subordinated Debentures
held, while a holder of Preferred Securities is only entitled to
receive Distributions if and to the extent the related Issuer has
funds available for the payment of such Distributions.
Upon any voluntary or involuntary termination, winding-up or
liquidation of any Issuer involving the liquidation of the
Corresponding Junior Subordinated Debentures, after satisfaction
of creditors of such Issuer, if any, as provided by applicable
law, the holders of Preferred Securities will be entitled to
receive, out of assets held by such Issuer, the Liquidation
Distribution in cash. See "Description of Preferred Securities--
Liquidation Distribution Upon Termination". Upon any voluntary
or involuntary liquidation or bankruptcy of the Company, the
Property Trustee, as holder of the Corresponding Junior
Subordinated Debentures, would be a subordinated creditor of the
Company, subordinated in right of payment to all Senior Debt, but
entitled to receive payment in full of principal and interest,
before any stockholders of the Company receive payments or
distributions. Since the Company is the guarantor under each
Guarantee and has agreed to pay for all costs, expenses and
liabilities of each Issuer (other than the Issuer's obligations
to the holders of its Preferred Securities), the positions of a
holder of such Preferred Securities and a holder of such
Corresponding Junior Subordinated Debentures relative to other
creditors and to stockholders of the Company in the event of
liquidation or bankruptcy of the Company would be substantially
the same.
A default or event of default under any Senior Debt would not
constitute a default or Event of Default under the Corresponding
Indenture. However, in the event of payment defaults under, or
acceleration of, Senior Debt, the subordination provisions of the
Corresponding Indenture provide that no payments may be made in
respect of the Corresponding Junior Subordinated Debentures until
such Senior Debt has been paid in full or any payment default
thereunder has been cured or waived. Failure to make required
payments on any series of Corresponding Junior Subordinated
Debentures would constitute an event of default under the
Corresponding Indenture.
PLAN OF DISTRIBUTION
The Junior Subordinated Debentures and the Preferred
Securities may be sold in a public offering to or through
underwriters or dealers designated from time to time. The
Company and each Issuer may sell their respective Junior
Subordinated Debentures and Preferred Securities as soon as
practicable after effectiveness of the Registration Statement of
which this Prospectus is a part. The names of any underwriters
or dealers involved in the sale of the Junior Subordinated
Debentures and Preferred Securities in respect of which this
Prospectus is delivered, the amount or number of Junior
Subordinated Debentures and Preferred Securities to be purchased
by any such underwriters and any applicable commissions or
discounts will be set forth in the Prospectus Supplement.
Underwriters may offer and sell Junior Subordinated
Debentures and Preferred Securities at a fixed price or prices,
which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. In connection
with the sale of Preferred Securities, underwriters may be deemed
to have received compensation from the Company and/or the
applicable Issuer in the form of underwriting discounts or
commissions and may also receive commissions. Underwriters may
sell Junior Subordinated Debentures and Preferred Securities to
or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the
underwriters.
Any underwriting compensation paid by the Company and/or the
applicable Issuer to underwriters in connection with the offering
of Junior Subordinated Debentures and Preferred Securities, and
any discounts, concessions or commissions allowed by such
underwriters to participating dealers, will be set forth in a
Prospectus Supplement. Underwriters and dealers participating in
the distribution of Junior Subordinated Debentures and Preferred
Securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them
on resale of such Junior Subordinated Debentures and Preferred
Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. Underwriters and dealers
may be entitled, under agreement with the Company and the
applicable Issuer, to indemnification against and contribution
toward certain civil liabilities, including liabilities under the
Securities Act, and to reimbursement by the Company for certain
expenses.
In connection with the offering of the Preferred Securities
of any Issuer, such Issuer may grant to the underwriters an
option to purchase additional Preferred Securities to cover
over-allotments, if any, at the initial public offering price
(with an additional underwriting commission), as may be set forth
in the accompanying Prospectus Supplement. If such Issuer grants
any over-allotment option, the terms of such over-allotment
option will be set forth in the Prospectus Supplement for such
Preferred Securities.
Underwriters and dealers may engage in transactions with, or
perform services for, the Company and/or the applicable Issuer
and/or any of their affiliates in the ordinary course of
business.
The Junior Subordinated Debentures and the Preferred
Securities will be a new issue of securities and will have no
established trading market. Any underwriters to whom Junior
Subordinated Debentures and Preferred Securities are sold for
public offering and sale may make a market in such Junior
Subordinated Debentures and Preferred Securities, but such
underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. Such Junior
Subordinated Debentures and Preferred Securities may or may not
be listed on a national securities exchange. No assurance can be
given as to the liquidity of or the existence of trading markets
for any Junior Subordinated Debentures or Preferred Securities.
<PAGE>
No person has been authorized to
give any information or to make
any representation not contained
in this Prospectus Supplement or _____ Preferred Securities
the Prospectus, and, if given or
made, such information or
representation must not be relied ENTERGY ARKANSAS
upon as having been authorized by
the Company, the Series A Issuer CAPITAL I
or any other person. This
Prospectus Supplement and the
Prospectus do not constitute an _____%
offer to sell or a solicitation of
any offer to buy any of the Cumulative Quarterly
securities offered hereby in any Income Preferred Securities,
jurisdiction to any person to whom Series A (QUIPSsm)
it is unlawful to make such offer
in such jurisdiction. Neither the Guaranteed to the extent the
delivery of this Prospectus Series A Issuer has funds as
Supplement and Prospectus nor any set forth herein by
sale made hereunder shall, under
any circumstances, create any ENTERGY ARKANSAS, INC.
implication that there has been no
change in the affairs of the
Company since the date of this
Prospectus Supplement or that the
information contained herein is
correct as of any time subsequent
to the date of such information.
TABLE OF CONTENTS
____________________
Prospectus Supplement
Risk Factors PROSPECTUS SUPPLEMENT
Entergy Arkansas Capital I
Use of Proceeds ____________________
Selected Financial Information
Capitalization Goldman, Sachs & Co.
Certain Terms of the Series A
Preferred Securities ___________________
Certain Terms of the Series A
Debentures ____________________
Certain United States Federal
Income Tax
Considerations
Underwriting
Experts Representatives of the
Legal Opinions Underwriters
Prospectus
Available Information
Incorporation of Certain
Documents by Reference.
The Company
The Issuers
Use of Proceeds
Description of Junior
Subordinated Debentures
Description of Preferred
Securities
Description of Guarantees
Description of Corresponding Junior
Subordinated Debentures
Relationship Among the Preferred
Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees
Plan of Distribution.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Each
Initial Additional
Sale Sale
Filing Fees_Securities and Exchange Commission:
Registration Statement $51,715 $ -
*Rating Agencies' fees 25,000 25,000
*Trustees' fees 6,000 3,000
*Fees of Company's Counsel:
Friday, Eldredge & Clark 20,000 20,000
Richards, Layton & Finger, P.A. 35,000 20,000
Reid & Priest LLP 50,000 30,000
*Fees of Entergy Services, Inc. 35,000 25,000
*Accounting fees 12,000 6,000
*Printing and engraving costs 40,000 25,000
*Miscellaneous expenses (including Blue-Sky 20,000 15,000
expenses)
*Total Expenses $294,725 $169,000
___________________
*Estimated
Item 15. Indemnification of Directors and Officers.
The Company has insurance covering its expenditures which
might arise in connection with its lawful indemnification of its
directors and officers for certain of their liabilities and
expenses. Directors and officers of the Company also have
insurance which insures them against certain other liabilities
and expenses. The corporation laws of Louisiana permit
indemnification of directors and officers in a variety of
circumstances, which may include liabilities under the Securities
Act of 1933, as amended (the "Securities Act"), and under the
Company's Restated and Amended Articles of Incorporation, its
officers and directors may generally be indemnified to the full
extent of such laws.
Item 16. Exhibits.
1.01 Form of Underwriting Agreement relating to Junior
Subordinated Debentures.
1.02 Form of Underwriting Agreement relating to Preferred
Securities.
**4.01 Amended and Restated Articles of Incorporation of the
Company and amendments thereto through April 22, 1996
(filed as Exhibit 3(a) to Form 10-Q for the quarter ended
March 31, 1996 in 1-10764).
**4.02 By-Laws of the Company as amended effective May 5, 1994,
and as presently in effect (filed as Exhibit 4(f) in 33-
50289).
4.03 Form of Indenture for Unsecured Subordinated Debt
Securities, dated as of July 1, 1996, between the Company
and The Bank of New York as Debenture Trustee.
4.04 Form of Indenture for Unsecured Subordinated Debt
Securities relating to Trust Securities, dated as of July
1, 1996, between the Company and The Bank of New York as
Corresponding Debenture Trustee.
4.05 Certificate of Trust of Entergy Arkansas Capital I.
4.06 Trust Agreement of Entergy Arkansas Capital I.
4.07 Certificate of Trust of Entergy Arkansas Capital II.
4.08 Trust Agreement of Entergy Arkansas Capital II.
4.09 Certificate of Trust of Entergy Arkansas Capital III.
4.10 Trust Agreement of Entergy Arkansas Capital III.
4.11 Form of Amended and Restated Trust Agreement for Entergy
Arkansas Capital I.
4.12 Form of Preferred Security Certificate for Entergy
Arkansas Capital I (included as Exhibit E of Exhibit 4.11
hereto).
4.13 Form of Guarantee Agreement in respect of Entergy Arkansas
Capital I.
4.14 Form of Amended and Restated Trust Agreement for Entergy
Arkansas Capital II.
4.15 Form of Preferred Security Certificate for Entergy
Arkansas Capital II (included as Exhibit E of Exhibit 4.14
hereto).
4.16 Form of Guarantee Agreement in respect of Entergy Arkansas
Capital II.
4.17 Form of Amended and Restated Trust Agreement for Entergy
Arkansas Capital III.
4.18 Form of Preferred Security Certificate for Entergy
Arkansas Capital III (included as Exhibit E of Exhibit
4.17 hereto).
4.19 Form of Guarantee Agreement in respect of Entergy Arkansas
Capital III.
5.01 Opinion of Friday, Eldredge & Clark, general counsel for
the Company, relating to the validity of the Junior
Subordinated Debentures and the Guarantees.
5.02 Opinion of Richards, Layton & Finger, P.A., special
Delaware counsel, relating to the validity of the
Preferred Securities of Entergy Arkansas Capital I.
5.03 Opinion of Richards, Layton & Finger, P.A., special
Delaware counsel, relating to the validity of the
Preferred Securities of Entergy Arkansas Capital II.
5.04 Opinion of Richards, Layton & Finger, P.A., special
Delaware counsel, relating to the validity of the
Preferred Securities of Entergy Arkansas Capital III.
5.05 Opinion of Reid & Priest LLP, relating to the validity of
the Junior Subordinated Debentures and the Guarantees.
8.01 Opinion of Reid & Priest LLP, as to United States tax
matters (included in Exhibit 5.05 hereto).
12.01 Statement Re: Computation of Ratio of Earnings to Fixed
Charges (filed as Exhibit 99(c) to Form 10-Q for the
quarter ended March 31, 1996 in 1-8474).
23.01 Consent of Coopers & Lybrand L.L.P.
23.02 Consent of Deloitte & Touche LLP.
23.03 Consent of Friday, Eldredge & Clark (included in Exhibit
5.01 hereto).
23.04 Consent of Richards, Layton & Finger, P.A., special
Delaware counsel (included in Exhibit 5.02 hereto).
23.05 Consent of Richards, Layton & Finger, P.A., special
Delaware counsel (included in Exhibit 5.03 hereto).
23.06 Consent of Richards, Layton & Finger, P.A., special
Delaware counsel (included in Exhibit 5.04 hereto).
23.07 Consent of Reid & Priest LLP (included in Exhibit 5.05
hereto).
24.01 Powers of Attorney of certain officers and directors of
the Company.
25.01 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Trustee for the Indenture
for Unsecured Subordinated Debt Securities.
25.02 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Trustee for the Indenture
for Unsecured Subordinated Debt Securities relating to
Trust Securities.
25.03 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Property Trustee for the
Amended and Restated Trust Agreement of Entergy Arkansas
Capital I.
25.04 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Guarantee Trustee for the
Guarantee for Entergy Arkansas Capital I.
25.05 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Property Trustee for the
Amended and Restated Trust Agreement of Entergy Arkansas
Capital II.
25.06 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Guarantee Trustee for the
Guarantee for Entergy Arkansas Capital II.
25.07 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Property Trustee for the
Amended and Restated Trust Agreement of Entergy Arkansas
Capital III.
25.08 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Guarantee Trustee for the
Guarantee for Entergy Arkansas Capital III.
__________
**Incorporated by reference herein.
Item 17. Undertakings.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement;
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
registration statement or any material change to such information
in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above
do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
registrants pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act, each filing of the registrants' annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(5) That, for purposes of determining any liability under
the Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the registrants pursuant to Rule 424(b) (1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(6) That, for the purpose of determining any liability
under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(7) To provide to the underwriters at the closing specified
in the underwriting agreements certificates in such denominations
and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
(8) That, insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrants pursuant to
the foregoing provisions, or otherwise, the registrants have been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrants of expenses incurred or paid
by a director, officer or controlling person of the registrants
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrants
will, unless in the opinion of their counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by them is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
EXHIBIT 24.01
POWER OF ATTORNEY
Each director and/or officer of the registrant whose
signature appears below hereby appoints Gerald D. McInvale,
William J. Regan, Jr., Laurence M. Hamric and Denise C. Redmann,
and each of them severally, as his attorney-in-fact to sign in
his name and behalf, in any and all capacities stated below, and
to file with the Securities and Exchange Commission, any and all
amendments, including post-effective amendments, to this
registration statement, and the registrants hereby also appoint
each such named person as their attorney-in-fact with like
authority to sign and file any such amendments in their name and
behalf.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Little Rock, State of
Arkansas, on the 31st day of May, 1996.
ENTERGY ARKANSAS, INC.
By /s/ R. Drake Keith
R. Drake Keith
President
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Edwin Lupberger Chairman of the Board, May 31, 1996
Edwin Lupberger Chief Executive
Officer and Director
(Principal Executive
Officer)
/s/ Gerald D. McInvale Executive Vice President May 31, 1996
Gerald D. McInvale Chief Financial Officer,
and Director
(Principal Financial Officer)
/s/ Louis E. Buck, Jr. Vice President and May 31, 1996
Louis E. Buck, Jr. Chief Accounting Officer
(Principal Accounting
Officer)
/s/ Michael B. Bemis Director May 31, 1996
Michael B. Bemis
/s/ Jerry L. Maulden Director May 31, 1996
Jerry L. Maulden
/s/ Donald C. Hintz Director May 31, 1996
Donald C. Hintz
/s/ Jerry D. Jackson Director May 31, 1996
Jerry D. Jackson
/s/ R. Drake Keith Director May 31, 1996
R. Drake Keith
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the registrants, Entergy Arkansas Capital I,
Entergy Arkansas Capital II and Entergy Arkansas Capital III,
each certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New
Orleans, State of Louisiana, on the 31st day of May, 1996.
Entergy Arkansas Capital I
By: Entergy Arkansas, Inc., as
depositor
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
Entergy Arkansas Capital II
By: Entergy Arkansas, Inc., as
depositor
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
Entergy Arkansas Capital III
By: Entergy Arkansas, Inc., as
depositor
By: /s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
<PAGE>
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-3 of our reports dated February
14, 1996, on our audits of the financial statements and financial
statement schedule of Entergy Arkansas, Inc. (formerly Arkansas
Power & Light Company) as of and for the years ended December 31,
1995 and 1994, which reports are included in the Company's Annual
Report on Form 10-K. We also consent to the reference to our
firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
New Orleans, Louisiana
May 30, 1996
<PAGE>
EXHIBIT 23.02
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Entergy Arkansas, Inc. (formerly
Arkansas Power & Light Company) on Form S-3 of our reports dated
February 11, 1994, which expressed an unqualified opinion and
included an explanatory paragraph relating to the Company's
change in method of accounting for revenues, appearing in the
Annual Report on Form 10-K of the Company for the year ended
December 31, 1995 and to the reference to us under the heading
"Experts" in the Prospectus Supplement which is part of this
Registration Statement.
Deloitte & Touche LLP
New Orleans, Louisiana
May 30, 1996
_______________________________
1
[FORM OF JUNIOR DEBENTURES UNDERWRITING AGREEMENT]
Exhibit 1.01
Entergy Arkansas, Inc.
$_____________
___% Junior Subordinated Deferrable Interest Debentures, Series _
UNDERWRITING AGREEMENT
_______ __, ____
[Representatives]
As Representatives of the several
Underwriters named in Schedule I hereto
c/o [Lead Manager]
[Address]
Ladies & Gentlemen:
The undersigned, Entergy Arkansas, Inc., an Arkansas
corporation (the "Company"), proposes to issue and sell to the
several underwriters named in Schedule I hereto (the
"Underwriters," which term, when the context permits shall also
include any underwriters substituted as hereinafter in Section 11
provided), for whom you are acting as representatives (in such
capacity, you shall hereinafter be referred to as the
"Representatives"), an aggregate of $___________ principal amount
of the Company's ___% Junior Subordinated Deferrable Interest
Debentures, Series _ (the "Debentures"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters and each Underwriter
shall purchase from the Company at the time and place herein
specified, severally and not jointly, the respective principal
amounts of the Debentures set forth opposite the name of such
Underwriter in Schedule I attached hereto at ____% of the
principal amount of the Debentures [plus accrued interest thereon
from _____ __, ____ to the Closing Date (as defined herein)].
SECTION 2. Description of Debentures. The Debentures
shall be issued under and pursuant to a Trust Indenture dated as
of ________ __, ____ between the Company and _____________, as
Trustee (the "Trustee"), as supplemented by a supplemental
indenture, resolutions of the Board of Directors of the Company
or certificate of an officer of the Company relating to the
Debentures (any such supplemental indenture, resolution or
certificate being hereinafter referred to as the "Supplemental
Indenture"). Said Indenture, as supplemented and as it will be
further supplemented by the Supplemental Indenture is hereinafter
referred to as the "Indenture". The Debentures, the Indenture
and the Supplemental Indenture shall have the terms and
provisions described in the Prospectus (as defined herein),
provided that subsequent to the date hereof and prior to the
Closing Date the form of the Indenture and the form of the
Supplemental Indenture may be amended by mutual agreement between
the Company and the Underwriters.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to the several
Underwriters, and covenants and agrees with the several
Underwriters, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Arkansas and has the necessary corporate power and authority to
conduct the business that it is described in the Prospectus as
conducting and to own and operate the properties owned and
operated by it in such business.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 333-______) for the registration of
$_______________ aggregate offering price of the Company's
securities, including the Debentures, under the Securities Act of
1933, as amended (the "Securities Act") (all of which securities
remain unsold), and such registration statement has become
effective. The Company qualifies for use of Form S-3 for the
registration of the Debentures. The prospectus forming a part of
the registration statement, at the time such registration
statement (or the most recent amendment thereto filed prior to
the time of effectiveness of this Underwriting Agreement) became
effective, including all documents incorporated by reference
therein at that time pursuant to Item 12 of Form S-3, is
hereinafter referred to as the "Basic Prospectus". In the event
that (i) the Basic Prospectus shall have been amended, revised or
supplemented (but excluding any amendments, revisions or
supplements to the Basic Prospectus relating solely to securities
other than the Debentures) prior to the time of effectiveness of
the Underwriting Agreement, including without limitation by any
preliminary prospectus supplement relating to the Debentures, or
(ii) the Company shall have filed documents pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the time the registration
statement became effective and prior to the time of effectiveness
of this Underwriting Agreement (but excluding documents
incorporated therein by reference relating solely to securities
other than the Debentures), which documents are deemed to be
incorporated by reference in the Basic Prospectus pursuant to
Item 12 of Form S-3, the term "Basic Prospectus" as used herein
shall also mean such prospectus as so amended, revised or
supplemented and reflecting such incorporation by reference. The
Registration Statement in the form in which it became effective
and as it may have been amended by all amendments thereto as of
the time of effectiveness of this Underwriting Agreement
(including, for these purposes, as an amendment any document
incorporated by reference in the Basic Prospectus), and the Basic
Prospectus as it shall be supplemented to reflect the terms of
the offering and sale of the Debentures by a prospectus
supplement (a "Prospectus Supplement") to be filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b)
under the Securities Act ("Rule 424(b)"), are hereinafter
referred to as the "Registration Statement" and the "Prospectus,"
respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus (except any amendment
or supplement relating solely to securities other than the
Debentures), and (ii) between the time of effectiveness of this
Underwriting Agreement and the Closing Date, the Company will not
file any document that is to be incorporated by reference in, or
any supplement to, the Basic Prospectus, in either case, without
prior notice to the Underwriters and to Winthrop, Stimson, Putnam
& Roberts ("Counsel for the Underwriters"), or any such amendment
or supplement to which said Counsel shall reasonably object on
legal grounds in writing. For purposes of this Underwriting
Agreement, any document that is filed with the Commission after
the time of effectiveness of this Underwriting Agreement and is
incorporated by reference in the Prospectus (except documents
incorporated by reference relating solely to securities other
than the Debentures) pursuant to Item 12 of Form S-3 shall be
deemed a supplement to the Prospectus.
(d) The Registration Statement, in the form in which
it became effective, and the Indenture, at such time, fully
complied, and the Prospectus, when delivered to the Underwriters
for their use in making confirmations of sales of the Debentures
and at the Closing Date, as it may then be amended or
supplemented, will fully comply, in all material respects with
the applicable provisions of the Securities Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the rules and regulations of the Commission thereunder or
pursuant to said rules and regulations did or will be deemed to
comply therewith. The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, on the date first
filed with the Commission pursuant to the Exchange Act, fully
complied or will fully comply in all material respects with the
applicable provisions of the Exchange Act and the rules and
regulations of the Commission thereunder or pursuant to said
rules and regulations did or will be deemed to comply therewith.
On the later of (i) the date the Registration Statement was
declared effective by the Commission under the Securities Act and
(ii) the date that the Company's most recent Annual Report on
Form 10-K was filed with the Commission under the Exchange Act
(the date described in either clause (i) or (ii) is hereinafter
referred to as the "Effective Date"), the Registration Statement
did not, and on the date that any post-effective amendment to the
Registration Statement became or becomes effective (but excluding
any post-effective amendment relating solely to securities other
than the Debentures), the Registration Statement, as amended by
any such post-effective amendment, did not or will not, as the
case may be, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the
time the Prospectus is delivered to the Underwriters for their
use in making confirmations of sales of the Debentures and at the
Closing Date, the Prospectus, as it may then be amended or
supplemented, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they are made, not misleading and, on said dates and at
such times, the documents then incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, when read together
with the Prospectus, or the Prospectus, as it may then be amended
or supplemented, will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they are made, not misleading. The foregoing
representations and warranties in this paragraph (d) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by
the Underwriters or on behalf of any Underwriter specifically for
use in connection with the preparation of the Registration
Statement or the Prospectus, as they may be then amended or
supplemented, or to any statements in or omissions from the
statement of eligibility on Form T-1 of the Trustee, as it may be
amended, filed as an exhibit to the Registration Statement (the
"Form T-1").
(e) The issuance and sale of the Debentures and the
fulfillment of the terms of this Underwriting Agreement and the
Indenture will not result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which
the Company is now a party.
(f) Except as set forth or contemplated in the
Prospectus, as it may then be amended or supplemented, the
Company possesses adequate franchises, licenses, permits, and
other rights to conduct its business and operations as now
conducted, without any known conflicts with the rights of others
that could have a adverse effect on the Company.
SECTION 4. Offering. The Company is advised by the
Representatives that the Underwriters propose to make a public
offering of their respective portions of the Debentures as soon
after the effectiveness of this Underwriting Agreement as in
their judgment the Underwriters deem advisable. The Company is
further advised by the Representatives that the Debentures will
be offered to the public at the initial public offering price
specified in the Prospectus Supplement [plus accrued interest
thereon, if any, from ________ __, ____ to the Closing Date].
SECTION 5. Time and Place of Closing; Delivery to
Underwriters. Delivery of the Debentures and payment of the
purchase price therefor by wire transfer of immediately available
funds shall be made at the offices of Reid & Priest LLP, 40 West
57th Street, New York, New York, at 10:00 A.M., New York time, on
________ __, ____, or at such other time on the same or such
other day as shall be agreed upon by the Company and the
Representatives, or as may be established in accordance with
Section 11 hereof. The hour and date of such delivery and
payment are herein called the "Closing Date."
The Debentures shall be delivered to the Underwriters
in book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the
Debentures shall be in the form of one or more typewritten bonds
in fully registered form, in the aggregate principal amount of
the Debentures, and registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Company agrees to
make the Debentures available to the Representatives for checking
not later than 2:30 P.M., New York time, on the last business day
preceding the Closing Date at such place as may be agreed upon
among the Representatives and the Company, or at such other time
and/or date as may be agreed upon among the Representatives and
the Company.
SECTION 6. Covenants of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Representatives a copy of the Registration
Statement relating to the Debentures as originally filed with the
Commission, and of all amendments or supplements thereto relating
to the Debentures, or a conformed copy thereof, certified by an
officer of the Company to be in the form filed.
(b) The Company will deliver to the Underwriters as
many copies of the Prospectus (and any amendments or supplements
thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant to
and in compliance with Rule 424(b) and will advise the
Representatives promptly of the issuance of any stop order under
the Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which the Company
shall have received notice. The Company will use its best
efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are
required by law to deliver a prospectus after this Underwriting
Agreement has become effective, if any event relating to or
affecting the Company, or of which the Company shall be advised
by the Representatives in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered
to a purchaser of the Debentures, the Company will amend or
supplement the Prospectus by either (i) preparing and filing with
the Commission and furnishing to the Underwriters a reasonable
number of copies of a supplement or supplements or an amendment
or amendments to the Prospectus, or (ii) making an appropriate
filing pursuant to Section 13, 14 or 15(d) of the Exchange Act
which will supplement or amend the Prospectus, so that, as
supplemented or amended, it will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
not misleading. Unless such event relates solely to the
activities of the Underwriters (in which case the Underwriters
shall assume the expense of preparing any such amendment or
supplement), the expenses of complying with this Section 6(d)
shall be borne by the Company until the expiration of nine months
from the time of effectiveness of this Underwriting Agreement,
and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning statement
(which need not be audited) covering a period of at least twelve
months beginning after the "effective date of the registration
statement" within the meaning of Rule 158 under the Securities
Act, which earning statement shall be in such form, and be made
generally available to security holders in such a manner, as to
meet the requirements of the last paragraph of Section 11(a) of
the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required, and will otherwise cooperate in qualifying the
Debentures for offer and sale, under the blue sky laws of such
jurisdictions as the Representatives may reasonably designate,
provided that the Company shall not be required to qualify as a
foreign corporation or dealer in securities, to file any consents
to service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be unduly
burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes (except transfer taxes) in
connection with (i) the preparation and filing of the
Registration Statement and any post-effective amendment thereto,
(ii) the printing, issuance and delivery of the Debentures and
the preparation, execution, printing and recordation of the
Indenture or the Supplemental Indenture, (iii) legal counsel
relating to the qualification of the Debentures under the blue
sky laws of various jurisdictions, in an amount not to exceed
$6,000, (iv) the printing and delivery to the Underwriters of
reasonable quantities of copies of the Registration Statement,
the preliminary (or any supplemental) blue sky survey, any
preliminary prospectus supplement relating to the Debentures and
the Prospectus and any amendment or supplement thereto, except as
otherwise provided in paragraph (d) of this Section 6, (v) the
rating of the Debentures by one or more nationally recognized
statistical rating agencies, (vi) filings or other notices (if
any) with or to, as the case may be, the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its
review of the terms of the offering, and (vii) the listing of the
Debentures on the New York Stock Exchange (the "NYSE") and the
registration thereof under the Exchange Act in accordance with
Section 6(i) hereof. Except as provided above, the Company shall
not be required to pay any expenses of the Underwriters, except
that, if this Underwriting Agreement shall be terminated in
accordance with the provisions of Section 7, 8 or 12 hereof, the
Company will reimburse the Underwriters for (A) the reasonable
fees and expenses of Counsel for the Underwriters, whose fees and
expenses the Underwriters agree to pay in any other event, and
(B) reasonable out-of-pocket expenses, in an aggregate amount not
exceeding $15,000, incurred in contemplation of the performance
of this Underwriting Agreement. The Company shall not in any
event be liable to the Underwriters for damages on account of
loss of anticipated profits.
(h) The Company will not sell any additional
debentures without the consent of the Representatives until the
earlier to occur of (i) the Closing Date and (ii) the date of the
termination of the fixed price offering restrictions applicable
to the Underwriters. The Representatives agree to notify the
Company of such termination if it occurs prior to the Closing
Date.
(i) The Company will use its best efforts to cause the
Debentures to be duly authorized for listing on the NYSE, subject
to notice of issuance, and to be registered under the Exchange
Act.
SECTION 7. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Debentures shall be subject to the accuracy on the date hereof and
on the Closing Date of the representations and warranties made
herein on the part of the Company and of any certificates furnished
by the Company on the Closing Date and to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b)
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Company and the
Representatives.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Company or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of the Company, to the effect that no
such stop order has been or is in effect and that no proceedings
for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission.
(c) At the Closing Date, there shall have been issued
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Debentures, an
orders of the Public Service Commissions of Arkansas and
Tennessee authorizing the issuance and sale of the Debentures on
the terms set forth in, or contemplated by, this Underwriting
Agreement, the Indenture, the Supplemental Indenture and the
Prospectus.
(d) At the Closing Date, the Underwriters shall have
received from 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 Company and the
Representatives with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus shall be supplemented
after being furnished to the Underwriters for use in offering the
Debentures, with changes therein to reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Winthrop, Stimson, Putnam & Roberts, Counsel for
the Underwriters, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit C hereto, with
such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Coopers & Lybrand L.L.P., the Company's independent certified
public accountants (the "Accountants"), a letter dated the date
hereof and addressed to the Underwriters to the effect that (i)
they are independent certified public accountants with respect to
the Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules examined by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included or incorporated by reference in the Prospectus, a
reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the
Board of Directors of the Company, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 199_ to a specified date not more than five days
prior to the date of such letter, and inquiries of officers of
the Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such
letter and, accordingly, that the Accountants make no
representations as to the sufficiency of such procedures for the
purposes of the Underwriters), nothing has come to their
attention which caused them to believe that, to the extent
applicable, (A) the unaudited financial statements of the Company
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder; (B) any material modifications should be made to said
unaudited financial statements for them to be in conformity with
generally accepted accounting principles; and (C) at a specified
date not more than five days prior to the date of the letter,
there was any change in the capital stock or long-term debt of
the Company, or decrease in its net assets, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses
have occurred or may occur, for declarations of dividends, for
the repayment or redemption of long-term debt, for the
amortization of premium or discount on long-term debt, for the
redemption or purchase of preferred stock for sinking fund
purposes, for any increases in long-term debt in respect of
previously issued pollution control, solid waste disposal or
industrial development revenue bonds, or for changes or decreases
as set forth in such letter, identifying the same and specifying
the amount thereof; and (iv) stating that they have compared
specific dollar amounts, percentages of revenues and earnings and
other financial information pertaining to the Company (x) set
forth in the Prospectus and (y) set forth in documents filed by
the Company pursuant to Sections 13, 14 or 15(d) of the Exchange
Act as specified in Exhibit D hereto, in each case, to the extent
that such amounts, numbers, percentages and information may be
derived from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate procedures
(which procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in the
letter, and found them to be in agreement.
[(g) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter dated the date hereof and
addressed to the Underwriters with respect to certain financial
information contained in the Prospectus, as mutually agreed to by
the Underwriters and the Company.]
(h) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that (i) the
representations and warranties of the Company contained herein
are true and correct, (ii) the Company has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Company at or prior to
the Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the Company
and there has not been any material transaction entered into by
the Company, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended or
supplemented.
(i) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Indenture and the
Supplemental Indenture.
(j) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(f) hereof.
(k) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company that, in the reasonable opinion of the
Representatives, materially impairs the investment quality of the
Debentures.
(l) Between the date hereof and the Closing Date
neither Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Group shall have lowered its rating of any of the
Company's outstanding debt securities in any respect.
(m) On or prior to the Closing Date, Moody's Investors
Service, Inc. and Standard & Poor's Ratings Group shall have
publicly assigned to the Debentures ratings of ___ and ___,
respectively, which ratings shall be in full force and effect on
the Closing Date.
(n) On or prior to the Closing Date, (i) the
Debentures shall have been duly listed, subject to notice of
issuance, on the NYSE and (ii) the Company's registration
statement on Form 8-A relating to the Debentures shall have
become effective under the Exchange Act.
(o) All legal matters in connection with the issuance
and sale of the Debentures shall be satisfactory in form and
substance to Counsel for the Underwriters.
(p) The Company will furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(b) There shall have been issued and, at the Closing
Date, there shall be in full force and effect orders of the
Public Service Commissions of Arkansas and Tennessee authorizing
the issuance and sale of the Debentures on the terms set forth
in, or contemplated by, this Underwriting Agreement, the
Indenture, the Supplemental Indenture and the Prospectus.
In case any of the conditions specified in this Section
8 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Company upon notice thereof to the
Representatives. Any such termination shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or upon any untrue statement or alleged
untrue statement of a material fact contained in the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)), or in the Prospectus, as each may be amended or
supplemented, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)) or the Prospectus or any amendment or supplement to
any thereof or arising out of, or based upon, statements in or
omissions from the Form T-1; and provided further, that the
indemnity agreement contained in this subsection shall not inure
to the benefit of any Underwriter or to the benefit of any person
controlling any Underwriter on account of any such losses,
claims, damages, liabilities, expenses or actions arising from
the sale of the Debentures to any person in respect of the Basic
Prospectus or the Prospectus as supplemented or amended,
furnished by any Underwriter to a person to whom any of the
Debentures were sold (excluding in both cases, however, any
document then incorporated or deemed incorporated by reference
therein), insofar as such indemnity relates to any untrue or
misleading statement or omission made in the Basic Prospectus or
the Prospectus but eliminated or remedied prior to the
consummation of such sale in the Prospectus, or any amendment or
supplement thereto furnished on a timely basis by the Company to
the Underwriters pursuant to Section 6(d) hereof, respectively,
unless a copy of the Prospectus (in the case of such a statement
or omission made in the Basic Prospectus) or such amendment or
supplement (in the case of such a statement or omission made in
the Prospectus) (excluding, however, any amendment or supplement
to the Basic Prospectus relating solely to securities other than
the Debentures and any document then incorporated or deemed
incorporated by reference in the Prospectus or such amendment or
supplement) is furnished by such Underwriter to such person (i)
with or prior to the written confirmation of the sale involved or
(ii) as soon as available after such written confirmation (if it
is made available to the Underwriters prior to settlement of such
sale).
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b)) or in the Prospectus, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with or transmitted for filing to the Commission pursuant to Rule
424(b)) or the Prospectus, or any amendment or supplement
thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party and any person
controlling any indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Debentures or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company
on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the
total proceeds from the offering (after deducting underwriting
discounts and commissions but before deducting expenses) to the
Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of
the Company on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by any of the Underwriters
and such parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Debentures
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Company contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Debentures and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If any
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Debentures that it
has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Debentures that such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of the Debentures, the
other Underwriters shall be obligated to purchase the Debentures
that such defaulting Underwriter agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Debentures that any Underwriter has agreed to purchase pursuant
to Schedule I hereof be increased pursuant to this Section 11 by
an amount in excess of one-ninth of such principal amount of
Debentures without written consent of such Underwriter. If any
Underwriter shall fail or refuse to purchase Debentures and the
aggregate principal amount of Debentures with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of the Debentures, the Company shall have the
right (a) to require the non-defaulting Underwriters to purchase
and pay for the respective principal amount of Debentures that it
had severally agreed to purchase hereunder, and, in addition, the
principal amount of Debentures that the defaulting Underwriter
shall have so failed to purchase up to a principal amount thereof
equal to one-ninth of the respective principal amount of
Debentures that such non-defaulting Underwriters have otherwise
agreed to purchase hereunder, and/or (b) to procure one or more
others, members of the NASD (or, if not members of the NASD, who
are foreign banks, dealers or institutions not registered under
the Exchange Act and who agree in making sales to comply with the
NASD's Rules of Fair Practice), to purchase, upon the terms
herein set forth, the principal amount of Debentures that such
defaulting Underwriter had agreed to purchase, or that portion
thereof that the remaining Underwriters shall not be obligated to
purchase pursuant to the foregoing clause (a). In the event the
Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the
Representatives within 24 hours (excluding any Saturday, Sunday,
or legal holiday) of the time when the Company learns of the
failure or refusal of any Underwriter to purchase and pay for its
respective principal amount of Debentures, and thereupon the
Closing Date shall be postponed for such period, not exceeding
three business days, as the Company shall determine. In the
event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence
of such election by the Company, this Underwriting Agreement
will, unless otherwise agreed by the Company and the non-
defaulting Underwriters, terminate without liability on the part
of any non-defaulting party except as otherwise provided in
paragraph (g) of Section 6 and in Section 10. Any action taken
under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of its default under this Underwriting
Agreement.
SECTION 12. Termination. This Underwriting Agreement
shall be subject to termination by notice given by written notice
from the Representatives to the Company if (a) after the
execution and delivery of this Underwriting Agreement and prior
to the Closing Date (i) trading of the Debentures or trading in
securities generally shall have been suspended on the NYSE by The
New York Stock Exchange, Inc., the Commission or other
governmental authority, (ii) minimum or maximum ranges for prices
shall have been generally established on the NYSE by The New York
Stock Exchange, Inc., the Commission or other governmental
authority, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal
or New York State authorities, or (iv) there shall have occurred
any outbreak or escalation of hostilities or any calamity or
crisis that, in the judgment of the Representatives, is material
and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with
any other such event makes it, in the reasonable judgment of the
Representatives, impracticable to market the Debentures. This
Underwriting Agreement shall also be subject to termination, upon
notice by the Representatives as provided above, if, in the
judgment of the Representatives, the subject matter of any
amendment or supplement (prepared by the Company) to the
Prospectus (except for information relating solely to the manner
of public offering of the Debentures, to the activity of the
Underwriters or to the terms of any series of securities of the
Company other than the Debentures) filed or issued after the
effectiveness of this Underwriting Agreement by the Company shall
have materially impaired the marketability of the Debentures.
Any termination hereof, pursuant to this Section 12, shall be
without liability of any party to any other party, except as
otherwise provided in paragraph (g) of Section 6 and in Section
10.
SECTION 13. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully
executed copy thereof is delivered to the Company and to the
Representatives. This Underwriting Agreement may be executed in
any number of separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all
of which, taken together, shall constitute but one and the same
agreement. This Underwriting Agreement shall inure to the
benefit of each of the Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Debentures from the
Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to [Lead Manager] at the address set forth at the
beginning of this Underwriting Agreement (to the attention of its
General Counsel) or, if to the Company, shall be mailed or
delivered to it at 425 West Capitol Avenue, 40th Floor, Little
Rock, Arkansas 72201, Attention: Treasurer, or, if to Entergy
Services, Inc., shall be mailed or delivered to it at 639 Loyola
Avenue, New Orleans, Louisiana 70113, Attention: Treasurer.
Very truly yours,
Entergy Arkansas, Inc.
By:
Name:
Title:
Accepted as of the date first above written:
[Representatives]
By: [Lead Manager]
By:
Name:
Title:
As Representatives of the other several
Underwriters named in Schedule I hereto
<PAGE>
SCHEDULE I
Entergy Arkansas, Inc.
___% Junior Subordinated Deferrable Interest Debentures, Series _
Name Amount
Total $________________
<PAGE>
EXHIBIT A
[Letterhead of Friday, Eldredge & Clark]
________ __,_____
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
We, together with Reid & Priest LLP, of New York, New
York, have acted as counsel for Entergy Arkansas, Inc. (the
"Company") in connection with the issuance and sale to the
several Underwriters pursuant to the Underwriting Agreement,
effective ________ __, ____ (the "Underwriting Agreement"),
between the Company and you, as the Representatives of the
several Underwriters, of $________ in aggregate principal amount
of its % Junior Subordinated Deferrable Interest Debentures,
Series _ (the "Debentures"), issued pursuant to a Trust Indenture
dated as of _________ __, ____ between the Company and _________,
as Trustee (the "Trustee") as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto,
including the _______ Supplemental Indenture, dated as of ______
__, ____ (the Indenture as so amended and supplemented being
hereinafter referred to as the "Indenture"). This opinion is
rendered to you at the request of the Company. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
Prospectus filed under the Securities Act; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Debentures by the Company and the
execution and delivery by the Company of the Indenture and the
Underwriting Agreement; and (f) the proceedings before and the
orders entered by the Public Service Commissions of Arkansas and
Tennessee relating to the issuance and sale of the Debentures by
the Company. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. We have not examined the Debentures, except a specimen
thereof, and we have relied upon a certificate of the Trustee as
to the authentication and delivery thereof.
In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, the legal capacity of natural persons and the
conformity with the originals of all documents submitted to us as
copies. In making our examination of documents and instruments
executed or to be executed by persons other than the Company, we
have assumed that each such other person had the requisite power
and authority to enter into and perform fully its obligations
thereunder, the due authorization by each such other person for
the execution, delivery and performance thereof by such person,
and the due execution and delivery by or on behalf of such person
of each such document and instrument. In the case of any such
other person that is not a natural person, we have also assumed,
insofar as it is relevant to the opinions set forth below, that
each such other person is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which such
other person was created, and is duly qualified and in good
standing in each other jurisdiction where the failure to be so
qualified could reasonably be expected to have a material effect
upon the ability of such other person to execute, deliver and/or
perform such other person's obligations under any such document
or instrument. We have further assumed that each document,
instrument, agreement, record and certificate reviewed by us for
purposes of rendering the opinions expressed below has not been
amended by oral agreement, conduct or course of dealing of the
parties thereto, although we have no knowledge of any facts or
circumstances that could give rise to such amendment.
As to questions of fact material to the opinions
expressed herein, we have relied upon certificates and
representations of officers of the Company (including but not
limited to those contained in the Underwriting Agreement, the
Indenture and certificates delivered at the closing of the sale
of the Debentures) and appropriate public officials without
independent verification of such matters except as otherwise
described herein.
Whenever our opinions herein with respect to the
existence or absence of facts are stated to be to our knowledge
or awareness, we intend to signify that no information has come
to our attention or the attention of any other attorneys acting
for or on behalf of the Company or any of its affiliates that
have participated in the negotiation of the transactions
contemplated by the Underwriting Agreement and the Indenture, in
the preparation of the Registration Statement and the Prospectus
or in the preparation of this opinion letter that would give us,
or them, actual knowledge that would contradict such opinions.
However, except to the extent necessary in order to give the
opinions hereinafter expressed, neither we nor they have
undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to
knowledge of the existence or absence of such facts (except to
the extent necessary in order to give the opinions hereinafter
expressed) should be assumed.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, 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 and
to own and operate the properties owned and operated by it in
such business and is duly qualified to conduct such business in
the States of Arkansas, Missouri and Tennessee.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and is qualified under the Trust Indenture Act, and
no proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(3) The statements made in the Prospectus under the
captions "__________________________________" and "Description of
Junior Subordinated Debentures" insofar as they purport to
constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects.
(4) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and are legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and are entitled to the benefits provided by the
Indenture.
(5) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(6) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement (a) will
not violate any provision of the Company's Restated Articles of
Incorporation or By-laws, as amended, (b) will not violate any
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance on or
security interest in any of the assets of the Company pursuant to
the provisions of, any mortgage, indenture, contract, agreement
or other undertaking known to 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).
(7) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1, upon
which we do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act, and, to the best
of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
(8) Appropriate orders have been entered by the Public
Service Commissions of Arkansas and Tennessee authorizing the
issuance and sale of the Debentures; 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 and the Exchange Act, which have been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Debentures by the
Company pursuant to the Underwriting Agreement; and no further
approval, authorization, consent or other order of any
governmental body is legally required to permit the performance
by the Company of its obligations with respect to the Debentures
or under the Indenture and the Underwriting Agreement.
In connection with the preparation by the Company of
the Registration Statement and the Prospectus, we have had
discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
examined certain of the financial statements included or
incorporated by reference in the Registration Statement. Our
examination of the Registration Statement and the Prospectus and
such discussions did not disclose to us any information which
gives us reason to believe that the Registration Statement, at
the Effective Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424(b) and at the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. We do not express any opinion or belief as to the
financial statements or other financial or statistical data
included or incorporated by reference in the Registration
Statement or the Prospectus, as to the Form T-1 or as to the
information contained in the Prospectus under the caption and
"Description of the Preferred Securities -- Book-entry Issuance."
We have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on our authority, and we believe such
information to be correct. We 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.
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,
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
___________ __, ____
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
We, together with Friday, Eldredge & Clark, Little
Rock, Arkansas, have acted as counsel for Entergy Arkansas, Inc.
(the "Company") in connection with the issuance and sale to the
several Underwriters pursuant to the Underwriting Agreement,
effective ________ __, ____ (the "Underwriting Agreement"),
between the Company and you, as Representatives of the several
Underwriters, of $________ in aggregate principal amount of its
% Junior Subordinated Deferrable Interest Debentures, Series _
(the "Debentures"), issued pursuant to a Trust Indenture dated as
of _________ __, ____ between the Company and _________, as
Trustee (the "Trustee") as heretofore amended and supplemented by
all indentures amendatory thereof and supplemental thereto,
including the _______ Supplemental Indenture, dated as of ______
__, ____ (the Indenture as so amended and supplemented being
hereinafter referred to as the "Indenture"). This opinion is
rendered to you at the request of the Company. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
Prospectus filed under the Securities Act; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Bonds by the Company and the execution
and delivery by the Company of the Indenture and the Underwriting
Agreement; and (f) the proceedings before and the orders entered
by the Public Service Commissions of Arkansas and Tennessee
relating to the issuance and sale of the Debentures by the
Company. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. In such examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies.
We have not examined the Debentures, except a specimen thereof,
and we have relied upon a certificate of the Trustee as to the
authentication and delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and is duly qualified under the Trust Indenture Act,
and no proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the Commission.
(2) The statements made in the Prospectus under the
captions "__________________________________" and "Description of
Junior Subordinated Debentures" insofar as they purport to
constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and are legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and are entitled to the benefits provided by the
Indenture.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1, upon
which we do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act and, to the best of
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
(6) Appropriate orders have been entered by the Public
Service Commissions of Arkansas and Tennessee authorizing the
issuance and sale of the Debentures; 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 and the Exchange Act, which have been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Debentures by the
Company pursuant to the Underwriting Agreement; and no further
approval, authorization, consent or other order of any
governmental body is legally required to permit the performance
by the Company of its obligations with respect to the Debentures
or under the Indenture and the Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (2) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company, and with the independent certified public
accountants of the Company who examined certain of the financial
statements included or incorporated by reference in the
Registration Statement. Our examination of the Registration
Statement and the Prospectus and such discussions did not
disclose to us any information which gives us reason to believe
that the Registration Statement, at the Effective Date, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) and at the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, as to
the Form T-1 or as to the information contained in the Prospectus
Supplement under the caption "Description of the Preferred
Securities -- Book-entry Issuance."
We have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. As to all matters of Arkansas law, we have, with your
consent, relied upon the opinion of even date herewith of Friday,
Eldredge & Clark, counsel for the Company. We have not examined
into and are not passing upon matters relating to the
incorporation of the Company.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose, without our prior written
consent, except that Friday, Eldredge & Clark, Little Rock,
Arkansas, may rely on this opinion as to all matters of New York
law in rendering his/her opinion required to be delivered under
the Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_________ __, ____
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
We have acted as counsel for the several Underwriters
of $_________ in aggregate principal amount of the % Junior
Subordinated Deferrable Interest Debentures, Series _ (the
"Debentures"), issued by Entergy Arkansas, Inc. (the "Company")
under a Trust Indenture dated as of _________ __, ____ between
the Company and _________, as Trustee (the "Trustee") as
heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto, including the _____
Supplemental Indenture, dated as of ______ __, ____ (the
Indenture as so amended and supplemented being hereinafter
referred to as the "Indenture"), pursuant to the agreement
between you, as the Representatives of the several Underwriters,
and the Company effective ________ __, ____ (the "Underwriting
Agreement").
