As filed with the Securities and Exchange Commission on July 17, 1996
Registration No. 333-05045
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
AMENDMENT NO. 1
to
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)
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 17, 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)
fully and unconditionally guaranteed 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), a 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 an 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 $ (2) $
Security..
Total................... $ (2) $
__________ Information contained herein is subject to completion or amendment.
A registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This Prospectus Supplement and the accompanying Prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor shall
there be any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
(1) 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>
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 A LEVEL ABOVE THAT 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.
__________________________
(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 on the Series A Debentures 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 prior to receipt of cash related to
such interest income. 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. See <R/> "Description of Junior
Subordinated Debentures--Redemption" and "Description of Corresponding Junior
Subordinated Debentures--Optional Redemption" in the accompanying Prospectus.
At any time, the Company will have the right to terminate the Series A
Issuer and cause the Series A Debentures to be distributed to the holders of the
Series A Preferred Securities and the Series A Common Securities in liquidation
of the Series A Issuer. See "Certain Terms of Series A Preferred Securities--
Distribution of Series A Debentures".
The Series A Debentures are subordinate and junior in right of payment to
all Senior Debt of the Company. As of March 31, 1996, the Company had
approximately $1.6 billion of Senior Debt outstanding. The terms of the
Series A Debentures place no limitation on the amount of Senior Debt that may be
incurred by the Company. See "Description of Junior Subordinated Debentures--
Subordination" in the accompanying Prospectus.
In the event of the liquidation of the Series A Issuer, after
satisfaction of liabilities to creditors of the Series A Issuer, if any, as
provided by applicable law, 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 exceptions. See "Description of
Preferred Securities--Liquidation Distribution Upon Termination" in the
accompanying Prospectus.
Application will be 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 or other
organizations, 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.
<PAGE>
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, 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, 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 and not otherwise
defined in this Prospectus Supplement has the meaning set forth in the
Corresponding Indenture, the Series A Trust Agreement or 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.
Obligations Under the Series A Guarantee and the Series A Debentures are
Unsecured and Subordinate to Senior Debt
The obligations of the Company under the Series A Guarantee issued by the
Company for the benefit of the holders of Series A Preferred Securities are
unsecured and rank subordinate and junior in right of payment to all Senior Debt
of the Company. The obligations of the Company under the Series A Debentures
are subordinate and junior in right of payment to all such Senior Debt. At
March 31, 1996, Senior Debt of the Company aggregated approximately $1.6
billion. None of the Corresponding Indenture, the Series A Guarantee or the
Series A Trust Agreement place any limitation on the amount of secured or
unsecured debt, including Senior Debt, that may be incurred by the Company. See
"Description of Guarantees--Status of the Guarantees" and "Description of Junior
Subordinated Debentures--Subordination" in the accompanying Prospectus.
The ability of the Series A Issuer to pay amounts due on the Series A
Preferred Securities is solely dependent upon the Company making payments on the
Series A Debentures as and when required.
Option to Extend Interest Payment Period; Tax Consequences; Potential Market
Volatility During Extension Period
The Company has the right under the Corresponding Indenture to defer the
payment of interest on the Series A Debentures at any time or from time to time
for one or more Extension Periods, each of which, together with all previous and
further extensions of such Extension Period prior to its termination, 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 common 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".
In the event the Company elects to exercise its right to defer payments
of interest on the Series A Debentures, 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 preferred undivided beneficial
interests in the Series A Debentures) may be more volatile than the market
prices of other securities on which original issue discount accrues that are not
subject to such deferrals.
Special Event Redemption; Adverse Effect of Possible Tax Law Changes
Upon the occurrence and continuation of a Special Event, as described in
"Description of Preferred Securities--Redemption--Special Event Redemption or
Distribution of Corresponding Junior Subordinated Debentures" in the
accompanying Prospectus, the Company has the right to redeem the Series A
Debentures in whole (but not in part) and thereby 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,
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, as described more fully
under "Description of Preferred Securities--Redemption--Special Event Redemption
or Distribution of Corresponding Junior Subordinated Debentures" 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.
Distribution of the Series A Debentures
At any time, the Company has the right to terminate the Series A Issuer and,
after satisfaction of liabilities to creditors, if any, of the Series A Issuer
as provided by applicable law, cause Series A Debentures to be distributed to
the holders of the Series A Preferred Securities in liquidation of the Series A
Issuer.
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 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 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 if the Company exercises its right to terminate the
Series A Issuer, 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 of Corresponding Junior
Subordinated Debentures" and "Description of Corresponding Junior
Subordinated Debentures--General" in the accompanying Prospectus.
Rights under the Series A Guarantee; Limitation as to Funds Available to the
Series A Issuer
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 Corresponding 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 Preferred Securities", "Description of Junior Subordinated Debentures" and
"Description of Guarantees" 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 . 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 Price of Series A Preferred Securities May Not Reflect Value of
Accrued But Unpaid Interest
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 will be required
to include in income (as ordinary income) accrued but unpaid interest on the
Series A Debentures through the date of disposition for United States Federal
income tax purposes 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 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 an
event of default under the Series A Trust Agreement resulting from a
Debenture Event of Default, the rights of the Company as holder of the Series A
Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Series A Preferred Securities. See "Description of Preferred
Securities--Subordination of Common Securities" in the accompanying Prospectus.
The Company will acquire Series A Common Securities having an aggregate
liquidation amount equal to 3% of the total capital of the Series A Issuer. The
Series A Issuer has a term of approximately 54 years, but may terminate earlier
as provided in the Series A Trust Agreement. The principal executive office of
the Series A Issuer is 639 Loyola Avenue, New Orleans, LA 70113, Attention:
Treasurer, and its telephone number is (504) 576-4308. See "The Issuers" in the
accompanying Prospectus.
USE OF PROCEEDS
All of the proceeds from the sale of the Series A Preferred Securities will
be invested by the Series A Issuer in Series A Debentures. The Company intends
to use the proceeds from the sale of such Series A Debentures to redeem shares
of its preferred stock as follows: [ ].
__________________
<PAGE>
SELECTED FINANCIAL INFORMATION
(Dollars in Thousands)
The selected financial information of the Company set forth below has been
derived from and should be read in conjunction with the financial statements and
other financial information contained in the Incorporated Documents.
<TABLE>
<CAPTION>
For the Twelve Months Ended
December 31
----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
March 31,
1996 1995 1994 1993 1992 1991
---------- ---------- ---------- ---------- ---------- ----------
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 (net) 108,793 112,914 107,138 117,172 120,728 132,300
Net Income Operating 145,219 172,080 (1) 142,263 205,297 (2) 130,529 143,451
Revenues................
Operating Income...... 2.70 2.56 2.32 3.11 (2) 2.28 2.25
Interest Expense (net)
Net Income............
Ratio of Earnings to
Fixed Charges.......
</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.
ACCOUNTING TREATMENT
For financial reporting purposes, the Series A Issuer will be treated as a
subsidiary of the Company and, accordingly, the accounts of the Series A Issuer
will be included in the consolidated financial statements of the Company. The
Series A Preferred Securities will be presented as a separate line item in the
consolidated balance sheet of the Company entitled "Company Obligated
Mandatorily Redeemable Preferred Securities of Subsidiary Trust Holding Solely
Company Junior Subordinated Deferrable Debentures" and appropriate disclosures
about the Series A Preferred Securities, the Series A Guarantee and the Series A
Debentures will be included in the notes to the consolidated financial
statements. For financial reporting purposes, the Company will record
Distributions payable on the Series A Preferred Securities as an expense.
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 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 common 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 Considerations-- 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 . See
"Description of Junior Subordinated Debentures--Redemption" and "Description of
Corresponding Junior Subordinated Debentures--Optional Redemption" in the
accompanying Prospectus.
Distribution of Series A Debentures
At any time, the Company will have the right to terminate the Series A
Issuer and, after satisfaction of the liabilities of creditors of the Series A
Issuer as provided by applicable law, cause the Series A Debentures to be
distributed to the holders of the Series A Preferred Securities and the Series A
Common Securities in liquidation of the Series A Issuer. See "Certain Terms of
the Series A Debentures--Distribution of Series A Debentures". Under current
United States Federal income tax law, provided the Series A Issuer is treated as
a "grantor trust" at the time of such distribution, such distribution would not
be a taxable event to holders of the Series A Preferred Securities. See
"Certain United States Federal Income Tax Considerations--Receipt of Series A
Debentures or Cash Upon Liquidation of the Series A Issuer".
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, as of 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 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
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 Corresponding
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 common 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. See
"Description of Junior Subordinated Debentures--Redemption" and "Description of
Corresponding Junior Subordinated Debentures--Optional Redemption" in the
accompanying Prospectus.
Distribution of Series A Debentures
At any time, the Company has the right to terminate the Series A Issuer,
and, in such event, Series A Debentures will be distributed to the holders of
the Series A Preferred Securities in liquidation of the Series A Issuer after
satisfaction of liabilities to creditors of the Series A Issuer as provided by
applicable law. If distributed to holders of Series A Preferred Securities in
liquidation, the Series A Debentures will initially be issued in the form of one
or more global securities and DTC, or any successor depositary for the Series A
Preferred Securities, will act as depositary for the Series A Debentures. It is
anticipated that the depositary arrangements for the Series A Debentures would
be substantially identical to those in effect for the Series A Preferred
Securities. 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 or other organizations, if any, on which the Series A
Preferred Securities are then listed. There can be no assurance as to the
market price of any Series A Debentures that may be distributed to the holders
of Series A Preferred Securities. For a description of DTC and the terms of the
depositary arrangements relating to payments, transfers, voting rights,
redemption and other notices and other matters, see "Description of Preferred
Securities--Book-Entry Issuance" 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 as described more fully under
"Description of Preferred Securities--Redemption-Special Event Redemption or
Distribution of Corresponding Junior Subordinated Debentures" 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.
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
At any time the Company has the right to cause Series A Debentures to
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, and each of such Underwriters, for
whom Goldman, Sachs & Co., __________________________ and
_________________________ are acting as representatives, 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
Underwriter Securities
Goldman, Sachs & Co.
Subject to the terms and conditions set forth in the Underwriting
Agreement, the Underwriters are committed to take and pay for all such Series A
Preferred Securities offered hereby, if any are taken, provided, that under
certain circumstances involving a default of one or more Underwriters, less than
all of the Series A Preferred Securities may be purchased. Default by one
Underwriter would not relieve any non-defaulting Underwriter from its several
obligation, and in the event of such a default, the non-defaulting Underwriters
may be required by the Company to purchase the Series A Preferred Securities
that it has severally agreed to purchase and, in addition, to purchase the
Series A Preferred Securities that the defaulting Underwriter or Underwriters
shall have failed to purchase up to an amount equal to one-ninth of the Series A
Preferred Securities that such non-defaulting Underwriter or Underwriters have
otherwise agreed to purchase.
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 to exceed 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 issued
by the Company, 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 ($____________ per Series A Preferred Security sold to certain
institutions) for the accounts of the several Underwriters.
The Company and the Series A Issuer have agreed that, 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, they will not 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, except for
the Series A Preferred Securities, the Series A Common Securities and the Series
A Guarantee.
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 of the Underwriters
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 market making at any time without
notice. No assurance can be given as to the liquidity of the trading market for
the Series A Preferred Securities.
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, or to contribute to payments that the
Underwriters may be required to make in respect thereof.
Certain of the Underwriters or their affiliates have provided from time to
time, and expect to provide in the future, investment or commercial banking
services to the Company and its affiliates, for which such Underwriters or their
affiliates have received or will receive customary fees and commissions.
EXPERTS
The Company's balance sheets as of December 31, 1995 and 1994 and the
statements of income, retained earnings, and cash flows and the related
financial statement schedule for each of the two years ended December 31, 1995,
incorporated by reference in the Prospectus accompanying this Prospectus
Supplement, have been incorporated by reference therein in reliance on the
reports of Coopers & Lybrand L.L.P., independent accountants, given on the
authority of that firm as experts in accounting and auditing.
The statements of income, retained earnings, and cash flows and the related
financial statement schedule for the year ended December 31, 1993, incorporated
in the Prospectus accompanying this Prospectus Supplement by reference to the
Company's Annual Report on Form 10-K for the year ended December 31, 1995, have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
reports dated February 11, 199 4, also incorporated by reference therein
and have been so included in reliance upon the reports of such firm given upon
their authority as experts in accounting and auditing.
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the Series A
Preferred Securities, the enforceability of the Series A Trust Agreement and the
creation of the Series A Issuer are being passed upon by Richards, Layton &
Finger, P.A., special Delaware counsel to the Company and the Series A Issuer.
The validity of the Series A Guarantee and the Series A Debentures will be
passed upon for the Company by 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.
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 17, 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 fully
Interest Debentures and unconditionally guaranteed
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") to be issued under the Indenture for
Unsecured Subordinated Debt Securities, which will be qualified under and
subject to the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") . 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 Payment Period" and "--
Certain Covenants of the Company".
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" ) to be issued under the
Indenture for Unsecured Subordinated Debt Securities relating to Trust
Securities dated as of August 1, 1996 (the "Corresponding Indenture"), which
will be qualified under and subject to the Trust Indenture Act, 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
and the related Expense Agreement (as defined herein) 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 , at any time, the Company
may terminate each Issuer and, after satisfaction of liabilities to
creditors of each Issuer, if any, as provided 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, interest on the
Corresponding Junior Subordinated Debentures will continue to accrue (and the
Preferred Securities will accumulate additional Distributions thereon) at the
rate per annum set forth in the related Prospectus Supplement. See "Description
of Junior Subordinated Debentures -- Option to Extend Interest Payment Period"
and "-- Certain Covenants of the Company".
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 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.
As more fully described herein, the Company will, through each Guarantee,
each Trust Agreement, each series of Corresponding Junior Subordinated
Debentures, the Corresponding Indenture and each Expense Agreement, taken
together, fully, irrevocably and unconditionally guarantee all of each Issuer's
obligations under each series of Preferred Securities.
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 liquid 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. 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., a wholesale power company through which
Entergy provides wholesale electricity to other utilities, Entergy Enterprises,
Inc., a non-utility company 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. 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 or incidental thereto. Accordingly, the
Corresponding Junior Subordinated Debentures will be the sole assets of each
Issuer, and payments under the Corresponding Junior Subordinated Debenture s
and the Corresponding Expense Agreement 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 an event of default under a Trust Agreement
resulting from 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
639 Loyola Avenue, New Orleans, Louisiana 70113, Attention: Treasurer, and its
telephone number is (504) 576-4308.
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus Supplement, the
Company intends to use the proceeds from the sale of the Junior Subordinated
Debentures (including Corresponding Junior Subordinated Debentures issued to the
Issuers in connection with the investment by the Issuers of all of the proceeds
from the sale of Preferred Securities) for general corporate purposes, including
working capital, capital expenditures, refinancing of debt, including
outstanding commercial paper and other short term bank indebtedness, the
redemption of outstanding series of preferred stock, the satisfaction of other
obligations or for such other purposes as may be specified in the applicable
Prospectus Supplement. Except as otherwise set forth in the applicable
Prospectus Supplement, all of the proceeds from the sale of Preferred Securities
will be invested by the Issuers in 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
July 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 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. 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 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 the 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
premium, if any, 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 premium, if
any, 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 United States
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 United States
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 United States 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, 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
interests in 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, will immediately
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 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 interest, 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. The
applicable Prospectus Supplement will specify the period or periods within
which, the price or prices at which and the terms and conditions upon which the
Junior Subordinated Debentures of any series may be redeemed, in whole or in
part, at the option of the Company. Except as otherwise specified in the
applicable Prospectus Supplement, the redemption price for any Junior
Subordinated Debenture so redeemed shall equal any accrued and unpaid interest
thereon to the Redemption Date, plus 100% of the principal amount thereof.
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 Redemption Date.
"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 such series of 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 any 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) and, in the case of Corresponding
Junior Subordinated Debentures, should the Corresponding Debenture Trustee or
such holders of such Corresponding Junior Subordinated Debentures fail to make
such declaration, the holders of at least 33% in aggregate liquidation
preference of the corresponding series of Preferred Securities shall have such
right. 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
(or Preferred Securities, as described above), considered as one class, and not
the holders of the Junior Subordinated Debentures (or Preferred Securities)
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 Corresponding 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, premium, if any, or interest on or repay or repurchase or
redeem any debt securities (including other Junior Subordinated Debentures) 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 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 series, (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 Corresponding
Junior Subordinated Debentures of such series have been issued or (iii) the
Company shall have given notice of its election 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, and 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 United States 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 United States 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 will be entitled to receive or retain any payment in
respect of the principal of, 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 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, premium, if any, or interest, if any, on the Junior
Subordinated Debentures.
No payments on account of principal, 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 shall 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
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 of, premium, if any, or interest 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
common stock of the Company and (b) payments under any Guarantee). See
"Description of Junior Subordinated Debentures -- Option to Extend Interest
Payment Period" and "-- Certain Covenants of the Company".
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 by the Company on a limited basis as set forth herein under
"Description of Guarantees".
Distributions on the Preferred Securities of each Issuer 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 only 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 only form, the relevant record date for such
Preferred Securities shall be the date 15 days prior to the relevant
Distribution Date , or as may be otherwise specified in the applicable
Prospectus Supplement.
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, as 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") or (iii) as may be otherwise specified in
the applicable Prospectus Supplement.
Special Event Redemption or Distribution of Corresponding Junior
Subordinated Debentures. 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 redeem the Corresponding Junior Subordinated
Debentures in whole (but not in part) and thereby 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. Whether or not a Special Event has occurred, the Company has
the right, at any time, to terminate the related Issuer and, after satisfaction
of liabilities to creditors of such Issuer, if any, as provided by applicable
law, cause such Corresponding Junior Subordinated Debentures to be distributed
to the holders of the related Preferred Securities and Common Securities in
liquidation of such Issuer. If the Company does not elect any of the options
described 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
which 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 by the Company, 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, and (ii) with respect to a distribution of
Corresponding Junior Subordinated Debentures to holders of any series of
Preferred Securities in connection with a termination and liquidation of the
related Issuer, Corresponding Junior Subordinated Debentures having a principal
amount equal to the Liquidation Preference Amount of the Preferred Securities of
the holder to whom such Corresponding Junior Subordinated Debentures are
distributed. "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, (iii) the Company will use
its reasonable efforts to list the Corresponding Junior Subordinated Debentures
on the NYSE or such other exchanges or other organizations, if any, on which the
Preferred Securities are then listed or traded and (iv) 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 termination 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 termination 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 "--Subor
dination 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 as of 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 as of 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, or as may be specified in
the applicable Prospectus Supplement.
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.
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 Preferred Securities
to be redeemed at its registered address.
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 , any Event of
Default (as defined below) resulting from a Debenture Event of Default shall
have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any 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 delivery of written direction to the Property
Trustee to terminate such Issuer (which direction is optional and wholly within
the discretion of the Company as Depositor of such Issuer) (see "--Special Event
Redemption or Distribution of Corresponding Junior Subordinated Debentures");
(iii) the redemption of all of such Issuer's Preferred Securities as described
under "--Redemption"; 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.