We are members of the New York Bar and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon an
opinion of even date herewith addressed to you of Friday,
Eldredge & Clark, counsel for the Company, as to the matters
covered in such opinion relating to Arkansas law. We have
reviewed said opinion and believe that it is satisfactory. We
have also reviewed the opinion of Reid & Priest LLP required by
Section 7(d) of the Underwriting Agreement, and we believe said
opinion to be satisfactory.
We have also examined such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon
representations of the Company and statements in the Registration
Statement hereinafter mentioned. In such examination, we have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, and the correctness of all statements of fact
contained in all such original or copied documents. We have not
examined the Debentures except a specimen thereof, and we have
relied upon a certificate of the Trustee as to the authentication
and delivery thereof. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in the
Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Indenture has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered, is a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or
at law), and, to the best of our knowledge, the Indenture is
qualified under the Trust Indenture Act, and no proceedings to
suspend such qualification have been instituted or threatened by
the Commission.
(2) The statements made in the Prospectus under the
captions "__________________________________" and "Description of
Junior Subordinated Debentures" insofar as they purport to
constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law), and are entitled to the
benefits provided by the Indenture.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Appropriate orders have been issued by the Public
Service Commissions of Arkansas and Tennessee authorizing the
issuance and sale of the Debentures, 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 and the Exchange Act, which have been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Debentures by the
Company pursuant to the Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1, upon
which we do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; to the best of our knowledge, the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings
for that purpose are pending or threatened under Section 8(d) of
the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and the information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (2) hereof. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we had discussions with certain officers,
employees and representatives of the Company and Entergy Services
Inc., with counsel for the Company and with your representatives.
Our review of the Registration Statement and the Prospectus, and
such discussions, did not disclose to us any information that
gives us reason to believe that the Registration Statement, at
the Effective Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424(b) and at the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. We do not express any opinion or belief as to the
financial statements or other financial or statistical data
included or incorporated by reference in the Registration
Statement or Prospectus, as to the Form T-1 or as to the
information contained in the Prospectus Supplement under the
caption "Description of the Preferred Securities -- Book-entry
Issuance."
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT D
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
[FORM OF PREFERRED SECURITIES UNDERWRITING AGREEMENT]
Exhibit 1.02
_______________ Preferred Securities
Entergy Arkansas Capital I
__% Cumulative Quarterly Income Preferred Securities, Series A
("QUIPS"_)
(Liquidation preference $25.00 per preferred security)
Guaranteed to the extent Entergy Arkansas Capital I
has funds as set forth herein by
Entergy Arkansas, Inc.
UNDERWRITING AGREEMENT
_______ __, ____
Goldman, Sachs & Co.
[Representatives]
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies & Gentlemen:
The undersigned, Entergy Arkansas Capital I (the
"Trust"), a statutory business trust created under the Business
Trust Act (the "Delaware Act") of the State of Delaware (Title
12, Chapter 38 of the Delaware Code, 12 Del. C Section 3801 et
seq.), proposes to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters," which term, when
the context permits shall also include any underwriters
substituted as hereinafter in Section 11 provided), for whom you
are acting as representatives (in such capacity, you shall
hereinafter be referred to as the "Representatives"), an
aggregate of ______________ ___% Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25.00 per
preferred security) of the Trust, representing undivided
beneficial interests in the assets of the Trust (the "Preferred
Securities"), as follows:
__________________________
_ QUIPS is a service mark of Goldman, Sachs & Co.
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Trust shall issue
and sell to each of the Underwriters and each Underwriter shall
purchase from the Trust at the time and place herein specified,
severally and not jointly, the respective numbers of the
Preferred Securities set forth opposite the name of such
Underwriter in Schedule I attached hereto at a purchase price of
$25.00 per Preferred Security.
The Company agrees to issue the Company Securities (as
defined herein) concurrently with the issue and sale of the
Preferred Securities as contemplated herein. The Company hereby
guarantees the timely performance by the Trust of its obligations
under this Section 1. The Trust agrees to purchase the
Debentures (as defined herein) with the proceeds of, together
with the proceeds from the sale by the Trust to the Company of
the Common Securities (as defined herein), and concurrently with,
the issue and sale of the Preferred Securities.
Because the proceeds of the sale of the Preferred
Securities, together with the proceeds from the sale by the Trust
to the Company of the Common Securities, will be used to purchase
the Debentures, the Company hereby agrees to pay on the Closing
Date (as defined herein) to Goldman, Sachs & Co., for the
accounts of the several Underwriters, as compensation for their
arranging the investment therein of such proceeds, an amount
equal to $_____ per Preferred Security (or $________ in the
aggregate).
SECTION 2. Description of Preferred Securities. The
Preferred Securities will be guaranteed by Entergy 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
Preferred Securities Guarantee Agreement (the "Guarantee
Agreement"), dated as of _____ __, ____, 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 ________ __, ____ (the "Expense
Agreement"), the Company will irrevocably and unconditionally
guarantee to each person or entity to whom the Trust becomes
indebted or liable the full payment of any costs, expenses or
liabilities of the Trust, subject to certain exceptions therein.
The proceeds from the sale of the Preferred Securities
will be combined with the proceeds from the sale by the Trust to
the Company of its common securities representing undivided
beneficial interests in the assets of the Trust (the "Common
Securities" and, together with the Preferred Securities, the
"Trust Securities"), and will be used by the Trust to purchase
$___________ aggregate principal amount ___% Junior Subordinated
Deferrable Interest Debentures, Series A, Due ______ __, ____
issued by the Company (the "Debentures" and, together with the
Guarantee, the "Company Securities"). The Trust Securities will
be issued pursuant to the Amended and Restated Trust Agreement of
the Trust, dated as of _______ __, ____ (the "Trust Agreement"),
among the Company, as depositor, the Administrative Trustees (as
defined herein), The Bank of New York, as property trustee (the
"Property Trustee"), The Bank of New York (Delaware), as Delaware
trustee (the "Delaware Trustee"), and the holders from time to
time of undivided beneficial interests in the assets of the
Trust. The Debentures will be issued pursuant to an Indenture,
dated as of _______ __, ____ (the "Indenture"), between the
Company and The Bank of New York, as trustee (the "Corresponding
Debenture Trustee"). The Preferred Securities, the Debentures
and the Guarantee are referred to herein as the "Securities."
SECTION 3. Representations and Warranties of the
Offerors. Each of the Offerors jointly and severally represents
and warrants to the several Underwriters, and covenants and
agrees with the several Underwriters, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
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 and to purchase, own, and hold the Common Securities
issued by the Trust and to consummate the transactions herein and
therein contemplated.
(b) The Trust has been duly created and is validly
existing as a business trust in good standing under the Delaware
Act, has the power and authority to own its property and to
conduct its business as described in the Prospectus, to issue and
sell the Trust Securities, and to enter into and perform its
obligations under this Underwriting Agreement and the Trust
Securities and to consummate the transactions herein
contemplated; the Trust has no subsidiaries and is duly qualified
to transact business and in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Trust; the Trust has
conducted and will conduct no business other than the
transactions contemplated by this Underwriting Agreement and
described in the Prospectus; the Trust is not a party to or
otherwise bound by any agreement other than those described in
the Prospectus, and is not a party to any action, suit or
proceeding of any nature; the Trust is not and will not be
classified as an association taxable as a corporation for United
States federal income tax purposes; the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(c) The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 333-______) for the registration of
$150,000,000 aggregate offering price of the Company's and the
Trust's securities, including the Securities, under the
Securities Act of 1933, as amended (the "Securities Act") (all of
which securities remain unsold), and such registration statement
has become effective. The Offerors qualify for use of Form S-3
for the registration of the Securities. The prospectus forming a
part of the registration statement, at the time such registration
statement (or the most recent amendment thereto filed prior to
the time of effectiveness of this Underwriting Agreement) became
effective, including all documents incorporated by reference
therein at that time pursuant to Item 12 of Form S-3, is
hereinafter referred to as the "Basic Prospectus". In the event
that (i) the Basic Prospectus shall have been amended, revised or
supplemented (but excluding any amendments, revisions or
supplements to the Basic Prospectus relating solely to securities
other than the Securities) prior to the time of effectiveness of
the Underwriting Agreement, including without limitation by any
preliminary prospectus supplement relating to the Securities, or
(ii) the Company shall have filed documents pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the time the registration
statement became effective and prior to the time of effectiveness
of this Underwriting Agreement (but excluding documents
incorporated therein by reference relating solely to securities
other than the Securities), which documents are deemed to be
incorporated by reference in the Basic Prospectus pursuant to
Item 12 of Form S-3, the term "Basic Prospectus" as used herein
shall also mean such prospectus as so amended, revised or
supplemented and reflecting such incorporation by reference. The
Registration Statement in the form in which it became effective
and as it may have been amended by all amendments thereto as of
the time of effectiveness of this Underwriting Agreement
(including, for these purposes, as an amendment any document
incorporated by reference in the Basic Prospectus), and the Basic
Prospectus as it shall be supplemented to reflect the terms of
the offering and sale of the Preferred Securities and the
Debentures by a prospectus supplement (a "Prospectus Supplement")
to be filed with, or transmitted for filing to, the Commission
pursuant to Rule 424(b) under the Securities Act ("Rule 424(b)"),
are hereinafter referred to as the "Registration Statement" and
the "Prospectus," respectively.
(d) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Offerors will not file any amendment to the
Registration Statement or supplement to the Prospectus (except
any amendment or supplement relating solely to securities other
than the Securities), and (ii) between the time of effectiveness
of this Underwriting Agreement and the Closing Date, the Company
will not file any document that is to be incorporated by
reference in, or any supplement to, the Basic Prospectus, in
either case, without prior notice to the Underwriters and to
Winthrop, Stimson, Putnam & Roberts ("Counsel for the
Underwriters"), or any such amendment or supplement to which said
Counsel shall reasonably object on legal grounds in writing. For
purposes of this Underwriting Agreement, any document that is
filed with the Commission after the time of effectiveness of this
Underwriting Agreement and is incorporated by reference in the
Prospectus (except documents incorporated by reference relating
solely to securities other than the Securities) pursuant to Item
12 of Form S-3 shall be deemed a supplement to the Prospectus.
(e) The Registration Statement, in the form in which
it became effective, and the Indenture, the Trust Agreement and
the Guarantee Agreement, at such time, fully complied, and the
Prospectus, when delivered to the Underwriters for their use in
making confirmations of sales of the Preferred Securities and at
the Closing Date, as it may then be amended or supplemented, will
fully comply, in all material respects with the applicable
provisions of the Securities Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder or pursuant to said
rules and regulations did or will be deemed to comply therewith.
The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, on the date first filed with the
Commission pursuant to the Exchange Act, fully complied or will
fully comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of
the Commission thereunder or pursuant to said rules and
regulations did or will be deemed to comply therewith. On the
later of (i) the date the Registration Statement was declared
effective by the Commission under the Securities Act and (ii) the
date that the Company's most recent Annual Report on Form 10-K
was filed with the Commission under the Exchange Act (the date
described in either clause (i) or (ii) is hereinafter referred to
as the "Effective Date"), the Registration Statement did not, and
on the date that any post-effective amendment to the Registration
Statement became or becomes effective (but excluding any post-
effective amendment relating solely to securities other than the
Securities), the Registration Statement, as amended by any such
post-effective amendment, did not or will not, as the case may
be, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading. At the time the
Prospectus is delivered to the Underwriters for their use in
making confirmations of sales of the Preferred Securities and at
the Closing Date, the Prospectus, as it may then be amended or
supplemented, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they are made, not misleading and, on said dates and at
such times, the documents then incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, when read together
with the Prospectus, or the Prospectus, as it may then be amended
or supplemented, will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they are made, not misleading. The foregoing
representations and warranties in this paragraph (e) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Offerors by
the Underwriters or on behalf of any Underwriter specifically for
use in connection with the preparation of the Registration
Statement or the Prospectus, as they may be then amended or
supplemented, or to any statements in or omissions from the
statements of eligibility on Form T-1 of the Property Trustee,
the Guarantee Trustee and the Corresponding Debenture Trustee,
respectively, as they may be amended, filed as exhibits to the
Registration Statement (the "Form T-1s").
(f) The Common Securities have been duly authorized by
the Trust and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Registration
Statement and Prospectus, will be validly issued undivided
beneficial interests in the assets of the Trust, and will be
entitled to the benefits of the Trust Agreement; the issuance of
the Common Securities is not subject to preemptive or other
similar rights; at the Closing Date, all of the issued and
outstanding Common Securities of the Trust will be, directly
owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; the Common
Securities will conform to the description thereof contained in
the Prospectus.
(g) This Agreement has been duly authorized, executed
and delivered by each of the Trust and the Company.
(h) The Trust Agreement has been duly qualified under
the Trust Indenture Act, has been duly authorized by the Company
and, at the Closing Date, will have been duly executed and
delivered by the Company and each of the Administrative Trustees,
and assuming due authorization, execution and delivery of the
Trust Agreement by the Property Trustee and the Delaware Trustee,
will constitute a valid and binding obligation of the Company and
the Administrative Trustees, enforceable against the Company and
the Administrative Trustees in accordance with its terms, except
as limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law); the Trust Agreement will conform to the description
thereof in the Prospectus.
(i) The Guarantee Agreement has been duly qualified
under the Trust Indenture Act, and the Guarantee Agreement has
been duly authorized by the Company and, at the Closing Date,
will have been duly executed and delivered by the Company, and
assuming due authorization, execution and delivery of the
Guarantee Agreement by the Guarantee Trustee, will constitute a
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law); the Guarantee and the Guarantee Agreement will conform to
the descriptions thereof contained in the Prospectus.
(j) The Preferred Securities have been duly authorized
by the Trust and, when issued and delivered against payment
therefor in accordance with the provisions of this Agreement and
the Trust Agreement, will be validly issued and (subject to the
terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust, and
will be entitled to the benefits of the Trust Agreement; the
issuance of the Preferred Securities is not subject to preemptive
or other similar rights; holders of Preferred Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware; the
Preferred Securities will conform to the description thereof
contained in the Prospectus.
(k) The Indenture has been duly qualified under the
Trust Indenture Act, has been duly authorized by the Company and,
at the Closing Date, will have been duly executed and delivered
by the Company, and assuming due authorization, execution and
delivery of the Indenture by the Corresponding Debenture Trustee,
will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law); the Indenture will conform to
the description thereof contained in the Prospectus.
(l) The Debentures have been duly authorized and, on
the Closing Date, will have been duly executed by the Company
and, when authenticated in the manner provided for in the
Indenture and delivered against payment therefor as described in
the Prospectus, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with
their terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and by general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law), and will be entitled to the
benefits of the Indenture; the Debentures will conform to the
description thereof contained in the Prospectus.
(m) The Expense Agreement has been duly authorized by
the Company and, at the Closing Date, will have been duly
executed and delivered by the Company, and will constitute a
valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law); the Expense Agreement will conform to the description
thereof contained in the Prospectus.
(n) ___________, ______________ and ___________, as
administrative trustees (the "Administrative Trustees") of the
Trust, are employees of the Company and have been duly authorized
by the Company to execute and deliver the Trust Agreement.
(o) The Trust is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(p) The Trust is not in violation of its Certificate
of Trust filed with the State of Delaware on May __, 1996; the
execution, delivery and performance by the Company and the Trust
of their respective obligations under this Underwriting
Agreement, the Trust Agreement, the Trust Securities, the
Indenture, the Guarantee Agreement, the Company Securities and
the Expense Agreement will not result in a breach of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or the Trust is now a party.
(q) Except as set forth or contemplated in the
Prospectus, as it may then be amended or supplemented, the
Company possesses adequate franchises, licenses, permits, and
other rights to conduct its respective business and operations as
now conducted, without any known conflicts with the rights of
others that could have an adverse effect on the Company.
SECTION 4. Offering. The Offerors are advised by the
Representatives that the Underwriters propose to make a public
offering of their respective portions of the Preferred Securities
as soon after the effectiveness of this Underwriting Agreement as
in their judgment the Underwriters deem advisable. The Offerors
are further advised by the Representatives that the Preferred
Securities will be offered to the public at the initial public
offering price specified in the Prospectus Supplement.
SECTION 5. Time and Place of Closing; Delivery to
Underwriters. Delivery of certificates for the Preferred
Securities and payment of the purchase price therefor by wire
transfer of immediately available funds shall be made at the
offices of Reid & Priest LLP, 40 West 57th Street, New York, New
York, at 10:00 A.M., New York time, on ________ __, ____, or at
such other time on the same or such other day as shall be agreed
upon by the Offerors and the Representatives, or as may be
established in accordance with Section 11 hereof. The hour and
date of such delivery and payment are herein called the "Closing
Date."
Certificates for the Preferred Securities shall be in
definitive form and registered in such names and in such
denominations as the Underwriters shall request not later than
two full business days prior to the Closing Date. The
certificates evidencing the Preferred Securities shall be
delivered to the Representatives through the facilities of The
Depository Trust Company in New York, New York ("DTC") for the
account of the Representatives with any transfer taxes payable in
connection with the transfer of the Preferred Securities duly
paid, against payment of the purchase price therefor.
On the Closing Date, the Company will pay, or cause to
be paid, the commission payable at such time to the Underwriters
pursuant to Section 1 hereof by wire transfer in immediately
available funds to Goldman, Sachs & Co., for the accounts of the
several Underwriters.
SECTION 6. Covenants of the Offerors. Each of the
Offerors jointly and severally covenants and agrees with the
several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Representatives a copy of the Registration
Statement relating to the Securities as originally filed with the
Commission, and of all amendments or supplements thereto relating
to the Securities, or a conformed copy thereof, certified by an
officer of the Company to be in the form filed.
(b) The Company will deliver to the Underwriters as
many copies of the Prospectus (and any amendments or supplements
thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant to
and in compliance with Rule 424(b) and will advise the
Representatives promptly of the issuance of any stop order under
the Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which either of
the Offerors shall have received notice. Each of the Offerors
will use its best efforts to prevent the issuance of any such
stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are
required by law to deliver a prospectus after this Underwriting
Agreement has become effective, if any event relating to or
affecting the Company or the Trust, or of which the Company or
the Trust shall be advised by the Representatives in writing,
shall occur which in the opinion of the Company should be set
forth in a supplement or amendment to the Prospectus in order to
make the Prospectus not misleading in the light of the
circumstances when it is delivered to a purchaser of the
Preferred Securities, the Company will amend or supplement the
Prospectus by either (i) preparing and filing with the Commission
and furnishing to the Underwriters a reasonable number of copies
of a supplement or supplements or an amendment or amendments to
the Prospectus, or (ii) making an appropriate filing pursuant to
Section 13, 14 or 15(d) of the Exchange Act which will supplement
or amend the Prospectus, so that, as supplemented or amended, it
will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading. Unless
such event relates solely to the activities of the Underwriters
(in which case the Underwriters shall assume the expense of
preparing any such amendment or supplement), the expenses of
complying with this Section 6(d) shall be borne by the Company
until the expiration of nine months from the time of
effectiveness of this Underwriting Agreement, and such expenses
shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make
generally available to the Trust's security holders, as soon as
practicable, an earning statement (which need not be audited)
covering a period of at least twelve months beginning after the
"effective date of the registration statement" within the meaning
of Rule 158 under the Securities Act, which earning statement
shall be in such form, and be made generally available to
security holders in such a manner, as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Offerors will furnish such proper information as may be
lawfully required, and will otherwise cooperate in qualifying the
Preferred Securities and the Debentures for offer and sale, under
the blue sky laws of such jurisdictions as the Representatives
may reasonably designate, provided that the Offerors shall not be
required to qualify as a foreign corporation or dealer in
securities, to file any consents to service of process under the
laws of any jurisdiction, or to meet any other requirements
deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes incident to the performance of each
Offeror's obligations under this Agreement including, but not
limited to, (i) the preparation and filing of the Registration
Statement and any post-effective amendment thereto, (ii) the
printing, issuance and delivery of the certificates for the
Preferred Securities to the Underwriters, (iii) legal counsel
relating to the qualification of the Preferred Securities and the
Debentures under the blue sky laws of various jurisdictions, in
an amount not to exceed $6,000, (iv) the printing and delivery to
the Underwriters of reasonable quantities of copies of the
Registration Statement, the preliminary (or any supplemental)
blue sky survey, any preliminary prospectus supplement relating
to the Preferred Securities and the Prospectus and any amendment
or supplement thereto, except as otherwise provided in paragraph
(d) of this Section 6, (v) the rating of the Preferred Securities
and the Debentures by one or more nationally recognized
statistical rating agencies, (vi) filings or other notices (if
any) with or to, as the case may be, the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its
review of the terms of the offering, and (vii) the listing of the
Preferred Securities and, if applicable, the Debentures on the
New York Stock Exchange (the "NYSE") and the registration thereof
under the Exchange Act in accordance with Sections 6(i) and 6(j)
hereof. Except as provided above, the Company shall not be
required to pay any expenses of the Underwriters, except that, if
this Underwriting Agreement shall be terminated in accordance
with the provisions of Section 7, 8 or 12 hereof, the Company
will reimburse the Underwriters for (A) the reasonable fees and
expenses of Counsel for the Underwriters, whose fees and expenses
the Underwriters agree to pay in any other event, and (B)
reasonable out-of-pocket expenses, in an aggregate amount not
exceeding $15,000, incurred in contemplation of the performance
of this Underwriting Agreement. The Company shall not in any
event be liable to the Underwriters for damages on account of
loss of anticipated profits.
(h) Each of the Offerors will not offer, sell,
contract to sell or otherwise dispose of any Preferred
Securities, any other beneficial interests in the assets of the
Trust, or any preferred securities or any other securities of the
Trust or the Company that are substantially similar to the
Preferred Securities, including any guarantee of such securities,
or any securities convertible into or exchangeable for or that
represent the right to receive securities, preferred securities
or any such substantially similar securities of either the Trust
or the Company, without the consent of the Representatives until
the earlier to occur of (i) thirty (30) days after the Closing
Date and (ii) the date of the termination of the trading
restrictions on the Preferred Securities, as determined by the
Underwriters. The Representatives agree to notify the Offerors
of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause
the Preferred Securities to be duly authorized for listing on the
NYSE, subject to notice of issuance, and to be registered under
the Exchange Act; if the Preferred Securities are exchanged for
Debentures, the Company will use its best efforts to have the
Debentures listed on the exchange or other organization on which
the Preferred Securities were then listed, and to have the
Debentures registered under the Exchange Act.
SECTION 7. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Preferred Securities shall be subject to the accuracy on the date
hereof and on the Closing Date of the representations and
warranties made herein on the part of the Offerors and of any
certificates furnished by the Offerors on the Closing Date and
to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b)
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Offerors and the
Representatives.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Offerors or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of the Company and an authorized
representative of the Trust, to the effect that no such stop
order has been or is in effect and that no proceedings for such
purpose are pending before or, to the knowledge of the Company or
the Trust, as the case may be, threatened by the Commission.
(c) At the Closing Date, there shall have been issued
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Securities,
orders of the Public Service Commissions of Arkansas and
Tennessee authorizing the issuance and sale of the Securities on
the terms set forth in, or contemplated by, this Underwriting
Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement and the Prospectus.
(d) At the Closing Date, the Underwriters shall have
received from 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, special Delaware counsel
to the Offerors, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit C hereto (i) with
such changes therein as may be agreed upon by the Offerors and
the Representatives, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus shall be supplemented
after being furnished to the Underwriters for use in offering the
Preferred Securities, with changes therein to reflect such
supplementation.
(f) At the Closing Date, the Underwriters shall have
received from Winthrop, Stimson, Putnam & Roberts, Counsel for
the Underwriters, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit D hereto, with
such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(g) At the Closing Date, the Underwriters shall have
received from Emmet, Marvin & Martin, counsel for the Property
Trustee and the Guarantee Trustee, an opinion, dated the Closing
Date, covering such matters as the Underwriters or Counsel for
the Underwriters shall reasonably request relating to the Trust
Agreement and the Guarantee Agreement.
(h) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Coopers & Lybrand L.L.P., the Company's independent certified
public accountants (the "Accountants"), a letter dated the date
hereof and addressed to the Underwriters to the effect that (i)
they are independent certified public accountants with respect to
the Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules examined by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included or incorporated by reference in the Prospectus, a
reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the
Board of Directors of the Company, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 199_ to a specified date not more than five days
prior to the date of such letter, and inquiries of officers of
the Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such
letter and, accordingly, that the Accountants make no
representations as to the sufficiency of such procedures for the
purposes of the Underwriters), nothing has come to their
attention which caused them to believe that, to the extent
applicable, (A) the unaudited financial statements of the Company
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder; (B) any material modifications should be made to said
unaudited financial statements for them to be in conformity with
generally accepted accounting principles; and (C) at a specified
date not more than five days prior to the date of the letter,
there was any change in the capital stock or long-term debt of
the Company, or decrease in its net assets, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses
have occurred or may occur, for declarations of dividends, for
the repayment or redemption of long-term debt, for the
amortization of premium or discount on long-term debt, for the
redemption or purchase of preferred stock for sinking fund
purposes, for any increases in long-term debt in respect of
previously issued pollution control, solid waste disposal or
industrial development revenue bonds, or for changes or decreases
as set forth in such letter, identifying the same and specifying
the amount thereof; and (iv) stating that they have compared
specific dollar amounts, percentages of revenues and earnings and
other financial information pertaining to the Company (x) set
forth in the Prospectus and (y) set forth in documents filed by
the Company pursuant to Sections 13, 14 or 15(d) of the Exchange
Act as specified in Exhibit E hereto, in each case, to the extent
that such amounts, numbers, percentages and information may be
derived from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate procedures
(which procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in the
letter, and found them to be in agreement.
[(i) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter dated the date hereof and
addressed to the Underwriters with respect to certain financial
information contained in the Prospectus, as mutually agreed to by
the Underwriters and the Offerors.]
(j) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that (i) the
representations and warranties of the Company contained herein
are true and correct, (ii) the Company has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Company at or prior to
the Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the Company
and there has not been any material transaction entered into by
the Company, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended or
supplemented.
(k) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by an
authorized representative of the Trust, to the effect that (i)
the representations and warranties of the Trust contained herein
are true and correct, (ii) the Trust has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Trust at or prior to the
Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the Trust and
there has not been any material transaction entered into by the
Trust, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended or
supplemented.
(l) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Trust Agreement, the
Guarantee Agreement, the Expense Agreement and the Indenture.
(m) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(h) hereof.
(n) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company or the Trust that, in the reasonable opinion of the
Representatives, materially impairs the investment quality of the
Preferred Securities.
(o) Between the date hereof and the Closing Date
neither Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Group shall have lowered its rating of any of the
Company's outstanding debt securities in any respect.
(p) On or prior to the Closing Date, Moody's Investors
Service, Inc. and Standard & Poor's Ratings Group shall have
publicly assigned to the Preferred Securities ratings of ___ and
___, respectively, which ratings shall be in full force and
effect on the Closing Date.
(q) On or prior to the Closing Date, (i) the Preferred
Securities shall have been duly listed, subject to notice of
issuance, on the NYSE and (ii) the Company's registration
statement on Form 8-A relating to the Preferred Securities shall
have become effective under the Exchange Act.
(r) All legal matters in connection with the issuance
and sale of the Preferred Securities shall be satisfactory in
form and substance to Counsel for the Underwriters.
(s) The Offerors will furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Offerors. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Obligations of the Offerors.
The obligations of the Offerors hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(b) There shall have been issued and, at the Closing
Date, there shall be in full force and effect orders of the
Public Service Commissions of Arkansas and Tennessee authorizing
the issuance and sale of the Securities on the terms set forth
in, or contemplated by, this Underwriting Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the
Prospectus.
In case any of the conditions specified in this Section
8 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Offerors upon notice thereof to the
Representatives. Any such termination shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Offerors shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or upon any untrue statement or alleged
untrue statement of a material fact contained in the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)), or in the Prospectus, as each may be amended or
supplemented, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Offerors by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)) or the Prospectus or any amendment or supplement to
any thereof or arising out of, or based upon, statements in or
omissions from the Form T-1s; and provided further, that the
indemnity agreement contained in this subsection shall not inure
to the benefit of any Underwriter or to the benefit of any person
controlling any Underwriter on account of any such losses,
claims, damages, liabilities, expenses or actions arising from
the sale of the Preferred Securities to any person in respect of
the Basic Prospectus or the Prospectus as supplemented or
amended, furnished by any Underwriter to a person to whom any of
the Preferred Securities were sold (excluding in both cases,
however, any document then incorporated or deemed incorporated by
reference therein), insofar as such indemnity relates to any
untrue or misleading statement or omission made in the Basic
Prospectus or the Prospectus but eliminated or remedied prior to
the consummation of such sale in the Prospectus, or any amendment
or supplement thereto furnished on a timely basis by the Offerors
to the Underwriters pursuant to Section 6(d) hereof,
respectively, unless a copy of the Prospectus (in the case of
such a statement or omission made in the Basic Prospectus) or
such amendment or supplement (in the case of such a statement or
omission made in the Prospectus) (excluding, however, any
amendment or supplement to the Basic Prospectus relating solely
to securities other than the Securities and any document then
incorporated or deemed incorporated by reference in the
Prospectus or such amendment or supplement) is furnished by such
Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation (if it is made available to the
Underwriters prior to settlement of such sale).
(b) The Company agrees to indemnify the Trust against
any and all losses, claims, damages or liabilities that may
become due from the Trust under Section 9(a) hereof.
(c) Each Underwriter shall indemnify, defend and hold
harmless the Offerors, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b)) or in the Prospectus, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Offerors by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with or transmitted for filing to the Commission pursuant to Rule
424(b)) or the Prospectus, or any amendment or supplement
thereto.
(d) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party and any person
controlling any indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(e) If the indemnification provided for under
subsections (a), (b), (c) or (d) in this Section 9 is unavailable
to an indemnified party in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute
to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Offerors and the Underwriters from the offering
of the Preferred Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and of the Underwriters on
the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative
benefits received by the Offerors on the one hand and the
Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (after
deducting underwriting discounts and commissions but before
deducting expenses) to the Offerors bear to the total
underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Offerors on
the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Offerors or by any of the
Underwriters and such parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(e) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(e), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Preferred
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(e) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Offerors contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Offerors or its directors or officers, or any of
the other persons referred to in Section 9 hereof and (ii)
acceptance of and payment for the Preferred Securities and (b)
the indemnity and contribution agreements contained in Section 9
shall remain operative and in full force and effect regardless of
any termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If any
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the Preferred Securities that it has agreed
to purchase and pay for hereunder, and the aggregate amount of
Preferred Securities that such defaulting Underwriter agreed but
failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Preferred Securities, the other
Underwriters shall be obligated to purchase the Preferred
Securities that such defaulting Underwriter agreed but failed or
refused to purchase; provided that in no event shall the amount
of Preferred Securities that any Underwriter has agreed to
purchase pursuant to Schedule I hereof be increased pursuant to
this Section 11 by an amount in excess of one-ninth of such
amount of Preferred Securities without written consent of such
Underwriter. If any Underwriter shall fail or refuse to purchase
Preferred Securities and the aggregate amount of Preferred
Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of the Preferred Securities,
the Offerors shall have the right (a) to require the non-
defaulting Underwriters to purchase and pay for the respective
aggregate amount of Preferred Securities that it had severally
agreed to purchase hereunder, and, in addition, the aggregate
amount of Preferred Securities that the defaulting Underwriter
shall have so failed to purchase up to an aggregate amount
thereof equal to one-ninth of the respective aggregate amount of
Preferred Securities that such non-defaulting Underwriters have
otherwise agreed to purchase hereunder, and/or (b) to procure one
or more others, members of the NASD (or, if not members of the
NASD, who are foreign banks, dealers or institutions not
registered under the Exchange Act and who agree in making sales
to comply with the NASD's Rules of Fair Practice), to purchase,
upon the terms herein set forth, the aggregate amount of
Preferred Securities that such defaulting Underwriter had agreed
to purchase, or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the
foregoing clause (a). In the event the Offerors shall exercise
its rights under clause (a) and/or (b) above, the Offerors shall
give written notice thereof to the Representatives within 24
hours (excluding any Saturday, Sunday, or legal holiday) of the
time when the Offerors learn of the failure or refusal of any
Underwriter to purchase and pay for its respective aggregate
amount of Preferred Securities, and thereupon the Closing Date
shall be postponed for such period, not exceeding three business
days, as the Offerors shall determine. In the event the Offerors
shall be entitled to but shall not elect (within the time period
specified above) to exercise its rights under clause (a) and/or
(b), the Offerors shall be deemed to have elected to terminate
this Underwriting Agreement. In the absence of such election by
the Offerors, this Underwriting Agreement will, unless otherwise
agreed by the Offerors and the non-defaulting Underwriters,
terminate without liability on the part of any non-defaulting
party except as otherwise provided in paragraph (g) of Section 6
and in Section 10. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
SECTION 12. Termination. This Underwriting Agreement
shall be subject to termination by notice given by written notice
from the Representatives to the Offerors if (a) after the
execution and delivery of this Underwriting Agreement and prior
to the Closing Date (i) trading of the Preferred Securities or
trading in securities generally shall have been suspended on the
NYSE by The New York Stock Exchange, Inc., the Commission or
other governmental authority, (ii) minimum or maximum ranges for
prices shall have been generally established on the NYSE by The
New York Stock Exchange, Inc., the Commission or other
governmental authority, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any
calamity or crisis that, in the judgment of the Representatives,
is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in the reasonable
judgment of the Representatives, impracticable to market the
Preferred Securities. This Underwriting Agreement shall also be
subject to termination, upon notice by the Representatives as
provided above, if, in the judgment of the Representatives, the
subject matter of any amendment or supplement (prepared by the
Offerors) to the Prospectus (except for information relating
solely to the manner of public offering of the Preferred
Securities, to the activity of the Underwriters or to the terms
of any series of securities of the Offerors other than the
Preferred Securities) filed or issued after the effectiveness of
this Underwriting Agreement by the Offerors shall have materially
impaired the marketability of the Preferred Securities. Any
termination hereof, pursuant to this Section 12, shall be without
liability of any party to any other party, except as otherwise
provided in paragraph (g) of Section 6 and in Section 10.
SECTION 13. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully
executed copy thereof is delivered to the Offerors and to the
Representatives. This Underwriting Agreement may be executed in
any number of separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all
of which, taken together, shall constitute but one and the same
agreement. This Underwriting Agreement shall inure to the
benefit of each of the Offerors, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Preferred Securities from
the Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to Goldman, Sachs & Co. at the address set forth at
the beginning of this Underwriting Agreement (to the attention of
its General Counsel) or, if to the Offerors, shall be mailed or
delivered to it at 425 West Capitol Avenue, 40th Floor, Little
Rock, Arkansas 72201, Attention: Treasurer, or, if to Entergy
Services, Inc., shall be mailed or delivered to it at 639 Loyola
Avenue, New Orleans, Louisiana 70113, Attention: Treasurer.
Very truly yours,
Entergy Arkansas, Inc.
By:
Name:
Title:
Entergy Arkansas Capital I
By:
Title:
By:
Title:
Accepted as of the date first above written:
Goldman, Sachs & Co.
[Representatives]
By: Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
As Representatives of the other several
Underwriters named in Schedule I hereto
<PAGE>
SCHEDULE I
Entergy Arkansas Capital I
___% Cumulative Quarterly Income Preferred Securities, Series A
Name Amount
Total ________________
<PAGE>
EXHIBIT A
[Letterhead of Friday, Eldredge & Clark]
________ __,_____
Goldman, Sachs & Co.
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Ladies and Gentlemen:
We, together with Reid & Priest LLP, of New York, New
York, and Richards, Layton & Finger, Wilmington, Delaware, have
acted as counsel for Entergy Arkansas, Inc. (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 to the several Underwriters
pursuant to the Underwriting Agreement, effective ________ __,
____ (the "Underwriting Agreement"), among the Company, the Trust
and you, as the Representatives of the several Underwriters, of
an aggregate of % Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25 per
preferred security) of the Trust (the "Preferred Securities").
This opinion is rendered to you at the request of the Company and
the Trust. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Trust Agreement; (e) the
Guarantee Agreement; (f) the Guarantee; (g) the Expense
Agreement; (h) the Registration Statement and Prospectus filed
under the Securities Act; (i) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Company Securities and the execution and delivery by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement and the Guarantee Agreement; and
(j) the proceedings before and the orders entered by the Public
Service Commissions of Arkansas and Tennessee 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. 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.
In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, the legal capacity of natural persons and the
conformity with the originals of all documents submitted to us as
copies. In making our examination of documents and instruments
executed or to be executed by persons other than the Company and
the Trust, we have assumed that each such other person had the
requisite power and authority to enter into and perform fully its
obligations thereunder, the due authorization by each such other
person for the execution, delivery and performance thereof by
such person, and the due execution and delivery by or on behalf
of such person of each such document and instrument. In the case
of any such other person that is not a natural person, we have
also assumed, insofar as it is relevant to the opinions set forth
below, that each such other person is duly organized, validly
existing and in good standing under the laws of the jurisdiction
in which such other person was created, and is duly qualified and
in good standing in each other jurisdiction where the failure to
be so qualified could reasonably be expected to have a material
effect upon the ability of such other person to execute, deliver
and/or perform such other person's obligations under any such
document or instrument. We have further assumed that each
document, instrument, agreement, record and certificate reviewed
by us for purposes of rendering the opinions expressed below has
not been amended by oral agreement, conduct or course of dealing
of the parties thereto, although we have no knowledge of any
facts or circumstances that could give rise to such amendment.
As to questions of fact material to the opinions
expressed herein, we have relied upon certificates and
representations of officers of the Company and the Trust
(including but not limited to those contained in the Underwriting
Agreement, the Indenture, the Trust Agreement, the Expense
Agreement, the Guarantee Agreement and the Guarantee and
certificates delivered at the closing of the sale of the
Preferred Securities) and appropriate public officials without
independent verification of such matters except as otherwise
described herein.
Whenever our opinions herein with respect to the
existence or absence of facts are stated to be to our knowledge
or awareness, we intend to signify that no information has come
to our attention or the attention of any other attorneys acting
for or on behalf of the Company or the Trust or any of its
affiliates that have participated in the negotiation of the
transactions contemplated by the Underwriting Agreement, the
Indenture, the Trust Agreement, the Expense Agreement, the
Guarantee Agreement and the Guarantee, in the preparation of the
Registration Statement and the Prospectus or in the preparation
of this opinion letter that would give us, or them, actual
knowledge that would contradict such opinions. However, except
to the extent necessary in order to give the opinions hereinafter
expressed, neither we nor they have undertaken any independent
investigation to determine the existence or absence of such
facts, and no inference as to knowledge of the existence or
absence of such facts (except to the extent necessary in order to
give the opinions hereinafter expressed) should be assumed.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, 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 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 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 Underwriting Agreement, the Trust Agreement
and the Expense Agreement have been duly authorized, executed and
delivered by the Company.
(7) The Trust Agreement is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(8) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement, the Guarantee Agreement and the
Guarantee (a) will not violate any provision of the Company's
Restated Articles of Incorporation or By-laws, as amended, (b)
will not violate any provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance on or security interest in any of the
assets of the Company pursuant to the provisions of, any
mortgage, indenture, contract, agreement or other undertaking
known to 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).
(9) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1s, upon
which we do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act, and, to the best
of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
(10) Appropriate orders have been entered by the Public
Service Commissions of Arkansas and Tennessee 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 and the Exchange Act, which have been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Securities; and
no further approval, authorization, consent or other order of any
governmental body is legally required to permit the performance
by the Trust of its obligations with respect to the Preferred
Securities, or by the Company of its obligations with respect to
the Debentures or the Guarantee or under the Indenture, the
Underwriting Agreement, the Trust Agreement, the Expense
Agreement or the Guarantee Agreement.
(11) All of the issued and outstanding Common
Securities of the Trust are owned of record by the Company.
In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, 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 the Registration Statement, at the Effective Date, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) and at the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, as to
the Form T-1s or as to the information contained in the
Prospectus under the captions "Description of the Preferred
Securities -- Book-entry Issuance" and "Certain United States
Federal Income Tax Considerations."
We have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on our authority, and we believe such
information to be correct. We 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.
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,
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
___________ __, ____
Goldman, Sachs & Co.
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We, together with Friday, Eldredge & Clark, Little
Rock, Arkansas, and Richards, Layton & Finger, Wilmington,
Delaware, have acted as counsel for Entergy Arkansas, Inc. (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 to the several
Underwriters pursuant to the Underwriting Agreement, effective
________ __, ____ (the "Underwriting Agreement"), among the
Company, the Trust and you, as Representatives of the several
Underwriters, of an aggregate of ____________ % Cumulative
Quarterly Income Preferred Securities, Series A (liquidation
preference $25 per preferred security) of the Trust (the
"Preferred Securities"). This opinion is rendered to you at the
request of the Company. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Trust Agreement; (e) the
Guarantee Agreement; (f) the Guarantee; (g) the Expense
Agreement; (h) the Registration Statement and Prospectus filed
under the Securities Act; (i) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Company Securities and the execution and delivery by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement and the Guarantee Agreement; and
(i) the proceedings before and the orders entered by the Public
Service Commissions of Arkansas and Tennessee relating to the
issuance and sale of the Securities. We have also examined or
caused to be examined such other documents and have satisfied
ourselves as to such other matters as we have deemed necessary in
order to render this opinion. In such examination, we have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, and the conformity to
the originals of the documents submitted to us as certified or
photostatic copies. We have not examined the Debentures, except
a specimen thereof, and we have relied upon a certificate of the
Corresponding Debenture Trustee as to the authentication and
delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and is duly qualified under the Trust Indenture Act,
and no proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the Commission.
(2) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and are legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and are entitled to the benefits provided by the
Indenture.
(3) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(4) The Expense Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company and is a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law).
(5) The Trust Agreement is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(6) The statements made in the Prospectus under the
captions "Risk Factors", "Entergy 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.
(7) The statements made in the Prospectus under the
caption "Certain United States Federal Income Tax Considerations"
constitute a fair and accurate summary of the matters addressed
therein, based upon current law and the assumptions stated or
referred to therein.
(8) The Trust is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(9) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1s, upon
which we do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act and, to the best of
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
(10) Appropriate orders have been entered by the Public
Service Commissions of Arkansas and Tennessee 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 and the Exchange Act, which have been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Securities; and
no further approval, authorization, consent or other order of any
governmental body is legally required to permit the performance
by the Trust of its obligations with respect to the Preferred
Securities, or by the Company of its obligations with respect to
the Company Securities or under the Indenture, the Underwriting
Agreement, the Trust Agreement, the Expense Agreement or the
Guarantee Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and the Trust and information included or incorporated by
reference in the Registration Statement and the Prospectus and
take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraphs (6) and
(7) above. In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, we
have had discussions with certain officers and representatives of
the Company and the Trust, with other counsel for the Company and
the Trust, and with the independent certified public accountants
of the Company who examined certain of the financial statements
included or incorporated by reference in the Registration
Statement. Our examination of the Registration Statement and the
Prospectus and such discussions did not disclose to us any
information which gives us reason to believe that the
Registration Statement, at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) and at the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, as to
the Form T-1s or as to the information contained in the
Prospectus under the captions "Description of the Preferred
Securities -- Book-entry Issuance."
We have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. As to all matters of Arkansas law, we have, with your
consent, relied upon the opinion of even date herewith of Friday,
Eldredge & Clark, counsel for the Company. We have not examined
into and are not passing upon matters relating to the
incorporation of the Company.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose, without our prior written
consent, except that Friday, Eldredge & Clark, Little Rock,
Arkansas, may rely on this opinion as to all matters of New York
law in rendering her opinion required to be delivered under the
Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Richards, Layton & Finger]
___________ __, ____
Goldman, Sachs & Co.
[Representatives]
As Representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement
referred to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We have acted as special Delaware counsel for Entergy
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. We
are furnishing this opinion to you at the request of the Company
and the Trust.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of executed and conformed counterparts, or copies
otherwise proved to our satisfaction, of the following:
(a) The Certificate of Trust of the Trust, dated
_______ __, ____ (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary
of State") on ____________ __, ____;
(b) The Trust Agreement of the Trust, dated as of
________ __, ____ between the Company and the trustees of the
Trust named therein;
(c) The Amended and Restated Trust Agreement of the
Trust, dated as of ________ __, ____, between the trustees of the
Trust named therein, the Company and the holders, from time to
time, of undivided beneficial interests in the assets of the
Trust (including the Certificate Evidencing Common Securities of
the Trust attached as Exhibit B thereto and the Certificate
Evidencing Preferred Securities of the Trust attached as Exhibit
D thereto) (collectively, the "Trust Agreement");
(d) The Underwriting Agreement, dated __________ __,
____ (the "Underwriting Agreement"), among the Trust, the Company
and you, as Representatives of the several Underwriters named in
Schedule I thereto;
(e) The Prospectus, dated _______ __, ____ (the
"Prospectus") and the Prospectus Supplement, dated ________ __,
____ (the "Prospectus Supplement"), relating to the ____%
Cumulative Quarterly Income Preferred Securities, Series A of the
Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust,
dated _________ __, ____, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined
are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above. In particular, we have not reviewed any
document (other than the documents listed in paragraph (a)
through (f) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our
own, but rather have relied solely upon the foregoing documents,
the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Trust Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Trust, and that the Trust Agreement and the Certificate
are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph (1) below, the due
organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents
examined by us under the laws of the jurisdiction governing its
organization or formation, (iii) the legal capacity of natural
persons who are parties to the documents examined by us, (iv)
except to the extent provided in paragraph (2) below, that each
of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations
under, such documents, (v) except to the extent provided in
paragraph (9) below, the due authorization, execution and
delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is
to be issued by the Trust (each, a "Preferred Security Holder"
and collectively, the "Preferred Security Holders") of a
Preferred Securities Certificate for the Preferred Security and
the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement, the Prospectus and the
Prospectus Supplement, (vii) the receipt by each Person to whom a
____% Common Security of the Trust representing common undivided
beneficial interests in the assets of the Trust (each, a "Common
Security" and collectively, the "Common Securities") is to be
issued by the Trust of a Common Securities Certificate for the
Common Security and the payment for the Common Security acquired
by it, in accordance with the Trust Agreement, the Prospectus and
the Prospectus Supplement, and (viii) that the Preferred
Securities and the Common Securities are issued and sold in
accordance with the Trust Agreement, the Prospectus and the
Prospectus Supplement. We have not participated in the
preparation of the Prospectus or the Prospectus Supplement and
assume no responsibility for their contents.
This opinion is limited to the laws of the State of
Delaware (including the securities laws of the State of
Delaware), and we have not considered and expound no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
(1) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required as of the date
hereof under the Delaware Business Trust Act with respect to the
creation and valid existence of the Trust as a business trust
have been made.
(2) Under the Trust Agreement and the Delaware
Business Trust Act, the Trust has the trust power and authority
(i) to own property and to conduct its business, all as described
in the Prospectus and the Prospectus Supplement, (ii) to issue
and sell Preferred Securities and Common Securities in accordance
with the Trust Agreement, the Prospectus and the Prospectus
Supplement, and (iii) to execute and deliver, and to perform its
obligations under, the Underwriting Agreement, the Preferred
Securities and the Common Securities, and to consummate the
transactions contemplated therein.
(3) Assuming that the Trust Agreement has been duly
authorized, executed and delivered by the parties thereto, the
Trust Agreement constitutes a valid and binding obligation of
each of the Company and the Administrative Trustees, and is
enforceable against the Company and each of the Administrative
Trustees, in accordance with its terms.
(4) The Common Securities have been duly authorized by
the Trust Agreement and are validly issued common undivided
beneficial interests in the assets of the Trust and entitled to
the benefits of the Trust Agreement.
(5) The Preferred Securities have been duly authorized
by the Trust Agreement and are validly issued and, subject to the
qualifications set forth in paragraph (6) below, fully paid and
nonassessable preferred undivided beneficial interests in the
assets of the Trust and entitled to the benefits of the Trust
Agreement.
(6) The Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated, pursuant to the Trust
Agreement, (i) to provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers
or exchanges of Preferred Securities certificates and the
issuance of replacement Preferred Securities certificates, and
(ii) to provide security or indemnity in connection with requests
of or directions to the Property Trustee to exercise its rights
and powers under the Trust Agreement.
(7) Under the Trust Agreement and the Delaware
Business Trust Act, the issuance of the Preferred Securities and
the Common Securities is not subject to preemptive rights.
(8) The issuance and sale by the Trust of the
Preferred Securities and the Common Securities, the execution,
delivery and performance by the Trust of the Underwriting
Agreement, and the consummation of the transactions contemplated
by the Underwriting Agreement, do not violate (a) the Certificate
or the Trust Agreement, or (b) any applicable Delaware law, rule
or regulation.
(9) Under the Trust Agreement and the Delaware
Business Trust Act, the issuance and sale by the Trust of the
Preferred Securities and the Common Securities, the execution and
delivery by the Trust of the Underwriting Agreement, and the
performance by the Trust of its obligations thereunder, have been
duly authorized by all necessary trust action on the part of the
Trust.
The opinion expressed in paragraph (3) above is
subject, as to enforcement, to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance
and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless
of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with the Underwriting
Agreement. We also consent to the reliance upon this opinion as
to matters of Delaware law by Winthrop, Stimson, Putnam &
Roberts, as if it were addressed to them, in rendering their
opinion to you of even date herewith. Except as stated above,
without our prior written consent, this opinion may not be relied
upon by any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
<PAGE>
EXHIBIT D
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_________ __, ____
Goldman, Sachs & Co.
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We have acted as counsel for the several Underwriters
of an aggregate amount of % Cumulative Quarterly
Income Preferred Securities, Series A (liquidation preference $25
per preferred security) (the "Preferred Securities"), issued by
Entergy 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 ________ __, ____ (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, special Delaware counsel for the
Company and the Trust, as to the matters covered in such opinion
relating to Delaware law. We have reviewed said opinions and
believe that they are satisfactory. We have also reviewed the
opinion of Reid & Priest LLP required by Section 7(d) of the
Underwriting Agreement, and we believe said opinion to be
satisfactory.
We have also examined such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon
representations of the Company and the Trust and statements in
the Registration Statement hereinafter mentioned. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals,
the conformity to the originals of the documents submitted to us
as certified or photostatic copies, and the correctness of all
statements of fact contained in all such original or copied
documents. We have not examined the certificates representing
the Preferred Securities or the Debentures except specimens
thereof, and we have relied upon a certificate of the paying
agent for the Preferred Securities as to the registration of the
Preferred Securities and upon a certificate of the Corresponding
Debenture Trustee as to the authentication and delivery of the
Debentures. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Preferred Securities have been duly authorized
by the Trust Agreement and are validly issued and fully paid and
nonassessable preferred undivided beneficial interests in the
assets of the Trust and entitled to the benefits of the Trust
Agreement. The holders of the Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
holders of the Preferred Securities may be obligated, pursuant to
the Trust Agreement, (i) to provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities certificates
and the issuance of replacement Preferred Securities
certificates, and (ii) to provide security or indemnity in
connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and, to the best of our knowledge, the Indenture is duly
qualified under the Trust Indenture Act, and no proceedings to
suspend such qualification have been instituted or threatened by
the Commission.
(3) The statements made in the Prospectus under the
captions "Certain Terms of the Series A Preferred Securities",
"Certain Terms of the Series A Debentures", "Description of
Junior Subordinated Debentures", "Description of Preferred
Securities", "Description of Guarantees", "Description of
Corresponding Junior Subordinated Debentures" and "Relationship
Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees" insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and are legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefits provided by the Indenture.
(5) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or
at law), and, to the best of our knowledge, the Guarantee
Agreement is duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted or
threatened by the Commission.
(6) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(7) Appropriate orders have been issued by the Public
Service Commissions of Arkansas and Tennessee 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 and the Exchange Act, which have been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Securities.
(8) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1s, upon
which we do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; to the best of our knowledge, the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings
for that purpose are pending or threatened under Section 8(d) of
the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and the Trust and the information included or
incorporated by reference in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in paragraph (3)
hereof. In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, we
had discussions with certain officers, employees and
representatives of the Company, the Trust and Entergy Services
Inc., with counsel for the Company and the Trust, and with your
representatives. Our review of the Registration Statement and
the Prospectus, and such discussions, did not disclose to us any
information that gives us reason to believe that the Registration
Statement, at the Effective Date, contained an untrue statement
of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, at the time first filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b) and at the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or Prospectus, as to the Form T-1s or as to the
information contained in the Prospectus under the captions
"Description of Preferred Securities -- Book-entry Issuance" and
"Certain United States Federal Income Tax Considerations."
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT E
ITEMS PURSUANT TO SECTION 7(h)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
EXHIBIT 4.03
__________________________________________
ENTERGY ARKANSAS, INC.
TO
THE BANK OF NEW YORK
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of July 1, 1996
__________________________________________
<PAGE>
ENTERGY ARKANSAS, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AN INDENTURE, DATED AS OF JULY 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 July 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 corporation of the
State of New York, having its principal corporate trust office at
101 Barclay Street, New York, New York 10286, as Trustee (herein
called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv
ery of this Indenture to provide for the issuance from time to
time of its unsecured subordinated debentures, notes or other
evidences of indebtedness (herein called the "Securities") in an
unlimited aggregate principal amount to be issued in one or more
series as contemplated herein; and all acts necessary to make
this Indenture a valid agreement of the Company have been
performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon
which the Securities are to be authenticated, issued and
delivered and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of 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 govern
mental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are de
fined in that Article.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "CONTROL" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
to act on behalf of the Trustee to authenticate one or more
series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other duly authorized officer of the Company.
"BOARD OF DIRECTORS" means either the board of directors
of the Company or any committee thereof duly authorized to act in
respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered
to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commis
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per
forming such duties at such time.
"COMPANY" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written re
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee
at which at any particular time its corporate trust business
shall be principally administered, which office at the date of
execution and delivery of this Indenture is located at 101
Barclay Street, 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.
"DISCOUNT SECURITY" means any Security which provides for
an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "Interest" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect
to such Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" with respect to Securities of a
particular series has the meaning specified in Section 801.
"GOVERNMENTAL AUTHORITY" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department, agency,
authority or other instrumentality of any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the
principal of and interest on which are
unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or
other instruments the full amount received by such
custodian in respect of such obligations or specific
payments and shall not be permitted to make any
deduction therefrom.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms
of particular series of Securities established as
contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to
any Security, means the Stated Maturity of an installment
of interest on such Security.
"MATURITY", when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
provided in such Security or in this Indenture, whether at
the Stated Maturity, by declaration of acceleration, upon
call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a
quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company
or any other obligor upon the Securities or any
Affiliate of the Company or of such other
obligor (unless the Company, such Affiliate or
such obligor owns all Securities Outstanding
under this Indenture, or (except for purposes of
actions to be taken by Holders generally under
Section 812 or 813) all Outstanding Securities
of each such series and each such Tranche, as
the case may be, determined without regard to
this clause (x)) shall be disregarded and deemed
not to be Outstanding, except that, in
determining whether the Trustee shall be pro
tected in relying upon any such request, demand,
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;
(y) the principal amount of a Dis
count Security that shall be deemed to be
Outstanding for such purposes shall be the
amount of the principal thereof that would be
due and payable as of the date of such
determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 802;
and
(z) the principal amount of any
Security which is denominated in a currency
other than Dollars or in a composite currency
that shall be deemed to be Outstanding for such
purposes shall be the amount of Dollars which
could have been purchased by the principal
amount (or, in the case of a Discount Security,
the Dollar equivalent on the date determined as
set forth below of the amount determined as
provided in (y) above) of such currency or
composite currency evidenced by such Security,
in each such case certified to the Trustee in an
Officer's Certificate, based (i) on the average
of the mean of the buying and selling spot rates
quoted by 3 banks which are members of the New
York Clearing House Association selected by the
Company in effect at 11:00 A.M. (New York time)
in The City of New York on the fifth Business
Day preceding any such determination or (ii) if
on such fifth Business Day it shall not be
possible or practicable to obtain such
quotations from such 3 banks, on such other
quotations or alternative methods of deter
mination which shall be as consistent as
practicable with the method set forth in (i)
above;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such
Security that shall be deemed to be Outstanding at any
time for all purposes of this Indenture shall be the
original principal amount thereof less the aggregate
amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the
Company, authorized by the Company to pay the principal of
and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities
of a series from time to time any or all of the specific
terms of which Securities, including without limitation
the rate or rates of interest, if any, thereon, the Stated
Maturity or Maturities thereof and the redemption pro
visions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance
of such Securities.
"PERSON" means any individual, corporation,
partnership, joint venture, trust, limited liability
company, limited liability partnership or unincorporated
organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the
Securities of any series, or Tranche thereof, means the
place or places, specified as contemplated by Section 301,
at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the Securities
of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed (to the extent lawful) to
evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"REDEMPTION DATE", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"REQUIRED CURRENCY" has the meaning specified in
Section 311.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this
Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means all obligations (other
than non-recourse obligations and the indebtedness issued
under this Indenture) of, or guaranteed or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other than
the Securities), or for the payment of money relating to
any lease which is capitalized on the consolidated balance
sheet of the Company and its subsidiaries in accordance
with generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations,
whether existing as of the date of this Indenture or
subsequently incurred by the Company.
"SPECIAL RECORD DATE" for the payment of any
Defaulted Interest on the Securities of any series means a
date fixed by the Trustee pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to
bear simple interest. Any calculation or other
determination to be made under this Indenture by reference
to the Stated Interest Rate on a Security shall be made
without regard to the effective interest cost to the
Company of such Security and without regard to the Stated
Interest Rate on, or the effective cost to the Company of,
any other indebtedness in respect of which the Company's
obligations are evidenced or secured in whole or in part
by such Security.
"STATED MATURITY", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"TRANCHE" means a group of Securities which (a) are
of the same series and (b) have identical terms except as
to principal amount and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the
Trust Indenture Act of 1939, as amended. or any successor
statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor
Trustee shall have become such with respect to one or more
series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities
of that series.
"UNITED STATES" means the United States of America,
its Territories, its possessions and other areas subject
to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in
the case of any such application or request as to which
the furnishing of such documents is specifically required
by any provision of this Indenture relating to such
particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each Person signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each
such Person, such Person has made such examination
or investigation as is necessary to enable such
Person to express an informed opinion as to whether
or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion
of each such Person, such condition or covenant has
been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers
of the Company stating that the information with respect
to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or
opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect
as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect
to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at
the request of the Company which could not have been
taken had the original document or instrument not
contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and
effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities
issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding
Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and
evidenced by one or more instruments of
substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and evidenced
by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and
any such record. Except as herein otherwise
expressly provided, such action shall become
effective when such instrument or instruments or
record or both are delivered to the Trustee and,
where it is hereby expressly required, to the
Company. Such instrument or instruments and any
such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to 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 (except as otherwise
contemplated in clause (y) of the first proviso to
the definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder
of the same Security and the Holder of every
Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is
made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with
respect to the requisite percentage of principal
amount of Securities for the action contemplated by
such instruments, any such instrument executed and
delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by
written notice by such Holder or any subsequent
Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series, or any Tranche
thereof, authenticated and delivered after any Act
of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the
Trustee and the Company, to such action may be
prepared and executed by the Company and
authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series
or Tranche.
(g) If the Company shall solicit from Holders
any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company
may, at its option, by Board Resolution, fix in
advance a record date for the determination of
Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation
to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or
after such record date, but only the Holders of
record at the close of business on the record date
shall be deemed to be Holders for the purposes of
(i) determining whether Holders of the requisite
proportion of the Outstanding Securities have
authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the
record date or (ii) determining which Holders may
revoke any such Act (notwithstanding Section
104(e)).
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or
other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company, or the Company
by the Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered
personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission,
telex or other direct written electronic means to such
telephone number or other electronic communications
address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such
party's name below or to such other address as either
party hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention:
Telephone:
Telecopy:
If to the Company, to:
Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
With a copy to:
Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given, and
shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail,
then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of
such notice with respect to other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive such
notice, either before or after the event otherwise to be
specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this
Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in
the Securities shall for any reason be held to be
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than
the parties hereto, their successors hereunder, the
Holders, and so long as the notice described in Section
1513 hereof has not been given, the holders of Senior
Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of New York, except to the extent that the law
of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of
any series, or any Tranche thereof, or in the Board
Resolution or Officer's Certificate which establishes the
terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in
lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of
Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, and,
if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall
be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series,
or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case
with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of
Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as
shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of
the series designated therein referred to in
the within-mentioned Indenture.
__________________________
as Trustee
By: ___________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more
series. Prior to the authentication, issuance and
delivery of Securities of any series, there shall be
established by specification in a supplemental indenture
or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board
Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such
series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 406 or 1206 and,
except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of
such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than
the Persons in whose names such Securities (or one
or more Predecessor Securities) are registered at
the close of business on the Regular Record Date for
such interest;
(d) the date or dates on which the principal
of the Securities of such series or any Tranche
thereof, is payable or any formulary or other method
or other means by which such date or dates shall be
determined, by reference to an index or other fact
or event ascertainable outside this Indenture or
otherwise (without regard to any provisions for
redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities
of such series, or any Tranche thereof, shall bear
interest, if any (including the rate or rates at
which overdue principal shall bear interest, if
different from the rate or rates at which such
Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if
any), or any formulary or other method or other
means by which such rate or rates shall be
determined, by reference to an index or other fact
or event ascertainable outside this Indenture or
otherwise; the date or dates from which such
interest shall accrue; the Interest Payment Dates on
which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on
such Securities on any Interest Payment Date; the
right of the Company, if any, to extend the interest
payment periods and the duration of any such
extension as contemplated by Section 312; and the
basis of computation of interest, if other than as
provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series, or
any Tranche thereof, shall be payable, (2)
registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any
Tranche thereof, may be effected and (4) notices and
demands to or upon the Company in respect of the
Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security
Registrar and Paying Agent or Agents for such
series; and if such is the case, and if acceptable
to the Trustee, that the principal of such
Securities shall be payable without presentment or
surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the
Securities of such series, or any Tranche thereof,
may be redeemed, in whole or in part, at the option
of the Company and any restrictions on such
redemptions, including but not limited to a
restriction on a partial redemption by the Company
of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities
from any national exchange;
(h) the obligation or obligations, if any, of
the Company to redeem or purchase the Securities of
such series, or any Tranche thereof, pursuant to any
sinking fund or other analogous mandatory redemption
provisions or at the option of a Holder thereof and
the period or periods within which or the date or
dates on which, the price or prices at which and the
terms and conditions upon which such Securities
shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable
exceptions to the requirements of Section 404 in the
case of mandatory redemption or redemption at the
option of the Holder;
(i) the denominations in which Securities of
such series, or any Tranche thereof, shall be
issuable if other than denominations of $1,000 and
any integral multiple thereof;
(j) the currency or currencies, including com
posite currencies, in which payment of the principal
of and premium, if any, and interest, if any, on the
Securities of such series, or any Tranche thereof,
shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series,
or any Tranche thereof, are to be payable, at the
election of the Company or a Holder thereof, in a
coin or currency other than that in which the
Securities are stated to be payable, the period or
periods within which and the terms and conditions
upon which, such election may be made;
(l) if the principal of or premium, if any, or
interest on the Securities of such series, or any
Tranche thereof, are to be payable, or are to be
payable at the election of the Company or a Holder
thereof, in securities or other property, the type
and amount of such securities or other property, or
the formulary or other method or other means by
which such amount shall be determined, and the
period or periods within which, and the terms and
conditions upon which, any such election may be
made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series, or any
Tranche thereof, may be determined with reference to
an index or other fact or event ascertainable
outside this Indenture, the manner in which such
amounts shall be determined to the extent not
established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of ac
celeration of the Maturity thereof pursuant to
Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to the
Securities of such series, and any covenants of the
Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof,
in addition to those set forth in Article Six and
whether any such covenants may be waived pursuant to
Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof,
may be converted into or exchanged for shares of
capital stock or other securities of the Company or
any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Eligible Obligations
in respect of the Securities of such series, or any
Tranche thereof, denominated in a currency other
than Dollars or in a composite currency, and any
additional or alternative provisions for the
reinstatement of the Company's indebtedness in
respect of such Securities after the satisfaction
and discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any
Tranche thereof, are to be issued in global form,
(i) any limitations on the rights of the Holder or
Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer
thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates
therefor in definitive form in lieu of global form
and (iii) any and all other matters incidental to
such Securities;
(s) if the Securities of such series, or any
Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto
which are not specifically addressed in a
supplemental indenture as contemplated by clause (g)
of Section 1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such
Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the
registration of transfer thereof; and if a service
charge will be made for the registration of transfer
or exchange of Securities of such series, or any
Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series, or any
Tranche thereof; and
(v) any other terms of the Securities of such
series, or any Tranche thereof, not inconsistent
with the provisions of this Indenture.
The Securities of each series, or any Tranche
thereof, shall be subordinated in the right of payment to
Senior Indebtedness as provided in Article Fifteen.
With respect to Securities of a series subject
to a Periodic Offering, the indenture supplemental hereto
or the Board Resolution which establishes such series, or
the Officer's Certificate pursuant to such supplemental
indenture or Board Resolution, as the case may be, may
provide general terms or parameters for Securities of
such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall
be specified in a Company Order or that such terms shall
be determined by the Company or its agents in accordance
with procedures specified in a Company Order as
contemplated by the clause (b) of Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities of each series shall
be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities shall be executed on
behalf of the Company by an Authorized Officer and may
have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized
Officer. The signature of any or all of these officers
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers of the Company shall bind
the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time
or from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing
the form or forms and terms of such series, as
provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities and,
to the extent that the terms of such Securities
shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated
by Sections 201 and 301, either (i) establishing
such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying
procedures, acceptable to the Trustee, by which such
terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee,
for authentication and delivery pursuant to oral or
electronic instructions from the Company or any
agent or agents thereof, which oral instructions are
to be promptly confirmed electronically or in
writing), in either case in accordance with the
instrument or instruments delivered pursuant to
clause (a) above;
(c) the Securities of such series, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) that the form or forms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture;
(ii) that the terms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture; and
(iii) that such Securities, when
authenticated and delivered by the Trustee and
issued and delivered by the Company in the
manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute
valid and legally binding obligations of the
Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance
with their terms, subject, as to enforcement,
to laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law);
provided, however, that, with respect to Securities of a
series subject to a Periodic Offering, the Trustee shall
be entitled to receive such Opinion of Counsel only once
at or prior to the time of the first authentication of
such Securities (provided that such Opinion of Counsel
addresses the authentication and delivery of all
Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above
Counsel may opine that:
(x) when the terms of such
Securities shall have been established pursuant
to a Company Order or Orders or pursuant to
such procedures (acceptable to the Trustee) as
may be specified from time to time by a Company
Order or Orders, all as contemplated by and in
accordance with the instrument or instruments
delivered pursuant to clause (a) above, such
terms will have been duly authorized by the
Company and will have been established in
conformity with the provisions of this
Indenture; and
(y) such Securities, when
authenticated and delivered by the Trustee in
accordance with this Indenture and the Company
Order or Orders or specified procedures
referred to in paragraph (x) above and issued
and delivered by the Company in the manner and
subject to any conditions specified in such
Opinion of Counsel, will have been duly issued
under this Indenture and will constitute valid
and legally binding obligations of the Company,
entitled to the benefits provided by the
Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to
laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
With respect to Securities of a series subject
to a Periodic Offering, the Trustee may conclusively
rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and other documents
delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the
first authentication of Securities of such series unless
and until such opinion or other documents have been
superseded or revoked or expire by their terms. In
connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering,
the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or
orders of any Governmental Authority having jurisdiction
over the Company.
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, each Security shall be dated the
date of its authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, no Security shall be entitled to any
benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a
certificate of authentication substantially in the form
provided for herein executed by the Trustee or its agent
by manual signature of an authorized officer thereof, and
such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder to the
Company, or any Person acting on its behalf, but shall
never have been issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to
the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive
Securities of any series, or any Tranche thereof, the
Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the defi
nitive Securities in lieu of which they are issued, with
such appropriate insertions, omissions, substitutions and
other variations as the officers executing such
Securities may determine, as evidenced by their execution
of such Securities; provided, however, that temporary
Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, after the preparation of defini
tive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or
agency of the Company maintained pursuant to Section 602
in a Place of Payment for such Securities. Upon such
surrender of temporary Securities, the Company shall,
except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove
provided, temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in one of
the offices designated pursuant to Section 602, with
respect to the Securities of each series, a register (the
register kept in accordance with this Section being
referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities
of such series or any Tranche thereof and the
registration of transfer thereof. The Company shall
designate one Person to maintain the Security Register
for the Securities of each series, and such Person is
referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one of its
offices as the office in which the register with respect
to the Securities of one or more series shall be
maintained, and the Company may designate itself the
Security Registrar with respect to one or more of such
series. The Security Register shall be open for
inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, upon surrender for
registration of transfer of any Security of such series
or Tranche at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment
for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or
more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate
principal amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, any Security of such
series or Tranche may be exchanged at the option of the
Holder, for one or more new Securities of the same series
and Tranche, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of
the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, or
any Tranche thereof, no service charge shall be made for
any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer
or exchange of Securities, other than exchanges pursuant
to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or
to provide for the registration of transfer of or the
exchange of (a) Securities of any series, or any Tranche
thereof, during a period of 15 days immediately preceding
the date notice is to be given identifying the serial
numbers of the Securities of such series or Tranche
called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any
agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same
series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone other than the Holder of
such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, interest on any Security which is
payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest.
Subject to Section 312, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on a date (herein called a "Special
Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed
payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name
and at the expense of the Company, shall promptly
cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date 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, or any
Tranche thereof, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or
any Tranche thereof, denominated in any currency other
than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to
such Securities as contemplated by Section 301, the obli
gation of the Company to make any payment of the
principal thereof, or the premium or interest thereon,
shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency
other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is
in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate
to exchange such currency for the Required Currency. The
costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctua
tion, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in
the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be
liable therefor except in the case of its negligence or
willful misconduct.
SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods on all Securities of one
or more series, or Tranches thereof, if so specified as
contemplated by Section 301 with respect to such
Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such
Securities.
SECTION 313. CUSIP NUMBERS.
The Company in issuing Securities of any series
shall use a "CUSIP" number and the Trustee shall use the
CUSIP number in notices of redemption or exchange as a
convenience to the Holders of the Securities of such
series; provided, that any such notice may state that no
such representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or in
the Securities of such series, and that reliance may be
placed only on the other identification numbers printed
on the Securities of such series.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche
thereof, which are redeemable before their Stated
Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated
by Section 301 for Securities of such series or Tranche)
in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such 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,
or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected by
the Security Registrar from the Outstanding Securities of
such series or Tranche not previously called for
redemption, by such method as shall be provided for any
particular series, or, in the absence of any such
provision, by such method of random selection as the
Security Registrar shall deem fair and appropriate and
which may, in any case, provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Securities of such series or Tranche or
any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination
larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however,
that if, as indicated in an Officer's Certificate, the
Company shall have offered to purchase all or any
principal amount of the Securities then Outstanding of
any series, or any Tranche thereof, and less than all of
such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order,
shall select for redemption all or any principal amount
of such Securities which have not been so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any
series or Tranche are to be redeemed, the
identification of the particular Securities to be
redeemed and the portion of the principal amount of
any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to
the Redemption Date, will become due and payable
upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities
are to be surrendered for payment of the Redemption
Price and accrued interest, if any, unless it shall
have been specified as contemplated by Section 301
with respect to such Securities that such surrender
shall not be required,
(f) that the redemption is for a sinking or
other fund, if such is the case, and
(g) such other matters as the Company shall
deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice,
such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that
such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any,
and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall
be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that
such notice of redemption contains such a condition and
such money is not so received, the redemption shall not
be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of
redemption was given, that such money was not so received
and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to
have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to
such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the terms
of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any
authorized denomination requested by such Holder and of
like tenor and in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal
of the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, or any Tranche thereof, except
as otherwise specified as contemplated by Section 301 for
Securities of such series or Tranche.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series, or
any Tranche thereof, is herein referred to as a
"mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms
of Securities of any series, or any Tranche thereof, is
herein referred to as an "optional sinking fund payment".
If provided for by the terms of Securities of any series,
or any Tranche thereof, the cash amount of any mandatory
sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall
be applied to the redemption of Securities of the series
or Tranche in respect of which it was made as provided
for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called
for redemption) of a series or Tranche in respect of
which a mandatory sinking fund payment is to be made and
(b) may apply as a credit Securities of such series or
Tranche which have been redeemed either at the election
of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however, that
no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall
have been previously so applied. Securities so applied
shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such
Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking
fund payment date for the Securities of any series, or
any Tranche thereof, the Company shall deliver to the
Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series or
Tranche;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by the
payment of cash;
(e) the portion, if any, of such mandatory
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series
or Tranche pursuant to Section 502 and stating the
basis for such credit and that such Securities have
not previously been so credited, and the Company
shall also deliver to the Trustee any Securities to
be so delivered. If the Company shall not deliver
such Officer's Certificate, the next succeeding
mandatory sinking fund payment for such series or
Tranche shall be made entirely in cash in the amount
of the mandatory sinking fund payment. Not less
than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the
manner specified in Section 403 and cause notice of
the redemption thereof to be given in the name of
and at the expense of the Company in the manner
provided in Section 404. Such notice having been
duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in
Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and
premium, if any, and interest, if any, on the Securities
of each series in accordance with the terms of such
Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of
Payment for the Securities of each series, or any Tranche
thereof, an office or agency where payment of such
Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected
and where notices and demands to or upon the Company in
respect of such Securities and this Indenture may be
served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the
location, of each such office or agency and prompt notice
to the Holders of any such change in the manner specified
in Section 106. If at any time the Company shall fail to
maintain any such required office or agency in respect of
Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, or any
Tranche thereof, for any or all of the foregoing purposes
and may from time to time rescind such designations;
provided, however, that, unless otherwise specified as
contemplated by Section 301 with respect to the
Securities of such series or Tranche, no such designation
or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in
accordance with the requirements set forth above. The
Company shall give prompt written notice to the Trustee,
and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and
of any change in the location of any such other office or
agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company, in
which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any
series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities,
segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the Company
(or any other obligor on such Securities) to make any
payment of principal of or premium, if any, or interest,
if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of
the principal of and premium, if any, and interest, if
any, on such Securities, deposit with such Paying Agents
sums sufficient (without duplication) to pay the
principal and premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of any failure by it so
to act.
The Company shall cause each Paying Agent for
the Securities of any series, or any Tranche thereof,
other than the Company or the Trustee, to execute and
deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment
of the principal of and premium, if any, or
interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any failure by
the Company (or any other obligor upon such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any
failure referred to in the preceding paragraph (b),
upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such
Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent and, if so stated in a Company Order
delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining unclaimed
for 2 years after such principal and premium, if any, or
interest has become due and payable shall be paid to the
Company on Company Request, or, if then held by the Com
pany, shall be discharged from such trust; and, upon such
payment or discharge, the Holder of such Security shall,
as an unsecured general creditor and not as a Holder of
an Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining
unpaid, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent,
before being required to make any such payment to the
Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that
such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days
from the date of such mailing, any unclaimed balance of
such money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be done
all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or,
with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried on
in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any
of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO
COMPLIANCE.
Not later than September 15 in each year,
commencing September 15, 1996, the Company shall deliver
to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal
executive officer, the principal financial officer or the
principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such
compliance to be determined without regard to any period
of grace or requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in any covenant or restriction specified with respect to
the Securities of any series, or any Tranche thereof, as
contemplated by Section 301 as being subject to waiver
pursuant to this Section 607, if before the time for such
compliance the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities
of all series and Tranches with respect to which
compliance with such covenant or restriction is to be
omitted, considered as one class, shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition and (b) Section 604, 605 or Article Eleven if
before the time for such compliance the Holders of at
least a majority in principal amount of Securities
Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver
shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect
of any such term, provision or condition shall remain in
full force and effect.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof,
Eligible Obligations, which shall not contain
provisions permitting the redemption or other
prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which
when due, without any regard to reinvestment
thereof, will provide moneys which, together with
the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient,
or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of
any series or Tranche, such Securities or portions
thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a
redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority
shall have been given by the Company to the Trustee to
give such notice, under arrangements satisfactory to the
Trustee; and provided, further, that the Company shall
have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been
made prior to the Maturity of such Securities,
a Company Order stating that the money and
Eligible Obligations deposited in accordance
with this Section shall be held in trust, as
provided in Section 703;
(y) if Eligible Obligations shall
have been deposited, an Opinion of Counsel that
the obligations so deposited constitute
Eligible Obligations and do not contain
provisions permitting the redemption or other
prepayment at the option of the issuer thereof,
and an opinion of an independent public
accountant of nationally recognized standing,
selected by the Company, to the effect that the
requirements set forth in clause (b) above have
been satisfied; and
(z) if such deposit shall have been
made prior to the Maturity of such Securities,
an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of
such Securities or portions thereof will have
been satisfied and discharged as contemplated
in this Section.
Upon the deposit of money or Eligible 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, or any Tranche thereof,
is to be provided for in the manner and with the effect
provided in this Section, the Security Registrar shall
select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for
selection for redemption of less than all the Securities
of a series or Tranche.
In the event that Securities which shall be
deemed to have been paid for purposes of this Indenture,
and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature
and are not to be redeemed within the 60 day period
commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the
effect that such deposit has been made and the effect
thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this Indenture,
as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602,
603, 907 and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Eligible
Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on
or assessed against such Eligible Obligations or the
principal or interest received in respect of such
Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes,
to have been created as a result of such deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Eligible Obligations, or
combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable
Federal or State bankruptcy, insolvency or other similar
law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been
effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall
be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease
to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed
to have been paid for purposes of this Indenture, shall
be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture as aforesaid, the obligations of the
Company and the Trustee under Sections 304, 305, 306,
404, 503 (as to notice of redemption), 602, 603, 907 and
915 and this Article Seven shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee shall
assign, transfer and turn over to the Company, subject to
the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee
for the benefit of the Holders of the Securities other
than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 701, nor the principal or
interest payments on any such Eligible Obligations, shall
be withdrawn or used for any purpose other than, and
shall be held in trust for, the payment of the principal
of and premium, if any, and interest, if any, on the
Securities or portions of principal amount thereof in re
spect of which such deposit was made, all subject, how
ever, to the provisions of Section 603; provided, how
ever, that, so long as there shall not have occurred and
be continuing an Event of Default any cash received from
such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall,
to the extent practicable, be invested upon Company
Request and upon receipt of the documents referred to in
clause (y) of Section 701 in Eligible Obligations of the
type described in clause (b) in the first paragraph of
Section 701 maturing at such times and in such amounts as
shall be sufficient, together with any other moneys and
the principal of and interest on any other Eligible
Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions
thereof on and prior to the Maturity thereof, and inter
est earned from such reinvestment shall be paid over to
the Company as received, free and clear of any trust,
lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that, so
long as there shall not have occurred and be continuing
an Event of Default, any moneys held in accordance with
this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of and
premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and
clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided,
further, that if an Event of Default shall have occurred
and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one or
more of the following events which has occurred and is
continuing:
(a) failure to pay interest, if any, on any
Security of such series within 60 days after the
same becomes due and 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 312 of this Indenture shall
not constitute a failure to pay interest for this
purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series when
due and payable (whether or not payment is
prohibited by the provisions of Article Fifteen
hereof); or
(c) failure to perform or breach of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or more
series of Securities other than such series) for a
period of 60 days after there has been given, by
registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the
Outstanding Securities of such series, a written
notice specifying such default or breach and
requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless
the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not
less than the principal amount of Securities the
Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such
period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action
is initiated by the Company within such period and
is being diligently pursued; or
(d) the entry by a court having jurisdiction
in the premises of (1) a decree or order for relief
in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons
other than the Company seeking reorganization,
arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any
such decree or order for relief or any such other
decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State 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 shall have occurred and
be continuing with respect to Securities of any series at
the time Outstanding, then in every such case the Trustee
or the Holders of not less than 33% in principal amount
of the Outstanding Securities of such series may declare
the principal amount (or, if any of the Securities of
such series are Discount Securities, such portion of the
principal amount of such Securities as may be specified
in the terms thereof as contemplated by Section 301) of
all of the Securities of such series to be due and
payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and
upon such declaration such principal amount (or specified
amount) shall become immediately due and payable
(provided that the payment of principal of such
Securities shall remain subordinated to the extent
provided in Article Fifteen hereof); provided, however,
that if an Event of Default shall have occurred and be
continuing with respect to more than one series of
Securities, the Trustee or the Holders of not less than
33% in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class,
may make such declaration of acceleration, and not the
Holders of the Securities of any one of such series.
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the
Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company shall have paid or deposited
with the Trustee a sum sufficient to pay
(1) all overdue interest on all
Securities of such series;
(2) the principal of and premium, if
any, on any Securities of such series which
have become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest is lawful, interest upon overdue
interest at the rate or rates prescribed
therefor in such Securities;
(4) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, other than the
non-payment of the principal of Securities of such
series which shall have become due solely by such
declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be 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 any surplus then
remaining to the Company, or to whomever may be
lawfully entitled thereto.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given
written notice to the Trustee of a continuing Event
of Default with respect to the Securities of such
series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding
Securities of all series in respect of which an
Event of Default shall have occurred and be
continuing, considered as one class, shall have made
written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered
to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall
have failed to institute any such proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the Trustee
during such 60-day period by the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 312) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of 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.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and
be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series;
provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Securities
of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of
the Securities of any one of such series; and provided,
further, that
(a) such direction shall not be in conflict
with any rule of law or with this Indenture, and
could not involve the Trustee in personal liability
in circumstances where indemnity would not, in the
Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with
respect to such series and its consequences, except a
default
(a) in the payment of the principal of or
premium, if any, or interest, if any, on any
Security of such series, or
(b) in respect of a covenant or provision
hereof which under Section 1202 cannot be modified
or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease
to exist, and any and all Events of Default arising
therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to
any suit instituted by any Holder for the enforcement of
the payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event
of Default with respect to Securities of any series,
(1) the Trustee undertakes to
perform, with respect to Securities of such
series, such duties and only such duties as are
specifically set forth in this Indenture, and
no implied covenants or obligations shall be
read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on
its part, the Trustee may, with respect to
Securities of such series, conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed therein,
upon certificates or opinions furnished to the
Trustee and conforming to the requirements of
this Indenture; but in the case of any such
certificates or opinions which by any provision
hereof are specifically required to be
furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default with respect
to Securities of any series shall have occurred and
be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the
rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this subsection shall not be
construed to limit the effect of subsection (a)
of this Section;
(2) the Trustee shall not be liable
for any error of judgment made in good faith by
a Responsible Officer, unless it shall be
proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable
with respect to any action taken or omitted to
be taken by it in good faith in accordance with
the direction of the Holders of a majority in
principal amount of the Outstanding Securities
of any one or more series, as provided herein,
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee, or exercising any
trust or power conferred upon the Trustee,
under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk its
own funds or otherwise incur any financial
liability in the performance of any of its
duties hereunder, or in the exercise of any of
its rights or powers, if it shall have
reasonable grounds for believing that repayment
of such funds or adequate indemnity against
such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to
the Holders of Securities of such series in the manner
and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured
or waived; provided, however, that in the case of any
default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 75
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would
become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to
the applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer
of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such Event
of Default shall have been given to the Trustee by
the Company, any other obligor on such Securities or
by any Holder of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on or investment of any moneys
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit
of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such
expense, disbursement or advance may be attributable
to its negligence, wilful misconduct or bad faith;
and
(c) indemnify the Trustee and hold it harmless
from and against, any loss, liability or expense
reasonably incurred by it arising out of or in
connection with the acceptance or administration of
the trust or trusts hereunder or the performance of
its duties hereunder, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or
performance of any of its powers or duties
hereunder, except to the extent any such loss,
liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that
the negligence, wilful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in
the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect
of the Securities of any other series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing business
under the laws of the United States, any State or
Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or
examining authority, then for the purposes of this
Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of 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.
(d) If at any time:
(1) the Trustee shall fail to comply
with Section 908 after written request therefor
by the Company or by any Holder who has been a
bona fide Holder for at least 6 months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to
resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapa
ble of acting or shall be adjudged a bankrupt
or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public
officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least 6 months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the 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 6
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates; but, on request of the Company or any succes
sor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the
goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon
demand;
(b) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables
or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor
relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least 33% in principal
amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee,
jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company
does not join in such appointment within 15 days after
the receipt by it of a request so to do, or if an Event
of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the
Company.
Every co-trustee or separate trustee shall, to
the extent permitted by law, but to such extent only, be
appointed subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held
by, or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations
hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee
and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall
be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and
obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument
in writing executed by it, with the concurrence of
the Company, may accept the resignation of or remove
any co-trustee or separate trustee appointed under
this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have
power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the
concurrence of the Company. Upon the written
request of the Trustee, the Company shall join with
the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of
any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent
or Agents with respect to the Securities of one or more
series, or any Tranche thereof, which shall be authorized
to act on behalf of the Trustee to authenticate Securities
of such series or Tranche issued upon original issuance,
exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and
doing business under the laws of the United States, any
State or territory thereof or the District of Columbia or
the Commonwealth of Puerto Rico, authorized under such
laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority,
then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor 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, or any Tranche thereof, shall be
made pursuant to this Section, the Securities of such
series or Tranche may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in
the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
_______________________
As Trustee
By_____________________
As Authenticating
Agent
By_____________________
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than March 15 and
September 15 in each year, commencing September 15, and at
such other times as the Trustee may request in writing,
the Company shall furnish or cause to be furnished to the
Trustee information as to the names and addresses of the
Holders, and the Trustee shall preserve such information
and similar information received by it in any other
capacity and afford to the Holders access to information
so preserved by it, all to such extent, if any, and in
such manner as shall be required by the Trust Indenture
Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than ______________ in each year,
commencing _______________, the Trustee shall transmit to
the Holders and the Commission a report, dated as of the
next preceding _______________, with respect to any events
and other matters described in Section 313(a) of the Trust
Indenture Act, in such manner and to the extent required
by the Trust Indenture Act. The Trustee shall transmit to
the Holders and the Commission, and the Company shall file
with the Trustee within 30 days after filing with the
Commission in the case of reports which pursuant to the
Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders,
such other information, reports and other documents, if
any, at such times and in such manner, as shall be
required by the Trust Indenture Act.
To the extent required by the Trust Indenture
Act, the Company shall file with the Trustee the following
documents and reports within 30 days after such documents
or reports (or consolidated documents or reports
containing such documents or reports) are filed with the
Commission:
(a) The Company's annual reports on Form
10-K;
(b) The Company's quarterly reports on Form 10-
Q;
(c) The Company's current reports on Form 8-K;
and
(d) Any other documents filed with the
Commission which are filed with or incorporated by
reference in the foregoing reports, related to the
Company, and have not previously been filed with the
Trustee.
To the extent that any of the foregoing
documents or reports are consolidated with similar
documents or reports filed by an affiliate, the Company
may file such consolidated document or report with the
Trustee in lieu of the separate document or report.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
The Company shall not consolidate with or merge
into any other corporation, or convey or otherwise
transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the corporation formed by such
consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Com
pany substantially as an entirety shall be a Person
organized and existing under the laws of the United
States, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and premium,
if any, and interest, if any, on all Outstanding
Securities and the performance of every covenant of
this Indenture on the part of the Company to be per
formed or observed;
(b) immediately after giving effect to such
transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation
formed by such consolidation or into which the Company is
merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company
under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants
under this Indenture and the Securities Outstanding
hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Eleven;
or
(b) to add one or more covenants of the Company
or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding,
Securities of one or more specified series, or one or
more specified Tranches thereof, or to surrender any
right or power herein conferred upon the Company; or
(c) to add any additional Events of Default
with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
or Tranche Outstanding on the date of such indenture
supplemental hereto in any material respect, such
change, elimination or addition shall become
effective with respect to such series or Tranche only
pursuant to the provisions of Section 1202 hereof or
when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for the
Securities; or
(f) to establish the form or terms of
Securities of any series or Tranche as contemplated
by Sections 201 and 301; or
(g) to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all
other matters incidental thereto; or
(h) to evidence and provide for the acceptance
of appointment hereunder by a separate or successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to
permit the Company to utilize, at its option, a non-
certificated system of registration for all, or any
series or Tranche of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Securities, or any
Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or
any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or
any series of Securities, or any Tranche thereof, and
this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series or Tranche in
any material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall
require one or more changes to any provisions
hereof or the inclusion herein of any additional
provisions, or shall by operation of law be
deemed to effect such changes or incorporate
such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect
or evidence such changes or additional
provisions; or
(y) if any such amendment shall
permit one or more changes to, or the
elimination of, any provisions hereof which, at
the date of the execution and delivery hereof or
at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended
to effect such changes or elimination, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of,
this Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be
required; and provided, further, that if the Securities of
any series shall have been issued in more than one Tranche
and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all
Tranches so directly affected, considered as one class,
shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on
(except as provided in Section 312 hereof), any
Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method
of calculating such rate or reduce any premium
payable upon the redemption thereof, or reduce the
amount of the principal of a Discount Security that
would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to
Section 802, or change the coin or currency (or other
property), in which any Security or any premium or
the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any
Security (or, in the case of redemption, on or after
the Redemption Date), without, in any such case, the
consent of the Holder of such Security, or
(b) reduce the percentage in principal amount
of the Outstanding Securities of any series or any
Tranche thereof, the consent of the Holders of which
is required for any such supplemental indenture, or
the consent of the Holders of which is required for
any waiver of compliance with any provision of this
Indenture or of any default hereunder and its conse
quences, or reduce the requirements of Section 1304
for quorum or voting, without, in any such case, the
consent of the Holders of each Outstanding Security
of such series or Tranche, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, or any Tranche thereof
(except to increase the percentages in principal
amount referred to in this Section or such other
Sections or to provide that other provisions of this
Indenture cannot be modified or waived) without the
consent of the Holder of each Outstanding Security af
fected thereby; provided, however, that this clause
shall not be deemed to require the consent of any
Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b)
and 1201(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the
Holders of Securities of such series or Tranches with
respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture
under this Article this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series, or any Tranche
thereof, authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall
so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL
INDENTURE.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate pursuant to a Board
Resolution as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or
the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate
shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or
taken by Holders of Securities of such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting
of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, for any
purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan,
The City of New York, as the Trustee shall determine,
or, with the approval of the Company, at any other
place. Notice of every such meeting, setting forth
the time and the place of such meeting and in general
terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 33% in
aggregate principal amount of all of such series and
Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities
of such series and Tranches in the amount above
specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City
of New York, or in such other place as shall be
determined or approved by the Company, for such
meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection
(a) of this Section.
(c) Any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches
thereof, shall be valid without notice if the Holders
of all Outstanding Securities of such series or
Tranches are present in person or by proxy and if 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, or any
Tranche or Tranches thereof, a Person shall be (a) a
Holder of one or more Outstanding Securities of such
series or Tranches, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who
shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series and Tranches with respect to which a meeting
shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a
meeting of Holders of Securities of such series and
Tranches; provided, however, that if any action is to be
taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and
Tranches, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches,
considered as one class, shall constitute a quorum. In
the absence of a quorum within one hour of the time
appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such
series and Tranches, be dissolved. In any other case the
meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the ad
journment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by
the chairman of the meeting prior to the adjournment of
such adjourned meeting. Except as provided by Section
1305(e), notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided
in Section 1302(a) not less than 10 days prior to the date
on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall
state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of the series and Tranches with
respect to which such meeting shall have been called, con
sidered as one class; provided, however, that, except as
so limited, any resolution with respect to any action
which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one
class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches,
considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series and Tranches with respect to
which such meeting shall have been held, whether or not
present or represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF
VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder (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 and Tranches calling the
meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall
be entitled to one vote for each $1,000 principal
amount of Securities held or represented by him;
provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without
further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series and Tranches with respect to which the meeting
shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint 2
inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified
written reports of all votes cast at the meeting. A
record of the proceedings of each meeting of Holders shall
be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company, and
another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any
predecessor or successor corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional pro
vision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR
INDEBTEDNESS.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on
each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner set forth in
this Article, in right of payment to the prior payment in
full of all Senior Indebtedness.
Each Holder of the Securities of each series, by
its acceptance thereof, authorizes and directs the Trustee
on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-
fact for any and all such purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect of
the Company or a substantial part of its property, or of
any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the provisions
of Section 1503, that (i) a default shall have occurred
with respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or
interest or other monetary amounts due and payable) in
respect of any Senior Indebtedness, as defined therein or
in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for
such payment in money or money's worth,
before the Holders of any of the Securities
are entitled to receive a payment on
account of the principal of or interest on
the indebtedness evidenced by the
Securities, including, without limitation,
any payments made pursuant to Articles Four
and Five;
(2) any payment by, or distribution
of assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the
Trustee would be entitled except for the
provisions of this Article, shall be paid
or delivered by the person making such
payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any of such Senior Indebtedness
may have been issued, ratably according to
the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or
represented by each, to the extent
necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
Holders of the indebtedness evidenced by
the Securities or to the Trustee under this
Indenture; and
(3) in the event that,
notwithstanding the foregoing, any payment
by, or distribution of assets of, the
Company of any kind or character, whether
in cash, property or securities, in respect
of principal of or interest on the
Securities or in connection with any
repurchase by the Company of the
Securities, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision
is made for such payment in money or
money's worth, such payment or distribution
in respect of principal of or interest on
the Securities or in connection with any
repurchase by the Company of the Securities
shall be paid over to the holders of such
Senior Indebtedness or their representative
or representatives or to the trustee or
trustees under any indenture under which
any instruments evidencing any such Senior
Indebtedness may have been issued, ratably
as aforesaid, for application to the
payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full,
after giving effect to any concurrent
payment or distribution (or provision
therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
Eligible Obligations pursuant to Section 701 (provided all
conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation, those
arising under this Article Fifteen; provided that no event
described in clauses (d) and (e) of Section 801 with
respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or
readjustment which are subordinate in right of payment to
all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in
this Article. The consolidation of the Company with, or
the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article Eleven
hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this
Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR
INDEBTEDNESS.
Any failure by the Company to make any payment
on or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by the
Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral,
renewal, extension or refunding thereof) or any other
obligation as to which the provisions of this Section
shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default under clause (b)
of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company which
is in full force and effect and is not subject to further
review, including a judgment that has become final by
reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or
appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such
appeal or review.
SECTION 1504. SUBROGATION.
Senior Indebtedness shall not be deemed to have
been paid in full unless the holders thereof shall have
received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive any further
payments or distributions of cash, property or securities
of the Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions
of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of
such Senior Indebtedness shall, as between the Company,
its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it
being understood that the provisions of this Article are
and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the Holders,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of
any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in
which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this
Article.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS UPON
MATURITY.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise,
all matured principal of Senior Indebtedness and interest
and premium, if any, thereon shall first be paid in full
before any payment of principal or premium or interest, if
any, is made upon the Securities or before any Securities
can be acquired by the Company or any sinking fund payment
is made with respect to the Securities (except that
required sinking fund payments may be reduced by
Securities acquired before such maturity of such Senior
Indebtedness).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as
such holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE
SUBORDINATION.