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 with respect to any Corresponding Junior
Subordinated Debentures has occurred and is continuing, the related Preferred
Securities shall have a preference over the related Common Securities upon
termination of the applicable Issuer as described above. See "--Liquidation
Distribution upon Termination".
Removal of Issuer Trustees
Unless a Debenture Event of Default with respect to any Corresponding
Junior Subordinated Debentures shall have occurred and be continuing, any Issuer
Trustee may be removed at any time by the holder of the related 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
related 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 applicable 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 applicable
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 with respect to any Corresponding Junior Subordinated Debentures
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 person, 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, be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to a trust organized as such under the laws of any State;
provided, that (i) such successor entity either (a) expressly assumes all of the
obligations of 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 traded, or
any Successor Securities will be listed or traded upon notification of issuance,
on any national securities exchange or other organization on which such
Preferred Securities are then listed, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease 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, replacement, conveyance, transfer or lease 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,
replacement, conveyance, transfer or lease, 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, replacement,
conveyance, transfer or lease 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, replacement, conveyance, transfer or lease, 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 aggregate Liquidation Preference Amount of such
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other 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, that shall not be inconsistent with the other provisions
of such Trust Agreement, (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, or (iii)
to effect the acceptance of appointment by a successor Issuer Trustee; 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 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 holders of such Preferred
Securities and Common Securities to institute suit for the enforcement of any
such payment on or after such date as described below.
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".
Any required approval of holders of Preferred Securities may be given at
a meeting of holders of 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 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 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 Trustee 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 Administrative Trustees 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 Property Trustee
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).
After a Debenture Event of Default, the holders of a majority in Liquidation
Preference Amount of Preferred Securities may determine to discontinue the
system of book-entry transfers through DTC. 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 aggregate of the Liquidation Preference
Amount and all accumulated and unpaid Distributions on the Preferred Securities
to the date of payment 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 the 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.
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".
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 Company 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. Notwithstanding 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 related Preferred
Securities.
Optional Redemption
The Company may, at its option, redeem the Corresponding Junior
Subordinated Debentures of any series, in whole at any time or in part from time
to time as set forth in the applicable Prospectus Supplement. 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 otherwise continue to be treated as a
"grantor trust" 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 Distributions 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 related Preferred Securities. The
Guarantees do not cover payment of Distributions when the related Issuer does
not have sufficient funds to pay such Distributions. In such event, the
remedies of holders of a series of Preferred Securities are as described above
under "Description of Junior Subordinated Debentures -- Debenture Events of
Default" and "Description of Preferred Securities -- Voting Rights; Amendment of
Trust Agreement". The obligations of the Company under each Guarantee are
subordinate and junior in right of payment to all Senior Debt of the Company.
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
the rights of a holder of a Corresponding Junior Subordinated Debenture is that
a holder of a Corresponding Junior Subordinated Debenture is entitled to receive
the principal amount of and interest accrued on Corresponding Junior
Subordinated Debentures held, while a holder of Preferred Securities is entitled
to receive Distributions only from the related issuer (or from the Company under
the applicable Guarantee) 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 not involving the distribution 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 a Debenture
Event of Default under the Corresponding Indenture with respect to such series.
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 other than _____ Preferred Securities
those contained in this Prospectus
Supplement or the Prospectus, and,
if given or made, such information ENTERGY ARKANSAS
or representations must not be
relied upon as having been CAPITAL I
authorized. This Prospectus
Supplement and the Prospectus do
not constitute an offer to sell or _____%
a solicitation of an offer to buy
such securities in any Cumulative Quarterly
circumstances in which such offer Income Preferred Securities,
or solicitation is unlawful. Series A (QUIPSsm)
Neither the delivery of this
Prospectus Supplement and the fully and unconditionally
Prospectus nor any sale made guaranteed
hereunder shall, under any asset forth herein by
circumstances, create any
implication that there has been no ENTERGY ARKANSAS, INC.
change in the affairs of the
Company since the date hereof or
that the information contained
herein or therein is correct as of
any time subsequent to its date. ____________________
PROSPECTUS SUPPLEMENT
TABLE OF CONTENTS
____________________
Prospectus Supplement
Risk Factors Goldman, Sachs & Co.
Entergy Arkansas Capital I
Use of Proceeds ____________________
Selected Financial Information
Capitalization ____________________
Accounting Treatment
Certain Terms of the Series A
Preferred Securities Representatives of the
Securities Underwriters
Certain Terms of the Series A
Debentures
Certain United States Federal
Income Tax Considerations
Underwriting
Experts
Legal Opinions
Underwriting
Experts
Legal Opinions
Prospectus
Available Information
Incorporation of Certain
Documents by Reference
The Company
The Issuers
Use of Proceeds
Description of Junior
Subordinated Debentures
Description of Preferred
Securities
Description of Guarantees
Description of Corresponding
Junior Subordinated Debentures
Relationship Among the Preferred
Securities, the Corresponding
Junior Subordinated
Debentures and the Guarantees
Plan of Distribution
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Each
Initial Additional
Sale Sale
Filing Fees_Securities and Exchange
Commission:
Registration Statement $ 51,725 $ -
*Rating Agencies' fees 25,000 25,000
*Trustees' fees 6,000 3,000
*Fees of Company's Counsel:
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
expenses) 20,000 15,000
---------- ---------
*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 Arkansas 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 August 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 August 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.
4.20 Form of Officer's Certificate establishing terms of Junior
Subordinated Debentures (including form of Junior
Subordinated Debenture).
4.21 Form of Officer's Certificate establishing terms of
Corresponding Junior Subordinated Debentures (including form
of Corresponding Junior Subordinated Debenture).
***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.
***Previously filed.
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>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has duly caused this Amendment No. 1 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
Orleans, State of Louisiana, on the 17th day of July, 1996.
ENTERGY ARKANSAS, INC.
By /s/William J. Regan, Jr.
William J. Regan, Jr.
Vice President and Treasurer
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
-------------- --------------------- ----------
Chairman of the Board,
Chief Executive Officer and
Edwin Lupberger Director
(Principal Executive Officer)
By:/s/ William J. Regan, Jr. July 17, 1996
William J. Regan, Jr.
Attorney-in-fact
Executive Vice President
Chief Financial Officer,
Gerald D. McInvale and Director
(Principal Financial Officer)
By:/s/ William J. Regan, Jr. July 17, 1996
William J. Regan, Jr.
Attorney-in-fact
Vice President and
Louis E. Buck, Jr. Chief Accounting Officer
(Principal Accounting Officer)
By: /s/William J. Regan, Jr. July 17, 1996
William J. Regan, Jr.
Attorney-in-fact
Michael B. Bemis ) Directors
Jerry L. Maulden )
Donald C. Hintz )
Jerry D. Jackson )
R. Drake Keith )
By:/s/ William J. Regan, Jr. July 17, 1996
William J. Regan, Jr.
Attorney-in-fact
<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 duly caused this
Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Orleans, State of Louisiana, on the 17th day of
July, 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
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
__________________________________________
TABLE OF CONTENTS
PARTIES 1
RECITAL OF THE COMPANY 1
ARTICLE ONE 1
Definitions and Other Provisions of General Application 1
SECTION 101. Definitions 1
Act 2
Affiliate 2
Authenticating Agent 2
Authorized Officer 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company 3
Company Request or Company Order 3
Corporate Trust Office 3
corporation 3
Defaulted Interest 3
Discount Security 3
Dollar or $ 3
Eligible Obligations 3
Event of Default 3
Governmental Authority 3
Government Obligations 4
Holder 4
Indenture 4
Interest Payment Date 4
Maturity 4
Officer's Certificate 4
Opinion of Counsel 4
Outstanding 4
Paying Agent 6
Periodic Offering 6
Person 6
Place of Payment 6
Predecessor Security 6
Redemption Date 6
Redemption Price 6
Regular Record Date 7
Required Currency 7
Responsible Officer 7
Securities 7
Security Register and Security Registrar 7
Senior Indebtedness 7
Special Record Date 7
Stated Interest Rate 7
Stated Maturity 7
Tranche 7
Trust Indenture Act 8
Trustee 8
United States 8
SECTION 102. Compliance Certificates and Opinions 8
SECTION 103. Form of Documents
Delivered to Trustee 9
SECTION 104. Acts of Holders 9
SECTION 105. Notices, etc. to Trustee and Company 11
SECTION 106. Notice to Holders of Securities; Waiver 12
SECTION 107. Conflict with Trust Indenture Act 13
SECTION 108. Effect of Headings and Table of Contents 13
SECTION 109. Successors and Assigns 13
SECTION 110. Separability Clause 13
SECTION 111. Benefits of Indenture 13
SECTION 112. Governing Law 13
SECTION 113. Legal Holidays 13
ARTICLE TWO 14
Security Forms 14
SECTION 201. Forms Generally 14
SECTION 202. Form of Trustee's Certificate of
Authentication 15
ARTICLE THREE 15
The Securities 15
SECTION 301. Amount Unlimited; Issuable in Series 15
SECTION 302. Denominations 18
SECTION 303. Execution, Authentication, Delivery and
Dating 19
SECTION 304. Temporary Securities 21
SECTION 305. Registration, Registration of Transfer
and Exchange 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities 23
SECTION 307. Payment of Interest; Interest Rights
Preserved 24
SECTION 308. Persons Deemed Owners 25
SECTION 309. Cancellation by Security Registrar 25
SECTION 310. Computation of Interest 26
SECTION 311. Payment to Be in Proper Currency 26
SECTION 312. Extension of Interest Payment 26
SECTION 313. CUSIP Numbers 26
ARTICLE FOUR 27
Redemption of Securities 27
SECTION 401. Applicability of Article 27
SECTION 402. Election to Redeem; Notice to Trustee 27
SECTION 403. Selection of Securities to Be Redeemed 27
SECTION 404. Notice of Redemption 28
SECTION 405. Securities Payable on Redemption Date 29
SECTION 406. Securities Redeemed in Part 29
ARTICLE FIVE 30
Sinking Funds 30
SECTION 501. Applicability of Article 30
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities 30
SECTION 503. Redemption of Securities for Sinking Fund 30
ARTICLE SIX 31
Covenants 31
SECTION 601. Payment of Principal, Premium and Interest 31
SECTION 602. Maintenance of Office or Agency 31
SECTION 603. Money for Securities Payments to Be Held
in Trust 32
SECTION 604. Corporate Existence 33
SECTION 605. Maintenance of Properties 33
SECTION 606. Annual Officer's Certificate as to
Compliance. 34
SECTION 607. Waiver of Certain Covenants 34
SECTION 608. Restriction on Payment of Dividends 35
ARTICLE SEVEN 35
Satisfaction and Discharge 35
SECTION 701. Satisfaction and Discharge of Securities 35
SECTION 702. Satisfaction and Discharge of Indenture 37
SECTION 703. Application of Trust Money 38
ARTICLE EIGHT 39
Events of Default; Remedies 39
SECTION 801. Events of Default 39
SECTION 802. Acceleration of Maturity; Rescission and
Annulment 40
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee. 41
SECTION 804. Trustee May File Proofs of Claim 42
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities 42
SECTION 806. Application of Money Collected 43
SECTION 807. Limitation on Suits 43
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest 44
SECTION 809. Restoration of Rights and Remedies 44
SECTION 810. Rights and Remedies Cumulative 44
SECTION 811. Delay or Omission Not Waiver 44
SECTION 812. Control by Holders of Securities 45
SECTION 813. Waiver of Past Defaults 45
SECTION 814. Undertaking for Costs 45
SECTION 815. Waiver of Stay or Extension Laws 46
ARTICLE NINE 46
The Trustee 46
SECTION 901. Certain Duties and Responsibilities 46
SECTION 902. Notice of Defaults 47
SECTION 903. Certain Rights of Trustee 48
SECTION 904. Not Responsible for Recitals or Issuance
of Securities 49
SECTION 905. May Hold Securities 49
SECTION 906. Money Held in Trust 49
SECTION 907. Compensation and Reimbursement 49
SECTION 908. Disqualification; Conflicting Interests. 50
SECTION 909. Corporate Trustee Required; Eligibility 50
SECTION 910. Resignation and Removal; Appointment of
Successor 51
SECTION 911. Acceptance of Appointment by Successor 53
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business 54
SECTION 913. Preferential Collection of Claims Against
Company 54
SECTION 914. Co-trustees and Separate Trustees. 55
SECTION 915. Appointment of Authenticating Agent 56
ARTICLE TEN 58
Holders' Lists and Reports by Trustee and Company 58
SECTION 1001. Lists of Holders 58
SECTION 1002. Reports by Trustee and Company 58
ARTICLE ELEVEN 59
Consolidation, Merger, Conveyance or Other Transfer 59
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms 59
SECTION 1102. Successor Corporation Substituted 59
ARTICLE TWELVE 60
Supplemental Indentures 60
SECTION 1201. Supplemental Indentures Without Consent
of Holders 60
SECTION 1202. Supplemental Indentures With Consent
of Holders 61
SECTION 1203. Execution of Supplemental Indentures 63
SECTION 1204. Effect of Supplemental Indentures 63
SECTION 1205. Conformity With Trust Indenture Act 63
SECTION 1206. Reference in Securities to Supplemental
Indentures 63
SECTION 1207. Modification Without Supplemental
Indenture 64
ARTICLE THIRTEEN 64
Meetings of Holders; Action Without Meeting 64
SECTION 1301. Purposes for Which Meetings May Be Called 64
SECTION 1302. Call, Notice and Place of Meetings 64
SECTION 1303. Persons Entitled to Vote at Meetings 65
SECTION 1304. Quorum; Action 65
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings 66
SECTION 1306. Counting Votes and Recording Action of
Meetings 67
SECTION 1307. Action Without Meeting 67
ARTICLE FOURTEEN 68
Immunity of Incorporators, Stockholders, Officers and Directors 68
SECTION 1401. Liability Solely Corporate 68
ARTICLE FIFTEEN 68
Subordination of Securities 68
SECTION 1501. Securities Subordinate to Senior
Indebtedness. 68
SECTION 1502. Payment Over of Proceeds of Securities 68
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness 70
SECTION 1504. Subrogation 71
SECTION 1505. Obligation of the Company Unconditional 71
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity 72
SECTION 1507. Trustee as Holder of Senior Indebtedness 72
SECTION 1508. Notice to Trustee to Effectuate
Subordination 72
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness 72
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness 73
SECTION 1511. Paying Agents Other Than the Trustee 73
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired 73
SECTION 1513. Effect of Subordination Provisions;
Termination 73
Testimonium 75
Signatures and Seals 75
Acknowledgements 76
<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 New York banking corporation, having its
principal corporate trust office at 101 Barclay Street, New
York, New York 10286, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured subordinated debentures, notes
or other evidences of indebtedness (herein called the
"Securities") in an unlimited aggregate principal amount to
be issued in one or more series as contemplated herein; and
all acts necessary to make this Indenture a valid agreement
of the Company have been performed.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the
meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions
upon which the Securities are to be authenticated, issued
and delivered and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which
are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to
them therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles
as are generally accepted in the United States at the
date of such computation or, at the election of the
Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that
in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation
of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the
Company; and
(d) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or
other subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"Act", when used with respect to any Holder
of a Security, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any
other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For the purposes of this
definition, "control" when used with respect to any
specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Authenticating Agent" means any Person (other
than the Company or an Affiliate of the Company) authorized
by the Trustee to act on behalf of the Trustee to authenti
cate one or more series of Securities.
"Authorized Officer" means the Chairman of the
Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, or any other duly authorized officer of
the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly
authorized to act in respect of matters relating to this
Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to a
Place of Payment or any other particular location specified
in the Securities or this Indenture, means any day, other
than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of
Payment or other location are generally authorized or
required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated
by Section 301.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, as amended, or, if at
any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act,
then the body, if any, performing such duties at such time.
"Company" means the Person named as the
"Company" in the first paragraph of this Indenture until a
successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a
written request or order signed in the name of the Company
by an Authorized Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at
the date of execution and delivery of this Indenture is
located at 101 Barclay Street, 21 West, New York,
New York 10286.
"corporation" means a corporation, association,
company, joint stock company or business trust.
"Defaulted Interest" has the meaning specified
in Section 307.
"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 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.
"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 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 provisions, if any, with respect thereto, are
to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability
company, limited liability partnership or unincorporated
organization or any Governmental Authority.
"Place of Payment", when used with respect to the
Securities of any series, or Tranche thereof, means the
place or places, specified as contemplated by Section 301,
at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the Securities
of such series or Tranche are payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed (to the extent lawful) to
evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or 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 unless, in the
case of any particular indebtedness, obligation, renewal,
extension or refunding, the instrument creating or
evidencing the same or the assumption or guarantee of the
same expressly provides that such indebtedness,
obligation, renewal, extension or refunding is not
superior in right of payment to or ranks pari passu with
the Securities.
"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
(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 (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: Corporate Trust Administration
Telephone: (212) 815-2745
Telecopy: (212) 815-5915
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 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
except that if such Business Day is in the next
succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with
the same force and effect, and in the same amount, as if
made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, as the case may be, and, if
such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall
be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series,
or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case
with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of
Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as
shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of
the series designated therein referred to in
the within-mentioned Indenture.
Dated:
_________________________________
as Trustee
By:
___________________________
__
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
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, 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, if any, 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 or by the Secretary or an Assistant Secretary
of the Company. The signature of any or all of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers or by 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, either (i) establishing
such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying
procedures, acceptable to the Trustee, by which such
terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee,
for authentication and delivery pursuant to oral or
electronic instructions from the Company or any
agent or agents thereof, which oral instructions are
to be promptly confirmed electronically or in
writing), in either case in accordance with the
instrument or instruments delivered pursuant to
clause (a) above;
(c) the Securities of such series, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture;
(ii) the terms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture; and
(iii) such Securities, when
authenticated and delivered by the Trustee and
issued and delivered by the Company in the
manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute
valid and legally binding obligations of the
Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance
with their terms, subject, as to enforcement,
to laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law);
provided, however, that, with respect to Securities of a
series subject to a Periodic Offering, the Trustee shall
be entitled to receive such Opinion of Counsel only once
at or prior to the time of the first authentication of
such Securities (provided that such Opinion of Counsel
addresses the authentication and delivery of all
Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above
Counsel may opine that:
(x) when the terms of such
Securities shall have been established pursuant
to a Company Order or Orders or pursuant to
such procedures (acceptable to the Trustee) as
may be specified from time to time by a Company
Order or Orders, all as contemplated by and in
accordance with the instrument or instruments
delivered pursuant to clause (a) above, such
terms will have been duly authorized by the
Company and will have been established in
conformity with the provisions of this
Indenture; and
(y) such Securities, when
authenticated and delivered by the Trustee in
accordance with this Indenture and the Company
Order or Orders or specified procedures
referred to in paragraph (x) above and issued
and delivered by the Company in the manner and
subject to any conditions specified in such
Opinion of Counsel, will have been duly issued
under this Indenture and will constitute valid
and legally binding obligations of the Company,
entitled to the benefits provided by the
Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to
laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
With respect to Securities of a series subject
to a Periodic Offering, the Trustee may conclusively
rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and other documents
delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the
first authentication of Securities of such series unless
and until such opinion or other documents have been
superseded or revoked or expire by their terms. In
connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering,
the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or
orders of any Governmental Authority having jurisdiction
over the Company.