Notwithstanding the provisions of this Article
or any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee
shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior
Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to
Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose,
or in the event of the execution of an instrument pursuant
to Section 702 acknowledging satisfaction and discharge of
this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice
provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply
the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which
may be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons receiving
such moneys from the Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR
INDEBTEDNESS.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment
of the principal of and premium, if any, and interest, if
any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any
Senior Indebtedness, or amend or supplement any instrument
pursuant to which any Senior Indebtedness is issued, or
exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without
notice to or assent from the Holders or the Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF
SENIOR INDEBTEDNESS.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or deliver to the Holders
or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully
for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the
Trustee; provided, however, that Sections 1507, 1508 and
1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS
NOT IMPAIRED.
No right of any present or future holder of
Senior Indebtedness to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or
by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS;
TERMINATION.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be
of no further effect, and the Securities shall no longer
be subordinated in right of payment to the prior payment
of Senior Indebtedness, if the Company shall have
delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
This instrument may be executed in any number of
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:______________________________
[SEAL]
ATTEST:
_______________________
THE BANK OF NEW YORK, Trustee
By:_________________________
[SEAL]
ATTEST:
_______________________
<PAGE>
STATE OF _____________________)
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, ____, before me
personally came _________________, to me known, who, being
by me duly sworn, did depose and say that he is the
_________________________ of Entergy 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.
______________________
Notary Public
[Notarial Seal]
STATE OF _____________________)
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, ____, before
me personally came _________________, to me known, who,
being by me duly sworn, did depose and say that he is a
_________________ of The Bank of New York, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name
thereto by like authority.
______________________
Notary Public
[Notarial Seal]
EXHIBIT 4.04
__________________________________________
ENTERGY ARKANSAS, INC.
TO
THE BANK OF NEW YORK
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities
relating to Trust Securities)
DATED AS OF JULY 1, 1996
__________________________________________
<PAGE>
ENTERGY ARKANSAS, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF JULY 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 July 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 corporation of the State of New York, having its
principal corporate trust office at 101 Barclay Street, New
York, New York 10286, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured subordinated debentures, notes
or other evidences of indebtedness (herein called the
"Securities"), in an unlimited aggregate principal amount to
be issued in one or more series as contemplated herein; and
all acts necessary to make this Indenture a valid agreement
of the Company have been performed.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the
meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions
upon which the Securities are to be authenticated, issued
and delivered and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which
are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to
them therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles
as are generally accepted in the United States at the
date of such computation or, at the election of the
Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that
in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation
of any 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, New York, New York 10286.
"CORPORATION" means a corporation, association,
company, joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in
Section 307.
"DOLLAR" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States as at the
time shall be legal tender for the payment of public and
private debts.
"EVENT OF DEFAULT" has the meaning specified in
Section 801.
"GOVERNMENTAL AUTHORITY" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any
department, agency, authority or other instrumentality of
any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the
principal of and interest on which are
unconditionally guaranteed by, the United States and
entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or
other instruments the full amount received by such
custodian in respect of such obligations or specific
payments and shall not be permitted to make any
deduction therefrom.
"GUARANTEE" means the guarantee agreement delivered
from the Company to a Trust, for the benefit of the
holders of Preferred Securities issued by such Trust.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms
of a particular series of Securities established as
contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to
any Security, means the Stated Maturity of an installment
of interest on such Security.
"MATURITY", when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
provided in such Security or in this Indenture, whether at
the Stated Maturity, by declaration of acceleration, upon
call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series, have given any
request, demand, authorization, direction, notice,
consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities, Securities
owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this
Indenture, or (except for purposes of actions to be taken
by Holders generally under Section 812 or 813) all
Outstanding Securities of each such series, as the case
may be, determined without regard to this provision)
shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or
upon any such determination as to the presence of a
quorum, only 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.
"REDEMPTION DATE", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this
Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means all obligations (other
than non-recourse obligations and the indebtedness issued
under this Indenture) of, or guaranteed or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other than
the Securities), or for the payment of money relating to
any lease which is capitalized on the consolidated balance
sheet of the Company and its subsidiaries in accordance
with generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations,
whether existing as of the date of this Indenture or
subsequently incurred by the Company unless, in the case
of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same
or the assumption or guarantee of the same expressly
provides that such indebtedness, renewal, extension or
refunding is not superior in right of payment to or is
pari passu with the Securities; provided that the
Company's obligations under the Guarantee shall not be
deemed to be Senior Indebtedness.
"SPECIAL RECORD DATE" for the payment of any
Defaulted Interest on the Securities of any series means a
date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"TRUST" means Arkansas Capital I, Arkansas Capital
II, 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 , 1996,
relating to Arkansas Capital I, the Amended and Restated
Trust Agreement, dated as of _____________________, 1996,
relating to Arkansas Capital II, the Amended and Restate
Trust Agreement, dated as of _____________________, 1996,
relating to 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:
Telephone:
Telecopy:
If to the Company, to:
Entergy Arkansas, Inc.
425 West Capitol
Little Rock, Arkansas 72201
Attention:
Telephone:
Telecopy:
With a copy to:
Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given, and
shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail,
then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of
such notice with respect to other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive such
notice, either before or after the event otherwise to be
specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this
Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in
the Securities shall for any reason be held to be
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than
the parties hereto, their successors hereunder, the
Holders and, so long as the notice described in Section
1513 hereof has not been given, the holders of Senior
Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture; provided,
however, if the Property Trustee fails
to enforce its rights with respect to the Securities or
the related Trust Agreement, a holder of Preferred
Securities may institute a legal proceeding directly
against the Company to enforce the Property Trustee's
rights with respect to the Securities or such Trust
Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against
the Property Trustee or any other person or entity.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of New York, except to the extent that the law
of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of
any series, or in the Board Resolution or Officer's
Certificate which establishes the terms of the Securities
of such series, which specifically states that such
provision shall apply in lieu of this Section) payment of
interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of
Payment, except that if such Business Day is in the next
succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with
the same force and effect, and in the same amount, as if
made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, as the case may be, and, if such
payment is made or duly provided for on such Business
Day, no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be,
to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall
be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series,
or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case
with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of
Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as
shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of
the series designated therein referred to in
the within-mentioned Indenture.
_________________________________
as Trustee
By: ___________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited; provided, however, that all
Securities shall be issued to a Trust in exchange for
securities of the Company or to evidence loans by a Trust
of the proceeds of the issuance of Preferred Securities
of such Trust plus the amount deposited by the Company
with such Trust from time to time.
The Securities may be issued in one or more
series. Prior to the authentication, issuance and
delivery of Securities of any series there shall be
established by specification in a supplemental indenture
or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board
Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such
series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 406 or 1206 and
except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of
such series shall be payable on any Interest Payment
Date, if other than the Persons in whose names such
Securities (or one or more Predecessor Securities)
are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal
of the Securities of such series is payable or any
formulary or other method or other means by which
such date or dates shall be determined, by reference
to an index or other fact or event ascertainable
outside this Indenture or otherwise (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities
of such series shall bear interest, if any
(including the rate or rates at which overdue
principal shall bear interest, if different from the
rate or rates at which such Securities shall bear
interest prior to Maturity, and, if applicable, the
rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or
other method or other means by which such rate or
rates shall be determined, by reference to an index
or other fact or event ascertainable outside this
Indenture or otherwise; the date or dates from which
such interest shall accrue; the Interest Payment
Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment
Date; the right of the Company, if any, to extend
the interest payment periods and the duration of any
such extension as contemplated by Section 311; and
the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series shall
be payable, (2) registration of transfer of
Securities of such series may be effected, (3)
exchanges of Securities of such series may be
effected and (4) notices and demands to or upon the
Company in respect of the Securities of such series
and this Indenture may be served; the Security
Registrar and Paying Agent or Agents for such
series; and if such is the case, and if acceptable
to the Trustee, that the principal of such
Securities shall be payable without presentment or
surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the
Securities of such series may be redeemed, in whole
or in part, at the option of the Company and any
restrictions on such redemptions, including but not
limited to a restriction on a partial redemption by
the Company of the Securities of any series,
resulting in delisting of such Securities from any
national exchange;
(h) the obligation or obligations, if any, of
the Company to redeem or purchase the Securities of
such series pursuant to any sinking fund or other
analogous mandatory redemption provisions or at the
option of a Holder thereof and the period or periods
within which or the date or dates on which, the
price or prices at which and the terms and
conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant
to such obligation, and applicable exceptions to the
requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the
Holder;
(i) the denominations in which Securities of
such series shall be issuable if other than
denominations of $25 and any integral multiple
thereof;
(j) the currency or currencies, including 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.
All Securities of any one series shall be
substantially identical, except as to principal amount
and date of issue and except as may be set forth in the
terms of such series as contemplated above. The
Securities of each series shall be subordinated in right
of payment to Senior Indebtedness as provided in Article
Fifteen.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, the
Securities of each series shall be issuable in
denominations of $25 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, the
Securities shall be executed on behalf of the Company by
an Authorized Officer and may have the corporate seal of
the Company affixed thereto or reproduced thereon
attested by any other Authorized Officer or by the
Secretary or an Assistant Secretary of the Company. The
signature of any or all of these officers on the 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 delivered hereunder and is
entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder to the
Company, or any Person acting on its behalf, but shall
never have been issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to
the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive
Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the
officers executing such Securities may determine, as
evidenced by their execution of such Securities;
provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or
exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
after the preparation of definitive Securities of such
series, the temporary Securities of such series shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series upon surrender of
such temporary Securities at the office or agency of the
Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of
temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and
deliver in exchange therefor definitive Securities of the
same series, of authorized denominations and of like ten
or and aggregate principal amount.
Until exchanged in full as hereinabove
provided, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in one of
the offices designated pursuant to Section 602, with
respect to the Securities of each series, a register (the
register kept in accordance with this Section being
referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities
of such series and the registration of transfer thereof.
The Company shall designate one Person to maintain the
Security Register for the Securities of each series, and
such Person is referred to herein, with respect to such
series, as the "Security Registrar." Anything herein to
the contrary notwithstanding, the Company may designate
one of its offices as the office in which the register
with respect to the Securities of one or more series
shall be maintained, and the Company may designate itself
the Security Registrar with respect to one or more of
such series. The Security Register shall be open for
inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, upon surrender for registration of transfer of
any Security of such series at the office or agency of
the Company maintained pursuant to Section 602 in a Place
of Payment for such series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or
more new Securities of the same series, of authorized
denominations and of like tenor and aggregate principal
amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, any Security of such series may be exchanged at
the option of the Holder, for one or more new Securities
of the same series, of authorized denominations and of
like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, no
service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in
connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section
304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or
to provide for the registration of transfer of or the
exchange of (a) Securities of any series during a period
of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of such series
called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security of the same series, and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any
agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same
series, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone other than the Holder of
such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest.
Subject to Section 311, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on a date (herein called a "Special
Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the
proposed payment, such money when deposited to be
held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall
promptly cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date and shall be
no longer payable pursuant to the following clause
(b).
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which
such Securities may be listed, and upon such notice
as may be required by such exchange, if, after
notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to
Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if
not theretofore canceled, shall be promptly canceled by
the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar
shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned
to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance
with this Section 309 to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, interest on
the Securities of each series shall be computed on the
basis of a 360-day year consisting of twelve 30-day
months and for any period shorter than a full month.
SECTION 311. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods on all Securities of one
or more series, if so specified as contemplated by
Section 301 with respect to such Securities and upon such
terms as may be specified as contemplated by Section 301
with respect to such Securities.
SECTION 312. ADDITIONAL INTEREST.
So long as any Preferred Securities remain
outstanding, if the Trust which issued such Preferred
Securities shall be required to pay, with respect to its
income derived from the interest payments on the
Securities of any series, any amounts for or on account
of any taxes, duties, assessments or governmental charges
of whatever nature imposed by the United States, or any
other taxing authority, then, in any such case, the
Company will pay as interest on such series such
additional interest ("Additional Interest") as may be
necessary in order that the net amounts received and
retained by such Trust after the payment of such taxes,
duties, assessments or governmental charges shall result
in such Trust's having such funds as it would have had in
the absence of the payment of such taxes, duties,
assessments or governmental charges.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities
of such series) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such 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 Trustee shall deem fair and appropriate and which
may, in any case, provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Securities of such series or any
integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of
such series; provided, however, that if, as indicated in
an Officer's Certificate, the Company shall have offered
to purchase all or any principal amount of the Securities
then Outstanding of any series, and less than all of such
Securities as to which such offer was made shall have
been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order,
shall select for redemption all or any principal amount
of such Securities which have not been so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any
series are to be redeemed, the identification of the
particular Securities to be redeemed and the portion
of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to
the Redemption Date, will become due and payable
upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities
are to be surrendered for payment of the Redemption
Price and accrued interest, if any, unless it shall
have been specified as contemplated by Section 301
with respect to such Securities that such surrender
shall not be required,
(f) that the redemption is for a sinking or
other fund, if such is the case, and
(g) such other matters as the Company shall
deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice,
such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that
such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any,
and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall
be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that
such notice of redemption contains such a condition and
such money is not so received, the redemption shall not
be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of
redemption was given, that such money was not so received
and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to
have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to
such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the terms
of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series, of any authorized
denomination requested by such Holder and of like tenor
and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, except as otherwise specified
as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series,
the cash amount of any mandatory sinking fund payment may
be subject to reduction as provided in Section 502. Each
sinking fund payment shall be applied to the redemption
of Securities of the series in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called
for redemption) of a series in respect of which a
mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series which have
been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of such mandatory sinking
fund payment; provided, however, that no Securities shall
be applied in satisfaction of a mandatory sinking fund
payment if such Securities shall have been previously so
applied. Securities so applied shall be received and
credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking
fund payment date for the Securities of any series, the
Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by the
payment of cash;
(e) the portion, if any, of such mandatory
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series
pursuant to Section 502 and stating the basis for
such credit and that such Securities have not
previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such
Officer's Certificate, the next mandatory sinking
fund payment for such series shall be made entirely
in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such
sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 403
and cause notice of the redemption thereof to be
given in the name of and at the expense of the
Company in the manner provided in Section 404. Such
notice having been duly given, the redemption of
such Securities shall be made upon the terms and in
the manner stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and
premium, if any, and interest, if any (including
Additional Interest), on the Securities of each series in
accordance with the terms of such Securities and this
Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of
Payment for the Securities of each series an office or
agency where payment of such Securities shall be made,
where the registration of transfer or exchange of such
Securities may be effected and where notices and demands
to or upon the Company in respect of such Securities and
this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency
and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the
Company shall fail to maintain any such required office
or agency in respect of Securities of any series, or
shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, for any
or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that,
unless otherwise specified as contemplated by Section 301
with respect to the Securities of such series, no such
designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency
for such purposes in each Place of Payment for such
Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to
the Trustee, and prompt notice to the Holders in the
manner specified in Section 106, of any such designation
or rescission and of any change in the location of any
such other office or agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company, in
which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any
series, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any,
on any of such Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and premium or interest
so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The
Company shall promptly notify the Trustee of any failure
by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any,
or interest, if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, it shall,
on or before each due date of the principal of and
premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify
the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for
the Securities of any series, other than the Company or
the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section,
that such Paying Agent shall:
(a) hold all sums held by it for the payment
of the principal of and premium, if any, or
interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any failure by
the Company (or any other obligor upon such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any
failure referred to in the preceding paragraph (b),
upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such
Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent and, if so stated in a Company Order
delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any,
or interest has become due and payable shall be paid to
the Company on Company Request, or, if then held by the
Company, shall be discharged from such trust; and, upon
such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and
remaining unpaid, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be done
all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or,
with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried on
in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any
of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO
COMPLIANCE.
Not later than September 15 in each year,
commencing September 15, 1996, the Company shall deliver
to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal
executive officer, the principal financial officer or the
principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such
compliance to be determined without regard to any period
of grace or requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in any covenant or restriction specified with respect to
the Securities of any series, as contemplated by Section
301 as being subject to waiver pursuant to this Section
607, if before the time for such compliance the Holders
of at least a majority in aggregate principal amount of
the Outstanding Securities of all series with respect to
which compliance with such covenant or restriction is to
be omitted, considered as one class, shall, by Act of
such Holders, either waive such compliance in such
instance or generally waive compliance with such term,
provision or condition and (b) Section 604, 605 or
Article Eleven if before the time for such compliance the
Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act
of such Holders, either waive such compliance in such
instance or generally waive compliance with such term,
provision or condition; but, in the case of (a) or (b),
no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or
condition shall remain in full force and effect;
provided, however, so long as a Trust holds Securities of
any series, such Trust may not waive compliance or waive
any default in compliance by the Company with any
covenant or other term contained in this Indenture or the
Securities of such series without the approval of the
holders of at least a majority in aggregate liquidation
preference of the outstanding Preferred Securities issued
by such Trust affected, obtained as provided in the Trust
Agreement pertaining to such Trust.
SECTION 608. RESTRICTION ON PAYMENT OF DIVIDENDS.
So long as any Preferred Securities of any
series remain outstanding, the Company shall not declare
or pay any dividend on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of the
Company's capital stock, or make any guarantee payments
with respect to the foregoing (other than payments under
the Guarantee relating to such Preferred Securities) if
at such time (a) the Company shall be in default with
respect to its payment or other obligations under the
Guarantee relating to such Preferred Securities, (b)
there shall have occurred and be continuing a payment
default (whether before or after expiration of any period
of grace) or an Event of Default hereunder or (c) the
Company shall have elected to extend any interest payment
period as provided in Section 311, and any such period,
or any extension thereof, shall be continuing.
SECTION 609. MAINTENANCE OF TRUST EXISTENCE.
So long as Preferred Securities of any series
remain outstanding, the Company shall (i) maintain direct
or indirect ownership of all interests in the Trust which
issued such Preferred Securities, other than such
Preferred Securities, (ii) not voluntarily (to the extent
permitted by law) dissolve, liquidate or wind up such
Trust, except in connection with a distribution of the
Securities to the holders of the Preferred Securities in
liquidation of such Trust, (iii) remain the sole
Depositor under the Trust Agreement (the "Depositor") of
such Trust and timely perform in all material respects
all of its duties as Depositor of such Trust, and (iv)
use reasonable efforts to cause such Trust to remain a
business trust and otherwise continue to be treated as a
grantor trust for Federal income tax purposes provided
that any permitted successor to the Company under this
Indenture may succeed to the Company's duties as
Depositor of such Trust; and provided further that the
Company may permit such Trust to consolidate or merge
with or into another business trust or other permitted
successor under the Trust Agreement pertaining to such
Trust so long as the Company agrees to comply with this
Section 609 with respect to such successor business trust
or other permitted successor.
SECTION 610. RIGHTS OF HOLDERS OF PREFERRED SECURITIES.
The Company agrees that, for so long as any
Preferred Securities remain outstanding, its obligations
under this Indenture will also be for the benefit of the
holders from time to time of Preferred Securities, and
the Company acknowledges and agrees that if the Property
Trustee fails to enforce its rights with respect to the
Securities or the related Trust Agreement, a holder of
Preferred Securities may institute a legal proceeding
directly against the Company to enforce the Property
Trustee's rights with respect to the Securities or such
Trust Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against
the Property Trustee or any other person or entity.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. DEFEASANCE.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof,
Government Obligations, which shall not contain
provisions permitting the redemption or other
prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which
when due, without any regard to reinvestment
thereof, will provide moneys which, together with
the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient,
or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of
any series, such Securities or portions thereof shall
have been selected by the Security Registrar as provided
herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have
been given or irrevocable authority shall have been given
by the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the
Trustee and such Paying Agent:
(x) if such deposit shall have been
made prior to the Maturity of such Securities,
a Company Order stating that the money and
Government Obligations deposited in accordance
with this Section shall be held in trust, as
provided in Section 703; and
(y) if Government Obligations shall
have been deposited, an Opinion of Counsel that
the obligations so deposited constitute
Government Obligations and do not contain
provisions permitting the redemption or other
prepayment at the option of the issuer thereof,
and an opinion of an independent public
accountant of nationally recognized standing,
selected by the Company, to the effect that the
requirements set forth in clause (b) above have
been satisfied; and
(z) if such deposit shall have been
made prior to the Maturity of such Securities,
an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of
such Securities or portions thereof will have
been satisfied and discharged as contemplated
in this Section.
Upon the deposit of money or Government Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security
or Securities or portions thereof with respect to which
such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section.
In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect
of any Securities or portions thereof except that, for
any reason, the Officer's Certificate specified in clause
(z), if required, shall not have been delivered, such
Securities or portions thereof shall nevertheless be
deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions
thereof shall nevertheless be no longer entitled to the
benefits of this Indenture or of any of the covenants of
the Company under Article Six (except the covenants
contained in Sections 602 and 603) or any other covenants
made in respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the Holders
of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all
of the Securities of any series is to be provided for in
the manner and with the effect provided in this Section,
the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner
specified by Section 403 for selection for redemption of
less than all the Securities of a series.
In the event that Securities which shall be
deemed to have been paid for purposes of this Indenture,
and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature
and are not to be redeemed within the 60 day period
commencing with the date of the deposit of moneys or
Government Obligations, as aforesaid, the Company shall,
as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the
effect that such deposit has been made and the effect
thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this Indenture,
as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602,
603, 907 and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Government
Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on
or assessed against such Government Obligations or the
principal or interest received in respect of such
Government Obligations, including, but not limited to,
any such tax payable by any entity deemed, for tax
purposes, to have been created as a result of such
deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Government Obligations,
or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable
Federal or State bankruptcy, insolvency or other similar
law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been
effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall
be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease
to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed
to have been paid for purposes of this Indenture, shall
be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture as aforesaid, the obligations of the
Company and the Trustee under 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 an Event of Default due to
default in the performance of any other of the covenants
or agreements herein applicable to all Outstanding
Securities or an Event of Default specified in Section
801(d) or (e) shall have occurred and be continuing,
either the Trustee or the Holders of not less than 33% in
principal amount of all Securities then Outstanding
(considered as one class), and not the Holders of the
Securities of any one of such series, may declare the
principal of all Securities and interest accrued thereon
to be due and payable immediately (provided that the
payment of principal and interest on such Securities
shall remain subordinated to the extent provided in the
Indenture).
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the
Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company shall have paid or deposited
with the Trustee a sum sufficient to pay
(1) all overdue interest on all
Securities of such series;
(2) the principal of and premium, if
any, on any Securities of such series which
have become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest is lawful, interest upon overdue
interest, if any, at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, other than the
nonpayment of the principal of Securities of such
series which shall have become due solely by such
declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be 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 pursuant to this Arti
cle 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.
(b) In case an Event of Default with respect
to Securities of any series shall have occurred and
be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the
rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this subsection shall not be
construed to limit the effect of subsection (a)
of this Section;
(2) the Trustee shall not be liable
for any error of judgment made in good faith by
a Responsible Officer, unless it shall be
proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable
with respect to any action taken or omitted to
be taken by it in good faith in accordance with
the direction of the Holders of a majority in
principal amount of the Outstanding Securities
of any one or more series, as provided herein,
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee, or exercising any
trust or power conferred upon the Trustee,
under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk its
own funds or otherwise incur any financial
liability in the performance of any of its
duties hereunder, or in the exercise of any of
its rights or powers, if it shall have
reasonable grounds for believing that repayment
of such funds or adequate indemnity against
such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to
the Holders of Securities of such series in the manner
and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured
or waived; provided, however, that in the case of any
default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 75
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would
become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to
the applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting in
good faith upon any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, 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, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer
of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such Event
of Default shall have been given to the Trustee by
the Company, any other obligor on such Securities or
by any Holder of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on or investment of any moneys
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit
of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such
expense, disbursement or advance may be attributable
to its negligence, wilful misconduct or bad faith;
and
(c) indemnify the Trustee for, and hold it
harmless from and against, any loss, liability or
expense reasonably incurred by it arising out of or
in connection with the acceptance or administration
of the trust or trusts hereunder or the performance
of its duties hereunder, including the reasonable
costs and expenses of defending itself against any
claim or liability in connection with the exercise
or performance of any of its powers or duties
hereunder, except to the extent any such loss,
liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that
the negligence, wilful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in
the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect
of the Securities of any other series. The Trust
Agreement and the Guarantee Agreement pertaining to each
Trust shall be deemed to be specifically described in
this Indenture for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing business
under the laws of the United States, any State or
Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such 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 incapa
ble of acting or shall be adjudged a bankrupt
or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public
officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee ap
pointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have
been so appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates; but, on request of the Company or any succes
sor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise
previously constituting the security, provided the
security is received by the Trustee simultaneously
with the creation of the creditor relationship with
the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least 33% in principal
amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee,
jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company
does not join in such appointment within 15 days after
the receipt by it of a request so to do, or if an Event
of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the
Company.
Every co-trustee or separate trustee shall, to
the extent permitted by law, but to such extent only, be
appointed subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held
by, or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations
hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee
and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall
be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and
obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument
in writing executed by it, with the concurrence of
the Company, may accept the resignation of or remove
any co-trustee or separate trustee appointed under
this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have
power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the
concurrence of the Company. Upon the written
request of the Trustee, the Company shall join with
the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of
any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent
or Agents with respect to the Securities of one or more
series, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued
upon original issuance and upon exchange, registration of
transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation
organized and doing business under the laws of the United
States, any State or territory thereof or the District of
Columbia or the Commonwealth of Puerto Rico, authorized
under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so pub
lished. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authen
ticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series shall be made pursuant to this
Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
______________________
As Trustee
By_____________________
As Authenticating
Agent
By_____________________
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than March 1 and
September 15 in each year, commencing September 15, 1996,
and at such other times as the Trustee may request in
writing, the Company shall furnish or cause to be
furnished to the Trustee information as to the names and
addresses of the Holders, and the Trustee shall preserve
such information and similar information received by it in
any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if
any, and in such manner as shall be required by the Trust
Indenture Act; provided, however, that no such list need
be furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than _____________ in each year,
commencing ________________, the Trustee shall transmit to
the Holders and the Commission a report, dated as of the
next preceding _______________, with respect to any events
and other matters described in Section 313(a) of the Trust
Indenture Act, in such manner and to the extent required
by the Trust Indenture Act. The Trustee shall transmit to
the Holders and the Commission, and the Company shall file
with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the
Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders,
such other information, reports and other documents, if
any, at such times and in such manner, as shall be
required by the Trust Indenture Act.
To the extent required by the Trust Indenture
Act, the Company shall file with the Trustee the following
documents and reports within 30 days after such documents
or reports (or consolidated documents or reports
containing such documents or reports) are filed with the
Commission:
A. The Company's annual reports on Form 10-K;
B. The Company's quarterly reports on Form 10-Q;
C. The Company's current reports on Form 8-K; and
D. Any other documents filed with the
Commission which are filed with or incorporated
by reference in the foregoing reports, related
to the Company, and have not previously been
filed with the Trustee.
To the extent that any of the foregoing documents or
reports are consolidated with similar documents or reports
filed by an affiliate, the Company may file such
consolidated document or report with the Trustee in lieu
of the separate document or report.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
The Company shall not consolidate with or merge
into any other corporation, or convey or otherwise
transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the corporation formed by such
consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Com
pany substantially as an entirety shall be a Person
organized and validly existing under the laws of the
United States, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and premium,
if any, and interest, if any, on all Outstanding
Securities and the performance of every covenant of
this Indenture on the part of the Company to be per
formed or observed;
(b) immediately after giving effect to such
transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation
formed by such consolidation or into which the Company is
merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company
under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants
under this Indenture and the Securities Outstanding
hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Eleven;
or
(b) to add one or more covenants of the Company
or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding,
Securities of one or more specified series, or to
surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of Default
with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
Outstanding on the date of such indenture
supplemental hereto in any material respect, such
change, elimination or addition shall become
effective with respect to such series only pursuant
to the provisions of Section 1202 hereof or when no
Security of such series remains Outstanding; or
(e) to provide collateral security for the
Securities; or
(f) to establish the form or terms of
Securities of any series as contemplated by Sections
201 and 301; or
(g) to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all
other matters incidental thereto; or
(h) to evidence and provide for the acceptance
of appointment hereunder by a separate or successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to
permit the Company to utilize, at its option, a
noncertificated system of registration for all, or
any series of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Securities shall be
payable, (2) all or any series of Securities may be
surrendered for registration of transfer, (3) all or
any series of Securities may be surrendered for
exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities
and this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series in any
material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall
require one or more changes to any provisions
hereof or the inclusion herein of any additional
provisions, or shall by operation of law be
deemed to effect such changes or incorporate
such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect
or evidence such changes or additional
provisions; or
(y) if any such amendment shall
permit one or more changes to, or the
elimination of, any provisions hereof which, at
the date of the execution and delivery hereof or
at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended
to effect such changes or elimination, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of,
this Indenture or modifying in any manner the rights of
the Holders of Securities of such series under the
Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be
required; and provided, further, that no such supplemental
indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on
(except as provided in Section 311 hereof), any
Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method
of calculating such rate or reduce any premium
payable upon the redemption thereof, or change the
coin or currency (or other property), in which any
Security or any premium or the interest thereon is
payable, or impair the right to institute suit for
the enforcement of any such payment on or after the
Stated Maturity of any Security (or, in the case of
redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder
of such Security, or
(b) reduce the percentage in principal amount
of the Outstanding Securities of any series (or, if
applicable, in liquidation preference of any series
of Preferred Securities), the consent of the Holders
of which is required for any such supplemental in
denture, or the consent of the Holders of which is
required for any waiver of compliance with any
provision of this Indenture or of any default
hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders
of each Outstanding Security of such series, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, except to increase the
percentages in principal amount referred to in this
Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, how
ever, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this pro
viso, in accordance with the requirements of Sections
911(b) and 1201(h).
Notwithstanding the foregoing, so long as any of the
Preferred Securities remain outstanding, the Trustee may
not consent to a supplemental indenture under this Section
1202 without the prior consent, obtained as provided in a
Trust Agreement pertaining to a Trust which issued such
Preferred Securities, of the holders of not less than a
majority in aggregate liquidation preference of all
Preferred Securities issued by such Trust affected,
considered as one class, or, in the case of changes
described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred
Securities then outstanding which would be affected
thereby, considered as one class. A supplemental
indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and
delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such
series.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL
INDENTURE.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate pursuant to a Board
Resolution as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or
the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate
shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or
more, or all, series may be called at any time and from
time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting
of Holders of Securities of one or more, or all,
series for any purpose specified in Section 1301, to
be held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee
shall determine, or, with the approval of the
Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such
meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series by the Company or by the Holders
of 33% in aggregate principal amount of all of such
series, considered as one class, for any purpose
specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities
of such series in the amount above specified, as the
case may be, may determine the time and the place in
the Borough of Manhattan, The City of New York, or in
such other place as shall be determined or approved
by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one
or more, or all, series shall be valid without notice
if the Holders of all Outstanding Securities of such
series are present in person or by proxy and if rep
resentatives of the Company and the Trustee are
present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series a Person
shall be (a) a Holder of one or more Outstanding
Securities of such series, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled
to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series with respect to which a meeting shall have
been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders
of Securities of such series; provided, however, that if
any action is to be taken at such meeting which this
Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority,
in principal amount of the Outstanding Securities of such
series, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series, considered as one
class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In
any other case the meeting may be adjourned for such
period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for such period as may be
determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any
meeting adjourned for more than 30 days shall be given as
provided in Section 1302(a) not less than 10 days prior to
the date on which the meeting is scheduled to be recon
vened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of the series with respect to which
such meeting shall have been called, considered as one
class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such
series, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such
series, considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series with respect to which such
meeting shall have been held, whether or not present or
represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF
VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder (except as provided in Section
104(g)), of such Securities before being voted.
(b) Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting
of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties
of inspectors of votes, the submission and
examination of proxies, certificates and other
evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of
Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all
series represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall
be entitled to one vote for each $1 principal amount
of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series represented at
the meeting, considered as one class; and the meeting
may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series with respect to which the meeting shall have been
called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with
the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared
by the secretary of the meeting and there shall be
attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided
in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND 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.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, 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:______________________________
ATTEST:
____________________________
THE BANK OF NEW YORK, Trustee
By:______________________________
ATTEST:
_____________________________
<PAGE>
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
On the _____ day of ___________, 1996, before me
personally came ____________________________, to me known,
who, being by me duly sworn, did depose and say that he is
the ________________ of Entergy 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.
_______________________
Notary Public
Parish of Orleans,
State of Louisiana
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _________________, 1996,
before me personally came _____________________________,
to me known, who, being by me duly sworn, did depose and
say that he is a _____________________________ of The Bank
of New York, one of the corporations described in and
which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
_______________________
Notary Public,
State of New York
Exhibit 4.05
CERTIFICATE OF TRUST
OF
ENTERGY ARKANSAS CAPITAL I
THIS CERTIFICATE OF TRUST of Entergy Arkansas Capital I
(the "Trust"), dated as of May , 1996 is being duly executed
and filed by the undersigned, as trustees, to form a business
trust under the Delaware Business Trust Act (12 Del. C. Section
3801, et seq.).
Name. The name of the business trust being formed
hereby is Entergy Arkansas Capital I.
Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the
State of Delaware are The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, New Castle County, Delaware.
Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE) WILLIAM J. REGAN, JR.,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By:____________________________ By:____________________________
Name: _____________________
Title: ______________________
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:____________________________
Name: Nancy Gill
Title: Assistant Treasurer
Exhibit 4.06
TRUST AGREEMENT
OF ENTERGY ARKANSAS CAPITAL I
This TRUST AGREEMENT of Entergy Arkansas Capital I (the
"Trust"), dated as of May __, 1996, among (i) Entergy Arkansas,
Inc., an Arkansas corporation (the "Depositor"), (ii) The Bank of
New York, a New York banking corporation, not in its individual
capacity but solely as trustee of the Trust, (iii) The Bank of
New York (Delaware), a Delaware banking corporation, not in its
individual capacity but solely as trustee of the Trust, and (iv)
William J. Regan, Jr., an individual employed by the Depositor,
not in his individual capacity but solely as trustee of the Trust
(each of such trustees in (ii), (iii) and (iv) a "Trustee" and
collectively, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "Entergy
Arkansas Capital I", in which name the Trustees, or the Depositor
to the extent provided herein, may conduct the business of the
Trust, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor,
which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate in
trust for the Depositor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
Section 3801 et seq. (the "Business Trust Act"), and that this
document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in
accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an
amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form to be included as an exhibit
to the 1933 Act Registration Statement referred to below, to
provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and
direct the Depositor (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) a Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-
effective amendments to the 1933 Act Registration Statement,
relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities of the Trust and certain
other securities and (b) a Registration Statement on Form 8-A
(the "1934 Act Registration Statement") (including all pre-
effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under
Section 12(b) of the Securities Exchange Act of 1934, as amended;
(ii) to file with the New York Stock Exchange (the "Exchange")
and execute on behalf of the Trust a listing application and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on the Exchange and (iii) to
file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
shall be necessary or desirable to register the Preferred
Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable. In the event that any filing referred to
in clauses (i) and (ii) above is required by the rules and
regulations of the Commission, the Exchange or state securities
or blue sky laws, to be executed on behalf of the Trust by one or
more of the Trustees, each of the Trustees, in its or his
capacity as Trustee of the Trust, is hereby authorized and, to
the extent so required, directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing,
it being understood that The Bank of New York and The Bank of New
York (Delaware), in their capacities as Trustees of the Trust,
respectively, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the Exchange or
state securities or blue sky laws. In connection with all of the
foregoing, the Depositor and each Trustee, solely in its or his
capacity as Trustee of the Trust, hereby constitutes and appoints
William J. Regan, Jr., Steve McNeal and Frank Williford, and each
of them, as its or his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for
the Depositor or such Trustee or in the Depositor's or such
Trustee's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registra
tion Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith and in connection
with the filing of the 1933 Act Registration Statement and the
1934 Act Registration Statement, with the Commission, granting
unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor or such Trustee might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business
Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware, or, if not a natural person,
an entity which has its principal place of business in the State
of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty days prior notice to
Depositor.
This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws principles).
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Trust Agreement to be duly executed as of the day and
year first above written.
ENTERGY ARKANSAS, INC.
as Depositor
By:_______________________________
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Trustee
By:_______________________________
Name: Nancy Gill
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE),
not in its
individual capacity but
solely as Trustee
By:_______________________________
Name:__________________________
Title: __________________________
WILLIAM J. REGAN, JR., not in his
individual capacity but solely as
Trustee
By:_______________________________
Exhibit 4.07
CERTIFICATE OF TRUST
OF
ENTERGY ARKANSAS CAPITAL II
THIS CERTIFICATE OF TRUST of Entergy Arkansas Capital
II (the "Trust"), dated as of May , 1996 is being duly
executed and filed by the undersigned, as trustees, to form a
business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801, et seq.).
Name. The name of the business trust being formed
hereby is Entergy Arkansas Capital II.
Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the
State of Delaware are The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, New Castle County, Delaware.
Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE) WILLIAM J. REGAN, JR.,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By:____________________________ By:____________________________
Name: _____________________
Title: ______________________
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:____________________________
Name: Nancy Gill
Title: Assistant Treasurer
Exhibit 4.08
TRUST AGREEMENT
OF ENTERGY ARKANSAS CAPITAL II
This TRUST AGREEMENT of Entergy Arkansas Capital II
(the "Trust"), dated as of May __, 1996, among (i) Entergy
Arkansas, Inc., an Arkansas corporation (the "Depositor"), (ii)
The Bank of New York, a New York banking corporation, not in its
individual capacity but solely as trustee of the Trust, (iii) The
Bank of New York (Delaware), a Delaware banking corporation, not
in its individual capacity but solely as trustee of the Trust,
and (iv) William J. Regan, Jr., an individual employed by the
Depositor, not in his individual capacity but solely as trustee
of the Trust (each of such trustees in (ii), (iii) and (iv) a
"Trustee" and collectively, the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Entergy
Arkansas Capital II", in which name the Trustees, or the
Depositor to the extent provided herein, may conduct the business
of the Trust, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor,
which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate in
trust for the Depositor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
Section 3801 et seq. (the "Business Trust Act"), and that this
document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in
accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an
amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form to be included as an exhibit
to the 1933 Act Registration Statement referred to below, to
provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and
direct the Depositor (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) a Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-
effective amendments to the 1933 Act Registration Statement,
relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities of the Trust and certain
other securities and (b) a Registration Statement on Form 8-A
(the "1934 Act Registration Statement") (including all pre-
effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under
Section 12(b) of the Securities Exchange Act of 1934, as amended;
(ii) to file with the New York Stock Exchange (the "Exchange")
and execute on behalf of the Trust a listing application and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on the Exchange and (iii) to
file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
shall be necessary or desirable to register the Preferred
Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable. In the event that any filing referred to
in clauses (i) and (ii) above is required by the rules and
regulations of the Commission, the Exchange or state securities
or blue sky laws, to be executed on behalf of the Trust by one or
more of the Trustees, each of the Trustees, in its or his
capacity as Trustee of the Trust, is hereby authorized and, to
the extent so required, directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing,
it being understood that The Bank of New York and The Bank of New
York (Delaware), in their capacities as Trustees of the Trust,
respectively, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the Exchange or
state securities or blue sky laws. In connection with all of the
foregoing, the Depositor and each Trustee, solely in its or his
capacity as Trustee of the Trust, hereby constitutes and appoints
William J. Regan, Jr., Steve McNeal and Frank Williford, and each
of them, as its or his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for
the Depositor or such Trustee or in the Depositor's or such
Trustee's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registra
tion Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith and in connection
with the filing of the 1933 Act Registration Statement and the
1934 Act Registration Statement, with the Commission, granting
unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor or such Trustee might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business
Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware, or, if not a natural person,
an entity which has its principal place of business in the State
of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty days prior notice to
Depositor.
This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws principles).
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Trust Agreement to be duly executed as of the day and
year first above written.
ENTERGY ARKANSAS, INC.
as Depositor
By:_______________________________
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Trustee
By:_______________________________
Name: Nancy Gill
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE),
not in its
individual capacity but
solely as Trustee
By:_______________________________
Name:__________________________
Title:_________________________
WILLIAM J. REGAN, JR., not in his
individual capacity but solely as
Trustee
By:_______________________________
Exhibit 4.09
CERTIFICATE OF TRUST
OF
ENTERGY ARKANSAS CAPITAL III
THIS CERTIFICATE OF TRUST of Entergy Arkansas Capital
III (the "Trust"), dated as of May , 1996 is being duly
executed and filed by the undersigned, as trustees, to form a
business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801, et seq.).
Name. The name of the business trust being formed
hereby is Entergy Arkansas Capital III.
Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the
State of Delaware are The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, New Castle County, Delaware.
Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE) WILLIAM J. REGAN, JR.,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By:____________________________ By:____________________________
Name: _____________________
Title: ______________________
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:____________________________
Name: Nancy Gill
Title: Assistant Treasurer
Exhibit 4.10
TRUST AGREEMENT
OF ENTERGY ARKANSAS CAPITAL III
This TRUST AGREEMENT of Entergy Arkansas Capital III
(the "Trust"), dated as of May __, 1996, among (i) Entergy
Arkansas, Inc., an Arkansas corporation (the "Depositor"), (ii)
The Bank of New York, a New York banking corporation, not in its
individual capacity but solely as trustee of the Trust, (iii) The
Bank of New York (Delaware), a Delaware banking corporation, not
in its individual capacity but solely as trustee of the Trust,
and (iv) William J. Regan, Jr., an individual employed by the
Depositor, not in his individual capacity but solely as trustee
of the Trust (each of such trustees in (ii), (iii) and (iv) a
"Trustee" and collectively, the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Entergy
Arkansas Capital III", in which name the Trustees, or the
Depositor to the extent provided herein, may conduct the business
of the Trust, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor,
which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate in
trust for the Depositor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
Section 3801 et seq. (the "Business Trust Act"), and that this
document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in
accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an
amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form to be included as an exhibit
to the 1933 Act Registration Statement referred to below, to
provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and
direct the Depositor (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) a Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-
effective amendments to the 1933 Act Registration Statement,
relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities of the Trust and certain
other securities and (b) a Registration Statement on Form 8-A
(the "1934 Act Registration Statement") (including all pre-
effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under
Section 12(b) of the Securities Exchange Act of 1934, as amended;
(ii) to file with the New York Stock Exchange (the "Exchange")
and execute on behalf of the Trust a listing application and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on the Exchange and (iii) to
file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
shall be necessary or desirable to register the Preferred
Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable. In the event that any filing referred to
in clauses (i) and (ii) above is required by the rules and
regulations of the Commission, the Exchange or state securities
or blue sky laws, to be executed on behalf of the Trust by one or
more of the Trustees, each of the Trustees, in its or his
capacity as Trustee of the Trust, is hereby authorized and, to
the extent so required, directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing,
it being understood that The Bank of New York and The Bank of New
York (Delaware), in their capacities as Trustees of the Trust,
respectively, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the Exchange or
state securities or blue sky laws. In connection with all of the
foregoing, the Depositor and each Trustee, solely in its or his
capacity as Trustee of the Trust, hereby constitutes and appoints
William J. Regan, Jr., Steve McNeal and Frank Williford, and each
of them, as its or his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for
the Depositor or such Trustee or in the Depositor's or such
Trustee's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registra
tion Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith and in connection
with the filing of the 1933 Act Registration Statement and the
1934 Act Registration Statement, with the Commission, granting
unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor or such Trustee might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business
Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware, or, if not a natural person,
an entity which has its principal place of business in the State
of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty days prior notice to
Depositor.
This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws principles).
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Trust Agreement to be duly executed as of the day and
year first above written.
ENTERGY ARKANSAS, INC.
as Depositor
By:_______________________________
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Trustee
By:_______________________________
Name: Nancy Gill
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE),
not in its
individual capacity but
solely as Trustee
By:_______________________________
Name:__________________________
Title:_________________________
WILLIAM J. REGAN, JR., not in his
individual capacity but solely as
Trustee
By:_______________________________
Exhibit 4.11
AMENDED AND RESTATED
TRUST AGREEMENT
between
ENTERGY ARKANSAS, INC., as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
[___________________],
[______________],
and
[_______________], as Trustees
Dated as of [_________] 1, 1996
ENTERGY ARKANSAS CAPITAL I
<PAGE>
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>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[_______] 1, 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" and, in its
separate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) The Bank of New York (Delaware), a banking
corporation duly organized under the laws of Delaware, as trustee
(the "Delaware Trustee") and (iv) [__________________],
[______________] and [______________], each an individual, as
trustee, and each of whose address is c/o Entergy Arkansas, Inc.,
425 West Capitol Avenue, Little Rock, Arkansas 72201 (each, an
"Administrative Trustee" and collectively the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and [__________________], as the Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act by the entering
into of that certain Trust Agreement, dated as of April __, 1996
(the "Original Trust Agreement"), and by the execution by the
Property Trustee, the Delaware Trustee and [_________________],
as Administrative Trustee and filing with the Secretary of State
of the State of Delaware of the Certificate of Trust, dated April
__, 1996, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware
Trustee and [_________________], as Administrative Trustee,
desire to amend and restate the Original Trust Agreement in its
entirety as set forth herein to provide for, among other things,
(i) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Debentures, (ii) the issuance of
the Common Securities by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities by the Trust and (iv) the
appointment of additional Administrative Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other party and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE
Defined Terms
Section Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
all other terms used herein that are defined in
the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this Trust
Agreement; and
the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and/or a given period,
the amount of Additional Interest (as defined in the Subordinated
Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust created hereunder and not in their
individual capacities, or such trustee's successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee sequestrator or
other similar official of such Person or of any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or of the
consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such
Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof and to be in
full force and effect on the date of such certification, and
delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of the Trust or the Trust's Affiliates; and (b) any Holder of
Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Issuer" means Entergy Arkansas, Inc., an
Arkansas corporation, in its capacity as issuer of the
Debentures.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, as
trustee under the Subordinated Indenture.
"Debentures" means the $[________] aggregate principal
amount of the Depositor's [___]% Junior Subordinated Debentures,
Series A, Due [____], issued pursuant to the Subordinated
Indenture.
"Definitive Preferred Securities Certificates" means
Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of any
Redemption Price, plus accumulated and unpaid
distributions of any Trust Security when it becomes due
and payable; or
(iv) default in the performance, or breach, in any
material respect of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is
specifically dealt with in clause (ii) or (iii), above)
and continuation of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Trust by the Holders of at least
10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect
to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c).
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partner, employee, representative or agent of any Trustee, or any
employee or agent of the Trust or its Affiliates.
"Investment Company Event" means the occurrence of a
change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority to the effect that
the Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act of
1940, as amended, which change in law becomes effective on or
after the date of original issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to
be contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities plus accumulated and
unpaid Distributions to the date of such payment and (ii)
Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the
Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu
of which other Preferred Securities have been delivered
pursuant to this Trust Agreement, including pursuant to
Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Preferred Securities which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are
owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative
Trustee the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner
of a Preferred Securities Certificate as reflected in the records
of the Securities Depository or, if a Securities Depository
Participant is not the beneficial owner, then as reflected in the
records of a Person maintaining an account with such Securities
Depository (directly or indirectly), in accordance with the rules
of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee at The Bank of New York, or such other banking
institution as the Depositor shall select in its trust department
for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to
the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a quarterly income preferred
security representing an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having
rights provided therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as
provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any date
fixed for redemption of any Trust Security, the Liquidation
Amount of such Trust Security.
"Redemption Tax Opinion" has the meaning specified in
Section 9.04(d).
"Registrar" shall mean the registrar for the Preferred
Securities appointed by the Trust and shall be initially The Bank
of New York.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matter.
"Securities Depository" shall be The Depository Trust
Company.