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will 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, 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 an
Authenticating Agent by manual signature of an
authorized officer thereof, and such certificate upon any
Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated
and made available for delivery hereunder and is
entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have
been authenticated and made available for delivery
hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply
with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to
have been authenticated and made available for
delivery hereunder and shall never be entitled to the
benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive
Securities of any series, or any Tranche thereof, the
Company may execute, and upon Company Order the Trustee
shall authenticate and make available for delivery,
temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the
officers executing such Securities may determine, as
evidenced by their execution of such Securities;
provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or
exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
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 make available for delivery in ex
change therefor definitive Securities of the same series
and Tranche, 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 Tranche and of like tenor
authenticated and made available for delivery here
under.
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 make available
for delivery, 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 make available for delivery,
the Securities which the Holder making the exchange
is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, 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 make available for delivery in ex
change 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 make available for delivery, 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 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, 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
no Event of Default shall have occurred and be
continuing with respect to the Securities of any
series hereunder, to extend interest payment periods on
all Securities of one or more series, 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 may use a ACUSIP@ number (if then generally in
use) and, if so, the Trustee shall use the CUSIP
number in notices of redemption or exchange as a
convenience to the Holders of the Securities of such
series; provided, that any such notice may state that no
such representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or in
the Securities of such series, and that reliance may be
placed only on the other identification numbers printed
on the Securities of such series.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, 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
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 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 (a) 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.
SECTION 608. Restriction on Payment of Dividends.
The Company shall not (a) declare or pay any
dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or (b) make any
payment of principal of or interest or premium, if any,
on or repay or repurchase or redeem any debt securities
(including other Securities) that rank pari passu with or
junior in interest to the Securities or make any
guarantee payments with respect to the foregoing (other
than dividends or distributions in common stock of the
Company, and payments under any guarantee relating to
preferred securities of a trust to which debt securities
have been issued by the Company) if at such time (i)
there shall have occurred and be continuing a payment
default pursuant to Section 801(a) or 801(b) (whether
before or after expiration of any period of grace) or an
Event of Default hereunder, or (ii) the Company shall
have elected to extend any interest payment period as
provided in Section 311, and any such period, or any
extension thereof, shall be continuing.
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; and
(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
(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
non-payment of the principal of Securities of such
series which shall have become due solely by such
declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be con
tinuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securi
ties of the series with respect to which such Event of
Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent per
mitted by law, interest on premium, if any, and on any
overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most ef
fectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal, premium, if any, and interest,
if any, owing and unpaid in respect of the
Securities and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section
907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the
Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which
such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee with respect to a
particular series of Securities pursuant to this Article
shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit
of which such money shall have been collected and the
notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due
the Trustee under Section 907;
Second: To the payment of the amounts then
due and unpaid upon the Securities for principal of
and premium, if any, and interest, if any, in
respect of which or for the benefit of which such
money has been collected, ratably, without
preference or priority of any kind, according to the
amounts due and payable on such Securities for
principal, premium, if any, and interest, if any,
respectively; and
Third: To the payment of the remainder, if
any, to the Company or to whomsoever may be lawfully
entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given
written notice to the Trustee of a continuing Event
of Default with respect to the Securities of such
series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding
Securities of all series in respect of which an
Event of Default shall have occurred and be
continuing, considered as one class, shall have made
written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered
to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall
have failed to institute any such proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the Trustee
during such 60-day period by the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive
Principal,
Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 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 (but need not confirm or
investigate the accuracy of mathematical
calculations or other facts stated therein.
(b) In case an Event of Default with respect
to Securities of any series shall have occurred and
be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the
rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this subsection shall not be
construed to limit the effect of subsection (a)
of this Section;
(2) the Trustee shall not be liable
for any error of judgment made in good faith by
a Responsible Officer, unless it shall be
proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable
with respect to any action taken or omitted to
be taken by it in good faith in accordance with
the direction of the Holders of a majority in
principal amount of the Outstanding Securities
of any one or more series, as provided herein,
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee, or exercising any
trust or power conferred upon the Trustee,
under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk its
own funds or otherwise incur any financial
liability in the performance of any of its
duties hereunder, or in the exercise of any of
its rights or powers, if it shall have
reasonable grounds for believing that repayment
of such funds or adequate indemnity against
such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to
the Holders of Securities of such series in the manner
and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured
or waived; provided, however, that in the case of any
default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 75
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would
become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to
the applicable provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely
and shall be protected in acting or refraining from
acting in good faith upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or
other paper or document reasonably believed
by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an
Officer's Certificate;
(d) the Trustee may consult with counsel of
its selection and the written advice of such
counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of
any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer
of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such Event
of Default shall have been given to the Trustee by
the Company, any other obligor on such Securities or
by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on or investment of any moneys
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit
of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such
expense, disbursement or advance may be attributable
to its negligence, wilful misconduct or bad faith;
and
(c) indemnify the Trustee for, and hold
it harmless from and against, any loss, liability or
expense reasonably incurred by it arising out of or
in connection with the acceptance or administration
of the trust or trusts hereunder or the performance
of its duties hereunder, including the reasonable
costs and expenses of defending itself against
any claim or liability in connection with the
exercise or performance of any of its powers or
duties hereunder, except to the extent any such
loss, liability or expense may be attributable to
its negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that
the negligence, wilful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
SECTION 908. Disqualification; Conflicting
Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in
the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect
of the Securities of any other series.
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 six months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to resign
after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months
may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee ap
pointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have
been so appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least 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
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, 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.
Dated:
________________________
As Trustee
By_____________________
_
As Authenticating
Agent
By_____________________
_
Authorized
Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 15 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 performed or observed;
(b) immediately after giving effect to such
transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. Successor 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 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 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 two
inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their
verified written reports of all votes cast at the meeting.
A record of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and
there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company, and
another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and
Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any
predecessor or successor corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional pro
vision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior
Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on
each and all of the Securities is hereby expressly
subordinated and subject to the extent and in the
manner set forth in this Article, in right of payment to
the prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by
its acceptance thereof, authorizes and directs the Trustee
on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-
fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of
Securities.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect of
the Company or a substantial part of its property, or of
any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the provisions
of Section 1503, that (i) a default shall have occurred
with respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or
interest or other monetary amounts due and payable) in
respect of any Senior Indebtedness, as defined therein or
in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for
such payment in money or money's worth,
before the Holders of any of the Securities
are entitled to receive a payment on
account of the principal of or interest on
the indebtedness evidenced by the
Securities, including, without limitation,
any payments made pursuant to Articles Four
and Five;
(2) any payment by, or distribution
of assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the
Trustee would be entitled except for the
provisions of this Article, shall be paid
or delivered by the person making such
payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any of such Senior Indebtedness
may have been issued, ratably according to
the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or
represented by each, to the extent
necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
Holders of the indebtedness evidenced by
the Securities or to the Trustee under this
Indenture; and
(3) in the event that,
notwithstanding the foregoing, any payment
by, or distribution of assets of, the
Company of any kind or character, whether
in cash, property or securities, in respect
of principal of or interest on the
Securities or in connection with any
repurchase by the Company of the
Securities, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision
is made for such payment in money or
money's worth, such payment or distribution
in respect of principal of or interest on
the Securities or in connection with any
repurchase by the Company of the Securities
shall be paid over to the holders of such
Senior Indebtedness or their representative
or representatives or to the trustee or
trustees under any indenture under which
any instruments evidencing any such Senior
Indebtedness may have been issued, ratably
as aforesaid, for application to the
payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full,
after giving effect to any concurrent
payment or distribution (or provision
therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
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. Subject to the
prior payment in full of all Senior Indebtedness,
the rights of the Holders of the Securities shall
be subrogated to the rights of the holders of Senior
Indebtedness to receive any further payments or
distributions of cash, property or securities of the
Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions
of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of
such Senior Indebtedness shall, as between the Company,
its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it
being understood that the provisions of this Article are
and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company
Unconditional.
Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the Holders,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of
any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in
which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this
Article.
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise,
all matured principal of Senior Indebtedness and interest
and premium, if any, thereon shall first be paid in full
before any payment of principal or premium, if any, or
interest, if any, is made upon the Securities or before
any Securities can be acquired by the Company or any
sinking fund payment is made with respect to the
Securities (except that required sinking fund payments may
be reduced by Securities acquired before such maturity of
such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior
Indebtedness.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as
such holder.
SECTION 1508. Notice to Trustee to Effectuate
Subordination.
Notwithstanding the provisions of this Article
or any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee
shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior
Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to
Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose,
or in the event of the execution of an instrument pursuant
to Section 702 acknowledging satisfaction and discharge of
this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice
provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply
the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which
may be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons receiving
such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment
of the principal of and premium, if any, and interest, if
any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any
Senior Indebtedness, or amend or supplement any instrument
pursuant to which any Senior Indebtedness is issued, or
exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without
notice to or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or deliver to the Holders
or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully
for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the
Trustee; provided, however, that Sections 1507, 1508 and
1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. Rights of Holders of Senior
Indebtedness Not Impaired.
No right of any present or future holder of
Senior Indebtedness to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or
by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 1513. Effect of Subordination Provisions;
Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be
of no further effect, and the Securities shall no longer
be subordinated in right of payment to the prior payment
of Senior Indebtedness, if the Company shall have
delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
<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:______________________________
[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>
TABLE OF CONTENTS
PARTIES 1
RECITAL OF THE COMPANY 1
ARTICLE ONE 1
Definitions and Other Provisions of General Application 1
SECTION 101. Definitions 1
Act 2
Additional Interest 2
Affiliate 2
Authenticating Agent 2
Authorized Officer 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 3
Company 3
Company Request or Company Order 3
Corporate Trust Office 3
corporation 3
Defaulted Interest 3
Dollar or $ 3
Event of Default 3
Governmental Authority 3
Government Obligations 3
Guarantee 4
Holder 4
Indenture 4
Interest Payment Date 4
Maturity 4
Officer's Certificate 4
Opinion of Counsel 4
Outstanding 4
Paying Agent 5
Person 5
Place of Payment 5
Predecessor Security 5
Preferred Securities 6
Redemption Date 6
Redemption Price 6
Regular Record Date 6
Responsible Officer 6
Securities 6
Security Register and Security Registrar 6
Senior Indebtedness 6
Special Record Date 6
Stated Maturity 7
Trust 7
Trust Agreement 7
Trust Indenture Act 7
Trustee 7
United States 7
SECTION 102. Compliance Certificates and Opinions 7
SECTION 103. Form of Documents Delivered to Trustee 8
SECTION 104. Acts of Holders 9
SECTION 105. Notices, etc. to Trustee and Company 10
SECTION 106. Notice to Holders of Securities;
Waiver 12
SECTION 107. Conflict with Trust Indenture Act 12
SECTION 108. Effect of Headings and Table of
Contents 12
SECTION 109. Successors and Assigns 12
SECTION 110. Separability Clause 12
SECTION 111. Benefits of Indenture 13
SECTION 112. Governing Law 13
SECTION 113. Legal Holidays 13
ARTICLE TWO 14
Security Forms 14
SECTION 201. Forms Generally 14
SECTION 202. Form of Trustee's Certificate of
Authentication 14
ARTICLE THREE 15
The Securities 15
SECTION 301. Amount Unlimited; Issuable in Series 15
SECTION 302. Denominations 18
SECTION 303. Execution, Authentication, Delivery
and Dating 18
SECTION 304. Temporary Securities 20
SECTION 305. Registration, Registration of
Transfer and Exchange 21
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities 22
SECTION 307. Payment of Interest; Interest Rights
Preserved 23
SECTION 308. Persons Deemed Owners 24
SECTION 309. Cancellation by Security Registrar 24
SECTION 310. Computation of Interest 24
SECTION 311. Extension of Interest Payment 24
SECTION 312. Additional Interest. 25
SECTION 313. CUSIP Numbers 25
ARTICLE FOUR 25
Redemption of Securities 25
SECTION 401. Applicability of Article 25
SECTION 402. Election to Redeem; Notice to
Trustee 25
SECTION 403. Selection of Securities to Be
Redeemed 26
SECTION 404. Notice of Redemption 26
SECTION 405. Securities Payable on Redemption
Date 28
SECTION 406. Securities Redeemed in Part 28
ARTICLE FIVE 28
Sinking Funds 28
SECTION 501. Applicability of Article 28
SECTION 502. Satisfaction of Sinking Fund
Payments with Securities 29
SECTION 503. Redemption of Securities for Sinking
Fund 29
ARTICLE SIX 30
Covenants 30
SECTION 601. Payment of Principal, Premium and
Interest 30
SECTION 602. Maintenance of Office or Agency 30
SECTION 603. Money for Securities Payments to Be
Held in Trust 31
SECTION 604. Corporate Existence 32
SECTION 605. Maintenance of Properties 32
SECTION 606. Annual Officer's Certificate as to
Compliance. 32
SECTION 607. Waiver of Certain Covenants 33
SECTION 608. Restriction on Payment of Dividends 33
SECTION 609. Maintenance of Trust Existence 34
SECTION 610. Rights of Holders of Preferred
Securities 34
ARTICLE SEVEN 34
Satisfaction and Discharge 34
SECTION 701. Satisfaction and Discharge of
Securities 34
SECTION 702. Satisfaction and Discharge of
Indenture 37
SECTION 703. Application of Trust Money 37
ARTICLE EIGHT 38
Events of Default; Remedies 38
SECTION 801. Events of Default 38
SECTION 802. Acceleration of Maturity; Rescission
and Annulment 40
SECTION 803. Collection of Indebtedness and Suits
for Enforcement by Trustee 41
SECTION 804. Trustee May File Proofs of Claim 41
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities 42
SECTION 806. Application of Money Collected 42
SECTION 807. Limitation on Suits 43
SECTION 808. Unconditional Right of Holders to
Receive Principal,
Premium and Interest 44
SECTION 809. Restoration of Rights and Remedies 44
SECTION 810. Rights and Remedies Cumulative 44
SECTION 811. Delay or Omission Not Waiver 44
SECTION 812. Control by Holders of Securities 45
SECTION 813. Waiver of Past Defaults 45
SECTION 814. Undertaking for Costs 46
SECTION 815. Waiver of Stay or Extension Laws 46
ARTICLE NINE 46
The Trustee 46
SECTION 901. Certain Duties and Responsibilities 46
SECTION 902. Notice of Defaults 48
SECTION 903. Certain Rights of Trustee 48
SECTION 904. Not Responsible for Recitals or
Issuance of Securities 49
SECTION 905. May Hold Securities 49
SECTION 906. Money Held in Trust 50
SECTION 907. Compensation and Reimbursement 50
SECTION 908. Disqualification; Conflicting
Interests. 50
SECTION 909. Corporate Trustee Required;
Eligibility 51
SECTION 910. Resignation and Removal; Appointment
of Successor 51
SECTION 911. Acceptance of Appointment by
Successor 53
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business 54
SECTION 913. Preferential Collection of Claims
Against Company 55
SECTION 914. Co-trustees and Separate Trustees. 55
SECTION 915. Appointment of Authenticating Agent 56
ARTICLE TEN 58
Holders' Lists and Reports by Trustee and Company 58
SECTION 1001. Lists of Holders 58
SECTION 1002. Reports by Trustee and Company 59
ARTICLE ELEVEN 59
Consolidation, Merger, Conveyance or Other Transfer 59
SECTION 1101. Company May Consolidate, etc., Only
on Certain Terms 59
SECTION 1102. Successor Corporation Substituted 60
ARTICLE TWELVE 60
Supplemental Indentures 60
SECTION 1201. Supplemental Indentures Without
Consent of Holders 60
SECTION 1202. Supplemental Indentures With
Consent of Holders 62
SECTION 1203. Execution of Supplemental
Indentures 64
SECTION 1204. Effect of Supplemental Indentures 64
SECTION 1205. Conformity With Trust Indenture Act 64
SECTION 1206. Reference in Securities to
Supplemental Indentures 64
SECTION 1207. Modification Without Supplemental
Indenture 65
ARTICLE THIRTEEN 65
Meetings of Holders; Action Without Meeting 65
SECTION 1301. Purposes for Which Meetings May Be
Called 65
SECTION 1302. Call, Notice and Place of Meetings 65
SECTION 1303. Persons Entitled to Vote at
Meetings 66
SECTION 1304. Quorum; Action 66
SECTION 1305. Attendance at Meetings;
Determination of Voting Rights;
Conduct and Adjournment of Meetings 67
SECTION 1306. Counting Votes and Recording Action
of Meetings 68
SECTION 1307. Action Without Meeting 68
ARTICLE FOURTEEN 69
Immunity of Incorporators, Stockholders, Officers and
Directors 69
SECTION 1401. Liability Solely Corporate 69
ARTICLE FIFTEEN 69
Subordination of Securities 69
SECTION 1501. Securities Subordinate to Senior
Indebtedness. 69
SECTION 1502. Payment Over of Proceeds of
Securities 70
SECTION 1503. Disputes with Holders of Certain
Senior Indebtedness 72
SECTION 1504. Subrogation 72
SECTION 1505. Obligation of the Company
Unconditional 72
SECTION 1506. Priority of Senior Indebtedness
Upon Maturity 73
SECTION 1507. Trustee as Holder of Senior
Indebtedness 73
SECTION 1508. Notice to Trustee to Effectuate
Subordination 73
SECTION 1509. Modification, Extension, etc. of
Senior Indebtedness 74
SECTION 1510. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness 74
SECTION 1511. Paying Agents Other Than the
Trustee 74
SECTION 1512. Rights of Holders of Senior
Indebtedness Not Impaired 74
SECTION 1513. Effect of Subordination Provisions;
Termination 75
Testimonium 76
Signatures and Seals 76
Acknowledgements 78
<PAGE>
ENTERGY ARKANSAS, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of 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 New York banking corporation, having its
principal corporate trust office at 101 Barclay Street, New
York, New York 10286, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured subordinated debentures, notes
or other evidences of indebtedness (herein called the
"Securities"), in an unlimited aggregate principal amount to
be issued in one or more series as contemplated herein; and
all acts necessary to make this Indenture a valid agreement
of the Company have been performed.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the
meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions
upon which the Securities are to be authenticated, issued
and delivered and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which
are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to
them therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles
as are generally accepted in the United States at the
date of such computation or, at the election of the
Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that
in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation
of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the
Company; and
(d) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or
other subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Additional Interest" has the meaning specified
in Section 312.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such
specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person
means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person
(other than the Company or an Affiliate of the Company) au
thorized by the Trustee to act on behalf of the Trustee to
authenticate one or more series of Securities.
"Authorized Officer" means the Chairman of the
Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, or any other duly authorized officer of
the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly
authorized to act in respect of matters relating to this
Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to a
Place of Payment or any other particular location specified
in the Securities or this Indenture, means any day, other
than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of
Payment or other location are generally authorized or
required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated
by Section 301.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, as amended, or, if at
any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act,
then the body, if any, performing such duties at such time.
"Company" means the Person named as the
"Company" in the first paragraph of this Indenture until a
successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a
written request or order signed in the name of the Company
by an Authorized Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at
the date of execution and delivery of this Indenture is
located at 101 Barclay Street, 21 West, New York,
New York 10286.
"corporation" means a corporation, association,
company, joint stock company or business trust.
"Defaulted Interest" has the meaning specified
in Section 307.
"Dollar" or "$" means a dollar or other
equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment
of public and private debts.
"Event of Default" with respect to Securities of a
particular series has the meaning specified in Section
801.
"Governmental Authority" means the government of
the United States or of any State or Territory thereof or of
the District of Columbia or of any county, municipality or
other political subdivision of any of the foregoing, or any
department, agency, authority or other instrumentality of
any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are
unconditionally guaranteed by, the United States and
entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or
other instruments the full amount received by such
custodian in respect of such obligations or specific
payments and shall not be permitted to make any
deduction therefrom.
"Guarantee" means the guarantee agreement
delivered from the Company to a Trust, for the benefit of
the holders of Preferred Securities issued by such Trust.
"Holder" means a Person in whose name a Security
is registered in the Security Register.
"Indenture" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms
of a particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect
to any Security, means the Stated Maturity of an
installment of interest on such Security.
"Maturity", when used with respect to any
Security, means the date on which the principal of such
Security or an installment of principal becomes due and
payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of
acceleration, upon call for redemption or otherwise.
"Officer's Certificate" means a certificate
signed by an Authorized Officer and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"Outstanding", when used with respect to
Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series, have given any
request, demand, authorization, direction, notice,
consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities, Securities
owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this
Indenture, or (except for purposes of actions to be taken
by Holders generally under Section 812 or 813) all
Outstanding Securities of each such series, as the case
may be, determined without regard to this provision)
shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or
upon any such determination as to the presence of a
quorum, only Securities which the Trustee knows to be so
owned shall be so disregarded; provided, however, that
Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor; and provided, further, that, in the case
of any Security the principal of which is payable from
time to time without presentment or surrender, the
principal amount of such Security that shall be deemed to
be Outstanding at any time for all purposes of this
Indenture shall be the original principal amount thereof
less the aggregate amount of principal thereof
theretofore paid.
"Paying Agent" means any Person, including the
Company, authorized by the Company to pay the principal
of, and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability
company, limited liability partnership or unincorporated
organization or any Governmental Authority.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places,
specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any,
and interest, if any, on the Securities of such series are
payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed (to the extent lawful) to
evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Preferred Securities" means any preferred trust
interests issued by a Trust or similar securities issued
by permitted successors to such Trust in accordance with
the Trust Agreement pertaining to such Trust.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other
than non-recourse obligations and the indebtedness issued
under this Indenture) of, or guaranteed or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other than
the Securities), or for the payment of money relating to
any lease which is capitalized on the consolidated balance
sheet of the Company and its subsidiaries in accordance
with generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations,
whether existing as of the date of this Indenture or
subsequently incurred by the Company unless, in the case
of any particular indebtedness, obligation, renewal,
extension or refunding, the instrument creating or
evidencing the same or the assumption or guarantee of the
same expressly provides that such indebtedness,
obligation, renewal, extension or refunding is not
superior in right of payment to or is pari passu with the
Securities; provided that the Company's obligations under
the Guarantee shall not be deemed to be Senior
Indebtedness.
"Special Record Date" for the payment of any
Defaulted Interest on the Securities of any series means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Trust" means Entergy Arkansas Capital I, Entergy
Arkansas Capital II, Entergy Arkansas Capital III, each a
statutory business trust created under the laws of the
State of Delaware, or any other Trust designated pursuant
to Section 301 hereof or any permitted successor under the
Trust Agreement pertaining to such Trust.
"Trust Agreement" means the Amended and Restated
Trust Agreement, dated as of _____________________, 1996,
relating to Entergy Arkansas Capital I, the Amended and
Restated Trust Agreement, dated as of
_____________________, 1996, relating to Entergy Arkansas
Capital II, the Amended and Restated Trust Agreement,
dated as of _____________________, 1996, relating to
Entergy Arkansas Capital III or an Amended and Restated
Trust Agreement relating to a Trust designated pursuant to
Section 301 hereof, in each case, among the Company, as
Depositor, the trustees named therein and several holders
referred to therein as they may be amended from time to
time.
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, or any successor statute, as
in effect at such time.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor
Trustee shall have become such with respect to one or more
series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities
of that series.
"United States" means the United States of America,
its Territories, its possessions and other areas subject
to its political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action
(including any covenants compliance with which constitutes
a condition precedent) have been complied with and an
Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of
this Indenture relating to such particular application or
request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each Person signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each
such Person, such Person has made such examination
or investigation as is necessary to enable such
Person to express an informed opinion as to whether
or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion
of each such Person, such condition or covenant has
been complied with.
SECTION 103. Form of Documents Delivered to
Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers
of the Company stating that the information with respect
to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or
opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect
as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect
to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at
the request of the Company which could not have been
taken had the original document or instrument not
contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and
effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities
issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding
Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and
evidenced by one or more instruments of
substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and evidenced
by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and
any such record. Except as herein otherwise
expressly provided, such action shall become
effective when such instrument or instruments or
record or both are delivered to the Trustee and,
where it is hereby expressly required, to the
Company. Such instrument or instruments and any
such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Sec
tion 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall
be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be
proved by the affidavit of a witness of such
execution or by a certificate of a notary public or
other officer authorized by law to take
acknowledgments of deeds, certifying that the
individual signing such instrument or writing
acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the
Company deem sufficient. Where such execution is by
a signer acting in a capacity other than his
individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his
authority.
(c) The principal amount and serial numbers of
Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder
of the same Security and the Holder of every
Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is
made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with
respect to the requisite percentage of principal
amount of Securities for the action contemplated by
such instruments, any such instrument executed and
delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by
written notice by such Holder or any subsequent
Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series authenticated and
delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form
approved by the Trustee as to any action taken by
such Act of Holders. If the Company shall so
determine, new Securities of any series so modified
as to conform, in the opinion of the Trustee and the
Company, to such action may be prepared and executed
by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities
of such series.
(g) If the Company shall solicit from Holders
any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company
may, at its option, by Board Resolution, fix in
advance a record date for the determination of
Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation
to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or
after such record date, but only the Holders of
record at the close of business on the record date
shall be deemed to be Holders for the purposes of
(i) determining whether Holders of the requisite
proportion of the Outstanding Securities have
authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the
record date or (ii) determining which Holders may
revoke any such Act (notwithstanding Section
104(e)).
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or
other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company, or the Company
by the Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered
personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission,
telex or other direct written electronic means to such
telephone number or other electronic communications
address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such
party's name below or to such other address as either
party hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-2745
Telecopy: (212) 815-5915
If to the Company, to:
Entergy Arkansas, Inc.
425 West Capitol
Little Rock, Arkansas 72201
Attention:
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 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.
Dated:
_________________________________
as Trustee
By:
___________________________
__
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited; provided, however, that all
Securities shall be issued to a Trust in exchange for
securities of the Company or to evidence loans by a Trust
of the proceeds of the issuance of Preferred Securities
of such Trust plus the amount deposited by the Company
with such Trust from time to time.
The Securities may be issued in one or more
series. Prior to the authentication, issuance and
delivery of Securities of any series there shall be
established by specification in a supplemental indenture
or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board
Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such
series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 406 or 1206 and
except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of
such series shall be payable on any Interest Payment
Date, if other than the Persons in whose names such
Securities (or one or more Predecessor Securities)
are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal
of the Securities of such series is payable or any
formulary or other method or other means by which
such date or dates shall be determined, by reference
to an index or other fact or event ascertainable
outside this Indenture or otherwise (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities
of such series shall bear interest, if any
(including the rate or rates at which overdue
principal shall bear interest, if different from the
rate or rates at which such Securities shall bear
interest prior to Maturity, and, if applicable, the
rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or
other method or other means by which such rate or
rates shall be determined, by reference to an index
or other fact or event ascertainable outside this
Indenture or otherwise; the date or dates from which
such interest shall accrue; the Interest Payment
Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment
Date; the right of the Company, if any, to extend
the interest payment periods and the duration of any
such extension as contemplated by Section 311; and
the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series shall
be payable, (2) registration of transfer of
Securities of such series may be effected, (3)
exchanges of Securities of such series may be
effected and (4) notices and demands to or upon the
Company in respect of the Securities of such series
and this Indenture may be served; the Security
Registrar and Paying Agent or Agents for such
series; and if such is the case, and if acceptable
to the Trustee, that the principal of such
Securities shall be payable without presentment or
surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the
Securities of such series may be redeemed, in whole
or in part, at the option of the Company and any
restrictions on such redemptions, including but not
limited to a restriction on a partial redemption by
the Company of the Securities of any series,
resulting in delisting of such Securities from any
national exchange;
(h) the obligation or obligations, if any, of
the Company to redeem or purchase the Securities of
such series pursuant to any sinking fund or other
analogous mandatory redemption provisions or at the
option of a Holder thereof and the period or periods
within which or the date or dates on which, the
price or prices at which and the terms and
conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant
to such obligation, and applicable exceptions to the
requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the
Holder;
(i) the denominations in which Securities of
such series shall be issuable if other than
denominations of $25 and any integral multiple
thereof;
(j) the currency or currencies, including com
posite currencies, in which payment of the principal
of and premium, if any, and interest, if any, on the
Securities of such series shall be payable (if other
than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series
are to be payable, at the election of the Company or
a Holder thereof, in a coin or currency other than
that in which the Securities are stated to be
payable, the period or periods within which and the
terms and conditions upon which, such election may
be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series
are to be payable, or are to be payable at the
election of the Company or a Holder thereof, in
securities or other property, the type and amount of
such securities or other property, or the formulary
or other method or other means by which such amount
shall be determined, and the period or periods
within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series may be
determined with reference to an index or other fact
or event ascertainable outside this Indenture, the
manner in which such amounts shall be determined to
the extent not established pursuant to clause (e) of
this paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series which shall be payable
upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to the
Securities of such series, and any covenants of the
Company for the benefit of the Holders of the
Securities of such series, in addition to those set
forth in Article Six and whether any such covenants
may be waived pursuant to Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series may be converted into or
exchanged for shares of capital stock or other
securities of the Company or any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Government
Obligations in respect of the Securities of such
series denominated in a currency other than Dollars
or in a composite currency, and any additional or
alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as
provided in Section 701;
(r) if the Securities of such series are to be
issued in global form, (i) any limitations on the
rights of the Holder or Holders of such Securities
to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in
definitive form in lieu of global form and (iii) any
and all other matters incidental to such Securities;
(s) if the Securities of such series are to be
issuable as bearer securities, any and all matters
incidental thereto which are not specifically
addressed in a supplemental indenture as
contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such
Series to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if
a service charge will be made for the registration
of transfer or exchange of Securities of such series
the amount or terms thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series;
(v) the designation of the Trust to which
Securities of such series are to be issued; and
(w) any other terms of the Securities of such
series not inconsistent with the provisions of this
Indenture.
The Securities of each series shall be
subordinated in right of payment to Senior Indebtedness
as provided in Article Fifteen.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, the
Securities of each series shall be issuable in
denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, the
Securities shall be executed on behalf of the Company by
an Authorized Officer and may have the corporate seal of
the Company affixed thereto or reproduced thereon
attested by any other Authorized Officer or by the
Secretary or an Assistant Secretary of the Company. The
signature of any or all of these officers on the Secu
rities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers or the Secretary or an
Assistant Secretary of the Company shall bind the
Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time
or from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing
the form or forms and terms of such series, as
provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities and,
to the extent that the terms of such Securities
shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated
by Sections 201 and 301, establishing such terms;
(c) the Securities of such series, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture;
(ii) the terms of such Securities
have been duly authorized by the Company and
have been established in conformity with the
provisions of this Indenture; and
(iii) such Securities, when
authenticated and delivered by the Trustee and
issued and delivered by the Company in the
manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute
valid and legally binding obligations of the
Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance
with their terms, subject, as to enforcement,
to laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will materially or
adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable
to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities,
each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, no
Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of
authentication substantially in the form provided for
herein executed by the Trustee or an Authenticating Agent
by manual signature of an authorized officer thereof, and
such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has
been duly authenticated and made available for
delivery hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and made
available for delivery hereunder to the Company, or
any Person acting on its behalf, but shall never have
been issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancel
lation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and
made available for delivery hereunder and shall
never be entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive
Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities
which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the defi
nitive Securities in lieu of which they are issued, with
such appropriate insertions, omissions, substitutions and
other variations as the officers executing such
Securities may determine, as evidenced by their execution
of such Securities; provided, however, that temporary
Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
after the preparation of definitive Securities of such
series, the temporary Securities of such series shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series upon surrender of
such temporary Securities at the office or agency of the
Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of
temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and
make available for delivery in exchange therefor
definitive Securities of the same series, of authorized
denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove
provided, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and
of like tenor authenticated and made available for
delivery hereunder.
SECTION 305. Registration, Registration of Transfer
and Exchange.
The Company shall cause to be kept in one of
the offices designated pursuant to Section 602, with
respect to the Securities of each series, a register (the
register kept in accordance with this Section being
referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities
of such series and the registration of transfer thereof.
The Company shall designate one Person to maintain the
Security Register for the Securities of each series, and
such Person is referred to herein, with respect to such
series, as the "Security Registrar." Anything herein to
the contrary notwithstanding, the Company may designate
one of its offices as the office in which the register
with respect to the Securities of one or more series
shall be maintained, and the Company may designate itself
the Security Registrar with respect to one or more of
such series. The Security Register shall be open for
inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, upon surrender for registration of transfer of
any Security of such series at the office or agency of
the Company maintained pursuant to Section 602 in a Place
of Payment for such series, the Company shall execute,
and the Trustee shall authenticate and make available
for delivery, in the name of the designated
transferee or transferees, one or more new Securities of
the same series, of authorized denominations and of like
tenor and aggregate principal amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, any Security of such series may be exchanged at
the option of the Holder, for one or more new Securities
of the same series, of authorized denominations and of
like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and make available for delivery,
the Securities which the Holder making the exchange
is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, no
service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in
connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section
304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or
to provide for the registration of transfer of or the
exchange of (a) Securities of any series during a period
of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of such series
called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in ex
change therefor a new Security of the same series, and of
like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any
agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and make available for delivery, in
lieu of any such destroyed, lost or stolen Security, a
new Security of the same series, and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone other than the Holder of
such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest.
Subject to Section 311, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on a date (herein called a "Special
Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the
proposed payment, such money when deposited to be
held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall
promptly cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date and shall be
no longer payable pursuant to the following clause
(b).
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which
such Securities may be listed, and upon such notice
as may be required by such exchange, if, after
notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to
Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if
not theretofore canceled, shall be promptly canceled by
the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar
shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned
to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance
with this Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, interest on
the Securities of each series shall be computed on the
basis of a 360-day year consisting of twelve 30-day
months .
SECTION 311. Extension of Interest Payment.
The Company shall have the right at any time, so
long as no Event of Default shall have occurred and be
continuing with respect to the Securities of any
series hereunder, to extend interest payment periods on
all Securities of one or more series, if so specified as
contemplated by Section 301 with respect to such
Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such
Securities.
SECTION 312. Additional Interest.
So long as any Preferred Securities remain
outstanding, if the Trust which issued such Preferred
Securities shall be required to pay, with respect to its
income derived from the interest payments on the
Securities of any series, any amounts for or on account
of any taxes, duties, assessments or governmental charges
of whatever nature imposed by the United States, or any
other taxing authority, then, in any such case, the
Company will pay as interest on such series such
additional interest ("Additional Interest") as may be
necessary in order that the net amounts received and
retained by such Trust after the payment of such taxes,
duties, assessments or governmental charges shall result
in such Trust's having such funds as it would have had in
the absence of the payment of such taxes, duties,
assessments or governmental charges.
SECTION 313. CUSIP Numbers.
The Company in issuing Securities of any series
may use a ACUSIP@ number (if then generally in use) and,
if so, the Trustee shall use the CUSIP number in notices
of redemption or exchange as a convenience to the Holders
of the Securities of such series; provided, that any such
notice may state that no such representation is made as
to the correctness or accuracy of the CUSIP number
printed in the notice or in the Securities of such
series, and that reliance may be placed only on the other
identification numbers printed on the Securities of such
series.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities
of such series) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to
Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemp
tion Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction
on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant
to an election of the Company which is subject to a
condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction
or condition.
SECTION 403. Selection of Securities to Be
Redeemed.
If less than all the Securities of any series
are to be redeemed, the particular Securities to be
redeemed shall be selected by the Security Registrar from
the Outstanding Securities of such series not previously
called for redemption, by such method as shall be
provided for any particular series, or, in the absence of
any such provision, by such method of random selection as
the Security Registrar shall deem fair and
appropriate and which may, in any case, provide for the
selection for redemption of portions (equal to the
minimum authorized denomination for Securities of such
series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination
larger than the minimum authorized denomination for
Securities of such series; provided, however, that if, as
indicated in an Officer's Certificate, the Company shall
have offered to purchase all or any principal amount of
the Securities then Outstanding of any series, and less
than all of such Securities as to which such offer was
made shall have been tendered to the Company for such
purchase, the Security Registrar, if so directed by
Company Order, shall select for redemption all or any
principal amount of such Securities which have not been
so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any
series are to be redeemed, the identification of the
particular Securities to be redeemed and the portion
of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to
the Redemption Date, will become due and payable
upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities
are to be surrendered for payment of the Redemption
Price and accrued interest, if any, unless it shall
have been specified as contemplated by Section 301
with respect to such Securities that such surrender
shall not be required,
(f) that the redemption is for a sinking or
other fund, if such is the case, and
(g) such other matters as the Company shall
deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice,
such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that
such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any,
and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall
be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that
such notice of redemption contains such a condition and
such money is not so received, the redemption shall not
be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of
redemption was given, that such money was not so received
and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to
have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption
Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to
such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the terms
of such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series, of any authorized
denomination requested by such Holder and of like tenor
and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, except as otherwise specified
as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series,
the cash amount of any mandatory sinking fund payment may
be subject to reduction as provided in Section 502. Each
sinking fund payment shall be applied to the redemption
of Securities of the series in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called
for redemption) of a series in respect of which a
mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series which have
been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of such mandatory sinking
fund payment; provided, however, that no Securities shall
be applied in satisfaction of a mandatory sinking fund
payment if such Securities shall have been previously so
applied. Securities so applied shall be received and
credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 503. Redemption of Securities for Sinking
Fund.
Not less than 45 days prior to each sinking
fund payment date for the Securities of any series, the
Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by the
payment of cash;
(e) the portion, if any, of such mandatory
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series
pursuant to Section 502 and stating the basis for
such credit and that such Securities have not
previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such
Officer's Certificate, the next mandatory sinking
fund payment for such series shall be made entirely
in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such
sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 403
and cause notice of the redemption thereof to be
given in the name of and at the expense of the
Company in the manner provided in Section 404. Such
notice having been duly given, the redemption of
such Securities shall be made upon the terms and in
the manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and
Interest.