"Securities Depository Participant" means an
institution which deposits securities with a Securities
Depository for holding thereby.
"Securities Register" shall mean the Securities
Register described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person shall be deemed to be a
beneficial owner within the meaning of the Delaware Business
Trust Act.
"Special Event" means either a Tax Event or an
Investment Company Event.
"Subordinated Indenture" means the Indenture, dated as
of [______] 1, 1996, between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to
time.
"Tax Event" means the receipt by the Trust of an
opinion of counsel (which may be counsel to the Depositor or an
affiliate but not an employee thereof and which must be
acceptable to the Property Trustee) experienced in such matters
to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting
taxation, or as a result of any official administrative or
judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of
original issuance of the Preferred Securities under this Trust
Agreement, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject
to United States Federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by
the Depositor on the Debentures, is not, or within 90 days of the
date thereof, will not be, deductible, in whole or in part, for
United States Federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more
than a de minimis amount of other taxes, duties or other
governmental charges.
"Transfer Agent" shall mean one or more transfer agents
for the Preferred Securities appointed by the Trust and shall be
initially The Bank of New York.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities
or the Preferred Securities.
"Trust Securities Certificate" means any one of the
Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of [_____ __] , 1996, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE
Establishment of the Trust
Section Name. The Trust created hereby shall be
known as "Entergy Arkansas Capital I", in which name the Trustees
may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and sue and be sued.
Section Office of the Delaware Trustee; Principal
Place of Business. The office of the Delaware Trustee in the
State of Delaware is White Clay Center, Route 273, Newark,
Delaware 19711, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Entergy Arkansas, Inc., 425 West
Capitol Avenue, Little Rock, Arkansas 72201.
Section Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the
Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses
paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
Section Issuance of the Preferred Securities. On
[____ __], 1996 the Depositor and an Administrative Trustee, on
behalf of the Trust, both executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, one of the Administrative Trustees, on
behalf of the Trust in accordance with Section 5.02, executed
manually and delivered a Preferred Securities Certificate,
registered in the name of the nominee of The Depositary Trust
Company, having an aggregate Liquidation Amount of $[________].
Section Subscription and Purchase of Debentures;
Issuance of the Common Securities. Contemporaneously with the
execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee and having an aggregate principal
amount equal to $[________], and, in satisfaction of the purchase
price for such Debentures, (x) one of the Administrative
Trustees, on behalf of the Trust, shall execute and deliver to
the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of [_____] Common
Securities having an aggregate Liquidation Amount of $[_______],
and (y) the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $[________] representing the
proceeds from the sale of the Preferred Securities pursuant to
the Underwriting Agreement.
Section Declaration of Trust; Appointment of
Additional Administrative Trustees. The exclusive purposes
and functions of the Trust are (i) to issue Trust Securities
and invest the proceeds thereof in Debentures, and (ii) to
engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein. The Property Trustee
hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the
benefit of the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance
with applicable law with respect to accomplishing the purposes
of the Trust. Anything in this Trust Agreement to the
contrary notwithstanding the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrative Trustees set forth
herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust
Act.
Section Authorization to Enter into Certain
Transactions. The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section and Article VIII and in accordance with the following
provisions (A) and (B), the Trustees shall have the authority
to enter into all transactions and agreements determined by
the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under
this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
As among the Trustees, the Administrative Trustees
shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
the issuance and sale of the Trust Securities;
without the consent of any Person, to cause the
Trust to enter into and to execute, deliver and perform
on behalf of the Trust, the Expense Agreement, and such
agreements as may be necessary or desirable in
connection with the consummation of the Underwriting
Agreement (such execution to be by the Administrative
Trustees or any one of them);
to qualify the Trust to do business in any
jurisdiction as may be necessary or desirable;
the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined
by the Depositor and the registration of the Preferred
Securities under the Exchange Act, and the preparation
and filing of all periodic and other reports and other
documents pursuant to the foregoing;
the appointments of a Paying Agent, a Transfer
Agent and a Registrar in accordance with this Trust
Agreement (subject to Section 5.09);
registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the
Trust with respect to the following ministerial matters:
the establishment of the Payment Account;
the receipt of the Debentures;
the deposit of interest, principal and any other
payments made in respect of the Debentures in the
Payment Account;
the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
as provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and
the execution of the certificate of cancellation to be
prepared and filed by the Administrative Trustees with
the Secretary of State of the State of Delaware; and
the taking of any ministerial action incidental
to the foregoing as the Property Trustee may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustee set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the
Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders
of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the
rights of the Holder pursuant to the terms of this Trust
Agreement.
So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust)
shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby.
In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this
Trust Agreement, (ii) sell, assign, transfer, exchange,
pledge, set-off or otherwise dispose of any of the Trust
Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States Federal income tax purposes
and not as an association taxable as a corporation, (iv) incur
any indebtedness for borrowed money or (v) take or consent to
any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims
and demands of all Persons at any time claiming any Lien on
any of the Trust Property adverse to the interest of the Trust
or the Securityholders in their capacity as Securityholders.
In connection with the issue of the Preferred
Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect
on behalf of the Trust, the following (and any actions taken
by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and confirmed
in all respects):
to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
to determine the States in which to take
appropriate action to qualify or register for sale all
or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken
by or on behalf of the Trust, and advise the Trustees
of actions they must take on behalf of the Trust, and
prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such
States;
to prepare for filing by the Trust an application
to the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred
Securities and to file or cause the Administrative
Trustees to file thereafter with such exchange such
notifications and documents as may be necessary from
time to time to maintain such listing;
to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"),
including any amendments thereto;
to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may
be necessary or desirable in connection with the
consummation thereof;
to select the investment banker or bankers to act
as underwriters with respect to the offer and sale by
the Trust of Preferred Securities ("Offer") and
negotiate the terms of an Underwriting Agreement and
pricing agreement providing for the Offer; and
to take any other actions necessary or desirable
to carry out any of the foregoing activities.
Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so
that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment
Company Act of 1940, as amended, or classified other than as a
"grantor trust" for United States Federal income tax purposes
and not as an association taxable as a corporation and so that
the Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In
this connection, subject to the provisions of Section 10.03,
the Depositor and the Administrative Trustees are authorized
to take any action, not inconsistent with applicable law, the
certificate of trust filed with the Secretary of State of the
State of Delaware with respect to the Trust (as amended or
restated from time to time, the "Certificate of Trust") or
this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such
action does not materially adversely affect the interests of
the Holders of the Preferred Securities.
Section Assets of Trust. The assets of the Trust
shall consist of the Trust Property.
Section Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE
Payment Account
Section Payment Account.
On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustees and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect
to, the Debentures. Amounts held in the Payment Account shall
not be invested by the Property Trustee pending distribution
thereof.
ARTICLE
Distributions; Redemption
Section Distributions.
Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds
of the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except
in the event that the Depositor exercises its right to extend
the interest payment period for the Debentures pursuant to
Section 311 of the Subordinated Indenture, shall be payable
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on [_______ __], 1996.
If any date on which Distributions are otherwise payable on
the Trust Securities is not a Business Day, then the payment
of such Distribution shall be made on the next succeeding day
which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, payment
of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and
effect as if made on such date (each date on which
distributions are payable in accordance with this Section
4.01(a) a "Distribution Date").
Distributions payable on the Trust Securities
shall be fixed at a rate of [____]% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full quarterly period shall be
computed on the basis of twelve 30-day months and a 360-day
year and for any period shorter than a full month, on the
basis of the actual number of days elapsed. If the interest
payment period for the Debentures is extended pursuant to
Section 311 of the Subordinated Indenture, then Distributions
on the Preferred Securities will be deferred for the period
equal to the extension of the interest payment period for the
Debentures and the rate per annum at which Distributions on
the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such extended
interest payment period is equal to the aggregate amount of
interest (including, to the extent permitted by law, interest
payable on unpaid interest at the percentage rate per annum
set forth above, compounded quarterly) that accrues during any
such extended interest payment period on the Debentures. The
amount of Distributions payable for any period shall include
the Additional Amounts, if any.
Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date
only to the extent that the Trust has funds available in the
Payment Account for the payment of such Distributions.
Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof
as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be 15 days
prior to the relevant Distribution Date.
Section Redemption.
On each Debenture Redemption Date and at the
maturity date for the Debentures (as defined in the
Subordinated Indenture), the Property Trustee will be required
to redeem a Like Amount of Trust Securities at the Redemption
Price plus accumulated and unpaid Distributions to the date of
such payment.
Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the Redemption
Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All
notices of redemption or liquidation shall state:
the Redemption Date;
the Redemption Price and the amount of
accumulated and unpaid Dividends to be paid on the
Redemption Date;
the CUSIP number;
if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities
to be redeemed; and
that on the Redemption Date the Redemption Price
plus accumulated and unpaid Distributions to the date
of such payment will become due and payable upon each
such Trust Security to be redeemed and that interest
thereon will cease to accrue on and after said date.
The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment with the proceeds from the contemporaneous redemption
of Debentures. Redemptions of the Trust Securities shall be
made and the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment shall be deemed
payable on each Redemption Date only to the extent that the
Trust has funds immediately available in the Payment Account
for such payment.
If the Property Trustee gives a notice of
redemption in respect of any Preferred Securities, then, by
12:00 noon, New York time, on the Redemption Date, subject to
Section 4.02(c), the Property Trustee shall irrevocably
deposit with the Paying Agent (or Securities Depository, in
the event the Preferred Securities are book-entry only) funds
sufficient to pay the applicable Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment to the Holders thereof upon surrender of their
Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the redemption
date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear
on the Securities Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited
as required, then on the Redemption Date, all rights of
Securityholders holding Trust Securities so called for
redemption will cease, except the right of such
Securityholders to receive the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment, but without interest thereon, and such Trust
Securities will cease to be outstanding. In the event that
any Redemption Date is not a Business Day, then payment of the
Redemption Price payable on such date plus accumulated and
unpaid Distributions to such date shall be made on the next
succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay). In
the event that payment of the Redemption Price plus
accumulated and unpaid Distributions in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue, at the then applicable
rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption
Price plus accumulated and unpaid Distributions is actually
paid, in which case the actual payment date will be deemed the
date fixed for redemption for purposes of calculating the
Redemption Price plus accumulated and unpaid Distributions to
such date.
Payment of the Redemption Price on the Trust
Securities shall be made to the Holders thereof as they appear
on the Securities Register for the Trust Securities on the
relevant record date, which shall be the fifteenth day prior
to the Redemption Date.
If less than all the Outstanding Trust Securities
are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be
allocated 3% to the Common Securities and 97% to the Preferred
Securities. The particular Preferred Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by
such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for a
redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Securities of
a denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption
of Preferred Securities shall relate, in the case of any
Preferred Securities redeemed or to be redeemed only in part,
to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed.
Section Subordination of Common Securities.
Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price plus accumulated and
unpaid distributions of, the Trust Securities, as applicable,
shall be made pro rata based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date a Debenture Event of
Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable)
on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of
the Redemption Price plus accumulated and unpaid Distributions
the full amount of such Redemption Price plus accumulated and
unpaid Distributions on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions
(including Additional Amounts, if applicable) on, or
Redemption Price plus accumulated and unpaid Distributions of,
Preferred Securities then due and payable.
In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the
Holder of Common Securities will be deemed to have waived any
such Event of Default under this Trust Agreement until the
effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been
so cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and
only the Holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
Section Payment Procedures. Payments in respect of
the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities
are held by a Securities Depository, such Distributions shall be
made to the Securities Depository, which shall credit the
relevant Persons' accounts at such Securities Depository on the
applicable distribution dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually
agreed between the Administrative Trustees and the Holder of the
Common Securities.
Section Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the
Depositor's expense and direction, and file all United States
Federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this
regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) the Internal Revenue Service
Form 1041 (or any successor form) required to be filed in respect
of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each
Securityholder the related Internal Revenue Service Form 1099, or
any successor form or the information required to be provided on
such form. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States Federal
withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section Payments under Indenture. Any amount payable
hereunder to any Holder of Preferred Securities shall be reduced
by the amount of any corresponding payment such Holder has
directly received pursuant to Section 808 of the Subordinated
Indenture. Notwithstanding the provisions hereunder to the
contrary, Securityholders acknowledge that any Holder of
Preferred Securities that receives payment under Section 808 of
the Subordinated Indenture may receive amounts greater than the
amount such Holder may be entitled to receive pursuant to the
other provisions of this Trust Agreement.
ARTICLE
Trust Securities Certificates
Section Initial Ownership. Upon the creation of the
Trust by the contribution by the Depositor pursuant to Section
2.03 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section The Trust Securities Certificates. The Trust
Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. Subject to
Section 2.04 relating to the original issuance of the Preferred
Securities Certificate registered in the name of the nominee of
The Depository Trust Company, the Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee and, if executed
on behalf of the Trust by facsimile signature, countersigned by a
Transfer Agent or its agent. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the
time when such signatures shall have been affixed, authorized to
sign on behalf of the Trust and, if executed on behalf of the
Trust by facsimile signature, countersigned by a Transfer Agent
or its agent, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized
prior to the delivery of such Trust Securities Certificates or
did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Securityholder, and shall be entitled
to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.04 or
5.11.
Section Execution and Delivery of Trust Securities
Certificates. On the Closing Date, the Administrative Trustees
shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.04 and 2.05, to be
executed on behalf of the Trust, and in the case of Preferred
Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred
without negligence arising out of or in connection with any such
countersigning by it.
Section Registration of Transfer and Exchange of
Preferred Securities Certificates. The Registrar shall keep or
cause to be kept, at its principal corporate office, a Securities
Register in which, subject to such reasonable regulations as it
may prescribe, the Registrar shall provide for the registration
of Preferred Securities Certificates and the Common Securities
Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein
provided.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent
to countersign and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and a Transfer Agent
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Administrative
Trustees in accordance with customary practice. The Trust shall
not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange
any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a
Transfer Agent may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection
with any transfer or exchange of Preferred Securities
Certificates.
Section Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If any mutilated Trust Securities
Certificate shall be surrendered to a Transfer Agent, or if a
Transfer Agent shall receive evidence to its satisfaction of
the destruction, loss or theft of any Trust Securities
Certificate and there shall be delivered to the Transfer
Agent and the Administrative Trustees such security or
indemnity as may be required by them to save each of them and
the Depositor harmless, then in the absence of notice that
such Trust Securities Certificate shall have been acquired by
a bona fide purchaser, the Administrative Trustees, or any one
of them, on behalf of the Trust, shall execute by manual or
facsimile signature and, if execution on behalf of the Trust
is by facsimile signature, countersigned by a Transfer Agent;
and the Administrative Trustees, or any one of them, shall
make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of
any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Transfer Agent may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection
therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
Section Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration
of transfer, the Trustees and the Registrar shall be entitled to
treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of
such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither
the Trustees nor the Registrar shall be bound by any notice to
the contrary.
Section Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to
be furnished (x) to the Depositor, within 15 days after receipt
by any Administrative Trustee of a request therefor from the
Depositor in writing and (y) to the Property Trustee, promptly
after receipt by any Administrative Trustee of a request therefor
from the Property Trustee in writing in order to enable the
Property Trustee to discharge its obligations under this Trust
Agreement, a list, in such form as the Depositor or the Property
Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date. If Holders of
Trust Securities Certificates evidencing ownership at such time
and for the previous six months not less than 25% of the
outstanding aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the
applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the
Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current
list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section Maintenance of Office or Agency. The Company
shall or shall cause the Transfer Agent to maintain in the
Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Preferred Securities Certificates may
be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company or the Transfer Agent
in respect of the Trust Securities Certificates may be served.
The Company initially designates The Bank of New York at its
principal corporate trust office for such purposes. The Company
shall or shall cause the Transfer Agent to give prompt written
notice to the Depositor, the Property Trustee and to the
Securityholders of any change in any such office or agency.
Section Appointment of Paying Agent. The Paying
Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such
distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent if the
Administrative Trustee or any one of them determines in its sole
discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect.
The Paying Agent may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. The
Paying Agent shall be permitted to resign upon 30 days' written
notice to the Administrative Trustees and the Depositor. In the
event of the removal or resignation of the Paying Agent, the
Administrative Trustees shall appoint a successor that is
reasonably acceptable to the Property Trustee and the Depositor
to act as Paying Agent (which shall be a bank, trust company or
an Affiliate of the Depositor). The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the
Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it
for payment to the Securityholders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be
paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon resignation or
removal of a Paying Agent such Paying Agent shall also return all
funds in its possession to the Property Trustee. The provisions
of Sections 8.01, 8.03 and 8.06 shall apply to the Paying Agent
appointed hereunder, and the Paying Agent shall be bound by the
requirements with respect to paying agents of securities issued
pursuant to the Trust Indenture Act. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.
Section 0. Ownership of Common Securities by
Depositor. On the Closing Date and on each other date provided
for in Section 2.05, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Securities.
Any attempted transfer of the Common Securities shall be void.
The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE". Common Securities
Certificates representing the Common Securities shall be issued
to the Depositor in the form of a typewritten or definitive
Common Securities Certificate.
Section Definitive Preferred Securities Certificates.
Upon initial issuance of the Preferred Securities the Definitive
Preferred Securities Certificates shall be typewritten, printed,
lithographed or engraved or may be produced in any other manner
as is reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by the Administrative
Trustees, or any one of them. The Administrative Trustees, or
any one of them, shall execute on behalf of the Trust by manual
or facsimile signature, and, if executed by facsimile on behalf
of the Trust, countersigned by the Transfer Agent or its agent
the Definitive Preferred Securities Certificates initially in
accordance with the instructions of the Depositor. Neither the
Transfer Agent nor any of the Administrative Trustees shall be
liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions.
Section Book-Entry System. Some or all of the
Preferred Securities may be registered in the name of the
Securities Depository or a nominee therefor, and held in the
custody of the Securities Depository. In such event, a single
certificate will be issued and delivered to the Securities
Depository for such Preferred Securities, in which case the
Owners of such Preferred Securities will not receive physical
delivery of certificates for Preferred Securities. Except as
provided herein, all transfers of beneficial ownership interests
in such Preferred Securities will be made by book-entry only, and
no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Securities
will receive, hold or deliver any certificate for Preferred
Securities. The Depositor, the Trustees and the Paying Agent
will recognize the Securities Depository or its nominee as the
Holder of Preferred Securities for all purposes, including
notices and voting.
The Administrative Trustees, at the direction and
expense of the Depositor, may from time to time appoint a
Securities Depository or a successor thereto and enter into a
letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Securities. Any Securities Depository shall be a Clearing
Agency.
The Depositor and the Trustees covenant and agree to
meet the requirements of a Securities Depository for the
Preferred Securities with respect to required notices and other
provisions of the letter of representations or agreement executed
with respect to such Preferred Securities.
Whenever the beneficial ownership of any Preferred
Securities is determined through the books of a Securities
Depository, the requirements in this Trust Agreement of holding,
delivering or transferring such Preferred Securities shall be
deemed modified with respect to such Preferred Securities to meet
the requirements of the Securities Depository with respect to
actions of the Trustees, the Depositor and the Paying Agent. Any
provisions hereof permitting or requiring delivery of such
Preferred Securities shall, while such Preferred Securities are
in a book-entry system, be satisfied by the notation on the books
of the Securities Depository in accordance with applicable state
law.
Section Rights of Securityholders. The legal title
to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Securityholders
against payment of the purchase price therefor will be fully paid
and nonassessable interests in the Trust.
ARTICLE
Acts of Securityholders; Meetings; Voting
Section Limitations on Voting Rights.
Except as provided in this Section 6.01, in
Section 10.03 and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in
the terms of the Trust Securities Certificates, be construed
so as to constitute the Securityholders from time to time as
partners or members of an association. If the Property
Trustee fails to enforce its rights under the Debentures or
this Trust Agreement, a Holder of Preferred Securities may
institute a legal proceeding directly against the Depositor to
enforce the Property Trustee's rights under the Debentures or
this Trust Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against the
Property Trustee or any other person. Notwithstanding the
foregoing, a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such
Holder directly of principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
preference amount of the Preferred Securities of such Holder
on or after the due dates specified in the Debentures.
So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method
and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or executing any trust or
power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable
under Section 813 of the Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of
the Subordinated Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining
the prior approval of the Holders of at least 66 2/3% of the
aggregate Liquidation Amount of the Outstanding Preferred
Securities; provided, however, that where a consent under the
Subordinated Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of
each holder of Preferred Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote
of the Preferred Securities, except pursuant to a subsequent
vote of the Preferred Securities. The Property Trustee shall
notify all Holders of the Preferred Securities of any notice
of default received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Property Trustee
shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such matters to the effect that the
Trust will be classified as a "grantor trust" and not as an
association taxable as a corporation for United States Federal
income tax purposes on account of such action.
If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would materially adversely affect the powers,
preferences or special rights of the Preferred Securities,
whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not
be effective except with the approval of the Holders of at
least 66 2/3 in Liquidation Amount of the Outstanding
Preferred Securities. No amendment to this Trust Agreement
may be made if, as a result of such amendment, the Trust would
not be classified as a "grantor trust" but as an association
taxable as a corporation for United States Federal income tax
purposes.
Section Notice of Meetings. Notice of all meetings
of the Holders of Preferred Securities, stating the time, place
and purpose of the meeting, shall be given by the Administrative
Trustees pursuant to Section 10.08 to each Holder of a Preferred
Security, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section Meetings of Holders of Preferred Securities.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter upon the written request of
the Holders of 25% of the then Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) and may, at any
time in their discretion, call a meeting of Holders of Preferred
Securities to vote on any matters as to which the Holders of
Preferred Securities are entitled to vote.
Holders of 50% of the then Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders.
If a quorum is present at a meeting, an affirmative
vote by the Holders of Preferred Securities present, in person or
by proxy, holding more than the lesser of (x) 66 2/3% of the then
Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) held by the Holders of then Outstanding
Preferred Securities present, either in person or by proxy, at
such meeting and (y) 50% of the Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) shall constitute
the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
Section Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
Section Proxies, etc. At any meeting of
Securityholders, any Securityholder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, or, if earlier, until eleven months after
it is sent and the burden of proving invalidity shall rest on the
challenger.
Section Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding more than a
majority of all Outstanding Trust Securities entitled to vote in
respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust
Agreement) shall consent to the action in writing (based upon
their aggregate Liquidation Amount).
Section Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any Distribution on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of Distribution or
other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
Section Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to the Administrative
Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in
the manner provided in this Section.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved
by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
Section Inspection of Records. Subject to Section
5.07 concerning access to the list of Securityholders, upon
reasonable notice to the Administrative Trustees and the Property
Trustee, the other records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section Property [and Delaware] Trustee. The
Property [and Delaware] Trustee hereby represents and warrants
for the benefit of the Depositor and the Securityholders that:
the Property [and Delaware] Trustee is a banking
corporation or trust company duly organized, validly existing
and in good standing under the laws of the State of [New York]
[Delaware];
the Property [and Delaware] Trustee has full
corporate power, authority and legal right to execute, deliver
and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized,
executed and delivered by the Property [and Delaware] Trustee
and constitutes the valid and legally binding agreement of the
Property and Delaware] Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
the execution, delivery and performance by the
Property [and Delaware] Trustee of this Trust Agreement will
not violate, conflict with or constitute a breach of the
Property [and Delaware] Trustee's charter or by-laws; and
neither the authorization, execution or delivery
by the Property [and Delaware] Trustee of this Trust Agreement
nor the consummation of any of the transactions by the
Property [and Delaware] Trustee contemplated herein require
the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with
respect to any governmental authority or agency under any
existing Federal or [New York] [Delaware] law governing the
banking or trust powers of the Property Trustee.
[Section Delaware Trustee. The Delaware Trustee
represents and warrants for the benefit of the Depositor and the
Securityholders that:
the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware
Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate the
Delaware Trustee's charter or by-laws; and
neither the authorization, execution or delivery
by the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Delaware
Trustee contemplated herein require the consent or approval
of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental
authority or agency under any existing Federal or Delaware law
governing the banking or trust powers of the Delaware
Trustee.]
ARTICLE
The Trustees
Section Certain Duties and Responsibilities.
The duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case
of the Property Trustee, the Trust Indenture Act, and no
implied covenants or obligations shall be read into this Trust
Agreement against any of the Trustees. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require
any of the Trustees to expend or risk its own funds or
otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to
it. Notwithstanding anything contained in this Trust
Agreement to the contrary, the duties and responsibilities of
the Property Trustee under this Trust Agreement shall be
subject to the protections, exculpations and limitations on
liability afforded to the Property Trustee under the
provisions of the Trust Indenture Act and, to the extent
applicable, Rule 3A-7 under the Investment Company Act of
1940, as amended, or any successor rule thereunder. Whether
or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be
subject to the provisions of this Section.
All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property
Trustee or Paying Agent to make payments in accordance with
the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income
and proceeds from the Trust Property to the extent available
for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any
other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in
the case of the Property Trustee, in the Trust Indenture Act.
All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property
in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement, the
Trust Indenture Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act of 1940, as
amended;
the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor. Money held by the
Property Trustee need not be segregated from other
funds held by it except in relation to the Payment
Account established by the Property Trustee pursuant to
this Trust Agreement and except to the extent otherwise
required by law; and
the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative
Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
Section Notice of Defaults. Within five Business
Days after the occurrence of any Event of Default, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of any default known to the Property
Trustee to the Securityholders and the Depositor, unless such
default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of
Default.
Section Certain Rights of Property Trustee. Subject
to the provisions of Section 8.01 and except as provided by law:
the Property Trustee may rely and shall be
protected in acting or refraining from acting in good
faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or
transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the
proper party or parties;
if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of
action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall
be promptly delivered by the Depositor or the
Administrative Trustees;
the Property Trustee may consult with counsel of
its selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by
this Trust Agreement at the request or direction of any
of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security or
indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying
with such request or direction;
the Property Trustee shall not be bound to make
any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, unless
requested in writing to do so by one or more
Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Depositor personally or by agent or attorney;
the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder, provided that the Property Trustee
shall be responsible for its own negligence or
recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
the Property Trustee shall not be charged with
knowledge of any default or Event of Default with
respect to the Trust Securities unless either (1) a
Responsible Officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or
(2) written notice of such default or Event of Default
shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder
of the Trust Securities;
no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed
on it in any jurisdiction in which it shall be illegal,
or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such
right, power, duty or obligation; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty;
no provision of this Trust Agreement shall
require the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if the
Property Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument
(including any financing or continuation statement or
any tax or securities) (or any rerecording, refiling or
registration thereof);
the Property Trustee shall have the right at any
time to seek instructions concerning the administration
of this Trust Agreement from any court of competent
jurisdiction; and
whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder
the Property Trustee (i) may request instructions from
the Holders of the Trust Securities, which instructions
may only be given by the Holders of the same proportion
of Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the
terms of this Trust Agreement in respect of such
remedies, rights or actions, (ii) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and
(iii) shall be protected in acting in accordance with
such instructions.
Section Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part
thereof or as to the title of the Trust thereto or as to the
security afforded thereby or hereby, or as to the validity or
genuineness of any securities at any time pledged and deposited
with any Trustees hereunder, nor as to the validity or
sufficiency of this Trust Agreement or the Trust Securities. The
Trustees shall not be accountable for the use or application by
the Trust of the proceeds of the Trust Securities in accordance
with Section 2.05.
Section May Hold Securities. Except as provided in
the definition of the term "Outstanding" in Article I, any
Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such
other agent.
Section Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this
Trust Agreement, including the reasonable costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of
the Depositor under this Section, each of the Trustees shall have
a lien prior to the Trust Securities upon all property and funds
held or collected by such Trustee as such, except funds held in
trust for the payment of Distributions on the Trust Securities.
The provisions of this Section shall survive the
termination of this Trust Agreement.
Section Certain Trustees Required; Eligibility.
There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall
be a Person that has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then
for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee
with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust
Securities. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized
to bind such entity.
There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of
age and a resident of the State of Delaware or (ii) a legal
entity with its principal place of business in the State of
Delaware that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons
authorized to bind such entity.
Section Conflicting Interests.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Subordinated Indenture and the Guarantee
Agreement shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
Section Co-Trustees and Separate Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, at any time or times, for the purpose of
meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property may at
the time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments
shall, on request, be executed, acknowledged, and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties, and
obligations shall be exercised and performed by such co-
trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join
with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this
Section.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 0. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (as the case
may be, the "Relevant Trustee") and no appointment of a successor
Relevant Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section
8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at any
time by Act of the Common Securityholder. If a Debenture Event
of Default shall have occurred and be continuing, the Relevant
Trustee may be removed at such time by Act of the Securityholders
of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Relevant Trustee shall
resign, be removed or become incapable of continuing to act as
the Relevant Trustee at a time when a Debenture Event of Default
shall have occurred and be continuing, the Preferred
Securityholders, by Act of the Preferred Securityholders of a
majority in Liquidation Amount of the Outstanding Preferred
Securities delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed by the Common Securityholders or the
Preferred Securityholders and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a
Securityholder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor
Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirements for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
Section Acceptance of Appointment by Successor. In
case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Trustee
shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust and (2) shall add to or change any of
the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees of the same trust and that each
such Relevant Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or
removal of the retiring Relevant Trustee shall become effective
to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Relevant Trustee; but, on request of the Trust or
any successor Relevant Trustee such retiring Relevant Trustee
shall duly assign, transfer and deliver to such successor Trustee
all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee,
the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
Section Merger, Conversion, Consolidation or
Succession to Business. Any Person into which the Property
Trustee or the Delaware Trustee or any Administrative Trustee or
any Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
such Relevant Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties
hereto.
Section Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or
become a creditor of the Depositor or the Trust (or any other
obligor upon the Debentures or the Trust Securities), the
Property Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor).
Section Reports by Property Trustee. the
Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under
this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto. Such of those reports as are required to be
transmitted by the Property Trustee pursuant to Section 313(a)
of the Trust Indenture Act shall be so transmitted within 60
days after [________ __] of each year, commencing [_______
__], 199[_].
A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
Section Reports to the Property Trustee. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
Section Evidence of Compliance With Conditions
Precedent. Each of the Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) that
relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act may be given in the form of an Officers'
Certificate.
Section Number of Trustees.
The number of Trustees shall be five, provided
that Depositor, by written instrument may increase or decrease
the number of Administrative Trustees.
If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced
pursuant to Section 8.17(a), or if the number of Trustees is
increased pursuant to Section 8.17(a), a vacancy shall occur.
The vacancy shall be filled with a Trustee appointed in
accordance with Section 8.10.
The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties
of a Trustee shall not operate to annul the Trust. Whenever a
vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section Delegation of Power.
Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment
thereto filed with the Commission, or making any other
governmental filing; and
the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing
of such things and the execution of such instruments either in
the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as
set forth herein.
Section Fiduciary Duty.
To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this Trust
Agreement shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law
or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of
such Indemnified Person;
Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act:
whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person;
or
whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable
generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, whenever
in this Trust Agreement an Indemnified Person is permitted or
required to make a decision
in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it reasonably
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other
Person; or
in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other
or different standard imposed by this Trust Agreement
or by applicable law.
ARTICLE
Termination and Liquidation
Section Termination Upon Expiration Date. The Trust
shall automatically terminate on December 31, [____] (the
"Expiration Date") and the Trust Property shall be distributed in
accordance with Section 9.04.
Section Early Termination. Upon the first to occur
of any of the following events (such first occurrence, an "Early
Termination Event"):
the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the
Depositor;
the redemption of all of the Preferred
Securities;
termination of the Trust in accordance with
Section 9.04(d);
an order for judicial termination of the Trust
having been entered by a court of competent
jurisdiction;
the Trust shall terminate and the Trustees shall take such action
as is required by Section 9.04.
Section Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (i)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed
hereunder upon the final payment of the Trust Securities; (ii)
the payment of any expenses owed by the Trust; and (iii) the
discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section Liquidation. If an Early Termination Event
specified in clause (i) or (iv) of Section 9.02 occurs, after
satisfaction of creditors of the Trust, if any, as provided by
applicable law, the Trust shall be liquidated by the Property
Trustee as expeditiously as the Property Trustee determines to
be appropriate by distributing to each Securityholder a Like
Amount of Debentures, subject to Section 9.04(e). Notice of
liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30
nor more than 60 days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder's address appearing
in the Securities Register. All notices of liquidation shall:
state the Liquidation Date;
state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of Debentures; and
provide such information with respect to the
mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section
9.04(e) applies receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee
shall deem appropriate.
In order to effect any liquidation of the Trust
hereunder, and any resulting distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting
as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall
deem appropriate to effect the distribution of Debentures in
exchange for the Outstanding Trust Securities Certificates.
After any Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Debentures will be issued to
Holders of Trust Securities Certificates, upon surrender of
such Trust Securities Certificates to the Administrative
Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will
be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the
last Distribution Date on which a Distribution was made on
such Trust Certificates until such Trust Securities
Certificates are so surrendered (and until such Trust
Securities Certificates are so surrendered, no payments or
interest or principal will be made to Holders of Trust
Securities Certificates with respect to such Debentures) and
(iv) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to
receive Debentures upon surrender of Trust Securities
Certificates.
If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to (i) redeem the
Debentures in whole but not in part and therefore cause a
mandatory redemption of all the Preferred Securities at the
Redemption Price within 90 days following the occurrence of
such Special Event, or (ii) cause the termination of the
Trust. Further, if at any time, the Trust is not or will not
be taxed as a grantor trust under the United States Federal
income tax law, but a Tax Event has not occurred, the
Depositor may elect termination of the Trust. In the event
the Depositor elects under the provisions of this section for
the Trust to be terminated, the Administrative Trustees shall,
terminate the Trust and, after satisfaction of creditors of
the Trust, if any, as provided by applicable law, cause
Debentures held by the Property Trustee having a Like Amount
of the Preferred Securities and the Common Securities to be
distributed to the Holders of the Preferred Securities and the
Common Securities on a pro rata basis in liquidation of such
Holders' interests in the Trust (in the case of such an
election following the occurrence of a Special Event) within
90 days following the occurrence of such Special Event. The
Common Securities will be redeemed on a pro rata basis with
the Preferred Securities, except that if a Debenture Event of
Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities
with respect to payment of the Redemption Price and
accumulated and unpaid Distributions to the date of such
payment.
In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order
for termination entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner
provided herein is determined by the Property Trustee not to
be practical, the Trust Property shall be liquidated, and the
Trust shall be dissolved, wound-up or terminated, by the
Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders
will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any,
as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any
such dissolution, winding up or termination, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities will be
entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that,
if a Debenture Event of Default has occurred and is continuing
or if a Debenture Event of Default has not occurred solely by
reason of a requirement that time lapse or notice be given,
the Preferred Securities shall have a priority over the Common
Securities.
ARTICLE
Miscellaneous Provisions
Section Guarantee by the Depositor and Assumption of
Obligations. Subject to the terms and conditions hereof, the
Depositor irrevocably and unconditionally guarantees to each
Person to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries"), and agrees to assume liability for,
the full payment, when and as due, of any and all Obligations (as
hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to Holders
or other similar interests in the Trust the amounts due such
Holders pursuant to the terms of the Preferred Securities or such
other similar interests, as the case may be. This guarantee and
assumption is intended to be for the benefit, of, and to be
enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial
or otherwise, in a Trust Security shall not operate to terminate
this Trust Agreement, nor entitle the legal representatives or
heirs of such person or any Securityholder for such person, to
claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section Amendment.
This Trust Agreement may be amended from time to time
by the Trust (on approval of a majority of the Administrative
Trustees and the Depositor, without the consent of any
Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement
or (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure
that the Trust will not be classified for United States
Federal income tax purposes other than as a "grantor trust"
and not as an association taxable as a corporation at any time
that any Trust Securities are outstanding or to ensure the
Trust's exemption from the status of an "investment company"
under the Investment Company Act of 1940, as amended;
provided, however, that, except in the case of clause (ii),
such action shall not adversely affect in any material respect
the interests of any Securityholder and, in the case of clause
(i), any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
Except as provided in Sections 6.01(c) and 10.03(c),
any provision of this Trust Agreement may be amended by the
Administrative Trustees and the Depositor with (i) the consent
of Holders of Trust Securities representing not less than a
majority (based upon Liquidation Amounts) of the Outstanding
Trust Securities and (ii) receipt by the Trustees of an
Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a
grantor trust for Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the
Investment Company Act of 1940, as amended.
In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder (such consent being obtained in
accordance with Section 6.03 or 6.06), this Trust Agreement
may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii)
restrict the right of a Securityholder to institute suit for
the enforcement of any such payment on or after such date.
Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust
to fail or cease to qualify for the exemption from status of
an "investment company" under the Investment Company Act of
1940, as amended, afforded by Rule 3a-5 thereunder.
Notwithstanding anything in this Trust Agreement to
the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or
any Trustee.
In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
The Property Trustee is entitled to receive an
Opinion of Counsel as conclusive evidence that any amendment
to this Trust Agreement executed pursuant to this Section
10.03 is authorized or permitted by, and conforms to, the
terms of this Section 10.03, has been duly authorized by and
lawfully executed and delivered on behalf of the other
requisite parties, and that it is proper for the Property
Trustee under the provisions of this Section 10.03 to join in
the execution thereof.
Section Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section Governing Law. This Trust Agreement and the
rights and obligations of each of the Securityholders, the Trust
and the Trustees with respect to this Trust Agreement and the
Trust Securities shall be construed in accordance with and
governed by the laws of the State of Delaware (without regard to
conflict of laws principles).
Section Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to
the Trust or the Relevant Trustees or any of them, including any
successor by operation of law.
Section Headings. The Article and Section headings
are for convenience only and shall not affect the construction of
this Trust Agreement.
Section Notice and Demand. Any notice, demand or
other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) in the case of a Preferred Securityholder,
to such Preferred Securityholder as such Securityholder's name
and address may appear on the Securities Register and (ii) in the
case of the Common Securityholder or the Depositor, to Entergy
Arkansas, Inc., 639 Loyola Avenue, New Orleans, Louisiana 71103,
Attention: [Treasurer], facsimile no. (504) 576-[____], with a
copy to the Secretary, facsimile no. (504) 576-[____]. Such
notice, demand or other communication to or upon a Securityholder
shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, 101 Barclay Street, 21 West, New York, New
York 10286 marked "Attention: Corporate Trust Administration"
with a copy to: The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, Delaware 19711 and (ii) with respect
to the Trust or the Administrative Trustees, at the address above
for notice to the Depositor, marked "Attention: Administrative
Trustees for Entergy 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.
Section Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in
writing not to take such action and should be stopped and
precluded therefrom and such other defenses, if any, as counsel
for the Property Trustee or the Trust may assert. The provisions
of this Section 10.09 shall survive the termination of this Trust
Agreement.
Section 0. Conflict with Trust Indenture Act.
This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required or deemed to be part
of this Trust Agreement and shall, to the extent applicable,
be governed by such provisions.
The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the parties have caused this Trust Agreement
to be duly executed, all as of the day and year first above
written.
ENTERGY ARKANSAS, INC.
By:
Title: [________]
THE BANK OF NEW YORK,
as Property Trustee
By:
Title: [____________]
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
Title: [________________]
[_________________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENTERGY 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
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 Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities"). In
accordance with Section 5.10 of the Trust Agreement (as defined
below) the Common Securities are not transferable and any
attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______ ___, 1995, as the same may be amended
from time to time (the "Trust Agreement"). The Trust will
furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the
Trust has executed this certificate for and on behalf of the
Trust this ____ day of _________, 199 .
ENTERGY 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 ________ ___, 1995, 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 ___% Quarterly Income
Preferred Securities (the "Preferred Securities") with such
powers, preferences and special rights and restrictions as are
set forth in the Amended and Restated Trust Agreement of the
Trust dated as of ________ __, 1996 as the same may be amended
from time to time (the "Trust Agreement");
WHEREAS, Entergy Arkansas is the issuer of the
Debentures;
NOW, THEREFORE, in consideration of the acceptance by
each holder of the Preferred Securities, which acceptance Entergy
Arkansas hereby agrees shall benefit Entergy Arkansas and which
acceptance 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. Assumption by Entergy Arkansas. Subject
to the terms and conditions hereof, Entergy Arkansas hereby
irrevocably and unconditionally assumes the full payment, when
and as due, of any and all Obligations (as hereinafter defined)
to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (i) obligations of the Trust
to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be and (ii) obligations arising out of
the negligence, willful misconduct or bad faith of the Trustees
of the Trust. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by Entergy 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 [_________________], Administrative Trustee
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No.: (504) 576-[____]
Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No.: (504) 576-[____]
Attention: [__________]
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above written.
ENTERGY ARKANSAS, INC.
By:
Name:
Title:
ENTERGY ARKANSAS CAPITAL I
By:
[_________________]
not in his individual
capacity, but solely
as Administrative Trustee
<PAGE>
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTEGY ARKANSAS CAPITAL I
% Quarterly Income Preferred Securities
(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 %
Quarterly Income Preferred Securities (liquidation amount $25 per
Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer
as provided in Section 5.04 or 5.11 of the Trust Agreement (as
defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and
the Preferred Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of
, 1996, as the same may be amended from time to time (the "Trust
Agreement"). The holder of this certificate is entitled to the
benefits of the Guarantee Agreement of Entergy Arkansas, Inc., an
Arkansas corporation, and The Bank of New York, as guarantee
trustee, dated as of , 1996 (the "Guarantee") to
the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:
ENTERGY ARKANSAS CAPITAL I
By:
[ ]
not in his (her)
individual capacity, but
solely as Administrative
Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred
Securities Certificate and irrevocably appoints
attorney to transfer such Preferred Securities Certificate on the
books of the Trust. The attorney may substitute another to act
for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Exhibit 4.13
GUARANTEE AGREEMENT
Between
Entergy Arkansas, Inc.
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
_____, 1996
<PAGE>
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) 4.01(a)
310(b) 4.01(c),2.08
310(c) Inapplicable
311(a) 2.02(b)
311(b) 2.02(b)
311(c) Inapplicable
312(a) 2.02(a)
312(b) 2.02(b)
313 2.03
314(a) 2.04
314(b) Inapplicable
314(c) 2.05
314(d) Inapplicable
314(e) 1.01, 2.05,
3.02
314(f) 2.01, 3.02
315(a) 3.01(d)
315(b) 2.07
315(c) 3.01
315(d) 3.01(d)
316(a) 5.04(a),2.06
316(b) 5.03
316(c) 2.02
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.01(b)
318(b) 2.01
318(c) 2.01(a)
_____________
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of any of
its terms or provisions.
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of ______, 1996, is executed and delivered by Entergy
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 ______, 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 $__________
aggregate liquidation amount of its ____% Cumulative Quarterly
Income Preferred Securities (the "Preferred Securities")
representing preferred undivided beneficial ownership interests
in the Issuer and having the terms set forth in the Trust
Agreement;
WHEREAS, the Preferred Securities are to be issued for
sale by the Issuer and the proceeds are to be invested in
$___________ principal amount of Debentures (as defined in the
Trust Agreement); and
WHEREAS, in order to enhance the value of the Preferred
Securities, the Guarantor desires to irrevocably and
unconditionally agree, to the extent set forth herein, to pay to
the Holders the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase of
Debentures, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to
time.
I
DEFINITIONS
1. Definitions. As used in this Guarantee Agreement, the terms
set forth below shall, unless the context otherwise requires,
have the following meanings. Capitalized or otherwise defined
terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the
foregoing.
"Common Securities" means the securities representing
common undivided beneficial ownership interests in the assets of
the Issuer.
"Event of Default" means a default by the Guarantor on
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments
or distributions, without duplication, with respect to the
Preferred Securities, to the extent not paid or made by or on
behalf of the Issuer: (i) any accrued and unpaid Distributions
that are required to be paid on such Preferred Securities but
only if and to the extent that the Property Trustee has available
in the Payment Account funds sufficient to make such payment,
(ii) the redemption price (the "Redemption Price"), and all
accrued and unpaid Distributions to the date of redemption, with
respect to the Preferred Securities called for redemption by the
Issuer but only if and to the extent that the Property Trustee
has available in the Payment Account funds sufficient to make
such payment, (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection
with a redemption of all of the Preferred Securities), the lesser
of (a) the aggregate of the Liquidation Amount and all accrued
and unpaid Distributions on the Preferred Securities to the date
of payment, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee
Trustee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Preferred Securities then
outstanding; provided, however, that in determining whether the
holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indenture" means the Indenture dated as of _______,
1996, among the Guarantor (the "Debenture Issuer") and The Bank
of New York, as trustee, pursuant to which the Debentures are
issued.
"Majority in liquidation amount of the Preferred
Securities" means a vote by Holders, voting separately as a
class, of more than 50% of the aggregate liquidation amount of
all Preferred Securities.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall
include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any vice-president, any assistant vice-
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Corporate Trust Department of
the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
II
TRUST INDENTURE ACT
1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required or deemed
to be part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
2. Lists of Holders of Preferred Securities.
(a) The Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee (a) semiannually, not later
than December 31 and June 30 in each year, a list, in such form
as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not
more than 15 days prior to the delivery thereof, and (b) at such
other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days
prior to the time such list is furnished; provided that, the
Guarantor shall not be obligated to provide such List of Holders
at any time the List of Holders does not differ from the most
recent List of Holders given to the Guarantee Trustee by the
Guarantor. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a) of the Trust Indenture Act,
subject to the provisions of Section 311(b) and Section 312(b) of
the Trust Indenture Act.
3. Reports by the Guarantee Trustee. Within 60 days after
December 31 of each year, commencing December 31, 1996, the
Guarantee Trustee shall provide to the Holders such reports, if
any, as are required by Section 313(a) of the Trust Indenture Act
in the form and in the manner provided by Section 313(a) of the
Trust Indenture Act. The Guarantee Trustee shall also comply
with the requirements of Sections 313(b), (c) and (d) of the
Trust Indenture Act.
4. Periodic Reports to Guarantee Trustee. The Guarantor shall
provide to the Guarantee Trustee such documents, reports and
information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
5. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent provided for in this
Guarantee Agreement as and to the extent required by Section
314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1)
of the Trust Indenture Act may be given in the form of an
Officers' Certificate.
6. Events of Default; Waiver. The Holders of a Majority in
liquidation amount of Preferred Securities may, by vote, on
behalf of all of the Holders, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any
right consequent thereon.
7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notices of all Events of
Default known to the Guarantee Trustee, unless such defaults have
been cured before the giving of such notice, provided that, the
Guarantee Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust committee of directors or Responsible
Officers of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a Responsible Officer
charged with the administration of the Trust Agreement shall have
obtained written notice, of such Event of Default.
8. Conflicting Interests. The Trust Agreement and the
Indenture shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders, and the
Guarantee Trustee shall not transfer this Guarantee Agreement or
any rights hereunder to any Person except a Holder exercising his
or her rights pursuant to Section 5.04 or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee.
The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Guarantee Trustee.
(b) The Guarantee Trustee, prior to the occurrence of
any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform only
such duties as are specifically set forth in this Guarantee
Agreement, and no implied covenants or obligations shall be read
into this Guarantee Agreement against the Guarantee Trustee. In
case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.06), the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such
Events of Default that may have occurred:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties
and obligations as are specifically set forth in
this Guarantee Agreement; and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee
Agreement; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Guarantee Trustee, the Guarantee Trustee
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Guarantee Trustee, unless it
shall be proved that the Guarantee Trustee or such
Responsible Officer was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iv) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of a
Majority in liquidation amount of the Preferred Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
(vi) no provision of this Guarantee Agreement
shall require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem
it desirable that a matter be proved or established
before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with
counsel of its choice, and the written advice or
opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such
advice or opinion; such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any
of its employees; the Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any
court of competent jurisdiction;
(v) the Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Guarantee Agreement at the request
or direction of any Holder, unless such Holder shall
have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable
person in the position of the Guarantee Trustee,
against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by
it in complying with such request or direction,
including such reasonable advances as may be requested
by the Guarantee Trustee; provided that, nothing
contained in this Section 3.02(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee
Agreement;
(vi) the Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably
believed by it to be genuine, but the Guarantee
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as
it may see fit;
(vii) the Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder;
(viii) whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (1) may request
instructions from the Holders, (2) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and (3)
shall be protected in acting in accordance with such
instructions; and
(ix) the Guarantee Trustee shall not be liable for
any action taken, suffered or omitted to be taken by it
in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Guarantee.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed
to be a duty.