The Company shall pay the principal of and
premium, if any, and interest, if any (including
Additional Interest), on the Securities of each series in
accordance with the terms of such Securities and this
Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of
Payment for the Securities of each series an office or
agency where payment of such Securities shall be made,
where the registration of transfer or exchange of such
Securities may be effected and where notices and demands
to or upon the Company in respect of such Securities and
this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency
and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the
Company shall fail to maintain any such required office
or agency in respect of Securities of any series, or
shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, for any
or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that,
unless otherwise specified as contemplated by Section 301
with respect to the Securities of such series, no such
designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency
for such purposes in each Place of Payment for such
Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to
the Trustee, and prompt notice to the Holders in the
manner specified in Section 106, of any such designation
or rescission and of any change in the location of any
such other office or agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company, in
which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held
in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any
series, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any,
on any of such Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and premium or interest
so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The
Company shall promptly notify the Trustee of any failure
by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any,
or interest, if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, it shall,
on or before each due date of the principal of and
premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify
the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for
the Securities of any series, other than the Company or
the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section,
that such Paying Agent shall:
(a) hold all sums held by it for the payment
of the principal of and premium, if any, or
interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any failure by
the Company (or any other obligor upon such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any
failure referred to in the preceding paragraph (b),
upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such
Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent and, if so stated in a Company Order
delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any,
or interest has become due and payable shall be paid to
the Company on Company Request, or, if then held by the
Company, shall be discharged from such trust; and, upon
such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and
remaining unpaid, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be done
all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or,
with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried on
in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any
of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business.
SECTION 606. Annual Officer's Certificate as to
Compliance.
Not later than 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 (a) any covenant or restriction specified with
respect to the Securities of any series, as contemplated
by Section 301 as being subject to waiver pursuant to
this Section 607, if before the time for such compliance
the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities of all series with
respect to which compliance with such covenant or
restriction is to be omitted, considered as one class,
shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance
with such term, provision or condition and (b) Section
604, 605 or Article Eleven if before the time for such
compliance the Holders of at least a majority in
principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive
such compliance in such instance or generally waive
compliance with such term, provision or condition; but,
in the case of (a) or (b), no such waiver shall extend to
or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and
effect; provided, however, so long as a Trust holds
Securities of any series, such Trust may not waive
compliance or waive any default in compliance by the
Company with any covenant or other term contained in this
Indenture or the Securities of such series without the
approval of the holders of at least a majority in
aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected,
obtained as provided in the Trust Agreement pertaining to
such Trust.
SECTION 608. Restriction on Payment of Dividends.
The Company shall not (a) declare or pay any
dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or (b) make any
payment of principal of or, interest or premium, if any,
on or repay or repurchase or redeem any debt securities
(including other Securities) that rank pari passu with or
junior in interest to the Securities or make any
guarantee payments with respect to the foregoing (other
than dividends or distributions in common stock of the
Company and payments under the Guarantee relating to any
Preferred Securities) if at such time (i) there shall
have occurred and be continuing a payment default
pursuant to Section 801(a) or 801(b) (whether before or
after expiration of any period of grace) or an Event of
Default hereunder, or (ii) the Company shall have elected
to extend any interest payment period as provided in
Section 311, and any such period, or any extension
thereof, shall be continuing.
SECTION 609. Maintenance of Trust Existence.
So long as Preferred Securities of any series
remain outstanding, the Company shall
(a) maintain direct or indirect ownership of all
interests in the Trust which issued such Preferred
Securities, other than such Preferred Securities, (b) not
voluntarily (to the extent permitted by law) dissolve,
liquidate or wind up such Trust, except in connection
with a distribution of the Securities to the holders of
the Preferred Securities in liquidation of such Trust,
(c) remain the sole Depositor under the Trust
Agreement (the "Depositor") of such Trust and timely
perform in all material respects all of its duties as
Depositor of such Trust, and (d) use reasonable
efforts to cause such Trust to remain a business trust
and otherwise continue to be treated as a grantor trust
for Federal income tax purposes provided that any
permitted successor to the Company under this Indenture
may succeed to the Company's duties as Depositor of such
Trust; and provided further that the Company may permit
such Trust to consolidate or merge with or into another
business trust or other permitted successor under the
Trust Agreement pertaining to such Trust so long as the
Company agrees to comply with this Section 609 with
respect to such successor business trust or other
permitted successor.
SECTION 610. Rights of Holders of Preferred
Securities.
The Company agrees that, for so long as any
Preferred Securities remain outstanding, its obligations
under this Indenture will also be for the benefit of the
holders from time to time of Preferred Securities, and
the Company acknowledges and agrees that if the Property
Trustee fails to enforce its rights with respect to the
Securities or the related Trust Agreement, a holder of
Preferred Securities may institute a legal proceeding
directly against the Company to enforce the Property
Trustee's rights with respect to the Securities or such
Trust Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against
the Property Trustee or any other person or entity.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of
Securities.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof,
Government Obligations, which shall not contain
provisions permitting the redemption or other
prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which
when due, without any regard to reinvestment
thereof, will provide moneys which, together with
the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient,
or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of
any series, such Securities or portions thereof shall
have been selected by the Security Registrar as provided
herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have
been given or irrevocable authority shall have been given
by the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the
Trustee and such Paying Agent:
(x) if such deposit shall have been
made prior to the Maturity of such Securities,
a Company Order stating that the money and
Government Obligations deposited in accordance
with this Section shall be held in trust, as
provided in Section 703; and
(y) if Government Obligations shall
have been deposited, an Opinion of Counsel that
the obligations so deposited constitute
Government Obligations and do not contain
provisions permitting the redemption or other
prepayment at the option of the issuer thereof,
and an opinion of an independent public
accountant of nationally recognized standing,
selected by the Company, to the effect that the
requirements set forth in clause (b) above have
been satisfied; and
(z) if such deposit shall have been
made prior to the Maturity of such Securities,
an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of
such Securities or portions thereof will have
been satisfied and discharged as contemplated
in this Section.
Upon the deposit of money or Government Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security
or Securities or portions thereof with respect to which
such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section.
In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect
of any Securities or portions thereof except that, for
any reason, the Officer's Certificate specified in clause
(z), if required, shall not have been delivered, such
Securities or portions thereof shall nevertheless be
deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions
thereof shall nevertheless be no longer entitled to the
benefits of this Indenture or of any of the covenants of
the Company under Article Six (except the covenants
contained in Sections 602 and 603) or any other covenants
made in respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the Holders
of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all
of the Securities of any series is to be provided for in
the manner and with the effect provided in this Section,
the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner
specified by Section 403 for selection for redemption of
less than all the Securities of a series.
In the event that Securities which shall be
deemed to have been paid for purposes of this Indenture,
and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature
and are not to be redeemed within the 60 day period
commencing with the date of the deposit of moneys or
Government Obligations, as aforesaid, the Company shall,
as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the
effect that such deposit has been made and the effect
thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this Indenture,
as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602,
603, 907 and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Government
Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on
or assessed against such Government Obligations or the
principal or interest received in respect of such
Government Obligations, including, but not limited to,
any such tax payable by any entity deemed, for tax
purposes, to have been created as a result of such
deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Government Obligations,
or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable
Federal or State bankruptcy, insolvency or other similar
law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been
effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall
be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease
to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed
to have been paid for purposes of this Indenture, shall
be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture as aforesaid, the obligations of the
Company and the Trustee under Sections 304, 305, 306,
404, 503 (as to notice of redemption), 602, 603, 907 and
915 and this Article Seven shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee shall
assign, transfer and turn over to the Company, subject to
the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee
for the benefit of the Holders of the Securities other
than money and Government Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Government Obligations nor the
money deposited pursuant to Section 701, nor the
principal or interest payments on any such Government
Obligations, shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment
of the principal of and premium, if any, and interest, if
any, on the Securities or portions of principal amount
thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 603;
provided, however, that, so long as there shall not have
occurred and be continuing an Event of Default any cash
received from such principal or interest payments on such
Government Obligations, if not then needed for such pur
pose, shall, to the extent practicable, be invested upon
Company Request and upon receipt of the documents
referred to in clause (y) of Section 701 in Government
Obligations of the type described in clause (b) in the
first paragraph of Section 701 maturing at such times and
in such amounts as shall be sufficient together with any
other moneys and the principal of and interest on any
other Government Obligations then held by the Trustee to
pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge
under this Indenture except the lien provided by Section
907; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default,
any moneys held in accordance with this Section on the
Maturity of all such Securities in excess of the amount
required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be
paid over to the Company free and clear of any trust,
lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that if
an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one or
more of the following events which has occurred and is
continuing:
(a) failure to pay interest, if any, including
any Additional Interest, on any Security of such
series within 60 days after the same becomes due and
payable (whether or not payment is prohibited by the
provisions of Article Fifteen hereof); provided,
however, that a valid extension of the interest
payment period by the Company as contemplated in
Section 311 of this Indenture shall not constitute a
failure to pay interest for this purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series
(whether or not payment is prohibited by the
provisions of Article Fifteen hereof) when due and
payable; or
(c) failure to perform or breach of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or more
series of Securities other than such series) for a
period of 60 days after there has been given, by
registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the
Outstanding Securities of such series, a written
notice specifying such default or breach and
requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless
the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not
less than the principal amount of Securities the
Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such
period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action
is initiated by the Company within such period and
is being diligently pursued; or
(d) the entry by a court having jurisdiction
in the premises of (1) a decree or order for relief
in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons
other than the Company seeking reorganization,
arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any
such decree or order for relief or any such other
decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company
in a case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by
it to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or
of any substantial part of its property, or the
making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due, or the authorization of such action by the
Board of Directors; or
(f) any other Event of Default specified with
respect to Securities of such series as contemplated
by Section 301.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default due to the default in
payment of principal of, or interest on, any series of
Securities or due to the default in the performance or
breach of any other covenant or warranty of the Company
applicable to the Securities of such series but not
applicable to all outstanding Securities shall have
occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal
of all Securities of such series and interest accrued
thereon to be due and payable immediately (provided that
the payment of principal and interest on such Securities
shall remain subordinated to the extent provided in
Article Fifteen hereof). If the Trustee or the Holders
of not less than 33% in principal amount of the
Securities of such series fail to make such declaration,
and the Preferred Securities issued by the Trust to which
such series of Securities relate are still outstanding,
then the holders of not less than 33% in aggregate
liquidation preference of such series of Preferred
Securities may make such declaration. If an Event of
Default due to default in the performance of any other of
the covenants or agreements herein applicable to all
Outstanding Securities or an Event of Default specified
in Section 801(d) or (e) shall have occurred and be
continuing, either the Trustee or the Holders of not less
than 33% in principal amount of all Securities then
Outstanding (considered as one class), and not the
Holders of the Securities of any one of such series, may
declare the principal of all Securities and interest
accrued thereon to be due and payable immediately
(provided that the payment of principal and interest on
such Securities shall remain subordinated to the extent
provided in the Indenture).
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the
Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company shall have paid or deposited
with the Trustee a sum sufficient to pay
(1) all overdue interest on all
Securities of such series;
(2) the principal of and premium, if
any, on any Securities of such series which
have become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest is lawful, interest upon overdue
interest, if any, at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, other than the
non-payment of the principal of Securities of such
series which shall have become due solely by such
declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be con
tinuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securi
ties of the series with respect to which such Event of
Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent per
mitted by law, interest on premium, if any, and on any
overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most ef
fectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal, premium, if any, and interest,
if any, owing and unpaid in respect of the
Securities and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section
907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the
Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which
such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee with respect to a
particular series of Securities pursuant to this 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 (but need not confirm or
investigate the accuracy of mathematical
calculations or other facts stated therein).
(b) In case an Event of Default with respect
to Securities of any series shall have occurred and
be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the
rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this subsection shall not be
construed to limit the effect of subsection (a)
of this Section;
(2) the Trustee shall not be liable
for any error of judgment made in good faith by
a Responsible Officer, unless it shall be
proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable
with respect to any action taken or omitted to
be taken by it in good faith in accordance with
the direction of the Holders of a majority in
principal amount of the Outstanding Securities
of any one or more series, as provided herein,
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee, or exercising any
trust or power conferred upon the Trustee,
under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk its
own funds or otherwise incur any financial
liability in the performance of any of its
duties hereunder, or in the exercise of any of
its rights or powers, if it shall have
reasonable grounds for believing that repayment
of such funds or adequate indemnity against
such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to
the Holders of Securities of such series in the manner
and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured
or waived; provided, however, that in the case of any
default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 75
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would
become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to
the applicable provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely
and shall be protected in acting or refraining from
acting in good faith upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to
be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an
Officer's Certificate;
(d) the Trustee may consult with counsel of
its selection and the written advice of such
counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of
any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer
of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such Event
of Default shall have been given to the Trustee by
the Company, any other obligor on such Securities or
by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on or investment of any moneys
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit
of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such
expense, disbursement or advance may be attributable
to its negligence, wilful misconduct or bad faith;
and
(c) indemnify the Trustee for, and hold it
harmless from and against, any loss, liability or
expense reasonably incurred by it arising out of or
in connection with the acceptance or administration
of the trust or trusts hereunder or the performance
of its duties hereunder, including the reasonable
costs and expenses of defending itself against any
claim or liability in connection with the exercise
or performance of any of its powers or duties
hereunder, except to the extent any such loss,
liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that
the negligence, wilful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in
the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect
of the Securities of any other series. The Trust
Agreement and the Guarantee Agreement pertaining to each
Trust shall be deemed to be specifically described in
this Indenture for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 909. Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing business
under the laws of the United States, any State or
Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or
examining authority, then for the purposes of this
Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condi
tion so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to
this Article shall become effective until the
acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of
Section 911.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by
giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered
to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to
the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to
the Trustee and to the Company; provided that so long
as any Preferred Securities remain outstanding, the
Trust which issued such Preferred Securities shall
not execute any Act to remove the Trustee without the
consent of the holders of a majority in aggregate
liquidation preference of Preferred Securities issued
by such Trust outstanding, obtained as provided in
the Trust Agreement pertaining to such Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to resign
after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee ap
pointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have
been so appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. Acceptance of Appointment by
Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates; but, on request of the Company or any succes
sor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims
Against Company.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise
previously constituting the security, provided the
security is received by the Trustee simultaneously
with the creation of the creditor relationship with
the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least 33% in principal
amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee,
jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company
does not join in such appointment within 15 days after
the receipt by it of a request so to do, or if an Event
of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the
Company.
Every co-trustee or separate trustee shall, to
the extent permitted by law, but to such extent only, be
appointed subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held
by, or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations
hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee
and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall
be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and
obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument
in writing executed by it, with the concurrence of
the Company, may accept the resignation of or remove
any co-trustee or separate trustee appointed under
this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have
power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the
concurrence of the Company. Upon the written
request of the Trustee, the Company shall join with
the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of
any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents with respect to the Securities of one or more
series, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued
upon original issuance and upon exchange, registration of
transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation
organized and doing business under the laws of the United
States, any State or territory thereof or the District of
Columbia or the Commonwealth of Puerto Rico, authorized
under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so pub
lished. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authen
ticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series shall be made pursuant to this
Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
Dated:
________________________
As Trustee
By_____________________
_
As Authenticating
Agent
By_____________________
_
Authorized
Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 15 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 non-
certificated system of registration for all, or any
series of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Securities shall be
payable, (2) all or any series of Securities may be
surrendered for registration of transfer, (3) all or
any series of Securities may be surrendered for
exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities
and this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series in any
material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall
require one or more changes to any provisions
hereof or the inclusion herein of any additional
provisions, or shall by operation of law be
deemed to effect such changes or incorporate
such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect
or evidence such changes or additional
provisions; or
(y) if any such amendment shall
permit one or more changes to, or the
elimination of, any provisions hereof which, at
the date of the execution and delivery hereof or
at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended
to effect such changes or elimination, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
SECTION 1202. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of,
this Indenture or modifying in any manner the rights of
the Holders of Securities of such series under the
Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be
required; and provided, further, that no such supplemental
indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on
(except as provided in Section 311 hereof), any
Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method
of calculating such rate or reduce any premium
payable upon the redemption thereof, or change the
coin or currency (or other property), in which any
Security or any premium or the interest thereon is
payable, or impair the right to institute suit for
the enforcement of any such payment on or after the
Stated Maturity of any Security (or, in the case of
redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder
of such Security, or
(b) reduce the percentage in principal amount
of the Outstanding Securities of any series (or, if
applicable, in liquidation preference of any series
of Preferred Securities), the consent of the Holders
of which is required for any such supplemental in
denture, or the consent of the Holders of which is
required for any waiver of compliance with any
provision of this Indenture or of any default
hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders
of each Outstanding Security of such series, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, except to increase the
percentages in principal amount referred to in this
Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, how
ever, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this pro
viso, in accordance with the requirements of Sections
911(b) and 1201(h).
Notwithstanding the foregoing, so long as any of the
Preferred Securities remain outstanding, the Trustee may
not consent to a supplemental indenture under this Section
1202 without the prior consent, obtained as provided in a
Trust Agreement pertaining to a Trust which issued such
Preferred Securities, of the holders of not less than a
majority in aggregate liquidation preference of all
Preferred Securities issued by such Trust affected,
considered as one class, or, in the case of changes
described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred
Securities then outstanding which would be affected
thereby, considered as one class. A supplemental
indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. Execution of Supplemental
Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and
delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such
series.
SECTION 1207. Modification Without Supplemental
Indenture.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate pursuant to a Board
Resolution as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or
the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate
shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or
more, or all, series may be called at any time and from
time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting
of Holders of Securities of one or more, or all,
series for any purpose specified in Section 1301, to
be held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee
shall determine, or, with the approval of the
Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such
meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series by the Company or by the Holders
of 33% in aggregate principal amount of all of such
series, considered as one class, for any purpose
specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities
of such series in the amount above specified, as the
case may be, may determine the time and the place in
the Borough of Manhattan, The City of New York, or in
such other place as shall be determined or approved
by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one
or more, or all, series shall be valid without notice
if the Holders of all Outstanding Securities of such
series are present in person or by proxy and if rep
resentatives of the Company and the Trustee are
present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series a Person
shall be (a) a Holder of one or more Outstanding
Securities of such series, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled
to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series with respect to which a meeting shall have
been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders
of Securities of such series; provided, however, that if
any action is to be taken at such meeting which this
Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority,
in principal amount of the Outstanding Securities of such
series, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series, considered as one
class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In
any other case the meeting may be adjourned for such
period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for such period as may be
determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any
meeting adjourned for more than 30 days shall be given as
provided in Section 1302(a) not less than 10 days prior to
the date on which the meeting is scheduled to be recon
vened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of the series with respect to which
such meeting shall have been called, considered as one
class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such
series, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such
series, considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series with respect to which such
meeting shall have been held, whether or not present or
represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder (except as provided in Section
104(g)), of such Securities before being voted.
(b) Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting
of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties
of inspectors of votes, the submission and
examination of proxies, certificates and other
evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of
Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all
series represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall
be entitled to one vote for each $1 principal amount
of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series represented at
the meeting, considered as one class; and the meeting
may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series with respect to which the meeting shall have been
called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with
the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared
by the secretary of the meeting and there shall be
attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided
in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Dire
ctors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any
predecessor or successor corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional pro
vision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior
Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on
each and all of the Securities is hereby expressly
subordinated and subject to the extent and in the manner
set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by
its acceptance thereof, authorizes and directs the Trustee
on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-
fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect of
the Company or a substantial part of its property, or of
any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the provisions
of Section 1503, that (i) a default shall have occurred
with respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or
interest or other monetary amounts due and payable) in
respect of any Senior Indebtedness, as defined therein or
in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for
such payment in money or money's worth,
before the Holders of any of the Securities
are entitled to receive a payment on
account of the principal of or interest on
the indebtedness evidenced by the
Securities, including, without limitation,
any payments made pursuant to Articles Four
and Five;
(2) any payment by, or distribution
of assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the
Trustee would be entitled except for the
provisions of this Article, shall be paid
or delivered by the person making such
payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any of such Senior Indebtedness
may have been issued, ratably according to
the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or
represented by each, to the extent
necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
Holders of the indebtedness evidenced by
the Securities or to the Trustee under this
Indenture; and
(3) in the event that,
notwithstanding the foregoing, any payment
by, or distribution of assets of, the
Company of any kind or character, whether
in cash, property or securities, in respect
of principal of or interest on the
Securities or in connection with any
repurchase by the Company of the
Securities, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision
is made for such payment in money or
money's worth, such payment or distribution
in respect of principal of or interest on
the Securities or in connection with any
repurchase by the Company of the Securities
shall be paid over to the holders of such
Senior Indebtedness or their representative
or representatives or to the trustee or
trustees under any indenture under which
any instruments evidencing any such Senior
Indebtedness may have been issued, ratably
as aforesaid, for application to the
payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full,
after giving effect to any concurrent
payment or distribution (or provision
therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
Government Obligations pursuant to Section 701 (provided
all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation, those
arising under this Article Fifteen; provided that no event
described in clauses (d) and (e) of Section 801 with
respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or
readjustment which are subordinate in right of payment to
all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in
this Article. The consolidation of the Company with, or
the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article Eleven
hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this
Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness.
Any failure by the Company to make any payment
on or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by the
Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral,
renewal, extension or refunding thereof) or any other
obligation as to which the provisions of this Section
shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default under clause (b)
of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company which
is in full force and effect and is not subject to further
review, including a judgment that has become final by
reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or
appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such
appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have
been paid in full unless the holders thereof shall have
received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Subject to the
prior payment in full of all Senior Indebtedness, the
rights of the Holders of the Securities shall be
subrogated to the rights of the holders of Senior
Indebtedness to receive any further payments or
distributions of cash, property or securities of the
Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions
of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of
such Senior Indebtedness shall, as between the Company,
its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it
being understood that the provisions of this Article are
and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the Holders,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of
any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in
which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this
Article.
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise,
all matured principal of Senior Indebtedness and interest
and premium, if any, thereon shall first be paid in full
before any payment of principal or premium, if any, or
interest, if any, is made upon the Securities or before
any Securities can be acquired by the Company or any
sinking fund payment is made with respect to the
Securities (except that required sinking fund payments may
be reduced by Securities acquired before such maturity of
such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as
such holder.
SECTION 1508. Notice to Trustee to Effectuate
Subordination.
Notwithstanding the provisions of this Article
or any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee
shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior
Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to
Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose,
or in the event of the execution of an instrument pursuant
to Section 702 acknowledging satisfaction and discharge of
this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice
provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply
the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which
may be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons receiving
such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment
of the principal of and premium, if any, and interest, if
any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any
Senior Indebtedness, or amend or supplement any instrument
pursuant to which any Senior Indebtedness is issued, or
exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without
notice to or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of
Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or deliver to the Holders
or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully
for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the
Trustee; provided, however, that Sections 1507, 1508 and
1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired.
No right of any present or future holder of
Senior Indebtedness to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or
by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 1513. Effect of Subordination Provisions;
Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be
of no further effect, and the Securities shall no longer
be subordinated in right of payment to the prior payment
of Senior Indebtedness, if the Company shall have
delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ENTERGY ARKANSAS, INC.
By:
ATTEST:
____________________________
THE BANK OF NEW YORK, Trustee
By:
ATTEST:
_____________________________
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 4.11
AMENDED AND RESTATED
TRUST AGREEMENT
among
ENTERGY ARKANSAS, INC., as Depositor
and
THE BANK OF NEW YORK, as Property Trustee
THE BANK OF NEW YORK (DELAWARE), as Delaware Trustee
[___________________],
[______________],
and
[_______________], as Administrative 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>
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name 12
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business 12
Section 2.03. Initial Contribution of Trust
Property; Organizational Expenses 12
Section 2.04. Issuance of the Preferred
Securities 13
Section 2.05. Subscription and Purchase of
Debentures; Issuance of the
Common Securities 13
Section 2.06. Declaration of Trust; Appointment
of Additional Administrative
Trustees 13
Section 2.07. Authorization to Enter into Certain
Transactions 14
Section 2.08. Assets of Trust 18
Section 2.09. Title to Trust Property 18
ARTICLE III.
Payment Account
Section 3.01. Payment Account 18
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions 19
Section 4.02. Redemption 20
Section 4.03. Subordination of Common Securities 22
Section 4.04. Payment Procedures 23
Section 4.05. Tax Returns and Reports 23
Section 4.06. Payment of Taxes, Duties, Etc. of
the Trust 23
Section 4.07. Payments under Subordinated
Indenture 24
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership 24
Section 5.02. The Trust Securities Certificates 24
Section 5.03. Execution and Delivery of Trust
Securities Certificates 25
Section 5.04. Registration of Transfer and
Exchange of Preferred Securities
Certificates 25
Section 5.05. Mutilated, Destroyed, Lost or
Stolen Trust Securities
Certificates 26
Section 5.06. Persons Deemed Securityholders 26
Section 5.07. Access to List of Securityholders'
Names and Addresses 26
Section 5.08. Maintenance of Office or Agency 27
Section 5.09. Appointment of Paying Agent 27
Section 5.10. Ownership of Common Securities by
Depositor; Common
Securities Certificate 28
Section 5.11. Book-Entry Preferred Securities
Certificates 28
Section 5.12. Notices to Securities Depository 29
Section 5.13. Definitive Preferred Securities
Certificates 29
Section 5.14. Rights of Securityholders 30
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights 30
Section 6.02. Notice of Meetings 32
Section 6.03. Meetings of Holders of Preferred
Securities 32
Section 6.04. Voting Rights 32
Section 6.05. Proxies, etc. 33
Section 6.06. Securityholder Action by Written
Consent 33
Section 6.07. Record Date for Voting and Other
Purposes 33
Section 6.08. Acts of Securityholders 33
Section 6.09. Inspection of Records 35
ARTICLE VII.
Representations and Warranties of the Property
Trustee, the Delaware Trustee and the Depositor
Section 7.01. Property Trustee 35
Section 7.02. Delaware Trustee 35
Section 7.03. Depositor 36
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities 37
Section 8.02. Certain Notices 38
Section 8.03. Certain Rights of Property Trustee 39
Section 8.04. Not Responsible for Recitals or
Issuance of Securities 42
Section 8.05. May Hold Securities 42
Section 8.06. Compensation; Fees; Indemnity. 42
Section 8.07. Certain Trustees Required;
Eligibility 43
Section 8.09. Co-Trustees and Separate Trustee 44
Section 8.10. Resignation and Removal;
Appointment of Successor 46
Section 8.11. Acceptance of Appointment by
Successor 47
Section 8.12. Merger, Conversion, Consolidation
or Succession to Business 48
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust 48
Section 8.14. Reports by Property Trustee 48
Section 8.15. Reports to the Property Trustee 49
Section 8.16. Evidence of Compliance With
Conditions Precedent 49
Section 8.17. Number of Trustees. 49
Section 8.18. Delegation of Power. 50
Section 8.19. Fiduciary Duty 50
Section 8.20. Voting 51
ARTICLE IX.
Termination, Liquidation and Merger
Section 9.01. Termination Upon Expiration Date 51
Section 9.02. Early Termination 52
Section 9.03. Termination 52
Section 9.04. Liquidation 52
Section 9.05. Mergers, Consolidations,
Amalgamations or Replacements of
the Trust 54
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and
Assumption of Obligations 56
Section 10.02. Limitation of Rights of
Securityholders 56
Section 10.03. Amendment 56
Section 10.04. Separability 58
Section 10.05. Governing Law 58
Section 10.06. Successors 58
Section 10.07. Headings 58
Section 10.08. Notice and Demand 58
Section 10.09. Agreement Not to Petition 59
Section 10.10. Conflict with Trust Indenture Act 59
Section 10.11. Acceptance of Terms of Trust
Agreement, Guarantee and
Indenture 60
Section 10.12. Counterparts 60
EXHIBIT A Certificate of Trust of Entergy Arkansas
Capital I A-1
EXHIBIT B Certificate Evidencing Common Securities of
Entergy Arkansas Capital I B-1
EXHIBIT C Agreement as to Expenses and Liabilities C-1
EXHIBIT D Certificate Evidencing Preferred Securities of
Entergy Arkansas Capital I D-1
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[_______] 1, 1996, between (i) Entergy Arkansas, Inc., a Arkansas
corporation (the "Depositor"), (ii) The Bank of New York, a
banking corporation duly organized and existing under the laws of
New York, as trustee (the "Property Trustee"), (iii) The Bank of
New York (Delaware), a banking corporation duly organized under
the laws of Delaware, as trustee (the "Delaware Trustee") and
(iv) [__________________], [______________] and [______________],
each an individual, as trustee, and each of whose address is c/o
Entergy Arkansas, Inc., 425 West Capitol Avenue, 40th Floor,
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 Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act (as hereinafter
defined) by the entering into of that certain Trust Agreement,
dated as of 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, filed on April __, 1996, the form 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 (as hereinafter
defined), (ii) the issuance of the Common Securities (as
hereinafter defined) by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities (as hereinafter defined) by
the Trust pursuant to the Underwriting Agreement (as hereinafter
defined) and (iv) the appointment of additional Administrative
Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other parties and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
Defined Terms
Section 1.01. (a) Definitions. For all purposes of
this Trust Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(b) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural
as well as the singular;
(c) all other terms used herein that are defined
in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(d) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an Article or
a Section, as the case may be, of this Trust Agreement; and
(e) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Trust Agreement
as a whole and not to any particular Article, Section or other
subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and for a given period,
the amount of additional interest accrued on interest in arrears
and paid by the Depositor on a Like Amount of Debentures for such
period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust created hereunder and not in their
individual capacities, or such trustee's successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court
having jurisdiction in the premises judging such Person
a bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a
receiver, 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
(ii) the institution by such Person of
proceedings to be adjudicated a bankrupt or insolvent,
or of the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such
Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof or officers of
the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect
on the date of such certification, and delivered to the
appropriate Trustee.
"Book-Entry Preferred Securities Certificates" mean
certificates representing Preferred Securities issued in global,
fully registered form to the Securities Depository (as
hereinafter defined) as described in Section 5.11.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate Depository Agreement" means the agreement
among the Trust, the Depositor and The Depository Trust Company,
as the initial Securities Depository, dated as of the Closing
Date, relating to the Trust Securities Certificate, as the same
may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York.
"Covered Person" means: (a) any officer, director,
shareholder, beneficial owner, partner, member, representative,
employee or agent of the Trust or the Trust's Affiliates; and (b)
any Holder of Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, a New
York banking corporation organized under the laws of the State of
New York and any successor thereto, as trustee under the
Subordinated Indenture.
"Debentures" means the $[________] aggregate principal
amount of the Depositor's [___]% Junior Subordinated Deferrable
Interest Debentures, Series __, 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 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of
any Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of
any Redemption Price (as hereinafter defined) when it
becomes due and payable; or
(iv) default in the performance, or breach,
in any material respect of any covenant or warranty of
the Trustees in this Trust Agreement (other than a
covenant or warranty a default in whose performance or
breach is specifically dealt with in clause (ii) or
(iii), above) and continuation of such default or
breach for a period of 60 days after there has been
given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at
least 10% in Liquidation Amount of the Outstanding
Preferred Securities a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder; or
(v) the occurrence of a Bankruptcy Event with
respect to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c)(iv).
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partner, employee, representative or agent of any Trustee, or any
employee or agent of the Trust or its Affiliates.
"Investment Company Event" means the occurrence of a
change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority to the effect that
the Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), which change in
law becomes effective on or after the date of original issuance
of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount
equal to the principal amount of Debentures to be
contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities and (ii) with respect
to a distribution of Debentures to the Holders of Trust
Securities in connection with a termination and liquidation of
the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by
the Property Trustee or delivered to the Property
Trustee for cancellation;
(ii) Preferred Securities for whose payment
or redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or
in lieu of which other Preferred Securities have been
delivered pursuant to this Trust Agreement, including
pursuant to Sections 5.04, 5.05, 5.11 or 5.13;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in conclusively relying upon any such
request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which such Trustee knows to be
so owned shall be so disregarded and (b) the foregoing shall not
apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner
of a Book-Entry Preferred Securities Certificate as reflected in
the records of the Securities Depository or, if a Securities
Depository Participant is not the beneficial owner, then as
reflected in the records of a Person maintaining an account with
such Securities Depository (directly or indirectly), in
accordance with the rules of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee at The Bank of New York, or such other banking
institution as the Depositor shall select in its trust department
for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to
the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a cumulative quarterly
income preferred security representing an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date and Maturity (as defined in the Subordinated
Indenture as hereinafter defined) of the Debentures shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any
Redemption Date of any Trust Security, the Liquidation Amount of
such Trust Security, plus accumulated and unpaid Distributions
thereon to the Redemption Date and the related amount of the
premium, if any, paid by the Depositor upon the concurrent
redemption of a Like Amount of Debentures, allocated on a pro
rata basis (based on Liquidation Amount) among the Trust
Securities.
"Registrar" shall mean the registrar for the Preferred
Securities appointed by the Trust and shall be initially The Bank
of New York.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matters.
"Securities Depository" shall be The Depository Trust
Company, or a successor thereto.
"Securities Depository Participant" means an
institution which deposits securities with a Securities
Depository for holding thereby and for whom from time to time a
Securities Depository effects book-entry transfers and pledges of
such securities.
"Securities Register" shall mean the Securities
Register described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person is a beneficial owner within
the meaning of the Delaware Business Trust Act.
"Special Event" means either a Tax Event or an
Investment Company Event.
"Subordinated Indenture" means the Indenture, dated as
of June 1, 1996, between the Depositor and the Debenture Trustee,
as trustee, as amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust of an
Opinion of Counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a
result of any official administrative or judicial pronouncement
or decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or
decision is announced on or after the date of original issuance
of the Preferred Securities under this Trust Agreement, there is
more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date thereof, subject to United States
Federal income tax with respect to income received or accrued on
the Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or within 90 days of the date thereof, will
not be, deductible by the Depositor, in whole or in part, for
United States Federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more
than a de minimis amount of other taxes, duties or other
governmental charges.
"Transfer Agent" shall mean one or more transfer agents
for the Preferred Securities appointed by the Administrative
Trustees on behalf of the Trust and shall be initially The Bank
of New York.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities
or the Preferred Securities.
"Trust Securities Certificate" means any one of the
Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of [_____ __] , 1996, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE II.
Establishment of the Trust
Section II.01. Name. The Trust created hereby shall
be known as "Entergy Arkansas Capital I", as such name may be
modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and
the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
Section II.02. Office of the Delaware Trustee;
Principal Place of Business. The office of the Delaware Trustee
in the State of Delaware is White Clay Center, Route 273, Newark,
Delaware 19711, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Entergy Arkansas, Inc., 425 West
Capitol Avenue, 40th Floor, Little Rock, Arkansas 72201.
Section II.03. 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 II.04. Issuance of the Preferred Securities.
The Depositor, on behalf of the Trust, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.02
and the Underwriting Agreement, shall execute manually and
deliver a Preferred Securities Certificate, registered in the
name of the nominee of the Securities Depository, in an aggregate
amount of _________ Preferred Securities having an aggregate
Liquidation Amount of $[________] against receipt of the
aggregate purchase price of such Preferred Securities of
$__________, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee.
Section II.05. Subscription and Purchase of
Debentures; Issuance of the Common Securities. Contemporaneously
with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee, on behalf of the Trust, and having
an aggregate principal amount equal to $[________], and, in
satisfaction of the purchase price for such Debentures, (x) one
of the Administrative Trustees, on behalf of the Trust, shall
execute and deliver to the Depositor Common Securities
Certificates in accordance with Section 5.02, registered in the
name of the Depositor, in an aggregate amount of [_____] 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 II.06. Declaration of Trust; Appointment of
Additional Administrative Trustees. The exclusive purposes and
functions of the Trust are (i) to issue and sell Trust Securities
and invest the proceeds thereof in Debentures, and (ii) to engage
in those activities necessary or incidental thereto. The
Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth
herein. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Securityholders. The
Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. Anything in this Trust
Agreement to the contrary notwithstanding the Delaware Trustee
shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of
the Property Trustee or the Administrative Trustees set forth
herein. The Delaware Trustee shall be one of the Trustees of the
Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act.
Section II.07. Authorization to Enter into Certain
Transactions. (a) The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section 2.07 and Article VIII and in accordance with the
following provisions (A) and (B), the Trustees shall have the
authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees,
acting singly or jointly, shall have the power, duty and
authority to act on behalf of the Trust with respect to the
following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to
cause the Trust to enter into and to execute, deliver
and perform on behalf of the Trust, the Expense
Agreement, and such agreements or other documents as
may be necessary or desirable in connection with the
purposes and function of the Trust;
(iii) to qualify the Trust to do business in
any jurisdiction as may be necessary or desirable;
(iv) to take all action that may be necessary
or appropriate for the preservation and continuation of
the Trust's valid existence, rights, franchises and
privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction
in which such existence is necessary to protect the
limited liability of the Holders of Preferred
Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(v) the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(vi) the listing of the Preferred Securities
upon such securities exchange or exchanges as shall be
determined by the Depositor and the registration of the
Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(vii) the appointments of a Paying Agent
(subject to Section 5.09), a Transfer Agent and a
Registrar in accordance with this Trust Agreement;
(viii) registering transfers of the Trust
Securities in accordance with this Trust Agreement;
(ix) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation, execution
and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(x) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder); and
(xi) the sending of notices (other than
notices of default) and other information regarding the
Trust Securities and the Debentures to the
Securityholders in accordance with this Trust
Agreement.
(B) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and
any other payments made in respect of the Debentures in
the Payment Account;
(iv) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
(vi) the distribution of the Trust Property
in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust; and
(viii) the taking of any ministerial action
incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable
to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration
of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustees set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the
Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders
of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of this Trust
Agreement.
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall
not undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify
as a "grantor trust" for United States Federal income tax
purposes, (iv) incur any indebtedness for borrowed money or (v)
take or consent to any action that would result in the placement
of a Lien on any of the Trust Property. To the extent required
under this Trust Agreement and the Trust Indenture Act, the
Property Trustee shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust
Property adverse to the interests of the Trust or the
Securityholders in their capacity as Securityholders. The
Administrative Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interests of the Trust or the
Securityholders in their capacity as Securityholders to the
extent not required to be done by the Property Trustee in the
preceding sentence.