IV
GUARANTEE TRUSTEE
1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to
above, then, for the purposes of this Section
4.01(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease
to be eligible to so act under Section 4.01(a), the Guarantee
Trustee shall immediately resign in the manner and with the
effect set out in Section 4.03(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
2. Compensation and Reimbursement.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time
such reasonable compensation as the Guarantor and the Guarantee
Trustee shall from time to time agree in writing for all services
rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with the provisions of
this Guarantee (including the reasonable compensation and
expenses of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless from
and against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based upon the income
of the Guarantee Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance of the administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any its powers or duties hereunder.
As security for the performance of the obligations of
the Guarantor under this Section, the Guarantee Trustee shall
have a lien prior to the Preferred Securities upon all the
property and funds held or collected by the Guarantee Trustee as
such, except funds held in trust for the payment of principal of,
and premium (if any) or interest on, particular obligations of
the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
3. Appointment, Removal and Resignation of Guarantee Trustee.
(a) Subject to Section 4.03(b), unless an Event of
Default shall have occurred and be continuing, the Guarantee
Trustee may be appointed or removed without cause at any time by
the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall
hold office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.03 within 60 days after delivery to the Guarantor of an
instrument of resignation, the resigning Guarantee Trustee may
petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) The Guarantor shall give notice of each
resignation and each removal of the Guarantee Trustee and each
appointment of a successor Guarantee Trustee to all Holders in
the manner provided in Section 8.03 hereof. Each notice shall
include the name of the successor Guarantee Trustee and the
address of its Corporate Trust Office.
V
GUARANTEE
1. Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer),
as and when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
2. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of this Guarantee Agreement and of any
liability to which it applies or may apply, presentment, demand
for payment, any right to require a proceeding first against the
Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
3. Obligations Not Affected. The obligation of the Guarantor
to make the Guarantee Payments under this Guarantee Agreement
shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of
any express or implied agreement, covenant, term or
condition relating to the Preferred Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions,
Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Securities or the
extension of time for the performance of any other
obligation under, arising out of, or in connection with, the
Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Holders pursuant to the terms of the Preferred Securities,
or any action on the part of the Issuer granting indulgence
or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or
defense of a guarantor, it being the intent of this Section
5.03 that the obligations of the Guarantor hereunder shall
be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
4. Rights of Holders. The Guarantor expressly acknowledges
that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii)
the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a
Majority in liquidation amount of the Preferred Securities have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in
respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement without first instituting a legal proceeding
against the Issuer or any other person or entity.
5. Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not of collection. This Guarantee
Agreement will not be discharged except by payment of the
Guarantee Payments in full (without duplication).
6. Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any
amounts paid to the Holders by the Guarantor under this Guarantee
Agreement; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire
by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any
amounts of Guarantee Payments are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
7. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of
the Issuer with respect to the Preferred Securities and that the
Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to
in subsections (a) through (g), inclusive, of Section 5.03.
VI
SUBORDINATION
1. Subordination. This Guarantee Agreement will constitute an
unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other
liabilities of the Guarantor, including the Debentures, except
those made pari passu or subordinate by their terms, (ii) pari
passu with the most senior preferred or preference stock now or
hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any
preferred or preference stock of any Affiliate of the Guarantor,
and (iii) senior to all common stock of the Guarantor. Nothing
in this Section 6.01 shall apply to claims of, or payments to,
the Guarantee Trustee under or pursuant to Section 4.02 hereof.
VII
TERMINATION
1. Termination. This Guarantee Agreement shall terminate and
be of no further force and effect upon: (i) full payment of the
Redemption Price of all Preferred Securities, and all accrued and
unpaid Distributions to the date of redemption, (ii) the
distribution of Debentures to Holders in exchange for all of the
Preferred Securities or (iii) full payment of the amounts payable
in accordance with the Trust Agreement upon liquidation of the
Issuer. Notwithstanding the foregoing, this Guarantee Agreement
will continue to be effective or will be reinstated, as the case
may be, if at any time any Holder must restore payment of any
sums paid with respect to the Preferred Securities or under this
Guarantee Agreement.
VIII
MISCELLANEOUS
1. Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is
permitted under Article Eleven of the Indenture, the Guarantor
shall not assign its obligations hereunder.
2. Amendments. This Guarantee Agreement may be amended only by
an instrument in writing entered into by the Guarantor and the
Guarantee Trustee. Except with respect to any changes which do
not materially adversely affect the rights of Holders (in which
case no consent of Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the
Holders of not less than 66 2/3% in aggregate liquidation amount
of all the outstanding Preferred Securities. The provisions of
Article VI of the Trust Agreement concerning meetings of Holders
shall apply to the giving of such approval. Nothing herein
contained shall be deemed to require that the Guarantee Trustee
enter into any amendment of this Guarantee Agreement.
3. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered,
telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set
forth below or such other address as the Guarantor may give
notice of to the Holders of the Preferred Securities:
Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No: (501) 377-____
Attention: _____________
(b) if given to the Issuer, in care of the
Administrative Trustees, at the Issuer's (and the
Administrative Trustee's) address set forth below or such
other address as the Administrative Trustees on behalf of
the Issuer may give notice of to the Holders:
Entergy Arkansas, Capital I
c/o Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No: (501) 377-____
Attention: Administrative Trustees
(c) if given to the Guarantee Trustee, to the address
set forth below or such other address as the Guarantee
Trustee may give notice of to the Holders of the Preferred
Securities:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth
on the books and records of the Issuer.
All notices hereunder shall be deemed to have been
given when received in person, telecopied with receipt confirmed,
or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
4. Benefit. This Guarantee Agreement is solely for the benefit
of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
5. Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement
but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.01;
(b) a term defined anywhere in this Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Guarantee Agreement" or
"this Guarantee Agreement" are to this Guarantee Agreement
as modified, supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires;
(f) a reference to the singular includes the plural
and vice versa; and
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter
genders.
6. Governing Law. This Guarantee Agreement shall be governed
by and construed and interpreted in accordance with the laws of
the State of New York.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
Entergy Arkansas, Inc.
By:
Name:
Title:
The Bank of New York,
as Guarantee Trustee
By:
Name:
Title:
Exhibit 4.14
AMENDED AND RESTATED
TRUST AGREEMENT
between
ENTERGY ARKANSAS, INC., as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
[___________________],
[______________],
and
[_______________], as Trustees
Dated as of [_________] 1, 1996
ENTERGY ARKANSAS CAPITAL I
<PAGE>
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>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[_______] 1, 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" and, in its
separate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) The Bank of New York (Delaware), a banking
corporation duly organized under the laws of Delaware, as trustee
(the "Delaware Trustee") and (iv) [__________________],
[______________] and [______________], each an individual, as
trustee, and each of whose address is c/o Entergy Arkansas, Inc.,
425 West Capitol Avenue, Little Rock, Arkansas 72201 (each, an
"Administrative Trustee" and collectively the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and [__________________], as the Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act by the entering
into of that certain Trust Agreement, dated as of April __, 1996
(the "Original Trust Agreement"), and by the execution by the
Property Trustee, the Delaware Trustee and [_________________],
as Administrative Trustee and filing with the Secretary of State
of the State of Delaware of the Certificate of Trust, dated April
__, 1996, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware
Trustee and [_________________], as Administrative Trustee,
desire to amend and restate the Original Trust Agreement in its
entirety as set forth herein to provide for, among other things,
(i) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Debentures, (ii) the issuance of
the Common Securities by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities by the Trust and (iv) the
appointment of additional Administrative Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other party and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE
Defined Terms
Section Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
all other terms used herein that are defined in
the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this Trust
Agreement; and
the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and/or a given period,
the amount of Additional Interest (as defined in the Subordinated
Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust created hereunder and not in their
individual capacities, or such trustee's successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee sequestrator or
other similar official of such Person or of any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or of the
consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such
Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof and to be in
full force and effect on the date of such certification, and
delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of the Trust or the Trust's Affiliates; and (b) any Holder of
Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Issuer" means Entergy Arkansas, Inc., an
Arkansas corporation, in its capacity as issuer of the
Debentures.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, as
trustee under the Subordinated Indenture.
"Debentures" means the $[________] aggregate principal
amount of the Depositor's [___]% Junior Subordinated Debentures,
Series A, Due [____], issued pursuant to the Subordinated
Indenture.
"Definitive Preferred Securities Certificates" means
Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of any
Redemption Price, plus accumulated and unpaid
distributions of any Trust Security when it becomes due
and payable; or
(iv) default in the performance, or breach, in any
material respect of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is
specifically dealt with in clause (ii) or (iii), above)
and continuation of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Trust by the Holders of at least
10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect
to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c).
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partner, employee, representative or agent of any Trustee, or any
employee or agent of the Trust or its Affiliates.
"Investment Company Event" means the occurrence of a
change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority to the effect that
the Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act of
1940, as amended, which change in law becomes effective on or
after the date of original issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to
be contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities plus accumulated and
unpaid Distributions to the date of such payment and (ii)
Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the
Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu
of which other Preferred Securities have been delivered
pursuant to this Trust Agreement, including pursuant to
Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Preferred Securities which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are
owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative
Trustee the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner
of a Preferred Securities Certificate as reflected in the records
of the Securities Depository or, if a Securities Depository
Participant is not the beneficial owner, then as reflected in the
records of a Person maintaining an account with such Securities
Depository (directly or indirectly), in accordance with the rules
of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee at The Bank of New York, or such other banking
institution as the Depositor shall select in its trust department
for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to
the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a quarterly income preferred
security representing an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having
rights provided therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as
provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any date
fixed for redemption of any Trust Security, the Liquidation
Amount of such Trust Security.
"Redemption Tax Opinion" has the meaning specified in
Section 9.04(d).
"Registrar" shall mean the registrar for the Preferred
Securities appointed by the Trust and shall be initially The Bank
of New York.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matter.
"Securities Depository" shall be The Depository Trust
Company.
"Securities Depository Participant" means an
institution which deposits securities with a Securities
Depository for holding thereby.
"Securities Register" shall mean the Securities
Register described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person shall be deemed to be a
beneficial owner within the meaning of the Delaware Business
Trust Act.
"Special Event" means either a Tax Event or an
Investment Company Event.
"Subordinated Indenture" means the Indenture, dated as
of [______] 1, 1996, between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to
time.
"Tax Event" means the receipt by the Trust of an
opinion of counsel (which may be counsel to the Depositor or an
affiliate but not an employee thereof and which must be
acceptable to the Property Trustee) experienced in such matters
to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting
taxation, or as a result of any official administrative or
judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of
original issuance of the Preferred Securities under this Trust
Agreement, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject
to United States Federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by
the Depositor on the Debentures, is not, or within 90 days of the
date thereof, will not be, deductible, in whole or in part, for
United States Federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more
than a de minimis amount of other taxes, duties or other
governmental charges.
"Transfer Agent" shall mean one or more transfer agents
for the Preferred Securities appointed by the Trust and shall be
initially The Bank of New York.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities
or the Preferred Securities.
"Trust Securities Certificate" means any one of the
Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of [_____ __] , 1996, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE
Establishment of the Trust
Section Name. The Trust created hereby shall be
known as "Entergy Arkansas Capital II", in which name the
Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue
and be sued.
Section Office of the Delaware Trustee; Principal
Place of Business. The office of the Delaware Trustee in the
State of Delaware is White Clay Center, Route 273, Newark,
Delaware 19711, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Entergy Arkansas, Inc., 425 West
Capitol Avenue, Little Rock, Arkansas 72201.
Section Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the
Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses
paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
Section Issuance of the Preferred Securities. On
[____ __], 1996 the Depositor and an Administrative Trustee, on
behalf of the Trust, both executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, one of the Administrative Trustees, on
behalf of the Trust in accordance with Section 5.02, executed
manually and delivered a Preferred Securities Certificate,
registered in the name of the nominee of The Depositary Trust
Company, having an aggregate Liquidation Amount of $[________].
Section Subscription and Purchase of Debentures;
Issuance of the Common Securities. Contemporaneously with the
execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee and having an aggregate principal
amount equal to $[________], and, in satisfaction of the purchase
price for such Debentures, (x) one of the Administrative
Trustees, on behalf of the Trust, shall execute and deliver to
the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of [_____] Common
Securities having an aggregate Liquidation Amount of $[_______],
and (y) the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $[________] representing the
proceeds from the sale of the Preferred Securities pursuant to
the Underwriting Agreement.
Section Declaration of Trust; Appointment of
Additional Administrative Trustees. The exclusive purposes
and functions of the Trust are (i) to issue Trust Securities
and invest the proceeds thereof in Debentures, and (ii) to
engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein. The Property Trustee
hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the
benefit of the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance
with applicable law with respect to accomplishing the purposes
of the Trust. Anything in this Trust Agreement to the
contrary notwithstanding the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrative Trustees set forth
herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust
Act.
Section Authorization to Enter into Certain
Transactions. The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section and Article VIII and in accordance with the following
provisions (A) and (B), the Trustees shall have the authority
to enter into all transactions and agreements determined by
the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under
this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
As among the Trustees, the Administrative Trustees
shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
the issuance and sale of the Trust Securities;
without the consent of any Person, to cause the
Trust to enter into and to execute, deliver and perform
on behalf of the Trust, the Expense Agreement, and such
agreements as may be necessary or desirable in
connection with the consummation of the Underwriting
Agreement (such execution to be by the Administrative
Trustees or any one of them);
to qualify the Trust to do business in any
jurisdiction as may be necessary or desirable;
the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined
by the Depositor and the registration of the Preferred
Securities under the Exchange Act, and the preparation
and filing of all periodic and other reports and other
documents pursuant to the foregoing;
the appointments of a Paying Agent, a Transfer
Agent and a Registrar in accordance with this Trust
Agreement (subject to Section 5.09);
registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the
Trust with respect to the following ministerial matters:
the establishment of the Payment Account;
the receipt of the Debentures;
the deposit of interest, principal and any other
payments made in respect of the Debentures in the
Payment Account;
the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
as provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and
the execution of the certificate of cancellation to be
prepared and filed by the Administrative Trustees with
the Secretary of State of the State of Delaware; and
the taking of any ministerial action incidental
to the foregoing as the Property Trustee may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustee set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the
Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders
of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the
rights of the Holder pursuant to the terms of this Trust
Agreement.
So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust)
shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby.
In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this
Trust Agreement, (ii) sell, assign, transfer, exchange,
pledge, set-off or otherwise dispose of any of the Trust
Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States Federal income tax purposes
and not as an association taxable as a corporation, (iv) incur
any indebtedness for borrowed money or (v) take or consent to
any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims
and demands of all Persons at any time claiming any Lien on
any of the Trust Property adverse to the interest of the Trust
or the Securityholders in their capacity as Securityholders.
In connection with the issue of the Preferred
Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect
on behalf of the Trust, the following (and any actions taken
by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and confirmed
in all respects):
to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
to determine the States in which to take
appropriate action to qualify or register for sale all
or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken
by or on behalf of the Trust, and advise the Trustees
of actions they must take on behalf of the Trust, and
prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such
States;
to prepare for filing by the Trust an application
to the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred
Securities and to file or cause the Administrative
Trustees to file thereafter with such exchange such
notifications and documents as may be necessary from
time to time to maintain such listing;
to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"),
including any amendments thereto;
to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may
be necessary or desirable in connection with the
consummation thereof;
to select the investment banker or bankers to act
as underwriters with respect to the offer and sale by
the Trust of Preferred Securities ("Offer") and
negotiate the terms of an Underwriting Agreement and
pricing agreement providing for the Offer; and
to take any other actions necessary or desirable
to carry out any of the foregoing activities.
Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so
that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment
Company Act of 1940, as amended, or classified other than as a
"grantor trust" for United States Federal income tax purposes
and not as an association taxable as a corporation and so that
the Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In
this connection, subject to the provisions of Section 10.03,
the Depositor and the Administrative Trustees are authorized
to take any action, not inconsistent with applicable law, the
certificate of trust filed with the Secretary of State of the
State of Delaware with respect to the Trust (as amended or
restated from time to time, the "Certificate of Trust") or
this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such
action does not materially adversely affect the interests of
the Holders of the Preferred Securities.
Section Assets of Trust. The assets of the Trust
shall consist of the Trust Property.
Section Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE
Payment Account
Section Payment Account.
On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustees and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect
to, the Debentures. Amounts held in the Payment Account shall
not be invested by the Property Trustee pending distribution
thereof.
ARTICLE
Distributions; Redemption
Section Distributions.
Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds
of the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except
in the event that the Depositor exercises its right to extend
the interest payment period for the Debentures pursuant to
Section 311 of the Subordinated Indenture, shall be payable
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on [_______ __], 1996.
If any date on which Distributions are otherwise payable on
the Trust Securities is not a Business Day, then the payment
of such Distribution shall be made on the next succeeding day
which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, payment
of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and
effect as if made on such date (each date on which
distributions are payable in accordance with this Section
4.01(a) a "Distribution Date").
Distributions payable on the Trust Securities
shall be fixed at a rate of [____]% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full quarterly period shall be
computed on the basis of twelve 30-day months and a 360-day
year and for any period shorter than a full month, on the
basis of the actual number of days elapsed. If the interest
payment period for the Debentures is extended pursuant to
Section 311 of the Subordinated Indenture, then Distributions
on the Preferred Securities will be deferred for the period
equal to the extension of the interest payment period for the
Debentures and the rate per annum at which Distributions on
the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such extended
interest payment period is equal to the aggregate amount of
interest (including, to the extent permitted by law, interest
payable on unpaid interest at the percentage rate per annum
set forth above, compounded quarterly) that accrues during any
such extended interest payment period on the Debentures. The
amount of Distributions payable for any period shall include
the Additional Amounts, if any.
Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date
only to the extent that the Trust has funds available in the
Payment Account for the payment of such Distributions.
Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof
as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be 15 days
prior to the relevant Distribution Date.
Section Redemption.
On each Debenture Redemption Date and at the
maturity date for the Debentures (as defined in the
Subordinated Indenture), the Property Trustee will be required
to redeem a Like Amount of Trust Securities at the Redemption
Price plus accumulated and unpaid Distributions to the date of
such payment.
Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the Redemption
Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All
notices of redemption or liquidation shall state:
the Redemption Date;
the Redemption Price and the amount of
accumulated and unpaid Dividends to be paid on the
Redemption Date;
the CUSIP number;
if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities
to be redeemed; and
that on the Redemption Date the Redemption Price
plus accumulated and unpaid Distributions to the date
of such payment will become due and payable upon each
such Trust Security to be redeemed and that interest
thereon will cease to accrue on and after said date.
The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment with the proceeds from the contemporaneous redemption
of Debentures. Redemptions of the Trust Securities shall be
made and the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment shall be deemed
payable on each Redemption Date only to the extent that the
Trust has funds immediately available in the Payment Account
for such payment.
If the Property Trustee gives a notice of
redemption in respect of any Preferred Securities, then, by
12:00 noon, New York time, on the Redemption Date, subject to
Section 4.02(c), the Property Trustee shall irrevocably
deposit with the Paying Agent (or Securities Depository, in
the event the Preferred Securities are book-entry only) funds
sufficient to pay the applicable Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment to the Holders thereof upon surrender of their
Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the redemption
date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear
on the Securities Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited
as required, then on the Redemption Date, all rights of
Securityholders holding Trust Securities so called for
redemption will cease, except the right of such
Securityholders to receive the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment, but without interest thereon, and such Trust
Securities will cease to be outstanding. In the event that
any Redemption Date is not a Business Day, then payment of the
Redemption Price payable on such date plus accumulated and
unpaid Distributions to such date shall be made on the next
succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay). In
the event that payment of the Redemption Price plus
accumulated and unpaid Distributions in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue, at the then applicable
rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption
Price plus accumulated and unpaid Distributions is actually
paid, in which case the actual payment date will be deemed the
date fixed for redemption for purposes of calculating the
Redemption Price plus accumulated and unpaid Distributions to
such date.
Payment of the Redemption Price on the Trust
Securities shall be made to the Holders thereof as they appear
on the Securities Register for the Trust Securities on the
relevant record date, which shall be the fifteenth day prior
to the Redemption Date.
If less than all the Outstanding Trust Securities
are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be
allocated 3% to the Common Securities and 97% to the Preferred
Securities. The particular Preferred Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by
such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for a
redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Securities of
a denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption
of Preferred Securities shall relate, in the case of any
Preferred Securities redeemed or to be redeemed only in part,
to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed.
Section Subordination of Common Securities.
Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price plus accumulated and
unpaid distributions of, the Trust Securities, as applicable,
shall be made pro rata based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date a Debenture Event of
Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable)
on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of
the Redemption Price plus accumulated and unpaid Distributions
the full amount of such Redemption Price plus accumulated and
unpaid Distributions on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions
(including Additional Amounts, if applicable) on, or
Redemption Price plus accumulated and unpaid Distributions of,
Preferred Securities then due and payable.
In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the
Holder of Common Securities will be deemed to have waived any
such Event of Default under this Trust Agreement until the
effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been
so cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and
only the Holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
Section Payment Procedures. Payments in respect of
the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities
are held by a Securities Depository, such Distributions shall be
made to the Securities Depository, which shall credit the
relevant Persons' accounts at such Securities Depository on the
applicable distribution dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually
agreed between the Administrative Trustees and the Holder of the
Common Securities.
Section Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the
Depositor's expense and direction, and file all United States
Federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this
regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) the Internal Revenue Service
Form 1041 (or any successor form) required to be filed in respect
of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each
Securityholder the related Internal Revenue Service Form 1099, or
any successor form or the information required to be provided on
such form. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States Federal
withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section Payments under Indenture. Any amount payable
hereunder to any Holder of Preferred Securities shall be reduced
by the amount of any corresponding payment such Holder has
directly received pursuant to Section 808 of the Subordinated
Indenture. Notwithstanding the provisions hereunder to the
contrary, Securityholders acknowledge that any Holder of
Preferred Securities that receives payment under Section 808 of
the Subordinated Indenture may receive amounts greater than the
amount such Holder may be entitled to receive pursuant to the
other provisions of this Trust Agreement.
ARTICLE
Trust Securities Certificates
Section Initial Ownership. Upon the creation of the
Trust by the contribution by the Depositor pursuant to Section
2.03 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section The Trust Securities Certificates. The Trust
Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. Subject to
Section 2.04 relating to the original issuance of the Preferred
Securities Certificate registered in the name of the nominee of
The Depository Trust Company, the Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee and, if executed
on behalf of the Trust by facsimile signature, countersigned by a
Transfer Agent or its agent. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the
time when such signatures shall have been affixed, authorized to
sign on behalf of the Trust and, if executed on behalf of the
Trust by facsimile signature, countersigned by a Transfer Agent
or its agent, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized
prior to the delivery of such Trust Securities Certificates or
did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Securityholder, and shall be entitled
to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.04 or
5.11.
Section Execution and Delivery of Trust Securities
Certificates. On the Closing Date, the Administrative Trustees
shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.04 and 2.05, to be
executed on behalf of the Trust, and in the case of Preferred
Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred
without negligence arising out of or in connection with any such
countersigning by it.
Section Registration of Transfer and Exchange of
Preferred Securities Certificates. The Registrar shall keep or
cause to be kept, at its principal corporate office, a Securities
Register in which, subject to such reasonable regulations as it
may prescribe, the Registrar shall provide for the registration
of Preferred Securities Certificates and the Common Securities
Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein
provided.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent
to countersign and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and a Transfer Agent
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Administrative
Trustees in accordance with customary practice. The Trust shall
not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange
any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a
Transfer Agent may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection
with any transfer or exchange of Preferred Securities
Certificates.
Section Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If any mutilated Trust Securities
Certificate shall be surrendered to a Transfer Agent, or if a
Transfer Agent shall receive evidence to its satisfaction of
the destruction, loss or theft of any Trust Securities
Certificate and there shall be delivered to the Transfer
Agent and the Administrative Trustees such security or
indemnity as may be required by them to save each of them and
the Depositor harmless, then in the absence of notice that
such Trust Securities Certificate shall have been acquired by
a bona fide purchaser, the Administrative Trustees, or any one
of them, on behalf of the Trust, shall execute by manual or
facsimile signature and, if execution on behalf of the Trust
is by facsimile signature, countersigned by a Transfer Agent;
and the Administrative Trustees, or any one of them, shall
make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of
any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Transfer Agent may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection
therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
Section Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration
of transfer, the Trustees and the Registrar shall be entitled to
treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of
such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither
the Trustees nor the Registrar shall be bound by any notice to
the contrary.
Section Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to
be furnished (x) to the Depositor, within 15 days after receipt
by any Administrative Trustee of a request therefor from the
Depositor in writing and (y) to the Property Trustee, promptly
after receipt by any Administrative Trustee of a request therefor
from the Property Trustee in writing in order to enable the
Property Trustee to discharge its obligations under this Trust
Agreement, a list, in such form as the Depositor or the Property
Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date. If Holders of
Trust Securities Certificates evidencing ownership at such time
and for the previous six months not less than 25% of the
outstanding aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the
applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the
Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current
list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section Maintenance of Office or Agency. The Company
shall or shall cause the Transfer Agent to maintain in the
Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Preferred Securities Certificates may
be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company or the Transfer Agent
in respect of the Trust Securities Certificates may be served.
The Company initially designates The Bank of New York at its
principal corporate trust office for such purposes. The Company
shall or shall cause the Transfer Agent to give prompt written
notice to the Depositor, the Property Trustee and to the
Securityholders of any change in any such office or agency.
Section Appointment of Paying Agent. The Paying
Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such
distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent if the
Administrative Trustee or any one of them determines in its sole
discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect.
The Paying Agent may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. The
Paying Agent shall be permitted to resign upon 30 days' written
notice to the Administrative Trustees and the Depositor. In the
event of the removal or resignation of the Paying Agent, the
Administrative Trustees shall appoint a successor that is
reasonably acceptable to the Property Trustee and the Depositor
to act as Paying Agent (which shall be a bank, trust company or
an Affiliate of the Depositor). The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the
Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it
for payment to the Securityholders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be
paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon resignation or
removal of a Paying Agent such Paying Agent shall also return all
funds in its possession to the Property Trustee. The provisions
of Sections 8.01, 8.03 and 8.06 shall apply to the Paying Agent
appointed hereunder, and the Paying Agent shall be bound by the
requirements with respect to paying agents of securities issued
pursuant to the Trust Indenture Act. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.
Section 0. Ownership of Common Securities by
Depositor. On the Closing Date and on each other date provided
for in Section 2.05, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Securities.
Any attempted transfer of the Common Securities shall be void.
The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE". Common Securities
Certificates representing the Common Securities shall be issued
to the Depositor in the form of a typewritten or definitive
Common Securities Certificate.
Section Definitive Preferred Securities Certificates.
Upon initial issuance of the Preferred Securities the Definitive
Preferred Securities Certificates shall be typewritten, printed,
lithographed or engraved or may be produced in any other manner
as is reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by the Administrative
Trustees, or any one of them. The Administrative Trustees, or
any one of them, shall execute on behalf of the Trust by manual
or facsimile signature, and, if executed by facsimile on behalf
of the Trust, countersigned by the Transfer Agent or its agent
the Definitive Preferred Securities Certificates initially in
accordance with the instructions of the Depositor. Neither the
Transfer Agent nor any of the Administrative Trustees shall be
liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions.
Section Book-Entry System. Some or all of the
Preferred Securities may be registered in the name of the
Securities Depository or a nominee therefor, and held in the
custody of the Securities Depository. In such event, a single
certificate will be issued and delivered to the Securities
Depository for such Preferred Securities, in which case the
Owners of such Preferred Securities will not receive physical
delivery of certificates for Preferred Securities. Except as
provided herein, all transfers of beneficial ownership interests
in such Preferred Securities will be made by book-entry only, and
no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Securities
will receive, hold or deliver any certificate for Preferred
Securities. The Depositor, the Trustees and the Paying Agent
will recognize the Securities Depository or its nominee as the
Holder of Preferred Securities for all purposes, including
notices and voting.
The Administrative Trustees, at the direction and
expense of the Depositor, may from time to time appoint a
Securities Depository or a successor thereto and enter into a
letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Securities. Any Securities Depository shall be a Clearing
Agency.
The Depositor and the Trustees covenant and agree to
meet the requirements of a Securities Depository for the
Preferred Securities with respect to required notices and other
provisions of the letter of representations or agreement executed
with respect to such Preferred Securities.
Whenever the beneficial ownership of any Preferred
Securities is determined through the books of a Securities
Depository, the requirements in this Trust Agreement of holding,
delivering or transferring such Preferred Securities shall be
deemed modified with respect to such Preferred Securities to meet
the requirements of the Securities Depository with respect to
actions of the Trustees, the Depositor and the Paying Agent. Any
provisions hereof permitting or requiring delivery of such
Preferred Securities shall, while such Preferred Securities are
in a book-entry system, be satisfied by the notation on the books
of the Securities Depository in accordance with applicable state
law.
Section Rights of Securityholders. The legal title
to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Securityholders
against payment of the purchase price therefor will be fully paid
and nonassessable interests in the Trust.
ARTICLE
Acts of Securityholders; Meetings; Voting
Section Limitations on Voting Rights.
Except as provided in this Section 6.01, in
Section 10.03 and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in
the terms of the Trust Securities Certificates, be construed
so as to constitute the Securityholders from time to time as
partners or members of an association. If the Property
Trustee fails to enforce its rights under the Debentures or
this Trust Agreement, a Holder of Preferred Securities may
institute a legal proceeding directly against the Depositor to
enforce the Property Trustee's rights under the Debentures or
this Trust Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against the
Property Trustee or any other person. Notwithstanding the
foregoing, a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such
Holder directly of principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
preference amount of the Preferred Securities of such Holder
on or after the due dates specified in the Debentures.
So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method
and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or executing any trust or
power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable
under Section 813 of the Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of
the Subordinated Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining
the prior approval of the Holders of at least 66 2/3% of the
aggregate Liquidation Amount of the Outstanding Preferred
Securities; provided, however, that where a consent under the
Subordinated Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of
each holder of Preferred Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote
of the Preferred Securities, except pursuant to a subsequent
vote of the Preferred Securities. The Property Trustee shall
notify all Holders of the Preferred Securities of any notice
of default received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Property Trustee
shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such matters to the effect that the
Trust will be classified as a "grantor trust" and not as an
association taxable as a corporation for United States Federal
income tax purposes on account of such action.
If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would materially adversely affect the powers,
preferences or special rights of the Preferred Securities,
whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not
be effective except with the approval of the Holders of at
least 66 2/3 in Liquidation Amount of the Outstanding
Preferred Securities. No amendment to this Trust Agreement
may be made if, as a result of such amendment, the Trust would
not be classified as a "grantor trust" but as an association
taxable as a corporation for United States Federal income tax
purposes.
Section Notice of Meetings. Notice of all meetings
of the Holders of Preferred Securities, stating the time, place
and purpose of the meeting, shall be given by the Administrative
Trustees pursuant to Section 10.08 to each Holder of a Preferred
Security, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section Meetings of Holders of Preferred Securities.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter upon the written request of
the Holders of 25% of the then Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) and may, at any
time in their discretion, call a meeting of Holders of Preferred
Securities to vote on any matters as to which the Holders of
Preferred Securities are entitled to vote.
Holders of 50% of the then Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders.
If a quorum is present at a meeting, an affirmative
vote by the Holders of Preferred Securities present, in person or
by proxy, holding more than the lesser of (x) 66 2/3% of the then
Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) held by the Holders of then Outstanding
Preferred Securities present, either in person or by proxy, at
such meeting and (y) 50% of the Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) shall constitute
the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
Section Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
Section Proxies, etc. At any meeting of
Securityholders, any Securityholder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, or, if earlier, until eleven months after
it is sent and the burden of proving invalidity shall rest on the
challenger.
Section Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding more than a
majority of all Outstanding Trust Securities entitled to vote in
respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust
Agreement) shall consent to the action in writing (based upon
their aggregate Liquidation Amount).
Section Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any Distribution on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of Distribution or
other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
Section Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to the Administrative
Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in
the manner provided in this Section.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved
by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
Section Inspection of Records. Subject to Section
5.07 concerning access to the list of Securityholders, upon
reasonable notice to the Administrative Trustees and the Property
Trustee, the other records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section Property [and Delaware] Trustee. The
Property [and Delaware] Trustee hereby represents and warrants
for the benefit of the Depositor and the Securityholders that:
the Property [and Delaware] Trustee is a banking
corporation or trust company duly organized, validly existing
and in good standing under the laws of the State of [New York]
[Delaware];
the Property [and Delaware] Trustee has full
corporate power, authority and legal right to execute, deliver
and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized,
executed and delivered by the Property [and Delaware] Trustee
and constitutes the valid and legally binding agreement of the
Property and Delaware] Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
the execution, delivery and performance by the
Property [and Delaware] Trustee of this Trust Agreement will
not violate, conflict with or constitute a breach of the
Property [and Delaware] Trustee's charter or by-laws; and
neither the authorization, execution or delivery
by the Property [and Delaware] Trustee of this Trust Agreement
nor the consummation of any of the transactions by the
Property [and Delaware] Trustee contemplated herein require
the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with
respect to any governmental authority or agency under any
existing Federal or [New York] [Delaware] law governing the
banking or trust powers of the Property Trustee.
[Section Delaware Trustee. The Delaware Trustee
represents and warrants for the benefit of the Depositor and the
Securityholders that:
the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware
Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate the
Delaware Trustee's charter or by-laws; and
neither the authorization, execution or delivery
by the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Delaware
Trustee contemplated herein require the consent or approval
of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental
authority or agency under any existing Federal or Delaware law
governing the banking or trust powers of the Delaware
Trustee.]
ARTICLE
The Trustees
Section Certain Duties and Responsibilities.
The duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case
of the Property Trustee, the Trust Indenture Act, and no
implied covenants or obligations shall be read into this Trust
Agreement against any of the Trustees. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require
any of the Trustees to expend or risk its own funds or
otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to
it. Notwithstanding anything contained in this Trust
Agreement to the contrary, the duties and responsibilities of
the Property Trustee under this Trust Agreement shall be
subject to the protections, exculpations and limitations on
liability afforded to the Property Trustee under the
provisions of the Trust Indenture Act and, to the extent
applicable, Rule 3A-7 under the Investment Company Act of
1940, as amended, or any successor rule thereunder. Whether
or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be
subject to the provisions of this Section.
All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property
Trustee or Paying Agent to make payments in accordance with
the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income
and proceeds from the Trust Property to the extent available
for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any
other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in
the case of the Property Trustee, in the Trust Indenture Act.
All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property
in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement, the
Trust Indenture Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act of 1940, as
amended;
the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor. Money held by the
Property Trustee need not be segregated from other
funds held by it except in relation to the Payment
Account established by the Property Trustee pursuant to
this Trust Agreement and except to the extent otherwise
required by law; and
the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative
Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
Section Notice of Defaults. Within five Business
Days after the occurrence of any Event of Default, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of any default known to the Property
Trustee to the Securityholders and the Depositor, unless such
default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of
Default.
Section Certain Rights of Property Trustee. Subject
to the provisions of Section 8.01 and except as provided by law:
the Property Trustee may rely and shall be
protected in acting or refraining from acting in good
faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or
transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the
proper party or parties;
if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of
action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall
be promptly delivered by the Depositor or the
Administrative Trustees;
the Property Trustee may consult with counsel of
its selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by
this Trust Agreement at the request or direction of any
of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security or
indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying
with such request or direction;
the Property Trustee shall not be bound to make
any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, unless
requested in writing to do so by one or more
Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Depositor personally or by agent or attorney;
the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder, provided that the Property Trustee
shall be responsible for its own negligence or
recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
the Property Trustee shall not be charged with
knowledge of any default or Event of Default with
respect to the Trust Securities unless either (1) a
Responsible Officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or
(2) written notice of such default or Event of Default
shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder
of the Trust Securities;
no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed
on it in any jurisdiction in which it shall be illegal,
or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such
right, power, duty or obligation; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty;
no provision of this Trust Agreement shall
require the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if the
Property Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument
(including any financing or continuation statement or
any tax or securities) (or any rerecording, refiling or
registration thereof);
the Property Trustee shall have the right at any
time to seek instructions concerning the administration
of this Trust Agreement from any court of competent
jurisdiction; and
whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder
the Property Trustee (i) may request instructions from
the Holders of the Trust Securities, which instructions
may only be given by the Holders of the same proportion
of Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the
terms of this Trust Agreement in respect of such
remedies, rights or actions, (ii) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and
(iii) shall be protected in acting in accordance with
such instructions.
Section Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part
thereof or as to the title of the Trust thereto or as to the
security afforded thereby or hereby, or as to the validity or
genuineness of any securities at any time pledged and deposited
with any Trustees hereunder, nor as to the validity or
sufficiency of this Trust Agreement or the Trust Securities. The
Trustees shall not be accountable for the use or application by
the Trust of the proceeds of the Trust Securities in accordance
with Section 2.05.
Section May Hold Securities. Except as provided in
the definition of the term "Outstanding" in Article I, any
Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such
other agent.
Section Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this
Trust Agreement, including the reasonable costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of
the Depositor under this Section, each of the Trustees shall have
a lien prior to the Trust Securities upon all property and funds
held or collected by such Trustee as such, except funds held in
trust for the payment of Distributions on the Trust Securities.
The provisions of this Section shall survive the
termination of this Trust Agreement.
Section Certain Trustees Required; Eligibility.
There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall
be a Person that has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then
for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee
with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust
Securities. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized
to bind such entity.
There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of
age and a resident of the State of Delaware or (ii) a legal
entity with its principal place of business in the State of
Delaware that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons
authorized to bind such entity.
Section Conflicting Interests.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Subordinated Indenture and the Guarantee
Agreement shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
Section Co-Trustees and Separate Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, at any time or times, for the purpose of
meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property may at
the time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments
shall, on request, be executed, acknowledged, and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties, and
obligations shall be exercised and performed by such co-
trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join
with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this
Section.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 0. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (as the case
may be, the "Relevant Trustee") and no appointment of a successor
Relevant Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section
8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at any
time by Act of the Common Securityholder. If a Debenture Event
of Default shall have occurred and be continuing, the Relevant
Trustee may be removed at such time by Act of the Securityholders
of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Relevant Trustee shall
resign, be removed or become incapable of continuing to act as
the Relevant Trustee at a time when a Debenture Event of Default
shall have occurred and be continuing, the Preferred
Securityholders, by Act of the Preferred Securityholders of a
majority in Liquidation Amount of the Outstanding Preferred
Securities delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed by the Common Securityholders or the
Preferred Securityholders and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a
Securityholder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor
Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirements for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
Section Acceptance of Appointment by Successor. In
case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Trustee
shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust and (2) shall add to or change any of
the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees of the same trust and that each
such Relevant Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or
removal of the retiring Relevant Trustee shall become effective
to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Relevant Trustee; but, on request of the Trust or
any successor Relevant Trustee such retiring Relevant Trustee
shall duly assign, transfer and deliver to such successor Trustee
all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee,
the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
Section Merger, Conversion, Consolidation or
Succession to Business. Any Person into which the Property
Trustee or the Delaware Trustee or any Administrative Trustee or
any Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
such Relevant Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties
hereto.
Section Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or
become a creditor of the Depositor or the Trust (or any other
obligor upon the Debentures or the Trust Securities), the
Property Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor).
Section Reports by Property Trustee. the
Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under
this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto. Such of those reports as are required to be
transmitted by the Property Trustee pursuant to Section 313(a)
of the Trust Indenture Act shall be so transmitted within 60
days after [________ __] of each year, commencing [_______
__], 199[_].
A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
Section Reports to the Property Trustee. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
Section Evidence of Compliance With Conditions
Precedent. Each of the Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) that
relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act may be given in the form of an Officers'
Certificate.
Section Number of Trustees.
The number of Trustees shall be five, provided
that Depositor, by written instrument may increase or decrease
the number of Administrative Trustees.
If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced
pursuant to Section 8.17(a), or if the number of Trustees is
increased pursuant to Section 8.17(a), a vacancy shall occur.
The vacancy shall be filled with a Trustee appointed in
accordance with Section 8.10.
The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties
of a Trustee shall not operate to annul the Trust. Whenever a
vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section Delegation of Power.
Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment
thereto filed with the Commission, or making any other
governmental filing; and
the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing
of such things and the execution of such instruments either in
the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as
set forth herein.
Section Fiduciary Duty.
To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this Trust
Agreement shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law
or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of
such Indemnified Person;
Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act:
whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person;
or
whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable
generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, whenever
in this Trust Agreement an Indemnified Person is permitted or
required to make a decision
in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it reasonably
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other
Person; or
in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other
or different standard imposed by this Trust Agreement
or by applicable law.
ARTICLE
Termination and Liquidation
Section Termination Upon Expiration Date. The Trust
shall automatically terminate on December 31, [____] (the
"Expiration Date") and the Trust Property shall be distributed in
accordance with Section 9.04.
Section Early Termination. Upon the first to occur
of any of the following events (such first occurrence, an "Early
Termination Event"):
the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the
Depositor;
the redemption of all of the Preferred
Securities;
termination of the Trust in accordance with
Section 9.04(d);
an order for judicial termination of the Trust
having been entered by a court of competent
jurisdiction;
the Trust shall terminate and the Trustees shall take such action
as is required by Section 9.04.
Section Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (i)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed
hereunder upon the final payment of the Trust Securities; (ii)
the payment of any expenses owed by the Trust; and (iii) the
discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section Liquidation. If an Early Termination Event
specified in clause (i) or (iv) of Section 9.02 occurs, after
satisfaction of creditors of the Trust, if any, as provided by
applicable law, the Trust shall be liquidated by the Property
Trustee as expeditiously as the Property Trustee determines to
be appropriate by distributing to each Securityholder a Like
Amount of Debentures, subject to Section 9.04(e). Notice of
liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30
nor more than 60 days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder's address appearing
in the Securities Register. All notices of liquidation shall:
state the Liquidation Date;
state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of Debentures; and
provide such information with respect to the
mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section
9.04(e) applies receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee
shall deem appropriate.
In order to effect any liquidation of the Trust
hereunder, and any resulting distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting
as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall
deem appropriate to effect the distribution of Debentures in
exchange for the Outstanding Trust Securities Certificates.
After any Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Debentures will be issued to
Holders of Trust Securities Certificates, upon surrender of
such Trust Securities Certificates to the Administrative
Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will
be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the
last Distribution Date on which a Distribution was made on
such Trust Certificates until such Trust Securities
Certificates are so surrendered (and until such Trust
Securities Certificates are so surrendered, no payments or
interest or principal will be made to Holders of Trust
Securities Certificates with respect to such Debentures) and
(iv) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to
receive Debentures upon surrender of Trust Securities
Certificates.
If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to (i) redeem the
Debentures in whole but not in part and therefore cause a
mandatory redemption of all the Preferred Securities at the
Redemption Price within 90 days following the occurrence of
such Special Event, or (ii) cause the termination of the
Trust. Further, if at any time, the Trust is not or will not
be taxed as a grantor trust under the United States Federal
income tax law, but a Tax Event has not occurred, the
Depositor may elect termination of the Trust. In the event
the Depositor elects under the provisions of this section for
the Trust to be terminated, the Administrative Trustees shall,
terminate the Trust and, after satisfaction of creditors of
the Trust, if any, as provided by applicable law, cause
Debentures held by the Property Trustee having a Like Amount
of the Preferred Securities and the Common Securities to be
distributed to the Holders of the Preferred Securities and the
Common Securities on a pro rata basis in liquidation of such
Holders' interests in the Trust (in the case of such an
election following the occurrence of a Special Event) within
90 days following the occurrence of such Special Event. The
Common Securities will be redeemed on a pro rata basis with
the Preferred Securities, except that if a Debenture Event of
Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities
with respect to payment of the Redemption Price and
accumulated and unpaid Distributions to the date of such
payment.
In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order
for termination entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner
provided herein is determined by the Property Trustee not to
be practical, the Trust Property shall be liquidated, and the
Trust shall be dissolved, wound-up or terminated, by the
Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders
will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any,
as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any
such dissolution, winding up or termination, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities will be
entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that,
if a Debenture Event of Default has occurred and is continuing
or if a Debenture Event of Default has not occurred solely by
reason of a requirement that time lapse or notice be given,
the Preferred Securities shall have a priority over the Common
Securities.
ARTICLE
Miscellaneous Provisions
Section Guarantee by the Depositor and Assumption of
Obligations. Subject to the terms and conditions hereof, the
Depositor irrevocably and unconditionally guarantees to each
Person to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries"), and agrees to assume liability for,
the full payment, when and as due, of any and all Obligations (as
hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to Holders
or other similar interests in the Trust the amounts due such
Holders pursuant to the terms of the Preferred Securities or such
other similar interests, as the case may be. This guarantee and
assumption is intended to be for the benefit, of, and to be
enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial
or otherwise, in a Trust Security shall not operate to terminate
this Trust Agreement, nor entitle the legal representatives or
heirs of such person or any Securityholder for such person, to
claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section Amendment.
This Trust Agreement may be amended from time to time
by the Trust (on approval of a majority of the Administrative
Trustees and the Depositor, without the consent of any
Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement
or (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure
that the Trust will not be classified for United States
Federal income tax purposes other than as a "grantor trust"
and not as an association taxable as a corporation at any time
that any Trust Securities are outstanding or to ensure the
Trust's exemption from the status of an "investment company"
under the Investment Company Act of 1940, as amended;
provided, however, that, except in the case of clause (ii),
such action shall not adversely affect in any material respect
the interests of any Securityholder and, in the case of clause
(i), any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
Except as provided in Sections 6.01(c) and 10.03(c),
any provision of this Trust Agreement may be amended by the
Administrative Trustees and the Depositor with (i) the consent
of Holders of Trust Securities representing not less than a
majority (based upon Liquidation Amounts) of the Outstanding
Trust Securities and (ii) receipt by the Trustees of an
Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a
grantor trust for Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the
Investment Company Act of 1940, as amended.
In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder (such consent being obtained in
accordance with Section 6.03 or 6.06), this Trust Agreement
may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii)
restrict the right of a Securityholder to institute suit for
the enforcement of any such payment on or after such date.
Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust
to fail or cease to qualify for the exemption from status of
an "investment company" under the Investment Company Act of
1940, as amended, afforded by Rule 3a-5 thereunder.
Notwithstanding anything in this Trust Agreement to
the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or
any Trustee.
In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
The Property Trustee is entitled to receive an
Opinion of Counsel as conclusive evidence that any amendment
to this Trust Agreement executed pursuant to this Section
10.03 is authorized or permitted by, and conforms to, the
terms of this Section 10.03, has been duly authorized by and
lawfully executed and delivered on behalf of the other
requisite parties, and that it is proper for the Property
Trustee under the provisions of this Section 10.03 to join in
the execution thereof.
Section Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section Governing Law. This Trust Agreement and the
rights and obligations of each of the Securityholders, the Trust
and the Trustees with respect to this Trust Agreement and the
Trust Securities shall be construed in accordance with and
governed by the laws of the State of Delaware (without regard to
conflict of laws principles).
Section Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to
the Trust or the Relevant Trustees or any of them, including any
successor by operation of law.
Section Headings. The Article and Section headings
are for convenience only and shall not affect the construction of
this Trust Agreement.