(c) In connection with the issue and sale of the
Preferred Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect on
behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of
this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation and filing by the Trust with
the Commission and the execution by the Trust of a
registration statement on Form S-3 in relation to the
Preferred Securities, the Debentures, the Guarantee and
certain related obligations, including any amendments
thereto;
(ii) the determination of the States in which
to take appropriate action to qualify or register for
sale all or part of the Preferred Securities and the
taking of any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and
the advising of the Trustees of actions they must take
on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed
and filed by the Trust or on behalf of the Trust, as
the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(iii) the preparation for filing by the Trust
and the execution by the Trust of an application to the
New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities and to
file or cause the Administrative Trustees to file
thereafter with such exchange such notifications and
documents as may be necessary from time to time to
maintain such listing;
(iv) the preparation for filing by the Trust
with the Commission and the execution by the Trust of a
registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section
12(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendments
thereto;
(v) the selection of the investment banker or
bankers to act as underwriters with respect to the
offer and sale by the Trust of Preferred Securities and
the negotiation of the terms of and the execution and
delivery of on behalf of the Trust the Underwriting
Agreement and such other agreements as may be necessary
or desirable in connection with the consummation
thereof; and
(vi) the taking of any other actions
necessary or desirable to carry out any of the
foregoing activities.
(d) Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so that
the Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act or
classified other than as a "grantor trust" for United States
Federal income tax purposes so that the Debentures will be
treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, subject to the
provisions of Section 10.03, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with
applicable law, the certificate of trust filed with the Secretary
of State of the State of Delaware with respect to the Trust (as
amended or restated from time to time, the "Certificate of
Trust") or this Trust Agreement, that each of the Depositor and
the Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action
does not materially adversely affect the interests of the Holders
of the Preferred Securities.
Section II.08. Assets of Trust. The assets of the
Trust shall consist of the Trust Property.
Section II.09. Title to Trust Property. Legal title
to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III.
Payment Account
Section III.01. Payment Account.
(a) On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustee and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect to,
the Debentures. Amounts held in the Payment Account shall not be
invested by the Property Trustee pending distribution thereof.
ARTICLE IV.
Distributions; Redemption
Section IV.01. Distributions.
(a) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of
the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except in
the event that the Depositor exercises its right to extend the
interest payment period for the Debentures pursuant to Section
311 of the Subordinated Indenture, shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of
each year, commencing on [_______ __], 1996. If any date on
which Distributions are otherwise payable on the Trust Securities
is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such distribution shall be
made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date (each date
on which distributions are payable in accordance with this
Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities
shall be fixed at a rate of [____]% per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions
payable for any full quarterly period shall be computed on the
basis of twelve 30-day months and a 360-day year and for any
period shorter than a full month, on the basis of the actual
number of days elapsed. If the interest payment period for the
Debentures is extended pursuant to Section 311 of the
Subordinated Indenture, then Distributions on the Preferred
Securities will be deferred for the period equal to the extension
of the interest payment period for the Debentures and the rate
per annum at which Distributions on the Trust Securities
accumulate shall be increased by an amount such that the
aggregate amount of Distributions that accumulate on all Trust
Securities during any such extended interest payment period is
equal to the aggregate amount of interest (including, to the
extent permitted by law, interest payable on unpaid interest at
the percentage rate per annum set forth above, compounded
quarterly) that accrues during any such extended interest payment
period on the Debentures. The amount of Distributions payable
for any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date only
to the extent that the Trust has funds then on hand and
immediately available in the Payment Account for the payment of
such Distributions.
(d) Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities
on the relevant record date, which shall be one Business Day
prior to such Distribution Date; provided, however, that in the
event that the Preferred Securities do not remain in book-entry
only form, the relevant record date shall be 15 days prior to the
relevant Distribution Date.
Section IV.02. Redemption.
(a) On each Debenture Redemption Date and at Maturity
for the Debentures, the Property Trustee will be required to
redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date
to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Security Register. All notices
of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and
the total Liquidation Amount of the particular Trust
Securities to be redeemed; and
(v) that on the Redemption Date the Redemption
Price will become due and payable upon each such Trust
Security to be redeemed and that interest thereon will
cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price with the proceeds
from the contemporaneous redemption of Debentures. Redemptions
of the Trust Securities shall be made and the Redemption Price
shall be deemed payable on each Redemption Date only to the
extent that the Trust has funds immediately available in the
Payment Account for such payment.
(d) If the Property Trustee gives a notice of
redemption in respect of any Preferred Securities, then, by 12:00
noon, New York time, on the Redemption Date, subject to Section
4.02(c), the Property Trustee will, so long as the Preferred
Securities are in book-entry only form, deposit with the
Securities Depository for the Preferred Securities funds
sufficient to pay the applicable Redemption Price and will give
such Securities Depository irrevocable instructions and authority
to pay the applicable Redemption Price to the holders thereof.
If the Preferred Securities are no longer in book-entry only
form, the Property Trustee, subject to Section 4.02(c), will
deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption
Price to the Holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the redemption date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption
shall have been given and funds deposited as required, then on
the Redemption Date, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price, but
without interest thereon, and such Trust Securities will cease to
be outstanding. In the event that any Redemption Date is not a
Business Day, then payment of the Redemption Price payable on
such date shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day
falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be deemed the
date fixed for redemption for purposes of calculating the
Redemption Price.
(e) Payment of the Redemption Price on the Trust
Securities and any distribution of Debentures to the Holders
shall be made to the Holders as they appear on the Securities
Register for the Trust Securities on the relevant record date,
which shall be one Business Day prior to such Redemption Date;
provided, however, that in the event that the Preferred
Securities do not remain in book-entry only form, the relevant
record date shall be the fifteenth day prior to the relevant
Redemption Date.
(f) Subject to Section 4.03(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities
to be redeemed shall be allocated 3% to the Common Securities and
97% to the Preferred Securities. The particular Preferred
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for
a redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Securities selected for redemption and, in the case
of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or
to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities which has been or is to be
redeemed.
Section IV.03. Subordination of Common Securities.
(a) Payment of Distributions (including Additional
Amounts, if applicable) on, and the Redemption Price plus
accumulated and unpaid distributions of, the Trust Securities, as
applicable, shall be made pro rata based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default
resulting from a Debenture Event of Default shall have occurred
and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of,
any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Securities
for all distribution periods terminating on or prior thereto, or
in the case of payment of the Redemption Price the full amount of
such Redemption Price on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or Redemption Price of,
Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the Holder
of Common Securities will be deemed to have waived any such Event
of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Preferred Securities
shall have been cured, waived or otherwise eliminated. Until any
such Events of Default under this Trust Agreement with respect to
the Preferred Securities shall have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Preferred Securities and not the
Holder of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
Section IV.04. Payment Procedures. Payments of
Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed
to the address of the Person entitled thereto as such address
shall appear on the Securities Register or, if the Preferred
Securities are held by a Securities Depository, such
Distributions shall be made to the Securities Depository, which
shall credit the relevant Persons' accounts at such Securities
Depository on the applicable distribution dates. Payments in
respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the
Holder of the Common Securities.
Section IV.05. Tax Returns and Reports. The
Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense and direction, and file all United
States Federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In
this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the Internal Revenue
Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the related Internal Revenue Service Form
1099, or any successor form or the information required to be
provided on such form. The Administrative Trustees shall provide
the Depositor with a copy of all such returns and reports
promptly after such filing or furnishing. The Property Trustee
shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust
Securities.
Section IV.06. Payment of Taxes, Duties, Etc. of the
Trust. Upon receipt under the Debentures of Additional Interest
(as defined in the Subordinated Indenture), the Property Trustee
at the direction of an Administrative Trustee or the Depositor
shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the
Trustee by the United States or any other taxing authority.
Section IV.07. Payments under Subordinated Indenture.
Any amount payable hereunder to any Holder of Preferred
Securities shall be reduced by the amount of any corresponding
payment such Holder has directly received pursuant to Section 808
of the Subordinated Indenture. Notwithstanding the provisions
hereunder to the contrary, Securityholders acknowledge that any
Holder of Preferred Securities that receives payment under
Section 808 of the Subordinated Indenture may receive amounts
greater than the amount such Holder may be entitled to receive
pursuant to the other provisions of this Trust Agreement.
ARTICLE V.
Trust Securities Certificates
Section V.01. Initial Ownership. Upon the creation of
the Trust and the contribution by the Depositor pursuant to
Section 2.03 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section V.02. The Trust Securities Certificates. The
Trust Securities Certificates shall be issued in denominations of
$25 Liquidation Amount and integral multiples thereof. Subject
to Section 2.04 relating to the original issuance of the
Preferred Securities Certificate registered in the name of the
nominee of the Securities Depository, the Trust Securities
Certificates shall be executed on behalf of the Trust by manual
or facsimile signature of at least one Administrative Trustee
and, if executed on behalf of the Trust by facsimile signature,
countersigned by a Transfer Agent or its agent. Trust Securities
Certificates bearing the manual signatures of individuals who
were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust and, if executed on
behalf of the Trust by facsimile signature, countersigned by a
Transfer Agent or its agent, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that
such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery
of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall
be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to
Section 5.04, 5.11 or 5.13.
Section V.03. Execution and Delivery of Trust
Securities Certificates. On the Closing Date, the Administrative
Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 2.04 and
2.05, to be executed on behalf of the Trust by at least one of
the Administrative Trustees, and in the case of Preferred
Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred
without negligence arising out of or in connection with any such
countersigning by it.
Section V.04. Registration of Transfer and Exchange of
Preferred Securities Certificates. The Registrar shall keep or
cause to be kept, at its principal corporate office, a Securities
Register in which, subject to such reasonable regulations as it
may prescribe, the Registrar shall provide for the registration
of Preferred Securities Certificates and registration of
transfers and exchanges of Preferred Securities Certificates as
herein provided.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent
to countersign and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and a Transfer Agent
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Administrative
Trustees in accordance with customary practice. The Trust shall
not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange
any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a
Transfer Agent may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection
with any transfer or exchange of Preferred Securities
Certificates.
Section V.05. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates. If (a) any mutilated Trust
Securities Certificate shall be surrendered to a Transfer Agent,
or if a Transfer Agent shall receive evidence to its satisfaction
of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Transfer
Agent and the Administrative Trustees such security or indemnity
as may be required by them to save each of them and the Depositor
harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on
behalf of the Trust, shall execute by manual or facsimile
signature and, if executed on behalf of the Trust by facsimile
signature, cause a Transfer Agent or its agent to countersign and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section 5.05, the
Administrative Trustees or the Transfer Agent may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section 5.05 shall constitute conclusive evidence of an
ownership interest in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate
shall be found at any time.
Section V.06. Persons Deemed Securityholders. Prior
to due presentation of a Trust Securities Certificate for
registration of transfer, the Trustees, the Paying Agent and the
Registrar shall be entitled to treat the Person in whose name any
Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the
Registrar shall be bound by any notice to the contrary.
Section V.07. 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 V.08. Maintenance of Office or Agency. The
Depositor shall or shall cause the Transfer Agent to maintain in
the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Depositor
or the Transfer Agent in respect of the Trust Securities
Certificates may be served. The Depositor initially designates
The Bank of New York at its principal corporate trust office for
such purposes. The Depositor shall or shall cause the Transfer
Agent to give prompt written notice to the Property Trustee and
to the Securityholders of any change in any such office or
agency.
Section V.09. Appointment of Paying Agent. The Paying
Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such
Distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent in its
sole discretion. The Paying Agent may choose any co-paying agent
that is acceptable to the Administrative Trustees and the
Depositor. The Paying Agent shall be permitted to resign upon 30
days' written notice to the Administrative Trustees and the
Depositor. In the event of the removal or resignation of the
Paying Agent, the Administrative Trustees shall appoint a
successor that is reasonably acceptable to the Property Trustee
and the Depositor to act as Paying Agent (which shall be a bank,
trust company or an Affiliate of the Depositor). The
Administrative Trustees shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06
shall apply to the Paying Agent appointed hereunder, and the
Paying Agent shall be bound by the requirements with respect to
paying agents of securities issued pursuant to the Trust
Indenture Act. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context
requires otherwise.
Section V.10. Ownership of Common Securities by
Depositor; Common Securities Certificate. On the Closing Date,
the Depositor shall acquire, and thereafter retain, beneficial
and record ownership of the Common Securities. Any attempted
transfer of the Common Securities (other than a transfer in
connection with a merger or consolidation of the Depositor into
another corporation pursuant to Section 1101 of the Subordinated
Indenture) shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Depositor
to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE". A single Common Securities Certificate
representing the Common Securities shall be issued to the
Depositor in the form of a definitive Common Securities
Certificate.
Section V.11. Book-Entry Preferred Securities
Certificates. The Preferred Securities Certificates, upon
original issuance, will be issued in the form of a typewritten
Preferred Securities Certificate or Certificates representing
Book-Entry Preferred Securities Certificates, to be delivered to
or held on behalf of The Depository Trust Company, the initial
Securities Depository, by, or on behalf of, the Trust. Such Book-
Entry Preferred Securities Certificate or Certificates shall
initially be registered on the Securities Register in the name of
Cede & Co., the nominee of the initial Securities Depository, and
no beneficial owner will receive a Definitive Preferred
Securities Certificate representing such beneficial owner=s
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to beneficial owners pursuant to
Section 5.13:
(a) the provisions of this Section 5.11 shall be in
full force and effect;
(b) the Registrar, the Paying Agent and the Trustees
shall be entitled to deal with the Securities Depository for all
purposes of this Trust Agreement relating to the Book-Entry
Preferred Securities Certificates (including the payment of the
Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities) as the sole Holder of the Book-Entry
Preferred Securities and shall have no obligations to the Owners
thereof;
(c) to the extent that the provisions of this Section
5.11 conflict with any other provisions of this Trust Agreement,
the provisions of this Section 5.11 shall control; and
(d) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only through
the Securities Depository and shall be limited to those
established by law and agreements between such Owners and the
Securities Depository and/or the Securities Depository
Participants. Pursuant to the Certificate Depository Agreement,
unless and until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.13, the initial Securities
Depository will make book-entry transfers among the Securities
Depository Participants and receive and transmit payments on the
Preferred Securities to such Securities Depository. Any
Securities Depository designated pursuant hereto will not be
deemed an agent of the Trustees for any purpose.
Section V.12. Notices to Securities Depository. To
the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive
Preferred Securities Certificates shall have been issued pursuant
to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the
Securities Depository, and shall have no obligations to the
Owners.
Section V.13. Definitive Preferred Securities
Certificates. If (a) the Depositor advises the Trustees in
writing that the Securities Depository is no longer willing or
able to properly discharge its responsibilities with respect to
the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its
option advises the Trustees in writing that it elects to
terminate the book-entry system through the Securities
Depository, or (c) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing
beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Property Trustee in writing that
the continuation of a book-entry system through the Securities
Depository is no longer in the best interests of the Owners of
Preferred Securities Certificates, then the Property Trustee
shall notify the Securities Depository, and the Securities
Depository shall notify all Owners of Preferred Securities
Certificates, of the occurrence of any such event and of the
availability of the Definitive Preferred Securities Certificates
to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Property Trustee of the typewritten
Preferred Securities Certificate or Certificates representing the
Book-Entry Preferred Securities Certificates by the Securities
Depository, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with
the instructions of the Securities Depository. Neither the
Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the
Trustees shall recognize the Holders of the Definitive Preferred
Securities Certificates as Securityholders. The Definitive
Preferred Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof in accordance with Section
5.02.
Section V.14. Rights of Securityholders. The legal
title to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Preferred
Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable interests in the Trust.
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section VI.01. Limitations on Voting Rights.
(a) Except as provided in this Section 6.01, in
Section 10.03 and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of
the Trust Securities Certificates, be construed so as to
constitute the Securityholders from time to time as partners or
members of an association. If the Property Trustee fails to
enforce its rights under the Debentures or this Trust Agreement,
a Holder of Preferred Securities may institute a legal proceeding
directly against the Depositor to enforce the Property Trustee's
rights under the Debentures or this Trust Agreement, to the
fullest extent permitted by law, without first instituting any
legal proceeding against the Property Trustee or any other
person. Notwithstanding the foregoing, to the fullest extent
permitted by law, a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such Holder
directly of principal of or interest on the Debentures having a
principal amount equal to the aggregate liquidation preference
amount of the Preferred Securities of such Holder on or after the
due dates specified in the Debentures. So long as any Preferred
Securities remain Outstanding, if, upon a Debenture Event of
Default, the Debenture Trustee fails or the holders of not less
than 33% in principal amount of the outstanding Debentures fail
to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 33% in
Liquidation Amount of the Preferred Securities then Outstanding
shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the
Debentures shall become immediately due and payable, provided
that the payment of principal and interest on such Debentures
shall remain subordinated to the extent provided in the
Subordinated Indenture.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or executing any trust or power conferred
on the Debenture Trustee with respect to such Debentures, (ii)
waive any past default which is waivable under Section 813 of the
Subordinated Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the
Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of a
majority of the aggregate Liquidation Amount of the Outstanding
Preferred Securities; provided, however, that where a consent
under the Subordinated Indenture would require the consent of
each holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of each
holder of Preferred Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the
Preferred Securities, except pursuant to a subsequent vote of the
Preferred Securities. The Property Trustee shall notify all
Holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of
the foregoing actions, the Property Trustee shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in
such matters to the effect that the Trust will be classified as a
"grantor trust" and not as an association taxable as a
corporation for United States Federal income tax purposes on
account of such action.
(c) Subject to Section 10.03(c), if any proposed
amendment to the Trust Agreement provides for, or the Trustees
otherwise propose to effect, (i) any action that would materially
adversely affect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of
this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment
or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of a majority in
Liquidation Amount of the Outstanding Preferred Securities. No
amendment to this Trust Agreement may be made if, as a result of
such amendment, the Trust would not be classified as a "grantor
trust" but as an association taxable as a corporation for United
States Federal income tax purposes.
Section VI.02. Notice of Meetings. Notice of all
meetings of the Holders of Preferred Securities, stating the
time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.08 to each Holder of a
Preferred Security, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further
notice.
Section VI.03. 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 VI.04. 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 VI.05. 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 VI.06. 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 VI.07. 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 VI.08. Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner
provided in this Section 6.08.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved
by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
A Securityholder may institute a legal proceeding
directly against the Depositor under the Guarantee to enforce its
rights under the Guarantee without first instituting a legal
proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust or any Person or entity.
Section VI.09. Inspection of Records. Subject to
Section 5.07 concerning access to the list of Securityholders,
upon reasonable notice to the Administrative Trustees and the
Property Trustee, the other records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE VII.
Representations and Warranties of the Property
Trustee, the Delaware Trustee and the Depositor
Section VII.01. Property Trustee. The Property
Trustee hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and constitutes
the valid and legally binding agreement of the Property Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Property Trustee of this Trust Agreement will not violate,
conflict with or constitute a breach of the Property Trustee's
charter or by-laws; and
(e) neither the authorization, execution or delivery
by the Property Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee
contemplated herein require the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency
under any existing Federal or New York law governing the banking
or trust powers of the Property Trustee.