Section Notice and Demand. Any notice, demand or
other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) in the case of a Preferred Securityholder,
to such Preferred Securityholder as such Securityholder's name
and address may appear on the Securities Register and (ii) in the
case of the Common Securityholder or the Depositor, to Entergy
Arkansas, Inc., 639 Loyola Avenue, New Orleans, Louisiana 71103,
Attention: [Treasurer], facsimile no. (504) 576-[____], with a
copy to the Secretary, facsimile no. (504) 576-[____]. Such
notice, demand or other communication to or upon a Securityholder
shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, 101 Barclay Street, 21 West, New York, New
York 10286 marked "Attention: Corporate Trust Administration"
with a copy to: The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, Delaware 19711 and (ii) with respect
to the Trust or the Administrative Trustees, at the address above
for notice to the Depositor, marked "Attention: Administrative
Trustees for Entergy 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.
Section Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in
writing not to take such action and should be stopped and
precluded therefrom and such other defenses, if any, as counsel
for the Property Trustee or the Trust may assert. The provisions
of this Section 10.09 shall survive the termination of this Trust
Agreement.
Section 0. Conflict with Trust Indenture Act.
This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required or deemed to be part
of this Trust Agreement and shall, to the extent applicable,
be governed by such provisions.
The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Trust Agreement
to be duly executed, all as of the day and year first above
written.
ENTERGY ARKANSAS, INC.
By:
Title: [________]
THE BANK OF NEW YORK,
as Property Trustee
By:
Title: [____________]
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
Title: [________________]
[_________________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENTERGY 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
Common Securities
(Liquidation Amount $25 per Common Security)
Entergy Arkansas Capital II, 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 Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities"). In
accordance with Section 5.10 of the Trust Agreement (as defined
below) the Common Securities are not transferable and any
attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______ ___, 1995, as the same may be amended
from time to time (the "Trust Agreement"). The Trust will
furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the
Trust has executed this certificate for and on behalf of the
Trust this ____ day of _________, 199 .
ENTERGY 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 ________ ___, 1995, between
Entergy Arkansas, Inc., an Arkansas corporation ("Entergy
Arkansas"), and Entergy Arkansas Capital II, a Delaware business
trust (the "Trust").
WHEREAS, the Trust intends to issue its Common
Securities (the "Common Securities") to and receive Debentures
from Entergy Arkansas and to issue its ___% Quarterly Income
Preferred Securities (the "Preferred Securities") with such
powers, preferences and special rights and restrictions as are
set forth in the Amended and Restated Trust Agreement of the
Trust dated as of ________ __, 1996 as the same may be amended
from time to time (the "Trust Agreement");
WHEREAS, Entergy Arkansas is the issuer of the
Debentures;
NOW, THEREFORE, in consideration of the acceptance by
each holder of the Preferred Securities, which acceptance Entergy
Arkansas hereby agrees shall benefit Entergy Arkansas and which
acceptance 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. Assumption by Entergy Arkansas. Subject
to the terms and conditions hereof, Entergy Arkansas hereby
irrevocably and unconditionally assumes the full payment, when
and as due, of any and all Obligations (as hereinafter defined)
to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (i) obligations of the Trust
to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be and (ii) obligations arising out of
the negligence, willful misconduct or bad faith of the Trustees
of the Trust. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by Entergy 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 II
c/o [_________________], Administrative Trustee
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Attention: [__________]
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above written.
ENTERGY ARKANSAS, INC.
By:
Name:
Title:
ENTERGY ARKANSAS CAPITAL I
By:
[_________________]
not in his individual capacity,
but solely as Administrative Trustee
<PAGE>
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTEGY ARKANSAS CAPITAL I
% Quarterly Income Preferred Securities
(Liquidation Amount $25 per Preferred Security)
Entergy Arkansas Capital II, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that ____________ (the "Holder") is the
registered owner of _____ (_____) preferred securities of the
Trust representing an undivided beneficial interest in the assets
of the Trust and designated the Entergy Arkansas Capital II %
Quarterly Income Preferred Securities (liquidation amount $25 per
Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer
as provided in Section 5.04 or 5.11 of the Trust Agreement (as
defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and
the Preferred Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of
, 1996, as the same may be amended from time to time (the "Trust
Agreement"). The holder of this certificate is entitled to the
benefits of the Guarantee Agreement of Entergy Arkansas, Inc., an
Arkansas corporation, and The Bank of New York, as guarantee
trustee, dated as of , 1996 (the "Guarantee") to
the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:
ENTERGY ARKANSAS CAPITAL I
By:
[ ]
not in his (her)
individual capacity, but
solely as Administrative
Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred
Securities Certificate and irrevocably appoints
attorney to transfer such Preferred Securities Certificate on the
books of the Trust. The attorney may substitute another to act for
him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Exhibit 4.16
GUARANTEE AGREEMENT
Between
Entergy Arkansas, Inc.
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
_____, 1996
<PAGE>
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) 4.01(a)
310(b) 4.01(c),2.08
310(c) Inapplicable
311(a) 2.02(b)
311(b) 2.02(b)
311(c) Inapplicable
312(a) 2.02(a)
312(b) 2.02(b)
313 2.03
314(a) 2.04
314(b) Inapplicable
314(c) 2.05
314(d) Inapplicable
314(e) 1.01, 2.05, 3.02
314(f) 2.01, 3.02
315(a) 3.01(d)
315(b) 2.07
315(c) 3.01
315(d) 3.01(d)
316(a) 5.04(a), 2.06
316(b) 5.03
316(c) 2.02
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.01(b)
318(b) 2.01
318(c) 2.01(a)
_____________
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of ______, 1996, is executed and delivered by Entergy
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 II, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of ______, 1996
between the Trustees of the Issuer named therein, Entergy
Arkansas, Inc., as Depositor, and the several Holders (as defined
therein) the Issuer is issuing as of the date hereof $__________
aggregate liquidation amount of its ____% Cumulative Quarterly
Income Preferred Securities (the "Preferred Securities")
representing preferred undivided beneficial ownership interests
in the Issuer and having the terms set forth in the Trust
Agreement;
WHEREAS, the Preferred Securities are to be issued for
sale by the Issuer and the proceeds are to be invested in
$___________ principal amount of Debentures (as defined in the
Trust Agreement); and
WHEREAS, in order to enhance the value of the Preferred
Securities, the Guarantor desires to irrevocably and
unconditionally agree, to the extent set forth herein, to pay to
the Holders the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase of
Debentures, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to
time.
I DEFINITIONS
1 Definitions. As used in this Guarantee
Agreement, the terms set forth below shall, unless the context
otherwise requires, have the following meanings. Capitalized or
otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust
Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the
foregoing.
"Common Securities" means the securities representing
common undivided beneficial ownership interests in the assets of
the Issuer.
"Event of Default" means a default by the Guarantor on
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments
or distributions, without duplication, with respect to the
Preferred Securities, to the extent not paid or made by or on
behalf of the Issuer: (i) any accrued and unpaid Distributions
that are required to be paid on such Preferred Securities but
only if and to the extent that the Property Trustee has available
in the Payment Account funds sufficient to make such payment,
(ii) the redemption price (the "Redemption Price"), and all
accrued and unpaid Distributions to the date of redemption, with
respect to the Preferred Securities called for redemption by the
Issuer but only if and to the extent that the Property Trustee
has available in the Payment Account funds sufficient to make
such payment, (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection
with a redemption of all of the Preferred Securities), the lesser
of (a) the aggregate of the Liquidation Amount and all accrued
and unpaid Distributions on the Preferred Securities to the date
of payment, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee
Trustee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Preferred Securities then
outstanding; provided, however, that in determining whether the
holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indenture" means the Indenture dated as of _______,
1996, among the Guarantor (the "Debenture Issuer") and The Bank
of New York, as trustee, pursuant to which the Debentures are
issued.
"Majority in liquidation amount of the Preferred
Securities" means a vote by Holders, voting separately as a
class, of more than 50% of the aggregate liquidation amount of
all Preferred Securities.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall
include:
a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any vice-president, any assistant vice-
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Corporate Trust Department of
the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
II TRUST INDENTURE ACT
1 Trust Indenture Act; Application.
a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required or deemed to be part of
this Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
2 Lists of Holders of Preferred Securities.
a) The Guarantor shall furnish or cause to be furnished to
the Guarantee Trustee (a) semiannually, not later than December
31 and June 30 in each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not
more than 15 days prior to the delivery thereof, and (b) at such
other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days
prior to the time such list is furnished; provided that, the
Guarantor shall not be obligated to provide such List of Holders
at any time the List of Holders does not differ from the most
recent List of Holders given to the Guarantee Trustee by the
Guarantor. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
b) The Guarantee Trustee shall comply with its obligations
under Section 311(a) of the Trust Indenture Act, subject to the
provisions of Section 311(b) and Section 312(b) of the Trust
Indenture Act.
3 Reports by the Guarantee Trustee. Within 60
days after December 31 of each year, commencing December 31,
1996, the Guarantee Trustee shall provide to the Holders such
reports, if any, as are required by Section 313(a) of the Trust
Indenture Act in the form and in the manner provided by Section
313(a) of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Sections 313(b), (c) and (d)
of the Trust Indenture Act.
4 Periodic Reports to Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
5 Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Guarantee Trustee
such evidence of compliance with any conditions precedent
provided for in this Guarantee Agreement as and to the extent
required by Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may be
given in the form of an Officers' Certificate.
6 Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by
vote, on behalf of all of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent thereon.
7 Event of Default; Notice.
a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notices of all Events of Default
known to the Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided that, the
Guarantee Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust committee of directors or Responsible
Officers of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a Responsible Officer
charged with the administration of the Trust Agreement shall have
obtained written notice, of such Event of Default.
8 Conflicting Interests. The Trust Agreement
and the Indenture shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture
Act.
III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
1 Powers and Duties of the Guarantee Trustee.
a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee
shall not transfer this Guarantee Agreement or any rights
hereunder to any Person except a Holder exercising his or her
rights pursuant to Section 5.04 or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee. The right,
title and interest of the Guarantee Trustee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
b) The Guarantee Trustee, prior to the occurrence of any
Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Guarantee Agreement,
and no implied covenants or obligations shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.06), the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee
Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such Events of
Default that may have occurred:
A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express
provisions of this Guarantee Agreement, and the Guarantee
Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth
in this Guarantee Agreement; and
B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Guarantee Agreement; but in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished
to the Guarantee Trustee, the Guarantee Trustee shall be
under a duty to examine the same to determine whether or
not they conform to the requirements of this Guarantee
Agreement;
ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee or such Responsible Officer was negligent in
ascertaining the pertinent facts upon which such judgment was
made;
iv) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of a
Majority in liquidation amount of the Preferred Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
vi) no provision of this Guarantee Agreement
shall require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
2 Certain Rights of Guarantee Trustee.
a) Subject to the provisions of Section 3.01:
i) the Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
iii) whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall
be promptly delivered by the Guarantor;
iv) the Guarantee Trustee may consult with counsel of its
choice, and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with such
advice or opinion; such counsel may be counsel to the Guarantor
or any of its Affiliates and may include any of its employees;
the Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction;
v) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee
such adequate security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
provided that, nothing contained in this Section 3.02(a)(v) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement;
vi) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
vii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, and the Guarantee Trustee
shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it
hereunder;
viii) whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Guarantee Trustee
(1) may request instructions from the Holders, (2) may refrain
from enforcing such remedy or right or taking such other action
until such instructions are received, and (3) shall be protected
in acting in accordance with such instructions; and
ix) the Guarantee Trustee shall not be liable for any
action taken, suffered or omitted to be taken by it in good faith
and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Guarantee.
b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed
to be a duty.
IV GUARANTEE TRUSTEE
1 Guarantee Trustee; Eligibility.
a) There shall at all times be a Guarantee Trustee which
shall:
i) not be an Affiliate of the Guarantor; and
ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to act
as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for
the purposes of this Section 4.01(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 4.03(c).
c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
2 Compensation and Reimbursement.
The Guarantor agrees:
a) to pay the Guarantee Trustee from time to time such
reasonable compensation as the Guarantor and the Guarantee
Trustee shall from time to time agree in writing for all services
rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with the provisions of
this Guarantee (including the reasonable compensation and
expenses of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless from
and against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based upon the income
of the Guarantee Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance of the administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any its powers or duties hereunder.
As security for the performance of the obligations of
the Guarantor under this Section, the Guarantee Trustee shall
have a lien prior to the Preferred Securities upon all the
property and funds held or collected by the Guarantee Trustee as
such, except funds held in trust for the payment of principal of,
and premium (if any) or interest on, particular obligations of
the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
3 Appointment, Removal and Resignation of
Guarantee Trustee.
a) Subject to Section 4.03(b), unless an Event of Default
shall have occurred and be continuing, the Guarantee Trustee may
be appointed or removed without cause at any time by the
Guarantor.
b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
c) The Guarantee Trustee appointed to office shall hold
office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.03 within 60 days after delivery to the Guarantor of an
instrument of resignation, the resigning Guarantee Trustee may
petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
e) The Guarantor shall give notice of each resignation and
each removal of the Guarantee Trustee and each appointment of a
successor Guarantee Trustee to all Holders in the manner provided
in Section 8.03 hereof. Each notice shall include the name of
the successor Guarantee Trustee and the address of its Corporate
Trust Office.
V GUARANTEE
1 Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
2 Waiver of Notice and Demand. The Guarantor
hereby waives notice of acceptance of this Guarantee Agreement
and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
3 Obligations Not Affected. The obligation of
the Guarantor to make the Guarantee Payments under this Guarantee
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of, or
in connection with, the Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from
the extension of any interest payment period on the Debentures
permitted by the Indenture);
c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Preferred Securities, or any action on the part
of the Issuer granting indulgence or extension of any kind;
d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.03 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
4 Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited
with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders
of a Majority in liquidation amount of the Preferred Securities
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee
in respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement without first instituting a legal proceeding
against the Issuer or any other person or entity.
5 Guarantee of Payment. This Guarantee
Agreement creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication).
6 Subrogation. The Guarantor shall be
subrogated to all (if any) rights of the Holders against the
Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise
any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders
and to pay over such amount to the Holders.
7 Independent Obligations. The Guarantor
acknowledges that its obligations hereunder are independent of
the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to
the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through
(g), inclusive, of Section 5.03.
VI SUBORDINATION
1 Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all other
liabilities of the Guarantor, including the Debentures, except
those made pari passu or subordinate by their terms, (ii) pari
passu with the most senior preferred or preference stock now or
hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any
preferred or preference stock of any Affiliate of the Guarantor,
and (iii) senior to all common stock of the Guarantor. Nothing
in this Section 6.01 shall apply to claims of, or payments to,
the Guarantee Trustee under or pursuant to Section 4.02 hereof.
VII TERMINATION
1 Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full
payment of the Redemption Price of all Preferred Securities, and
all accrued and unpaid Distributions to the date of redemption,
(ii) the distribution of Debentures to Holders in exchange for
all of the Preferred Securities or (iii) full payment of the
amounts payable in accordance with the Trust Agreement upon
liquidation of the Issuer. Notwithstanding the foregoing, this
Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must
restore payment of any sums paid with respect to the Preferred
Securities or under this Guarantee Agreement.
VIII MISCELLANEOUS
1 Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of
the Preferred Securities then outstanding. Except in connection
with a consolidation, merger or sale involving the Guarantor that
is permitted under Article Eleven of the Indenture, the Guarantor
shall not assign its obligations hereunder.
2 Amendments. This Guarantee Agreement may be
amended only by an instrument in writing entered into by the
Guarantor and the Guarantee Trustee. Except with respect to any
changes which do not materially adversely affect the rights of
Holders (in which case no consent of Holders will be required),
this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than 66 2/3% in aggregate
liquidation amount of all the outstanding Preferred Securities.
The provisions of Article VI of the Trust Agreement concerning
meetings of Holders shall apply to the giving of such approval.
Nothing herein contained shall be deemed to require that the
Guarantee Trustee enter into any amendment of this Guarantee
Agreement.
3 Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities:
Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No: (501) 377-____
Attention: _____________
b) if given to the Issuer, in care of the Administrative
Trustees, at the Issuer's (and the Administrative Trustee's)
address set forth below or such other address as the
Administrative Trustees on behalf of the Issuer may give notice
of to the Holders:
Entergy Arkansas, Capital II
c/o Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No: (501) 377-____
Attention: Administrative Trustees
c) if given to the Guarantee Trustee, to the address set
forth below or such other address as the Guarantee Trustee may
give notice of to the Holders of the Preferred Securities:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Administration
d) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been
given when received in person, telecopied with receipt confirmed,
or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
4 Benefit. This Guarantee Agreement is solely
for the benefit of the Holders and, subject to Section 3.01(a),
is not separately transferable from the Preferred Securities.
5 Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings
assigned to them in Section 1.01;
b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise
defined in this Guarantee Agreement or unless the context
otherwise requires;
f) a reference to the singular includes the plural and vice
versa; and
g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
6 Governing Law. This Guarantee Agreement
shall be governed by and construed and interpreted in accordance
with the laws of the State of New York.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
Entergy Arkansas, Inc.
By:
Name:
Title:
The Bank of New York,
as Guarantee Trustee
By:
Name:
Title:
Exhibit 4.17
AMENDED AND RESTATED
TRUST AGREEMENT
between
ENTERGY ARKANSAS, INC., as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
[___________________],
[______________],
and
[_______________], as Trustees
Dated as of [_________] 1, 1996
ENTERGY ARKANSAS CAPITAL III
<PAGE>
Entergy Arkansas Capital III
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) 8.07
(a)(2) 8.07
(a)(3) 8.09
(a)(4) Not Applicable
(b) 8.08
Section 311(a) 8.13
(b) 8.13
Section 312(a) 5.07
(b) 5.07
(c) 5.07
Section 313(a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 8.14(a)
(d) 8.14(a), 8.14(b)
Section 314(a) Not Applicable
(b) Not Applicable
(c)(1) Not Applicable
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) Not Applicable
Section 315(a) 8.01
(b) 8.02, 8.14(b)
(c) 8.01(a)
(d) 8.01, 8.03
(e) Not Applicable
Section 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) Not Applicable
Section 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.09
Section 318(a) 10.10
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[_______] 1, 1996, between (i) Entergy 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" and, in its
separate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) The Bank of New York (Delaware), a banking
corporation duly organized under the laws of Delaware, as trustee
(the "Delaware Trustee") and (iv) [__________________],
[______________] and [______________], each an individual, as
trustee, and each of whose address is c/o Entergy Arkansas, Inc.,
425 West Capitol Avenue, Little Rock, Arkansas 72201 (each, an
"Administrative Trustee" and collectively the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and [__________________], as the Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act by the entering
into of that certain Trust Agreement, dated as of April __, 1996
(the "Original Trust Agreement"), and by the execution by the
Property Trustee, the Delaware Trustee and [_________________],
as Administrative Trustee and filing with the Secretary of State
of the State of Delaware of the Certificate of Trust, dated April
__, 1996, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware
Trustee and [_________________], as Administrative Trustee,
desire to amend and restate the Original Trust Agreement in its
entirety as set forth herein to provide for, among other things,
(i) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Debentures, (ii) the issuance of
the Common Securities by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities by the Trust and (iv) the
appointment of additional Administrative Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other party and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE
Defined Terms
Section Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
all other terms used herein that are defined in
the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this Trust
Agreement; and
the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and/or a given period,
the amount of Additional Interest (as defined in the Subordinated
Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust created hereunder and not in their
individual capacities, or such trustee's successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee sequestrator or
other similar official of such Person or of any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or of the
consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such
Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof and to be in
full force and effect on the date of such certification, and
delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of the Trust or the Trust's Affiliates; and (b) any Holder of
Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Issuer" means Entergy Arkansas, Inc., an
Arkansas corporation, in its capacity as issuer of the
Debentures.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, as
trustee under the Subordinated Indenture.
"Debentures" means the $[________] aggregate principal
amount of the Depositor's [___]% Junior Subordinated Debentures,
Series A, Due [____], issued pursuant to the Subordinated
Indenture.
"Definitive Preferred Securities Certificates" means
Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of any
Redemption Price, plus accumulated and unpaid
distributions of any Trust Security when it becomes due
and payable; or
(iv) default in the performance, or breach, in any
material respect of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is
specifically dealt with in clause (ii) or (iii), above)
and continuation of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Trust by the Holders of at least
10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect
to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c).
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partner, employee, representative or agent of any Trustee, or any
employee or agent of the Trust or its Affiliates.
"Investment Company Event" means the occurrence of a
change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority to the effect that
the Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act of
1940, as amended, which change in law becomes effective on or
after the date of original issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to
be contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities plus accumulated and
unpaid Distributions to the date of such payment and (ii)
Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the
Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu
of which other Preferred Securities have been delivered
pursuant to this Trust Agreement, including pursuant to
Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Preferred Securities which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are
owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative
Trustee the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner
of a Preferred Securities Certificate as reflected in the records
of the Securities Depository or, if a Securities Depository
Participant is not the beneficial owner, then as reflected in the
records of a Person maintaining an account with such Securities
Depository (directly or indirectly), in accordance with the rules
of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee at The Bank of New York, or such other banking
institution as the Depositor shall select in its trust department
for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to
the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a quarterly income preferred
security representing an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having
rights provided therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as
provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any date
fixed for redemption of any Trust Security, the Liquidation
Amount of such Trust Security.
"Redemption Tax Opinion" has the meaning specified in
Section 9.04(d).
"Registrar" shall mean the registrar for the Preferred
Securities appointed by the Trust and shall be initially The Bank
of New York.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matter.
"Securities Depository" shall be The Depository Trust
Company.
"Securities Depository Participant" means an
institution which deposits securities with a Securities
Depository for holding thereby.
"Securities Register" shall mean the Securities
Register described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person shall be deemed to be a
beneficial owner within the meaning of the Delaware Business
Trust Act.
"Special Event" means either a Tax Event or an
Investment Company Event.
"Subordinated Indenture" means the Indenture, dated as
of [______] 1, 1996, between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to
time.
"Tax Event" means the receipt by the Trust of an
opinion of counsel (which may be counsel to the Depositor or an
affiliate but not an employee thereof and which must be
acceptable to the Property Trustee) experienced in such matters
to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting
taxation, or as a result of any official administrative or
judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of
original issuance of the Preferred Securities under this Trust
Agreement, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject
to United States Federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by
the Depositor on the Debentures, is not, or within 90 days of the
date thereof, will not be, deductible, in whole or in part, for
United States Federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more
than a de minimis amount of other taxes, duties or other
governmental charges.
"Transfer Agent" shall mean one or more transfer agents
for the Preferred Securities appointed by the Trust and shall be
initially The Bank of New York.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities
or the Preferred Securities.
"Trust Securities Certificate" means any one of the
Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of [_____ __] , 1996, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE
Establishment of the Trust
Section Name. The Trust created hereby shall be
known as "Entergy Arkansas Capital III", in which name the
Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue
and be sued.
Section Office of the Delaware Trustee; Principal
Place of Business. The office of the Delaware Trustee in the
State of Delaware is White Clay Center, Route 273, Newark,
Delaware 19711, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Entergy Arkansas, Inc., 425 West
Capitol Avenue, Little Rock, Arkansas 72201.
Section Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the
Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses
paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
Section Issuance of the Preferred Securities. On
[____ __], 1996 the Depositor and an Administrative Trustee, on
behalf of the Trust, both executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, one of the Administrative Trustees, on
behalf of the Trust in accordance with Section 5.02, executed
manually and delivered a Preferred Securities Certificate,
registered in the name of the nominee of The Depositary Trust
Company, having an aggregate Liquidation Amount of $[________].
Section Subscription and Purchase of Debentures;
Issuance of the Common Securities. Contemporaneously with the
execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee and having an aggregate principal
amount equal to $[________], and, in satisfaction of the purchase
price for such Debentures, (x) one of the Administrative
Trustees, on behalf of the Trust, shall execute and deliver to
the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of [_____] Common
Securities having an aggregate Liquidation Amount of $[_______],
and (y) the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $[________] representing the
proceeds from the sale of the Preferred Securities pursuant to
the Underwriting Agreement.
Section Declaration of Trust; Appointment of
Additional Administrative Trustees. The exclusive purposes
and functions of the Trust are (i) to issue Trust Securities
and invest the proceeds thereof in Debentures, and (ii) to
engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein. The Property Trustee
hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the
benefit of the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance
with applicable law with respect to accomplishing the purposes
of the Trust. Anything in this Trust Agreement to the
contrary notwithstanding the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrative Trustees set forth
herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust
Act.
Section Authorization to Enter into Certain
Transactions. The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section and Article VIII and in accordance with the following
provisions (A) and (B), the Trustees shall have the authority
to enter into all transactions and agreements determined by
the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under
this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
As among the Trustees, the Administrative Trustees
shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
the issuance and sale of the Trust Securities;
without the consent of any Person, to cause the
Trust to enter into and to execute, deliver and perform
on behalf of the Trust, the Expense Agreement, and such
agreements as may be necessary or desirable in
connection with the consummation of the Underwriting
Agreement (such execution to be by the Administrative
Trustees or any one of them);
to qualify the Trust to do business in any
jurisdiction as may be necessary or desirable;
the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined
by the Depositor and the registration of the Preferred
Securities under the Exchange Act, and the preparation
and filing of all periodic and other reports and other
documents pursuant to the foregoing;
the appointments of a Paying Agent, a Transfer
Agent and a Registrar in accordance with this Trust
Agreement (subject to Section 5.09);
registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the
Trust with respect to the following ministerial matters:
the establishment of the Payment Account;
the receipt of the Debentures;
the deposit of interest, principal and any other
payments made in respect of the Debentures in the
Payment Account;
the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
as provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and
the execution of the certificate of cancellation to be
prepared and filed by the Administrative Trustees with
the Secretary of State of the State of Delaware; and
the taking of any ministerial action incidental
to the foregoing as the Property Trustee may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustee set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the
Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders
of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the
rights of the Holder pursuant to the terms of this Trust
Agreement.
So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust)
shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby.
In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this
Trust Agreement, (ii) sell, assign, transfer, exchange,
pledge, set-off or otherwise dispose of any of the Trust
Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States Federal income tax purposes
and not as an association taxable as a corporation, (iv) incur
any indebtedness for borrowed money or (v) take or consent to
any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims
and demands of all Persons at any time claiming any Lien on
any of the Trust Property adverse to the interest of the Trust
or the Securityholders in their capacity as Securityholders.
In connection with the issue of the Preferred
Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect
on behalf of the Trust, the following (and any actions taken
by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and confirmed
in all respects):
to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
to determine the States in which to take
appropriate action to qualify or register for sale all
or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken
by or on behalf of the Trust, and advise the Trustees
of actions they must take on behalf of the Trust, and
prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such
States;
to prepare for filing by the Trust an application
to the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred
Securities and to file or cause the Administrative
Trustees to file thereafter with such exchange such
notifications and documents as may be necessary from
time to time to maintain such listing;
to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"),
including any amendments thereto;
to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may
be necessary or desirable in connection with the
consummation thereof;
to select the investment banker or bankers to act
as underwriters with respect to the offer and sale by
the Trust of Preferred Securities ("Offer") and
negotiate the terms of an Underwriting Agreement and
pricing agreement providing for the Offer; and
to take any other actions necessary or desirable
to carry out any of the foregoing activities.
Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so
that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment
Company Act of 1940, as amended, or classified other than as a
"grantor trust" for United States Federal income tax purposes
and not as an association taxable as a corporation and so that
the Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In
this connection, subject to the provisions of Section 10.03,
the Depositor and the Administrative Trustees are authorized
to take any action, not inconsistent with applicable law, the
certificate of trust filed with the Secretary of State of the
State of Delaware with respect to the Trust (as amended or
restated from time to time, the "Certificate of Trust") or
this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such
action does not materially adversely affect the interests of
the Holders of the Preferred Securities.
Section Assets of Trust. The assets of the Trust
shall consist of the Trust Property.
Section Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE
Payment Account
Section Payment Account.
On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustees and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect
to, the Debentures. Amounts held in the Payment Account shall
not be invested by the Property Trustee pending distribution
thereof.
ARTICLE
Distributions; Redemption
Section Distributions.
Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds
of the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except
in the event that the Depositor exercises its right to extend
the interest payment period for the Debentures pursuant to
Section 311 of the Subordinated Indenture, shall be payable
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on [_______ __], 1996.
If any date on which Distributions are otherwise payable on
the Trust Securities is not a Business Day, then the payment
of such Distribution shall be made on the next succeeding day
which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, payment
of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and
effect as if made on such date (each date on which
distributions are payable in accordance with this Section
4.01(a) a "Distribution Date").
Distributions payable on the Trust Securities
shall be fixed at a rate of [____]% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full quarterly period shall be
computed on the basis of twelve 30-day months and a 360-day
year and for any period shorter than a full month, on the
basis of the actual number of days elapsed. If the interest
payment period for the Debentures is extended pursuant to
Section 311 of the Subordinated Indenture, then Distributions
on the Preferred Securities will be deferred for the period
equal to the extension of the interest payment period for the
Debentures and the rate per annum at which Distributions on
the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such extended
interest payment period is equal to the aggregate amount of
interest (including, to the extent permitted by law, interest
payable on unpaid interest at the percentage rate per annum
set forth above, compounded quarterly) that accrues during any
such extended interest payment period on the Debentures. The
amount of Distributions payable for any period shall include
the Additional Amounts, if any.
Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date
only to the extent that the Trust has funds available in the
Payment Account for the payment of such Distributions.
Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof
as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be 15 days
prior to the relevant Distribution Date.
Section Redemption.
On each Debenture Redemption Date and at the
maturity date for the Debentures (as defined in the
Subordinated Indenture), the Property Trustee will be required
to redeem a Like Amount of Trust Securities at the Redemption
Price plus accumulated and unpaid Distributions to the date of
such payment.
Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the Redemption
Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All
notices of redemption or liquidation shall state:
the Redemption Date;
the Redemption Price and the amount of
accumulated and unpaid Dividends to be paid on the
Redemption Date;
the CUSIP number;
if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities
to be redeemed; and
that on the Redemption Date the Redemption Price
plus accumulated and unpaid Distributions to the date
of such payment will become due and payable upon each
such Trust Security to be redeemed and that interest
thereon will cease to accrue on and after said date.
The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment with the proceeds from the contemporaneous redemption
of Debentures. Redemptions of the Trust Securities shall be
made and the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment shall be deemed
payable on each Redemption Date only to the extent that the
Trust has funds immediately available in the Payment Account
for such payment.
If the Property Trustee gives a notice of
redemption in respect of any Preferred Securities, then, by
12:00 noon, New York time, on the Redemption Date, subject to
Section 4.02(c), the Property Trustee shall irrevocably
deposit with the Paying Agent (or Securities Depository, in
the event the Preferred Securities are book-entry only) funds
sufficient to pay the applicable Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment to the Holders thereof upon surrender of their
Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the redemption
date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear
on the Securities Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited
as required, then on the Redemption Date, all rights of
Securityholders holding Trust Securities so called for
redemption will cease, except the right of such
Securityholders to receive the Redemption Price plus
accumulated and unpaid Distributions to the date of such
payment, but without interest thereon, and such Trust
Securities will cease to be outstanding. In the event that
any Redemption Date is not a Business Day, then payment of the
Redemption Price payable on such date plus accumulated and
unpaid Distributions to such date shall be made on the next
succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay). In
the event that payment of the Redemption Price plus
accumulated and unpaid Distributions in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue, at the then applicable
rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption
Price plus accumulated and unpaid Distributions is actually
paid, in which case the actual payment date will be deemed the
date fixed for redemption for purposes of calculating the
Redemption Price plus accumulated and unpaid Distributions to
such date.
Payment of the Redemption Price on the Trust
Securities shall be made to the Holders thereof as they appear
on the Securities Register for the Trust Securities on the
relevant record date, which shall be the fifteenth day prior
to the Redemption Date.
If less than all the Outstanding Trust Securities
are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be
allocated 3% to the Common Securities and 97% to the Preferred
Securities. The particular Preferred Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by
such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for a
redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Securities of
a denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption
of Preferred Securities shall relate, in the case of any
Preferred Securities redeemed or to be redeemed only in part,
to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed.
Section Subordination of Common Securities.
Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price plus accumulated and
unpaid distributions of, the Trust Securities, as applicable,
shall be made pro rata based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date a Debenture Event of
Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable)
on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of
the Redemption Price plus accumulated and unpaid Distributions
the full amount of such Redemption Price plus accumulated and
unpaid Distributions on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions
(including Additional Amounts, if applicable) on, or
Redemption Price plus accumulated and unpaid Distributions of,
Preferred Securities then due and payable.
In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the
Holder of Common Securities will be deemed to have waived any
such Event of Default under this Trust Agreement until the
effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been
so cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and
only the Holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
Section Payment Procedures. Payments in respect of
the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities
are held by a Securities Depository, such Distributions shall be
made to the Securities Depository, which shall credit the
relevant Persons' accounts at such Securities Depository on the
applicable distribution dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually
agreed between the Administrative Trustees and the Holder of the
Common Securities.
Section Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the
Depositor's expense and direction, and file all United States
Federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this
regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) the Internal Revenue Service
Form 1041 (or any successor form) required to be filed in respect
of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each
Securityholder the related Internal Revenue Service Form 1099, or
any successor form or the information required to be provided on
such form. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States Federal
withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section Payments under Indenture. Any amount payable
hereunder to any Holder of Preferred Securities shall be reduced
by the amount of any corresponding payment such Holder has
directly received pursuant to Section 808 of the Subordinated
Indenture. Notwithstanding the provisions hereunder to the
contrary, Securityholders acknowledge that any Holder of
Preferred Securities that receives payment under Section 808 of
the Subordinated Indenture may receive amounts greater than the
amount such Holder may be entitled to receive pursuant to the
other provisions of this Trust Agreement.
ARTICLE
Trust Securities Certificates
Section Initial Ownership. Upon the creation of the
Trust by the contribution by the Depositor pursuant to Section
2.03 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section The Trust Securities Certificates. The Trust
Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. Subject to
Section 2.04 relating to the original issuance of the Preferred
Securities Certificate registered in the name of the nominee of
The Depository Trust Company, the Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee and, if executed
on behalf of the Trust by facsimile signature, countersigned by a
Transfer Agent or its agent. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the
time when such signatures shall have been affixed, authorized to
sign on behalf of the Trust and, if executed on behalf of the
Trust by facsimile signature, countersigned by a Transfer Agent
or its agent, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized
prior to the delivery of such Trust Securities Certificates or
did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Securityholder, and shall be entitled
to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.04 or
5.11.
Section Execution and Delivery of Trust Securities
Certificates. On the Closing Date, the Administrative Trustees
shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.04 and 2.05, to be
executed on behalf of the Trust, and in the case of Preferred
Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred
without negligence arising out of or in connection with any such
countersigning by it.
Section Registration of Transfer and Exchange of
Preferred Securities Certificates. The Registrar shall keep or
cause to be kept, at its principal corporate office, a Securities
Register in which, subject to such reasonable regulations as it
may prescribe, the Registrar shall provide for the registration
of Preferred Securities Certificates and the Common Securities
Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein
provided.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent
to countersign and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and a Transfer Agent
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Administrative
Trustees in accordance with customary practice. The Trust shall
not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange
any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a
Transfer Agent may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection
with any transfer or exchange of Preferred Securities
Certificates.
Section Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If any mutilated Trust Securities
Certificate shall be surrendered to a Transfer Agent, or if a
Transfer Agent shall receive evidence to its satisfaction of
the destruction, loss or theft of any Trust Securities
Certificate and there shall be delivered to the Transfer
Agent and the Administrative Trustees such security or
indemnity as may be required by them to save each of them and
the Depositor harmless, then in the absence of notice that
such Trust Securities Certificate shall have been acquired by
a bona fide purchaser, the Administrative Trustees, or any one
of them, on behalf of the Trust, shall execute by manual or
facsimile signature and, if execution on behalf of the Trust
is by facsimile signature, countersigned by a Transfer Agent;
and the Administrative Trustees, or any one of them, shall
make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of
any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Transfer Agent may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection
therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
Section Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration
of transfer, the Trustees and the Registrar shall be entitled to
treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of
such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither
the Trustees nor the Registrar shall be bound by any notice to
the contrary.
Section Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to
be furnished (x) to the Depositor, within 15 days after receipt
by any Administrative Trustee of a request therefor from the
Depositor in writing and (y) to the Property Trustee, promptly
after receipt by any Administrative Trustee of a request therefor
from the Property Trustee in writing in order to enable the
Property Trustee to discharge its obligations under this Trust
Agreement, a list, in such form as the Depositor or the Property
Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date. If Holders of
Trust Securities Certificates evidencing ownership at such time
and for the previous six months not less than 25% of the
outstanding aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the
applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the
Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current
list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section Maintenance of Office or Agency. The Company
shall or shall cause the Transfer Agent to maintain in the
Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Preferred Securities Certificates may
be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company or the Transfer Agent
in respect of the Trust Securities Certificates may be served.
The Company initially designates The Bank of New York at its
principal corporate trust office for such purposes. The Company
shall or shall cause the Transfer Agent to give prompt written
notice to the Depositor, the Property Trustee and to the
Securityholders of any change in any such office or agency.
Section Appointment of Paying Agent. The Paying
Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such
distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent if the
Administrative Trustee or any one of them determines in its sole
discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect.
The Paying Agent may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. The
Paying Agent shall be permitted to resign upon 30 days' written
notice to the Administrative Trustees and the Depositor. In the
event of the removal or resignation of the Paying Agent, the
Administrative Trustees shall appoint a successor that is
reasonably acceptable to the Property Trustee and the Depositor
to act as Paying Agent (which shall be a bank, trust company or
an Affiliate of the Depositor). The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the
Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it
for payment to the Securityholders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be
paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon resignation or
removal of a Paying Agent such Paying Agent shall also return all
funds in its possession to the Property Trustee. The provisions
of Sections 8.01, 8.03 and 8.06 shall apply to the Paying Agent
appointed hereunder, and the Paying Agent shall be bound by the
requirements with respect to paying agents of securities issued
pursuant to the Trust Indenture Act. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.
Section 0. Ownership of Common Securities by
Depositor. On the Closing Date and on each other date provided
for in Section 2.05, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Securities.
Any attempted transfer of the Common Securities shall be void.
The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE". Common Securities
Certificates representing the Common Securities shall be issued
to the Depositor in the form of a typewritten or definitive
Common Securities Certificate.
Section Definitive Preferred Securities Certificates.
Upon initial issuance of the Preferred Securities the Definitive
Preferred Securities Certificates shall be typewritten, printed,
lithographed or engraved or may be produced in any other manner
as is reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by the Administrative
Trustees, or any one of them. The Administrative Trustees, or
any one of them, shall execute on behalf of the Trust by manual
or facsimile signature, and, if executed by facsimile on behalf
of the Trust, countersigned by the Transfer Agent or its agent
the Definitive Preferred Securities Certificates initially in
accordance with the instructions of the Depositor. Neither the
Transfer Agent nor any of the Administrative Trustees shall be
liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions.
Section Book-Entry System. Some or all of the
Preferred Securities may be registered in the name of the
Securities Depository or a nominee therefor, and held in the
custody of the Securities Depository. In such event, a single
certificate will be issued and delivered to the Securities
Depository for such Preferred Securities, in which case the
Owners of such Preferred Securities will not receive physical
delivery of certificates for Preferred Securities. Except as
provided herein, all transfers of beneficial ownership interests
in such Preferred Securities will be made by book-entry only, and
no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Securities
will receive, hold or deliver any certificate for Preferred
Securities. The Depositor, the Trustees and the Paying Agent
will recognize the Securities Depository or its nominee as the
Holder of Preferred Securities for all purposes, including
notices and voting.
The Administrative Trustees, at the direction and
expense of the Depositor, may from time to time appoint a
Securities Depository or a successor thereto and enter into a
letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Securities. Any Securities Depository shall be a Clearing
Agency.
The Depositor and the Trustees covenant and agree to
meet the requirements of a Securities Depository for the
Preferred Securities with respect to required notices and other
provisions of the letter of representations or agreement executed
with respect to such Preferred Securities.
Whenever the beneficial ownership of any Preferred
Securities is determined through the books of a Securities
Depository, the requirements in this Trust Agreement of holding,
delivering or transferring such Preferred Securities shall be
deemed modified with respect to such Preferred Securities to meet
the requirements of the Securities Depository with respect to
actions of the Trustees, the Depositor and the Paying Agent. Any
provisions hereof permitting or requiring delivery of such
Preferred Securities shall, while such Preferred Securities are
in a book-entry system, be satisfied by the notation on the books
of the Securities Depository in accordance with applicable state
law.
Section Rights of Securityholders. The legal title
to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Securityholders
against payment of the purchase price therefor will be fully paid
and nonassessable interests in the Trust.
ARTICLE
Acts of Securityholders; Meetings; Voting
Section Limitations on Voting Rights.
Except as provided in this Section 6.01, in
Section 10.03 and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in
the terms of the Trust Securities Certificates, be construed
so as to constitute the Securityholders from time to time as
partners or members of an association. If the Property
Trustee fails to enforce its rights under the Debentures or
this Trust Agreement, a Holder of Preferred Securities may
institute a legal proceeding directly against the Depositor to
enforce the Property Trustee's rights under the Debentures or
this Trust Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against the
Property Trustee or any other person. Notwithstanding the
foregoing, a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such
Holder directly of principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
preference amount of the Preferred Securities of such Holder
on or after the due dates specified in the Debentures.
So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method
and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or executing any trust or
power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable
under Section 813 of the Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of
the Subordinated Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining
the prior approval of the Holders of at least 66 2/3% of the
aggregate Liquidation Amount of the Outstanding Preferred
Securities; provided, however, that where a consent under the
Subordinated Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of
each holder of Preferred Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote
of the Preferred Securities, except pursuant to a subsequent
vote of the Preferred Securities. The Property Trustee shall
notify all Holders of the Preferred Securities of any notice
of default received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Property Trustee
shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such matters to the effect that the
Trust will be classified as a "grantor trust" and not as an
association taxable as a corporation for United States Federal
income tax purposes on account of such action.
If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would materially adversely affect the powers,
preferences or special rights of the Preferred Securities,
whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not
be effective except with the approval of the Holders of at
least 66 2/3 in Liquidation Amount of the Outstanding
Preferred Securities. No amendment to this Trust Agreement
may be made if, as a result of such amendment, the Trust would
not be classified as a "grantor trust" but as an association
taxable as a corporation for United States Federal income tax
purposes.
Section Notice of Meetings. Notice of all meetings
of the Holders of Preferred Securities, stating the time, place
and purpose of the meeting, shall be given by the Administrative
Trustees pursuant to Section 10.08 to each Holder of a Preferred
Security, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section Meetings of Holders of Preferred Securities.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter upon the written request of
the Holders of 25% of the then Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) and may, at any
time in their discretion, call a meeting of Holders of Preferred
Securities to vote on any matters as to which the Holders of
Preferred Securities are entitled to vote.
Holders of 50% of the then Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders.
If a quorum is present at a meeting, an affirmative
vote by the Holders of Preferred Securities present, in person or
by proxy, holding more than the lesser of (x) 66 2/3% of the then
Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) held by the Holders of then Outstanding
Preferred Securities present, either in person or by proxy, at
such meeting and (y) 50% of the Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) shall constitute
the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
Section Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
Section Proxies, etc. At any meeting of
Securityholders, any Securityholder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, or, if earlier, until eleven months after
it is sent and the burden of proving invalidity shall rest on the
challenger.
Section Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding more than a
majority of all Outstanding Trust Securities entitled to vote in
respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust
Agreement) shall consent to the action in writing (based upon
their aggregate Liquidation Amount).
Section Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any Distribution on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of Distribution or
other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
Section Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to the Administrative
Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in
the manner provided in this Section.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved
by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
Section Inspection of Records. Subject to Section
5.07 concerning access to the list of Securityholders, upon
reasonable notice to the Administrative Trustees and the Property
Trustee, the other records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section Property [and Delaware] Trustee. The
Property [and Delaware] Trustee hereby represents and warrants
for the benefit of the Depositor and the Securityholders that:
the Property [and Delaware] Trustee is a banking
corporation or trust company duly organized, validly existing
and in good standing under the laws of the State of [New York]
[Delaware];
the Property [and Delaware] Trustee has full
corporate power, authority and legal right to execute, deliver
and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized,
executed and delivered by the Property [and Delaware] Trustee
and constitutes the valid and legally binding agreement of the
Property and Delaware] Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
the execution, delivery and performance by the
Property [and Delaware] Trustee of this Trust Agreement will
not violate, conflict with or constitute a breach of the
Property [and Delaware] Trustee's charter or by-laws; and
neither the authorization, execution or delivery
by the Property [and Delaware] Trustee of this Trust Agreement
nor the consummation of any of the transactions by the
Property [and Delaware] Trustee contemplated herein require
the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with
respect to any governmental authority or agency under any
existing Federal or [New York] [Delaware] law governing the
banking or trust powers of the Property Trustee.
[Section Delaware Trustee. The Delaware Trustee
represents and warrants for the benefit of the Depositor and the
Securityholders that:
the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware
Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate the
Delaware Trustee's charter or by-laws; and
neither the authorization, execution or delivery
by the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Delaware
Trustee contemplated herein require the consent or approval
of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental
authority or agency under any existing Federal or Delaware law
governing the banking or trust powers of the Delaware
Trustee.]
ARTICLE
The Trustees
Section Certain Duties and Responsibilities.
The duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case
of the Property Trustee, the Trust Indenture Act, and no
implied covenants or obligations shall be read into this Trust
Agreement against any of the Trustees. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require
any of the Trustees to expend or risk its own funds or
otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to
it. Notwithstanding anything contained in this Trust
Agreement to the contrary, the duties and responsibilities of
the Property Trustee under this Trust Agreement shall be
subject to the protections, exculpations and limitations on
liability afforded to the Property Trustee under the
provisions of the Trust Indenture Act and, to the extent
applicable, Rule 3A-7 under the Investment Company Act of
1940, as amended, or any successor rule thereunder. Whether
or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be
subject to the provisions of this Section.
All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property
Trustee or Paying Agent to make payments in accordance with
the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income
and proceeds from the Trust Property to the extent available
for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any
other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in
the case of the Property Trustee, in the Trust Indenture Act.
All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property
in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement, the
Trust Indenture Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act of 1940, as
amended;
the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor. Money held by the
Property Trustee need not be segregated from other
funds held by it except in relation to the Payment
Account established by the Property Trustee pursuant to
this Trust Agreement and except to the extent otherwise
required by law; and
the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative
Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
Section Notice of Defaults. Within five Business
Days after the occurrence of any Event of Default, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of any default known to the Property
Trustee to the Securityholders and the Depositor, unless such
default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of
Default.
Section Certain Rights of Property Trustee. Subject
to the provisions of Section 8.01 and except as provided by law:
the Property Trustee may rely and shall be
protected in acting or refraining from acting in good
faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or
transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the
proper party or parties;
if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of
action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall
be promptly delivered by the Depositor or the
Administrative Trustees;
the Property Trustee may consult with counsel of
its selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by
this Trust Agreement at the request or direction of any
of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security or
indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying
with such request or direction;
the Property Trustee shall not be bound to make
any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, unless
requested in writing to do so by one or more
Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Depositor personally or by agent or attorney;
the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder, provided that the Property Trustee
shall be responsible for its own negligence or
recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
the Property Trustee shall not be charged with
knowledge of any default or Event of Default with
respect to the Trust Securities unless either (1) a
Responsible Officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or
(2) written notice of such default or Event of Default
shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder
of the Trust Securities;
no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed
on it in any jurisdiction in which it shall be illegal,
or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such
right, power, duty or obligation; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty;
no provision of this Trust Agreement shall
require the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if the
Property Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument
(including any financing or continuation statement or
any tax or securities) (or any rerecording, refiling or
registration thereof);
the Property Trustee shall have the right at any
time to seek instructions concerning the administration
of this Trust Agreement from any court of competent
jurisdiction; and
whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder
the Property Trustee (i) may request instructions from
the Holders of the Trust Securities, which instructions
may only be given by the Holders of the same proportion
of Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the
terms of this Trust Agreement in respect of such
remedies, rights or actions, (ii) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and
(iii) shall be protected in acting in accordance with
such instructions.
Section Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part
thereof or as to the title of the Trust thereto or as to the
security afforded thereby or hereby, or as to the validity or
genuineness of any securities at any time pledged and deposited
with any Trustees hereunder, nor as to the validity or
sufficiency of this Trust Agreement or the Trust Securities. The
Trustees shall not be accountable for the use or application by
the Trust of the proceeds of the Trust Securities in accordance
with Section 2.05.
Section May Hold Securities. Except as provided in
the definition of the term "Outstanding" in Article I, any
Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such
other agent.
Section Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this
Trust Agreement, including the reasonable costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of
the Depositor under this Section, each of the Trustees shall have
a lien prior to the Trust Securities upon all property and funds
held or collected by such Trustee as such, except funds held in
trust for the payment of Distributions on the Trust Securities.
The provisions of this Section shall survive the
termination of this Trust Agreement.
Section Certain Trustees Required; Eligibility.
There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall
be a Person that has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then
for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee
with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust
Securities. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized
to bind such entity.
There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of
age and a resident of the State of Delaware or (ii) a legal
entity with its principal place of business in the State of
Delaware that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons
authorized to bind such entity.
Section Conflicting Interests.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Subordinated Indenture and the Guarantee
Agreement shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
Section Co-Trustees and Separate Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, at any time or times, for the purpose of
meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property may at
the time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments
shall, on request, be executed, acknowledged, and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties, and
obligations shall be exercised and performed by such co-
trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join
with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this
Section.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 0. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (as the case
may be, the "Relevant Trustee") and no appointment of a successor
Relevant Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section
8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at any
time by Act of the Common Securityholder. If a Debenture Event
of Default shall have occurred and be continuing, the Relevant
Trustee may be removed at such time by Act of the Securityholders
of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Relevant Trustee shall
resign, be removed or become incapable of continuing to act as
the Relevant Trustee at a time when a Debenture Event of Default
shall have occurred and be continuing, the Preferred
Securityholders, by Act of the Preferred Securityholders of a
majority in Liquidation Amount of the Outstanding Preferred
Securities delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed by the Common Securityholders or the
Preferred Securityholders and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a
Securityholder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor
Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirements for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
Section Acceptance of Appointment by Successor. In
case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Trustee
shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust and (2) shall add to or change any of
the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees of the same trust and that each
such Relevant Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or
removal of the retiring Relevant Trustee shall become effective
to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Relevant Trustee; but, on request of the Trust or
any successor Relevant Trustee such retiring Relevant Trustee
shall duly assign, transfer and deliver to such successor Trustee
all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee,
the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
Section Merger, Conversion, Consolidation or
Succession to Business. Any Person into which the Property
Trustee or the Delaware Trustee or any Administrative Trustee or
any Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
such Relevant Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties
hereto.
Section Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or
become a creditor of the Depositor or the Trust (or any other
obligor upon the Debentures or the Trust Securities), the
Property Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor).
Section Reports by Property Trustee. the
Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under
this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto. Such of those reports as are required to be
transmitted by the Property Trustee pursuant to Section 313(a)
of the Trust Indenture Act shall be so transmitted within 60
days after [________ __] of each year, commencing [_______
__], 199[_].
A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
Section Reports to the Property Trustee. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
Section Evidence of Compliance With Conditions
Precedent. Each of the Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) that
relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act may be given in the form of an Officers'
Certificate.
Section Number of Trustees.
The number of Trustees shall be five, provided
that Depositor, by written instrument may increase or decrease
the number of Administrative Trustees.
If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced
pursuant to Section 8.17(a), or if the number of Trustees is
increased pursuant to Section 8.17(a), a vacancy shall occur.
The vacancy shall be filled with a Trustee appointed in
accordance with Section 8.10.
The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties
of a Trustee shall not operate to annul the Trust. Whenever a
vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section Delegation of Power.
Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment
thereto filed with the Commission, or making any other
governmental filing; and
the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing
of such things and the execution of such instruments either in
the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as
set forth herein.
Section Fiduciary Duty.
To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this Trust
Agreement shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law
or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of
such Indemnified Person;
Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act:
whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person;
or
whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable
generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, whenever
in this Trust Agreement an Indemnified Person is permitted or
required to make a decision
in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it reasonably
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other
Person; or
in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other
or different standard imposed by this Trust Agreement
or by applicable law.
ARTICLE
Termination and Liquidation
Section Termination Upon Expiration Date. The Trust
shall automatically terminate on December 31, [____] (the
"Expiration Date") and the Trust Property shall be distributed in
accordance with Section 9.04.
Section Early Termination. Upon the first to occur
of any of the following events (such first occurrence, an "Early
Termination Event"):
the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the
Depositor;
the redemption of all of the Preferred
Securities;
termination of the Trust in accordance with
Section 9.04(d);
an order for judicial termination of the Trust
having been entered by a court of competent
jurisdiction;
the Trust shall terminate and the Trustees shall take such action
as is required by Section 9.04.
Section Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (i)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed
hereunder upon the final payment of the Trust Securities; (ii)
the payment of any expenses owed by the Trust; and (iii) the
discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section Liquidation. If an Early Termination Event
specified in clause (i) or (iv) of Section 9.02 occurs, after
satisfaction of creditors of the Trust, if any, as provided by
applicable law, the Trust shall be liquidated by the Property
Trustee as expeditiously as the Property Trustee determines to
be appropriate by distributing to each Securityholder a Like
Amount of Debentures, subject to Section 9.04(e). Notice of
liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30
nor more than 60 days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder's address appearing
in the Securities Register. All notices of liquidation shall:
state the Liquidation Date;
state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of Debentures; and
provide such information with respect to the
mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section
9.04(e) applies receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee
shall deem appropriate.
In order to effect any liquidation of the Trust
hereunder, and any resulting distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting
as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall
deem appropriate to effect the distribution of Debentures in
exchange for the Outstanding Trust Securities Certificates.
After any Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Debentures will be issued to
Holders of Trust Securities Certificates, upon surrender of
such Trust Securities Certificates to the Administrative
Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will
be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the
last Distribution Date on which a Distribution was made on
such Trust Certificates until such Trust Securities
Certificates are so surrendered (and until such Trust
Securities Certificates are so surrendered, no payments or
interest or principal will be made to Holders of Trust
Securities Certificates with respect to such Debentures) and
(iv) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to
receive Debentures upon surrender of Trust Securities
Certificates.
If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to (i) redeem the
Debentures in whole but not in part and therefore cause a
mandatory redemption of all the Preferred Securities at the
Redemption Price within 90 days following the occurrence of
such Special Event, or (ii) cause the termination of the
Trust. Further, if at any time, the Trust is not or will not
be taxed as a grantor trust under the United States Federal
income tax law, but a Tax Event has not occurred, the
Depositor may elect termination of the Trust. In the event
the Depositor elects under the provisions of this section for
the Trust to be terminated, the Administrative Trustees shall,
terminate the Trust and, after satisfaction of creditors of
the Trust, if any, as provided by applicable law, cause
Debentures held by the Property Trustee having a Like Amount
of the Preferred Securities and the Common Securities to be
distributed to the Holders of the Preferred Securities and the
Common Securities on a pro rata basis in liquidation of such
Holders' interests in the Trust (in the case of such an
election following the occurrence of a Special Event) within
90 days following the occurrence of such Special Event. The
Common Securities will be redeemed on a pro rata basis with
the Preferred Securities, except that if a Debenture Event of
Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities
with respect to payment of the Redemption Price and
accumulated and unpaid Distributions to the date of such
payment.
In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order
for termination entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner
provided herein is determined by the Property Trustee not to
be practical, the Trust Property shall be liquidated, and the
Trust shall be dissolved, wound-up or terminated, by the
Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders
will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any,
as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any
such dissolution, winding up or termination, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities will be
entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that,
if a Debenture Event of Default has occurred and is continuing
or if a Debenture Event of Default has not occurred solely by
reason of a requirement that time lapse or notice be given,
the Preferred Securities shall have a priority over the Common
Securities.
ARTICLE
Miscellaneous Provisions
Section Guarantee by the Depositor and Assumption of
Obligations. Subject to the terms and conditions hereof, the
Depositor irrevocably and unconditionally guarantees to each
Person to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries"), and agrees to assume liability for,
the full payment, when and as due, of any and all Obligations (as
hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to Holders
or other similar interests in the Trust the amounts due such
Holders pursuant to the terms of the Preferred Securities or such
other similar interests, as the case may be. This guarantee and
assumption is intended to be for the benefit, of, and to be
enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial
or otherwise, in a Trust Security shall not operate to terminate
this Trust Agreement, nor entitle the legal representatives or
heirs of such person or any Securityholder for such person, to
claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section Amendment.
This Trust Agreement may be amended from time to time
by the Trust (on approval of a majority of the Administrative
Trustees and the Depositor, without the consent of any
Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement
or (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure
that the Trust will not be classified for United States
Federal income tax purposes other than as a "grantor trust"
and not as an association taxable as a corporation at any time
that any Trust Securities are outstanding or to ensure the
Trust's exemption from the status of an "investment company"
under the Investment Company Act of 1940, as amended;
provided, however, that, except in the case of clause (ii),
such action shall not adversely affect in any material respect
the interests of any Securityholder and, in the case of clause
(i), any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
Except as provided in Sections 6.01(c) and 10.03(c),
any provision of this Trust Agreement may be amended by the
Administrative Trustees and the Depositor with (i) the consent
of Holders of Trust Securities representing not less than a
majority (based upon Liquidation Amounts) of the Outstanding
Trust Securities and (ii) receipt by the Trustees of an
Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a
grantor trust for Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the
Investment Company Act of 1940, as amended.
In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder (such consent being obtained in
accordance with Section 6.03 or 6.06), this Trust Agreement
may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii)
restrict the right of a Securityholder to institute suit for
the enforcement of any such payment on or after such date.
Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust
to fail or cease to qualify for the exemption from status of
an "investment company" under the Investment Company Act of
1940, as amended, afforded by Rule 3a-5 thereunder.
Notwithstanding anything in this Trust Agreement to
the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or
any Trustee.
In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
The Property Trustee is entitled to receive an
Opinion of Counsel as conclusive evidence that any amendment
to this Trust Agreement executed pursuant to this Section
10.03 is authorized or permitted by, and conforms to, the
terms of this Section 10.03, has been duly authorized by and
lawfully executed and delivered on behalf of the other
requisite parties, and that it is proper for the Property
Trustee under the provisions of this Section 10.03 to join in
the execution thereof.
Section Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section Governing Law. This Trust Agreement and the
rights and obligations of each of the Securityholders, the Trust
and the Trustees with respect to this Trust Agreement and the
Trust Securities shall be construed in accordance with and
governed by the laws of the State of Delaware (without regard to
conflict of laws principles).
Section Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to
the Trust or the Relevant Trustees or any of them, including any
successor by operation of law.
Section Headings. The Article and Section headings
are for convenience only and shall not affect the construction of
this Trust Agreement.
Section Notice and Demand. Any notice, demand or
other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) in the case of a Preferred Securityholder,
to such Preferred Securityholder as such Securityholder's name
and address may appear on the Securities Register and (ii) in the
case of the Common Securityholder or the Depositor, to Entergy
Arkansas, Inc., 639 Loyola Avenue, New Orleans, Louisiana 71103,
Attention: [Treasurer], facsimile no. (504) 576-[____], with a
copy to the Secretary, facsimile no. (504) 576-[____]. Such
notice, demand or other communication to or upon a Securityholder
shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, 101 Barclay Street, 21 West, New York, New
York 10286 marked "Attention: Corporate Trust Administration"
with a copy to: The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, Delaware 19711 and (ii) with respect
to the Trust or the Administrative Trustees, at the address above
for notice to the Depositor, marked "Attention: Administrative
Trustees for Entergy Arkansas Capital III". Such notice, demand
or other communication to or upon the Trust or the Property
Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust or the
Property Trustee.
Section Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in
writing not to take such action and should be stopped and
precluded therefrom and such other defenses, if any, as counsel
for the Property Trustee or the Trust may assert. The provisions
of this Section 10.09 shall survive the termination of this Trust
Agreement.
Section 0. Conflict with Trust Indenture Act.
This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required or deemed to be part
of this Trust Agreement and shall, to the extent applicable,
be governed by such provisions.
The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the parties have caused this Trust Agreement
to be duly executed, all as of the day and year first above
written.
ENTERGY ARKANSAS, INC.
By:
Title: [________]
THE BANK OF NEW YORK,
as Property Trustee
By:
Title: [____________]
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
Title: [________________]
[_________________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENTERGY ARKANSAS CAPITAL III
THIS CERTIFICATE OF TRUST of Entergy Arkansas Capital
III (the "Trust"), dated as of , 1996, is being
duly executed and filed by the undersigned, as trustees, to
create a business trust under the Delaware Business Trust Act (12
Del. C. 3801, et seq.).
1. Name. The name of the business trust being created
hereby is Entergy Arkansas Capital III.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in
the State of Delaware are The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE) [_________________________],
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By: By:
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common
Securities
C-[ ]
Certificate Evidencing Common Securities
of
ENTERGY ARKANSAS CAPITAL III
Common Securities
(Liquidation Amount $25 per Common Security)
Entergy Arkansas Capital III, 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 Common
Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the
Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void.
The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of _______ ___, 1995, as
the same may be amended from time to time (the "Trust
Agreement"). The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to
the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the
Trust has executed this certificate for and on behalf of the
Trust this ____ day of _________, 199 .
ENTERGY ARKANSAS CAPITAL III
By:
not in his (her) individual
capacity, but solely as
Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between
Entergy Arkansas, Inc., an Arkansas corporation ("Entergy
Arkansas"), and Entergy Arkansas Capital III, a Delaware business
trust (the "Trust").
WHEREAS, the Trust intends to issue its Common
Securities (the "Common Securities") to and receive Debentures
from Entergy Arkansas and to issue its ___% Quarterly Income
Preferred Securities (the "Preferred Securities") with such
powers, preferences and special rights and restrictions as are
set forth in the Amended and Restated Trust Agreement of the
Trust dated as of ________ __, 1996 as the same may be amended
from time to time (the "Trust Agreement");
WHEREAS, Entergy Arkansas is the issuer of the
Debentures;
NOW, THEREFORE, in consideration of the acceptance by
each holder of the Preferred Securities, which acceptance Entergy
Arkansas hereby agrees shall benefit Entergy Arkansas and which
acceptance 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. Assumption by Entergy Arkansas. Subject
to the terms and conditions hereof, Entergy Arkansas hereby
irrevocably and unconditionally assumes the full payment, when
and as due, of any and all Obligations (as hereinafter defined)
to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (i) obligations of the Trust
to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be and (ii) obligations arising out of
the negligence, willful misconduct or bad faith of the Trustees
of the Trust. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by Entergy 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 III
c/o [_________________], Administrative Trustee
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Attention: [__________]
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above written.
ENTERGY ARKANSAS, INC.
By:
Name:
Title:
ENTERGY ARKANSAS CAPITAL III
By:
[_________________]
not in his individual capacity, but solely
as Administrative Trustee
<PAGE>
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTEGY ARKANSAS CAPITAL III
% Quarterly Income Preferred Securities
(Liquidation Amount $25 per Preferred Security)
Entergy Arkansas Capital III, a statutory business
trust created under the laws of the State of Delaware (the
"Trust"), hereby certifies that ____________ (the "Holder") is
the registered owner of _____ (_____) preferred securities of the
Trust representing an undivided beneficial interest in the assets
of the Trust and designated the Entergy Arkansas Capital III
% Quarterly Income Preferred Securities (liquidation amount $25
per Preferred Security) (the "Preferred Securities"). The
Preferred Securities are transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.04 or 5.11 of the Trust
Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of , 1996, as the same may be
amended from time to time (the "Trust Agreement"). The holder of
this certificate is entitled to the benefits of the Guarantee
Agreement of Entergy Arkansas, Inc., an Arkansas corporation, and
The Bank of New York, as guarantee trustee, dated as of
, 1996 (the "Guarantee") to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the
Guarantee to the holder of this certificate without charge upon
written request to the Trust at its principal place of business
or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:
ENTERGY ARKANSAS CAPITAL III
By:
[ ]
not in his (her)
individual capacity, but
solely as Administrative
Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred
Securities Certificate and irrevocably appoints
attorney to transfer such Preferred Securities Certificate on the
books of the Trust. The attorney may substitute another to act for
him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Exhibit 4.19
GUARANTEE AGREEMENT
Between
Entergy Arkansas, Inc.
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
_____, 1996
<PAGE>
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) 4.01(a)
310(b) 4.01(c), 2.08
310(c) Inapplicable
311(a) 2.02(b)
311(b) 2.02(b)
311(c) Inapplicable
312(a) 2.02(a)
312(b) 2.02(b)
313 2.03
314(a) 2.04
314(b) Inapplicable
314(c) 2.05
314(d) Inapplicable
314(e) 1.01, 2.05, 3.02
314(f) 2.01, 3.02
315(a) 3.01(d)
315(b) 2.07
315(c) 3.01
315(d) 3.01(d)
316(a) 5.04(a), 2.06
316(b) 5.03
316(c) 2.02
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.01(b)
318(b) 2.01
318(c) 2.01(a)
_____________
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of ______, 1996, is executed and delivered by Entergy
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 III, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of ______, 1996
between the Trustees of the Issuer named therein, Entergy
Arkansas, Inc., as Depositor, and the several Holders (as defined
therein) the Issuer is issuing as of the date hereof $__________
aggregate liquidation amount of its ____% Cumulative Quarterly
Income Preferred Securities (the "Preferred Securities")
representing preferred undivided beneficial ownership interests
in the Issuer and having the terms set forth in the Trust
Agreement;
WHEREAS, the Preferred Securities are to be issued for
sale by the Issuer and the proceeds are to be invested in
$___________ principal amount of Debentures (as defined in the
Trust Agreement); and
WHEREAS, in order to enhance the value of the Preferred
Securities, the Guarantor desires to irrevocably and
unconditionally agree, to the extent set forth herein, to pay to
the Holders the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase of
Debentures, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to
time.
I DEFINITIONS
1 Definitions. As used in this Guarantee
Agreement, the terms set forth below shall, unless the context
otherwise requires, have the following meanings. Capitalized or
otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust
Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the
foregoing.
"Common Securities" means the securities representing
common undivided beneficial ownership interests in the assets of
the Issuer.
"Event of Default" means a default by the Guarantor on
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments
or distributions, without duplication, with respect to the
Preferred Securities, to the extent not paid or made by or on
behalf of the Issuer: (i) any accrued and unpaid Distributions
that are required to be paid on such Preferred Securities but
only if and to the extent that the Property Trustee has available
in the Payment Account funds sufficient to make such payment,
(ii) the redemption price (the "Redemption Price"), and all
accrued and unpaid Distributions to the date of redemption, with
respect to the Preferred Securities called for redemption by the
Issuer but only if and to the extent that the Property Trustee
has available in the Payment Account funds sufficient to make
such payment, (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection
with a redemption of all of the Preferred Securities), the lesser
of (a) the aggregate of the Liquidation Amount and all accrued
and unpaid Distributions on the Preferred Securities to the date
of payment, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee
Trustee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Preferred Securities then
outstanding; provided, however, that in determining whether the
holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indenture" means the Indenture dated as of _______,
1996, among the Guarantor (the "Debenture Issuer") and The Bank
of New York, as trustee, pursuant to which the Debentures are
issued.
"Majority in liquidation amount of the Preferred
Securities" means a vote by Holders, voting separately as a
class, of more than 50% of the aggregate liquidation amount of
all Preferred Securities.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall
include:
a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any vice-president, any assistant vice-
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Corporate Trust Department of
the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
II TRUST INDENTURE ACT
1 Trust Indenture Act; Application.
a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required or deemed to be part of
this Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
2 Lists of Holders of Preferred Securities.
a) The Guarantor shall furnish or cause to be furnished to
the Guarantee Trustee (a) semiannually, not later than December
31 and June 30 in each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not
more than 15 days prior to the delivery thereof, and (b) at such
other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days
prior to the time such list is furnished; provided that, the
Guarantor shall not be obligated to provide such List of Holders
at any time the List of Holders does not differ from the most
recent List of Holders given to the Guarantee Trustee by the
Guarantor. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
b) The Guarantee Trustee shall comply with its obligations
under Section 311(a) of the Trust Indenture Act, subject to the
provisions of Section 311(b) and Section 312(b) of the Trust
Indenture Act.
3 Reports by the Guarantee Trustee. Within 60
days after December 31 of each year, commencing December 31,
1996, the Guarantee Trustee shall provide to the Holders such
reports, if any, as are required by Section 313(a) of the Trust
Indenture Act in the form and in the manner provided by Section
313(a) of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Sections 313(b), (c) and (d)
of the Trust Indenture Act.
4 Periodic Reports to Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
5 Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Guarantee Trustee
such evidence of compliance with any conditions precedent
provided for in this Guarantee Agreement as and to the extent
required by Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may be
given in the form of an Officers' Certificate.
6 Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by
vote, on behalf of all of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent thereon.
7 Event of Default; Notice.
a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notices of all Events of Default
known to the Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided that, the
Guarantee Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust committee of directors or Responsible
Officers of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a Responsible Officer
charged with the administration of the Trust Agreement shall have
obtained written notice, of such Event of Default.
8 Conflicting Interests. The Trust Agreement
and the Indenture shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture
Act.
III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
1 Powers and Duties of the Guarantee Trustee.
a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee
shall not transfer this Guarantee Agreement or any rights
hereunder to any Person except a Holder exercising his or her
rights pursuant to Section 5.04 or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee. The right,
title and interest of the Guarantee Trustee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
b) The Guarantee Trustee, prior to the occurrence of any
Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Guarantee Agreement,
and no implied covenants or obligations shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.06), the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee
Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such Events of
Default that may have occurred:
A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement; and
B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but in the case of
any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Guarantee Agreement;
ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee or such Responsible Officer was negligent in
ascertaining the pertinent facts upon which such judgment was
made;
iv) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of a
Majority in liquidation amount of the Preferred Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
vi) no provision of this Guarantee Agreement
shall require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
2 Certain Rights of Guarantee Trustee.
a) Subject to the provisions of Section 3.01:
i) the Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
iii) whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall
be promptly delivered by the Guarantor;
iv) the Guarantee Trustee may consult with counsel of its
choice, and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with such
advice or opinion; such counsel may be counsel to the Guarantor
or any of its Affiliates and may include any of its employees;
the Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction;
v) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee
such adequate security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
provided that, nothing contained in this Section 3.02(a)(v) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement;
vi) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
vii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, and the Guarantee Trustee
shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it
hereunder;
viii) whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Guarantee Trustee
(1) may request instructions from the Holders, (2) may refrain
from enforcing such remedy or right or taking such other action
until such instructions are received, and (3) shall be protected
in acting in accordance with such instructions; and
ix) the Guarantee Trustee shall not be liable for any
action taken, suffered or omitted to be taken by it in good faith
and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Guarantee.
b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed
to be a duty.
IV GUARANTEE TRUSTEE
1 Guarantee Trustee; Eligibility.
a) There shall at all times be a Guarantee Trustee which
shall:
i) not be an Affiliate of the Guarantor; and
ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to act
as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for
the purposes of this Section 4.01(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 4.03(c).
c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
2 Compensation and Reimbursement.
The Guarantor agrees:
a) to pay the Guarantee Trustee from time to time such
reasonable compensation as the Guarantor and the Guarantee
Trustee shall from time to time agree in writing for all services
rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with the provisions of
this Guarantee (including the reasonable compensation and
expenses of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless from
and against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based upon the income
of the Guarantee Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance of the administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any its powers or duties hereunder.
As security for the performance of the obligations of
the Guarantor under this Section, the Guarantee Trustee shall
have a lien prior to the Preferred Securities upon all the
property and funds held or collected by the Guarantee Trustee as
such, except funds held in trust for the payment of principal of,
and premium (if any) or interest on, particular obligations of
the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
3 Appointment, Removal and Resignation of
Guarantee Trustee.
a) Subject to Section 4.03(b), unless an Event of Default
shall have occurred and be continuing, the Guarantee Trustee may
be appointed or removed without cause at any time by the
Guarantor.
b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
c) The Guarantee Trustee appointed to office shall hold
office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.03 within 60 days after delivery to the Guarantor of an
instrument of resignation, the resigning Guarantee Trustee may
petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
e) The Guarantor shall give notice of each resignation and
each removal of the Guarantee Trustee and each appointment of a
successor Guarantee Trustee to all Holders in the manner provided
in Section 8.03 hereof. Each notice shall include the name of
the successor Guarantee Trustee and the address of its Corporate
Trust Office.
V GUARANTEE
1 Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
2 Waiver of Notice and Demand. The Guarantor
hereby waives notice of acceptance of this Guarantee Agreement
and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
3 Obligations Not Affected. The obligation of
the Guarantor to make the Guarantee Payments under this Guarantee
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of, or
in connection with, the Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from
the extension of any interest payment period on the Debentures
permitted by the Indenture);
c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Preferred Securities, or any action on the part
of the Issuer granting indulgence or extension of any kind;
d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.03 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
4 Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited
with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders
of a Majority in liquidation amount of the Preferred Securities
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee
in respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement without first instituting a legal proceeding
against the Issuer or any other person or entity.
5 Guarantee of Payment. This Guarantee
Agreement creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication).
6 Subrogation. The Guarantor shall be
subrogated to all (if any) rights of the Holders against the
Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise
any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders
and to pay over such amount to the Holders.
7 Independent Obligations. The Guarantor
acknowledges that its obligations hereunder are independent of
the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to
the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through
(g), inclusive, of Section 5.03.
VI SUBORDINATION
1 Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all other
liabilities of the Guarantor, including the Debentures, except
those made pari passu or subordinate by their terms, (ii) pari
passu with the most senior preferred or preference stock now or
hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any
preferred or preference stock of any Affiliate of the Guarantor,
and (iii) senior to all common stock of the Guarantor. Nothing
in this Section 6.01 shall apply to claims of, or payments to,
the Guarantee Trustee under or pursuant to Section 4.02 hereof.
VII TERMINATION
1 Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full
payment of the Redemption Price of all Preferred Securities, and
all accrued and unpaid Distributions to the date of redemption,
(ii) the distribution of Debentures to Holders in exchange for
all of the Preferred Securities or (iii) full payment of the
amounts payable in accordance with the Trust Agreement upon
liquidation of the Issuer. Notwithstanding the foregoing, this
Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must
restore payment of any sums paid with respect to the Preferred
Securities or under this Guarantee Agreement.
VIII MISCELLANEOUS
1 Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of
the Preferred Securities then outstanding. Except in connection
with a consolidation, merger or sale involving the Guarantor that
is permitted under Article Eleven of the Indenture, the Guarantor
shall not assign its obligations hereunder.
2 Amendments. This Guarantee Agreement may be
amended only by an instrument in writing entered into by the
Guarantor and the Guarantee Trustee. Except with respect to any
changes which do not materially adversely affect the rights of
Holders (in which case no consent of Holders will be required),
this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than 66 2/3% in aggregate
liquidation amount of all the outstanding Preferred Securities.
The provisions of Article VI of the Trust Agreement concerning
meetings of Holders shall apply to the giving of such approval.
Nothing herein contained shall be deemed to require that the
Guarantee Trustee enter into any amendment of this Guarantee
Agreement.
3 Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities:
Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No: (501) 377-____
Attention: _____________
b) if given to the Issuer, in care of the Administrative
Trustees, at the Issuer's (and the Administrative Trustee's)
address set forth below or such other address as the
Administrative Trustees on behalf of the Issuer may give notice
of to the Holders:
Entergy Arkansas, Capital III
c/o Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No: (501) 377-____
Attention: Administrative Trustees
c) if given to the Guarantee Trustee, to the address set
forth below or such other address as the Guarantee Trustee may
give notice of to the Holders of the Preferred Securities:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Administration
d) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been
given when received in person, telecopied with receipt confirmed,
or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
4 Benefit. This Guarantee Agreement is solely
for the benefit of the Holders and, subject to Section 3.01(a),
is not separately transferable from the Preferred Securities.
5 Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings
assigned to them in Section 1.01;
b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise
defined in this Guarantee Agreement or unless the context
otherwise requires;
f) a reference to the singular includes the plural and vice
versa; and
g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
6 Governing Law. This Guarantee Agreement
shall be governed by and construed and interpreted in accordance
with the laws of the State of New York.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
Entergy Arkansas, Inc.
By:
Name:
Title:
The Bank of New York,
as Guarantee Trustee
By:
Name:
Title:
Exhibit 5.01
[Letterhead of Friday, Eldredge & Clark]
May 31, 1996
Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Ladies and Gentlemen:
We refer to the joint Registration Statement on Form S-3,
including the exhibits thereto, to be filed with the Securities
and Exchange Commission (the "Commission") on or about the date
hereof of Entergy Arkansas, Inc. (the "Company"), Entergy
Arkansas Capital I, Entergy Arkansas Capital II and Entergy
Arkansas Capital III (the "Trusts") for the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of
(i) Preferred Securities (the "Preferred Securities") of the
Trusts to be offered in one or more underwritten public
offerings; (ii) Junior Subordinated Debentures (the "Debentures")
of the Company to be issued pursuant to the terms of either of
two indentures from the Company to The Bank of New York, as
trustee (the "Indentures"), either to be issued and sold by the
Company to the trusts or to be offered in one or more
underwritten public offerings; and (iii) Guarantees of the
Company with respect to the Preferred Securities (the
"Guarantees") to be issued pursuant to the terms of guarantee
agreements between the Company and The Bank of New York, as
trustee (the "Guarantee Agreements") (the Preferred Securities
and Debentures to be issued in a combined aggregate liquidation
preference or principal amount of $150,000,000).
We are of the opinion that the Company is a corporation duly
organized and validly existing under the laws of the State of
Arkansas.
We are of the opinion that all action necessary to make
valid and legal the proposed issuance and sale of the Debentures
and the Guarantees of the Company will have been taken when:
(a) the Company's and the Trusts' said joint
Registration Statement on Form S-3, as it may be
amended, shall have become effective in accordance with
the applicable provisions of the Securities Act, and
the Indentures and the Guarantee Agreements shall have
been qualified under the Trust Indenture Act of 1939,
as amended;
(b) appropriate orders shall have been issued by the
Arkansas Public Service Commission and the Tennessee
Public Service Commission authorizing the issuance and
sale of the Debentures and the Guarantees;
(c) appropriate action shall have been taken by the
Board of Directors of the Company for the purpose of
authorizing the consummation of the issuance and sale
of the Debentures and the Guarantees;
(d) the proposed Indentures and the Guarantee
Agreements shall have been appropriately executed and
delivered;
(e) the specific terms of the Debentures and the
Guarantees shall have been determined by supplemental
indenture, board resolution or officer's certificate;
and
(f) the Debentures and the Guarantees shall have been
appropriately issued and delivered for the
consideration contemplated by, and otherwise in
conformity with, the acts, proceedings and documents
referred to above.
We are further of the opinion that when the foregoing steps
have been taken, the Debentures and the Guarantees will be legal,
valid and binding obligations of the Company enforceable in
accordance with their respective terms, in each case, except as
limited by bankruptcy, insolvency, reorganization or other laws
affecting creditors' rights and general equitable principles.
This opinion does not pass upon the matter of compliance with
"blue sky" laws or similar laws relating to the sale or
distribution of the Debentures and Guarantees by the
underwriters.
We are members of the 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 upon an opinion of even date
addressed to you by Reid & Priest LLP, special counsel to the
Company. We consent to the reliance of Reid & Priest LLP upon
our opinion insofar as it relates to matters of Arkansas law.
We hereby consent to the use of this opinion as an exhibit
to the Company's and the Trusts' said Registration Statement on
Form S-3, as it may be amended, and consent to such references to
our firm as may be made in such Registration Statement and in the
Prospectus Supplement constituting a part hereof.
Very truly yours,
/s/ Friday, Eldredge & Clark
FRIDAY, ELDREDGE & CLARK
PBB/bb
Exhibit 5.02
[Letterhead of Richards, Layton & Finger]
May 30, 1996
Entergy Arkansas Capital I
c/o Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Re: Entergy Arkansas Capital I
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:
(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 Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus
and preliminary prospectus supplement (the "Prospectus
Supplement"), relating to the __% Cumulative Quarterly Income
Preferred Securities, Series A, of the Trust representing
preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the
Company, the Trust and others as set forth therein with the
Securities and Exchange Commission on or about May 30, 1996;
(d) A form of Amended and Restated Trust Agreement
of the Trust, to be entered into among the Company, as
Depositor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, B and D
thereto) (the "Trust Agreement"), attached as an exhibit to
the Registration Statement; and
(e) A Certificate of Good Standing for the Trust,
dated May 30, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed
any documents other than the documents listed in paragraphs
(a) through (e) above. In particular, we have not reviewed
any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated
by reference into the documents reviewed by us. We have
assumed that there exists no provision in any document that
we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon
the foregoing documents, the statements and information set
forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and
accurate in all material respects.
With respect to all documents examined by us, we
have assumed (i) the authenticity of all documents submitted
to us as authentic originals, (ii) the conformity with the
originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i)
that the Trust Agreement and the Certificate are in full
force and effect and have not been amended, (ii) except to
the extent provided in paragraph 1 below, the due creation or
due organization or due formation, as the case may be, and
valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to
the documents examined by us has the power and authority to
execute and deliver, and to perform its obligations under,
such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for
the Preferred Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement
and assume no responsibility for its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion
on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in
effect.
Based upon the foregoing, and upon our examination
of such questions of law and statutes of the State of
Delaware as we have considered necessary or appropriate, and
subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act.
2. The Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3
below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation
of personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated to make payments
as set forth in the Trust Agreement.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement. In addition, we hereby consent to
the use of our name under the heading "Legal Opinions" in the
Prospectus Supplement. In giving the foregoing consents, we
do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior
written consent, this opinion may not be furnished or quoted
to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
PMA/BJK/ds
Exhibit 5.03
[Letterhead of Richards, Layton & Finger]
May 30, 1996
Entergy Arkansas Capital II
c/o Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Re: Entergy Arkansas Capital II
Ladies and Gentlemen:
We have acted as special Delaware counsel for
Entergy Arkansas, Inc., an Arkansas corporation (the
"Company"), and Entergy Arkansas Capital II, a Delaware
business trust (the "Trust"), in connection with the matters
set forth herein. At your request, this opinion is being
furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated as
of 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 Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus
and preliminary prospectus supplement (the "Prospectus
Supplement"), relating to the __% Cumulative Quarterly Income
Preferred Securities, Series A, of the Trust representing
preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the
Company, the Trust and others as set forth therein with the
Securities and Exchange Commission on or about May 30, 1996;
(d) A form of Amended and Restated Trust Agreement
of the Trust, to be entered into among the Company, as
Depositor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, B and D
thereto) (the "Trust Agreement"), attached as an exhibit to
the Registration Statement; and
(e) A Certificate of Good Standing for the Trust,
dated May 30, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed
any documents other than the documents listed in paragraphs
(a) through (e) above. In particular, we have not reviewed
any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated
by reference into the documents reviewed by us. We have
assumed that there exists no provision in any document that
we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon
the foregoing documents, the statements and information set
forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and
accurate in all material respects.
With respect to all documents examined by us, we
have assumed (i) the authenticity of all documents submitted
to us as authentic originals, (ii) the conformity with the
originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i)
that the Trust Agreement and the Certificate are in full
force and effect and have not been amended, (ii) except to
the extent provided in paragraph 1 below, the due creation or
due organization or due formation, as the case may be, and
valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to
the documents examined by us has the power and authority to
execute and deliver, and to perform its obligations under,
such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for
the Preferred Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement
and assume no responsibility for its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion
on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in
effect.
Based upon the foregoing, and upon our examination
of such questions of law and statutes of the State of
Delaware as we have considered necessary or appropriate, and
subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act.
2. The Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3
below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation
of personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated to make payments
as set forth in the Trust Agreement.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement. In addition, we hereby consent to
the use of our name under the heading "Legal Opinions" in the
Prospectus Supplement. In giving the foregoing consents, we
do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior
written consent, this opinion may not be furnished or quoted
to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
PMA/BJK/ds
Exhibit 5.04
[Letterhead of Richards, Layton & Finger]
May 30, 1996
Entergy Arkansas Capital III
c/o Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Re: Entergy Arkansas Capital III
Ladies and Gentlemen:
We have acted as special Delaware counsel for
Entergy Arkansas, Inc., an Arkansas corporation (the
"Company"), and Entergy Arkansas Capital III, a Delaware
business trust (the "Trust"), in connection with the matters
set forth herein. At your request, this opinion is being
furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated as
of 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 Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus
and preliminary prospectus supplement (the "Prospectus
Supplement"), relating to the __% Cumulative Quarterly Income
Preferred Securities, Series A, of the Trust representing
preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the
Company, the Trust and others as set forth therein with the
Securities and Exchange Commission on or about May 30, 1996;
(d) A form of Amended and Restated Trust Agreement
of the Trust, to be entered into among the Company, as
Depositor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, B and D
thereto) (the "Trust Agreement"), attached as an exhibit to
the Registration Statement; and
(e) A Certificate of Good Standing for the Trust,
dated May 30, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed
any documents other than the documents listed in paragraphs
(a) through (e) above. In particular, we have not reviewed
any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated
by reference into the documents reviewed by us. We have
assumed that there exists no provision in any document that
we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon
the foregoing documents, the statements and information set
forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and
accurate in all material respects.
With respect to all documents examined by us, we
have assumed (i) the authenticity of all documents submitted
to us as authentic originals, (ii) the conformity with the
originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i)
that the Trust Agreement and the Certificate are in full
force and effect and have not been amended, (ii) except to
the extent provided in paragraph 1 below, the due creation or
due organization or due formation, as the case may be, and
valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to
the documents examined by us has the power and authority to
execute and deliver, and to perform its obligations under,
such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for
the Preferred Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement
and assume no responsibility for its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion
on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in
effect.
Based upon the foregoing, and upon our examination
of such questions of law and statutes of the State of
Delaware as we have considered necessary or appropriate, and
subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act.
2. The Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3
below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation
of personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated to make payments
as set forth in the Trust Agreement.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement. In addition, we hereby consent to
the use of our name under the heading "Legal Opinions" in the
Prospectus Supplement. In giving the foregoing consents, we
do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior
written consent, this opinion may not be furnished or quoted
to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
PMA/BJK/ds
Exhibit 5.05 and 8.01
REID & PRIEST LLP
40 West 57th Street
New York, NY 10019-4097
Telephone 212 603-2000
Fax 212 603-2001
May 31, 1996
Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Ladies and Gentlemen:
We refer to the joint Registration Statement on Form S-
3, including the exhibits thereto, to be filed with the
Securities and Exchange Commission (the "Commission") on or about
the date hereof of Entergy Arkansas, Inc. (the "Company"),
Entergy Arkansas Capital I, Entergy Arkansas Capital II and
Entergy Arkansas Capital III (the "Trusts") for the registration
under the Securities Act of 1933, as amended (the "Securities
Act"), of (i) Preferred Securities (the "Preferred Securities")
of the Trusts to be offered in one or more underwritten public
offerings; (ii) Junior Subordinated Debentures (the "Debentures")
of the Company to be issued pursuant to the terms of either of
two indentures from the Company to The Bank of New York, as
trustee (the "Indentures"), either to be issued and sold by the
Company to the Trusts or to be offered in one or more
underwritten public offerings; and (iii) Guarantees of the
Company with respect to the Preferred Securities (the
"Guarantees") to be issued pursuant to the terms of guarantee
agreements between the Company and The Bank of New York, as
trustee (the "Guarantee Agreements") (the Preferred Securities
and Debentures to be issued in a combined aggregate liquidation
preference or principal amount of $150,000,000).
We are of the opinion that the Company is a corporation duly
organized and validly existing under the laws of the State of
Arkansas.
We are of the opinion that all action necessary to make
valid and legal the proposed issuance and sale of the Debentures
and the Guarantees of the Company will have been taken when:
(a) the Company's and the Trusts' said joint Registration
Statement on Form S-3, as it may be amended, shall have
become effective in accordance with the applicable
provisions of the Securities Act, and the Indentures and the
Guarantee Agreements shall have been qualified under the
Trust Indenture Act of 1939, as amended;
(b) appropriate orders shall have been issued by the
Arkansas Public Service Commission and the Tennessee Public
Service Commission authorizing the issuance and sale of the
Debentures and the Guarantees;
(c) appropriate action shall have been taken by the Board
of Directors of the Company for the purpose of authorizing
the consummation of the issuance and sale of the Debentures
and the Guarantees;
(d) the proposed Indentures and the Guarantee Agreements
shall have been appropriately executed and delivered;
(e) the specific terms of the Debentures and the Guarantees
shall have been determined by supplemental indenture, board
resolution or officer's certificate; and
(f) the Debentures and the Guarantees shall have been
appropriately issued and delivered for the consideration
contemplated by, and otherwise in conformity with, the acts,
proceedings and documents referred to above.
We are further of the opinion that when the foregoing steps
have been taken, the Debentures and the Guarantees will be legal,
valid and binding obligations of the Company enforceable in
accordance with their respective terms, in each case, except as
limited by bankruptcy, insolvency, reorganization or other laws
affecting creditors' rights and general equitable principles.
This opinion does not pass upon the matter of compliance with
"blue sky" laws or similar laws relating to the sale or
distribution of the Debentures and Guarantees by the
underwriters.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of Arkansas law, we have relied upon an opinion of
even date addressed to you by Friday, Eldredge & Clark, of Little
Rock, Arkansas, Arkansas counsel to the Company. We consent to
the reliance of Friday, Eldredge & Clark upon our opinion insofar
as it relates to matters of New York law.
We confirm our opinion as set forth under the caption
"Certain United States Federal Income Tax Considerations" in the
Prospectus Supplement constituting a part of the Registration
Statement.
We hereby consent to the use of this opinion as an
exhibit to the Company's and the Trusts' said Registration
Statement on Form S-3, as it may be amended, and consent to such
references to our firm as may be made in such Registration
Statement and in the Prospectus Supplement constituting a part
thereof.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
Exhibit 25.01
=======================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) __
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ENTERGY ARKANSAS, INC.
(Exact name of obligor as specified in its charter)
Arkansas 72-0245590
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
425 West Capitol Avenue Little Rock, Arkansas 72201
(Address of principal executive offices) (Zip code)
______________________
Junior Subordinated Indenture
(Title of the indenture securities)
=======================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
- -----------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The Bank
of New York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant
of powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration Statement No.
33-31019.)
6. The consent of the Trustee required by Section
321(b) of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the
Trustee published pursuant to law or to the requirements of
its supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item
2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 24th day of May,
1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
Total assets ......................... $42,711,907
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
Total liabilities .................... 39,224,720
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
Total liabilities and equity
capital ........................... $42,711,907
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board
of Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
Exhibit 25.02
=======================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) __
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ENTERGY ARKANSAS, INC.
(Exact name of obligor as specified in its charter)
Arkansas 72-0245590
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
425 West Capitol Avenue
Little Rock, Arkansas 72201
(Address of principal executive offices) (Zip code)
______________________
Junior Subordinated Deferrable Interest Debentures
(Title of the indenture securities)
=======================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The Bank
of New York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant
of powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration Statement No.
33-31019.)
6. The consent of the Trustee required by Section
321(b) of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the
Trustee published pursuant to law or to the requirements of
its supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item
2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 24th day of May,
1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
Total assets ......................... $42,711,907
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
Total liabilities .................... 39,224,720
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
Total liabilities and equity
capital ........................... $42,711,907
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board
of Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
Exhibit 25.03
=======================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) __
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ENTERGY ARKANSAS CAPITAL I
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
(Address of principal executive offices) (Zip code)
______________________
Preferred Securities
(Title of the indenture securities)
=======================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The Bank
of New York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant
of powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration Statement No.
33-31019.)
6. The consent of the Trustee required by Section
321(b) of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the
Trustee published pursuant to law or to the requirements of
its supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item
2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 24th day of May,
1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
Total assets ......................... $42,711,907
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
Total liabilities .................... 39,224,720
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
Total liabilities and equity
capital ........................... $42,711,907
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board
of Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
Exhibit 25.04
=======================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation I.R.S. employer
if not a U.S. national bank) Identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) Zip code)
ENTERGY ARKANSAS CAPITAL I
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of I.R.S. employer
incorporation or organization) Identification no.)
c/o Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
(Address of principal executive offices) (Zip code)
______________________
Guarantee Preferred Securities
(Title of the indenture securities)
=======================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The Bank
of New York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant
of powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration Statement No.
33-31019.)
6. The consent of the Trustee required by Section
321(b) of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the
Trustee published pursuant to law or to the requirements of
its supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item
2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 24th day of May,
1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
Total assets ......................... $42,711,907
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
Total liabilities .................... 39,224,720
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
Total liabilities and equity
capital ........................... $42,711,907
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board
of Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
Exhibit 25.05
===================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ENTERGY ARKANSAS CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
(Address of principal executive offices) (Zip code)
______________________
Preferred Securities
(Title of the indenture securities)
===================================================================
<PAGE>
1. General information. Furnish the following information as to
the Trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act
of 1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The
Bank of New York (formerly Irving Trust Company) as now
in effect, which contains the authority to commence
business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with
Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration Statement
No. 33-31019.)
6. The consent of the Trustee required by Section
321(b) of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the
Trustee published pursuant to law or to the requirements
of its supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment
by the Trustee of all facts on which to base a responsive answer to
Item 2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank
of New York, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 24th day of May, 1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
Total assets ......................... $42,711,907
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
Total liabilities .................... 39,224,720
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
Total liabilities and equity
capital ........................... $42,711,907
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
Exhibit 25.06
=======================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation I.R.S. employer
if not a U.S. national bank) Identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ENTERGY ARKANSAS CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of I.R.S. employer
incorporation or organization) Identification no.)
c/o Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
(Address of principal executive offices) Zip code)
______________________
Guarantee Preferred Securities
(Title of the indenture securities)
=======================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The Bank
of New York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant
of powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration Statement No.
33-31019.)
6. The consent of the Trustee required by Section
321(b) of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the
Trustee published pursuant to law or to the requirements of
its supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item
2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 24th day of May,
1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
Total assets ......................... $42,711,907
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
Total liabilities .................... 39,224,720
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
Total liabilities and equity
capital ........................... $42,711,907
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board
of Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
Exhibit 25.07
=======================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ENTERGY ARKANSAS CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
(Address of principal executive offices) (Zip code)
______________________
Preferred Securities
(Title of the indenture securities)
=======================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The Bank
of New York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant
of powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration Statement No.
33-31019.)
6. The consent of the Trustee required by Section
321(b) of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the
Trustee published pursuant to law or to the requirements of
its supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item
2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 24th day of May,
1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
Total assets ......................... $42,711,907
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
Total liabilities .................... 39,224,720
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
Total liabilities and equity
capital ........................... $42,711,907
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board
of Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
Exhibit 25.08
=======================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation I.R.S. employer
if not a U.S. national bank) Identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ENTERGY ARKANSAS CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of IR.S. employer
incorporation or organization) Identification no.)
c/o Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
(Address of principal executive offices) (Zip code)
______________________
Guarantee Preferred Securities
(Title of the indenture securities)
=======================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The Bank
of New York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant
of powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration Statement No.
33-31019.)
6. The consent of the Trustee required by Section
321(b) of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the
Trustee published pursuant to law or to the requirements of
its supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item
2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 24th day of May,
1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
Total assets ......................... $42,711,907
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
Total liabilities .................... 39,224,720
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
Total equity capital ................ 3,487,187
Total liabilities and equity
capital ........................... $42,711,907
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board
of Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