Section VII.02. Delaware Trustee. The Delaware
Trustee hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate,
conflict with or constitute a breach of the Delaware Trustee's
charter or by-laws; and
(e) neither the authorization, execution or delivery
by the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Delaware Trustee
contemplated herein require the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency
under any existing Federal or Delaware law governing the banking
or trust powers of the Delaware Trustee.
Section VII.03. Depositor. The Depositor hereby
represents and warrants for the benefit of the Securityholders
that:
(a) the Trust Securities Certificates issued on the
Closing Date on behalf of the Trust have been duly authorized and
will have been duly and validly executed, issued and delivered by
the Administrative Trustees pursuant to the terms and provisions
of, and in accordance with the requirements of, this Trust
Agreement and the Securityholders will be, as of such date,
entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental
charges payable by the Trust (or the Trustees) under the laws of
the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the
Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII.
The Trustees
Section VIII.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Trust Agreement
against any of the Trustees. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the
Trustees to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Notwithstanding anything
contained in this Trust Agreement to the contrary, the duties and
responsibilities of the Property Trustee under this Trust
Agreement shall be subject to the protections, exculpations and
limitations on liability afforded to the Property Trustee under
the provisions of the Trust Indenture Act and, to the extent
applicable, Rule 3A-7 under the Investment Company Act or any
successor rule thereunder. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Section
8.01.
(b) All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee
or Paying Agent to make payments in accordance with the terms
hereof. Each Securityholder, by its acceptance of a Trust
Security, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not
limit the liability of the Trustees expressly set forth elsewhere
in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
(i) the Property Trustee's sole duty with respect
to the custody, safe keeping and physical preservation
of the Trust Property shall be to deal with such
property in a similar manner as the Property Trustee
deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust
Agreement, the Trust Indenture Act and, to the extent
applicable, Rule 3a-7 under the Investment Company Act;
(ii) the Property Trustee shall have no duty
or liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
(iii) the Property Trustee shall not be liable
for any interest on any money received by it except as
it may otherwise agree with the Depositor. Money held
by the Property Trustee need not be segregated from
other funds held by it except in relation to the
Payment Account established by the Property Trustee
pursuant to this Trust Agreement and except to the
extent otherwise required by law; and
(iv) the Property Trustee shall not be
responsible for monitoring the compliance by the
Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall
the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the
Depositor.
Section VIII.02. Certain Notices.
(a) Within five Business Days after the occurrence of
any Event of Default known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of any Event of Default to the
Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
(b) Within five Business Days after receipt of notice
of the Depositor's exercise of its right to defer the payment of
interest on the Debentures pursuant to the Subordinated
Indenture, an Administrative Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of
such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
Section VIII.03. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.01 and except as provided
by law:
(i) the Property Trustee may conclusively rely
and shall be protected in acting or refraining from
acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any
other certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) if (A) in performing its duties under
this Trust Agreement the Property Trustee is required
to decide between alternative courses of action or (B)
in construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a written notice to the Depositor requesting
written instructions of the Depositor as to the course
of action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this
Trust Agreement the Property Trustee shall deem it
desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, request and rely conclusively upon
an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Depositor
or the Administrative Trustees;
(iv) the Property Trustee may consult with
counsel of its selection and the written advice of such
counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(v) the Property Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to
this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying
with such request or direction;
(vi) the Property Trustee shall not be bound
to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine,
unless requested in writing to do so by one or more
Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Depositor personally or by agent or attorney;
(vii) the Property Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder, provided that the Property Trustee
shall be responsible for its own negligence or
recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(viii) the Property Trustee shall not be liable
for any action taken, suffered, or omitted to be taken
by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
(ix) the Property Trustee shall not be
charged with knowledge of any default or Event of
Default with respect to the Trust Securities unless
either (1) a Responsible Officer of the Property
Trustee shall have actual knowledge of the default or
Event of Default or (2) written notice of such default
or Event of Default shall have been given to the
Property Trustee by the Depositor, the Administrative
Trustees or by any Holder of the Trust Securities;
(x) no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed
on it in any jurisdiction in which it shall be illegal,
or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such
right, power, duty or obligation; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty;
(xi) no provision of this Trust Agreement
shall require the Property Trustee to expend or risk
its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the
Property Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
(xii) the Property Trustee shall have no duty
to see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any tax or securities) (or any
rerecording, refiling or registration thereof);
(xiii) the Property Trustee shall have the
right at any time to seek instructions concerning the
administration of this Trust Agreement from any court
of competent jurisdiction; and
(xiv) whenever in the administration of this
Trust Agreement the Property Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder the Property Trustee (i) may request
instructions from the Holders of the Trust Securities,
which instructions may only be given by the Holders of
the same proportion of Liquidation Amount of the Trust
Securities as would be entitled to direct the Property
Trustee under the terms of this Trust Agreement in
respect of such remedies, rights or actions, (ii) may
refrain from enforcing such remedy or right or taking
such other action until such instructions are received,
and (iii) shall be protected in acting in accordance
with such instructions.
Section VIII.04. 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 VIII.05. May Hold Securities. Any Trustee or
any other agent of any Trustee or the Trust, in its individual or
any other capacity, may become the owner or pledgee of Trust
Securities and, except as provided in the definition of the term
"Outstanding" in Article I, may otherwise deal with the Trust
with the same rights it would have if it were not a Trustee or
such other agent.
Section VIII.06. Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this
Trust Agreement, including the reasonable costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of
the Depositor under this Section 8.06, each of the Trustees shall
have a lien prior to the Trust Securities upon all property and
funds held or collected by such Trustee as such, except funds
held in trust for the payment of Distributions on the Trust
Securities.
The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
Section VIII.07. Certain Trustees Required;
Eligibility.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property
Trustee shall be a Person that has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for
the purposes of this Section 8.07(a), the combined capital and
surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition
so published. If at any time the Property Trustee with respect
to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section 8.07(a), it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article VIII.
(b) There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust
Securities. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal entity
that shall act through one or more persons authorized to bind
such entity.
(c) There shall at all times be a Delaware Trustee
with respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
with its principal place of business in the State of Delaware
that otherwise meets the requirements of applicable Delaware law
and that shall act through one or more persons authorized to bind
such entity.
Section VIII.08. 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 VIII.09. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section 8.09. If the Depositor does not
join in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments
shall, on request, be executed, acknowledged, and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties, and
obligations shall be exercised and performed by such co-
trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the
execution, delivery, and performance of all instruments and
agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in
the manner provided in this Section 8.09.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section VIII.10. Resignation and Removal; Appointment
of Successor. No resignation or removal of any Trustee (as the
case may be, the "Relevant Trustee") and no appointment of a
successor Relevant Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Relevant Trustee in accordance with the applicable requirements
of Section 8.11.
Subject to the immediately preceding paragraph, the
Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance
by a successor Relevant Trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within 30 days
after the giving of such notice of resignation, the resigning
Relevant Trustee may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
An Administrative Trustee may be removed by the Holder
of Common Securities at any time. Unless a Debenture Event of
Default shall have occurred and be continuing, the Property
Trustee or the Delaware Trustee may be removed at any time by Act
of the Common Securityholder. If a Debenture Event of Default
shall have occurred and be continuing, the Relevant Trustee may
be removed at such time by Act of the Securityholders of a
majority of the aggregate Liquidation Amount of the Outstanding
Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or
Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Relevant Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing,
the Preferred Securityholders, by Act of the Preferred
Securityholders of a majority in Liquidation Amount of the
Outstanding Preferred Securities delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and the Relevant Trustee shall comply with
the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common
Securityholders or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirements for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
Section VIII.11. 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 VIII.12. 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 VIII.13. 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 VIII.14. Reports by Property Trustee.
(a) The Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and
its actions under this Trust Agreement as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. Such of those reports as are
required to be transmitted by the Property Trustee pursuant to
Section 313(a) of the Trust Indenture Act shall be so transmitted
within 60 days after [________ __] of each year, commencing
[_______ __], 199[_].
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
Section VIII.15. 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 VIII.16. 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 VIII.17. Number of Trustees.
(a) The number of Trustees shall be five, provided
that the Depositor, by written instrument may increase or
decrease the number of Administrative Trustees. The Property
Trustee and the Delaware Trustee may be the same person.
(b) If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced pursuant
to Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative Trustee
in accordance with Section 8.10, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted
to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section VIII.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment
thereto filed with the Commission, or making any other
governmental filing; and
(b) the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section VIII.19. Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement
shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or
arises between an Indemnified Person and any Covered
Person; or
(ii) whenever this Trust Agreement or any
other agreement contemplated herein or therein provides
that an Indemnified Person shall act in a manner that
is, or provides terms that are, fair and reasonable to
the Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable
generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
(c) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, whenever in
this Trust Agreement an Indemnified Person is permitted or
required to make a decision
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be
entitled to consider such interests and factors as it
reasonably desires, including its own interests, and
shall have no duty or obligation to give any
consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another
express standard, the Indemnified Person shall act
under such express standard and shall not be subject to
any other or different standard imposed by this Trust
Agreement or by applicable law.
Section 8.20 Voting. Except as otherwise provided in
this Trust Agreement, the consent or vote of the Administrative
Trustees shall be approved by not less than a majority of the
Administrative Trustees.
ARTICLE IX.
Termination, Liquidation and Merger
Section IX.01. Termination Upon Expiration Date.
Unless terminated earlier, 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 IX.02. Early Termination. Upon the first to
occur of any of the following events (such first occurrence, an
"Early Termination Event"):
(a) the occurrence of a Bankruptcy Event in
respect of, or the dissolution or liquidation of, the
Depositor;
(b) the delivery of written direction to the
Property Trustee by the Depositor at any time (which
direction is wholly optional and within the discretion
of the Depositor) to terminate the Trust and distribute
the Debentures to Securityholders in exchange for the
Trust Securities in accordance with Section 9.04;
(c) the redemption of all of the Preferred
Securities;
(d) the termination of the Trust in accordance
with Section 9.04(d); and
(e) an order for judicial termination of the
Trust having been entered by a court of competent
jurisdiction;
the Trust shall automatically terminate and the Trustees shall
take such action as is required by Section 9.04.
Section IX.03. 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 IX.04. Liquidation.
(a) If an Early Termination Event specified in clause
(a), (b), (d) or (e) of Section 9.02 occurs or upon the
Expiration Date, after satisfaction of creditors of the Trust, if
any, as provided by applicable law, the Trust shall be liquidated
by the Property Trustee as expeditiously as the Property Trustee
determines to be appropriate by distributing to each
Securityholder a Like Amount of Debentures, subject to Section
9.04(e). Notice of liquidation shall be given by the
Administrative Trustees by first-class mail, postage prepaid,
mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the
Liquidation Date, the Trust Securities will no longer
be deemed to be outstanding and any Trust Securities
Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to
the mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section
9.04(e) applies receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.02(c) or Section 9.04(e)
applies, in order to effect any liquidation of the Trust
hereunder, and any resulting distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45 days
prior to the Liquidation Date) and, either itself acting as
exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.02(c) or Section 9.04(e)
applies, after any Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
(or, at the election of the Depositor, Debentures in global form,
subject to the provisions of the Subordinated Indenture)
representing a Like Amount of Debentures will be issued to
Holders of Trust Securities Certificates, upon surrender of such
Trust Securities Certificates to the Administrative Trustees or
their agent for exchange, (iii) the Depositor shall use its
reasonable efforts to have the Debentures listed on the New York
Stock Exchange or on such other stock exchange or other
organization as the Preferred Securities are then listed or
traded, (iv) any Trust Securities Certificates not so surrendered
for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the
Debentures from the last Distribution Date on which a
Distribution was made on such Trust Certificates until such Trust
Securities Certificates are so surrendered (and until such Trust
Securities Certificates are so surrendered, no payments or
interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights
of Securityholders holding Trust Securities will cease, except
the right of such Securityholders to receive Debentures upon
surrender of Trust Securities Certificates.
(d) If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to redeem the Debentures
in whole but not in part and therefore cause a mandatory
redemption of all the Preferred Securities at the Redemption
Price within 90 days following the occurrence of such Special
Event. The Common Securities will be redeemed on a pro rata
basis with the Preferred Securities, except that if a Debenture
Event of Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price.
(e) In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order for
termination entered by a court of competent jurisdiction or
otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical,
the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in
such manner as the Property Trustee determines. In such event,
on the date of the dissolution, winding-up or other termination
of the Trust, Securityholders will be entitled to receive out of
the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors
of the Trust, if any, as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If,
upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the
Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities will be
entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if
a Debenture Event of Default has occurred and is continuing or if
a Debenture Event of Default has not occurred solely by reason of
a requirement that time lapse or notice be given, the Preferred
Securities shall have a priority over the Common Securities.
Section IX.05. Mergers, Consolidations, Amalgamations
or Replacements of the Trust.
The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any
corporation or other Person, except pursuant to this Trust
Agreement. At the request of the Depositor, with the consent of
the Administrative Trustees and without the consent of the
Holders of the Preferred Securities, the Trust may merge with or
into, consolidate, amalgamate, be replaced by or convey, transfer
or lease its properties and assets substantially as an entirety
to a trust organized as such under the laws of any state;
provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms
as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred
Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity
possessing substantially the same powers and duties as the
Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed or traded, or any Successor
Securities will be listed or traded upon notification of
issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed,
if any, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of
Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Depositor has received an Opinion of
Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor
Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor any successor entity
will be required to register as an investment company under the
Investment Company Act and (viii) the Depositor or any permitted
successor or assignee owns all of the Common Securities of such
successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the
Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an
entirety to any other Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other
than a grantor trust for United States Federal income tax
purposes.
ARTICLE X.
Miscellaneous Provisions
Section X.01. 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 X.02. 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 X.03. Amendment.
(a) This Trust Agreement may be amended from time to
time by the Trust (on approval of a majority of the
Administrative Trustees and the Depositor, without the consent of
any Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, that shall not be
inconsistent with the other provisions of this Trust Agreement,
(ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax
purposes other than as a "grantor trust" and not as an
association taxable as a corporation at any time that any Trust
Securities are Outstanding or to ensure the Trust's exemption
from the status of an "investment company" under the Investment
Company Act, or (iii) to effect the acceptance of a successor
Relevant Trustee's appointment; provided, however, that, except
in the case of clause (ii), such action shall not adversely
affect in any material respect the interests of any
Securityholder and, in the case of clause (i), any amendments of
this Trust Agreement shall become effective when notice thereof
is given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and
10.03(c), any provision of this Trust Agreement may be amended by
the Administrative Trustees and the Depositor with (i) the
consent of Holders of Trust Securities representing not less than
a majority (based upon Liquidation Amounts) of the Outstanding
Trust Securities and (ii) receipt by the Trustees of an Opinion
of Counsel to the effect that such amendment or the exercise of
any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust
for United States Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the
Investment Company Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder (such consent being obtained in
accordance with Section 6.03 or 6.06), this Trust Agreement may
not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date, (ii)
restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date, or (iii)
change the provisions of this Section 10.03(c).
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status of an
"investment company" under the Investment Company Act afforded by
Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement
to the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or any
Trustee.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
(g) The Property Trustee is entitled to receive an
Opinion of Counsel as conclusive evidence that any amendment to
this Trust Agreement executed pursuant to this Section 10.03 is
authorized or permitted by, and conforms to, the terms of this
Section 10.03, has been duly authorized by and lawfully executed
and delivered on behalf of the other requisite parties, and that
it is proper for the Property Trustee under the provisions of
this Section 10.03 to join in the execution thereof.
Section X.04. 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 X.05. 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 X.06. 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 X.07. Headings. The Article and Section
headings are for convenience only and shall not affect the
construction of this Trust Agreement.
Section X.08. 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., 425 West Capitol Avenue, 40th Floor, Little Rock,
Arkansas 72201, Attention: [Treasurer], facsimile no. (501) 377-
[____], with a copy to the Secretary, facsimile no. (501) 377-
[____]. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, 101 Barclay Street, 21 West, New York, New
York 10286 marked "Attention: Corporate Trust Trustee
Administration" with a copy to: The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711 and (ii)
with respect to the Trust or the Administrative Trustees, at the
address above for notice to the Depositor, marked "Attention:
Administrative Trustees for Entergy Arkansas Capital I". Such
notice, demand or other communication to or upon the Trust or the
Property Trustee shall be deemed to have been sufficiently given
or made only upon actual receipt of the writing by the Trust or
the Property Trustee.
Section X.09. Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders and at the expense of the Depositor, which
expense shall be paid prior to filing an answer, that it shall
file an answer with the bankruptcy court or otherwise properly
contest the filing of such petition by the Depositor against the
Trust or the commencement of such action and raise the defense
that the Depositor has agreed in writing not to take such action
and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Property Trustee or the
Trust may assert. The provisions of this Section 10.09 shall
survive the termination of this Trust Agreement.
Section X.10. Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions
of the Trust Indenture Act that are required or deemed to be part
of this Trust Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
Section 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
Section 10.12. Counterparts. This Trust Agreement may
be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all counterparts
shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Trust Agreement
to be duly executed, all as of the day and year first above
written.
ENTERGY ARKANSAS, INC.
By:______________________________
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 _______ ___, 1996, as
the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy
of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the
Trust has executed this certificate for and on behalf of the
Trust this ____ day of _________, 199 .
ENTERGY ARKANSAS CAPITAL I
By:
not in his (her) individual
capacity, but solely as
Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1996, between
Entergy Arkansas, Inc., a 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 ___% Cumulative Quarterly
Income Preferred Securities, Series A (the "Preferred
Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust
Agreement of the Trust dated as of ________ __, 1996 as the same
may be amended from time to time (the "Trust Agreement");
WHEREAS, Entergy Arkansas will directly own all of the
Common Securities and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by
each holder of the Preferred Securities, which purchase Entergy
Arkansas hereby agrees shall benefit Entergy Arkansas and which
purchase Entergy Arkansas acknowledges will be made in reliance
upon the execution and delivery of this Agreement, Entergy
Arkansas, including in its capacity as holder of the Common
Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by Entergy Arkansas. Subject
to the terms and conditions hereof, Entergy Arkansas hereby
irrevocably and unconditionally guarantees the full payment, when
and as due, of any and all Obligations (as hereinafter defined)
to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (i) obligations of the Trust
to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be and (ii) obligations arising out of
the negligence, willful misconduct or bad faith of the Trustees
of the Trust. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by Entergy Arkansas and The Bank of New York, as guarantee
trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Entergy Arkansas
hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and Entergy Arkansas
hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations,
covenants, agreements and duties of Entergy Arkansas under this
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, Entergy Arkansas with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
this Agreement directly against Entergy Arkansas and Entergy
Arkansas waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before
proceeding against Entergy Arkansas.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the successors,
assigns, receivers, trustees and representatives of Entergy
Arkansas and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
Entergy Arkansas Capital I
c/o [_________________], Administrative Trustee
425 West Capitol Avenue, 40th Floor
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Entergy Arkansas, Inc.
425 West Capitol Avenue, 40th Floor
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).
<PAGE>
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
[Securities Depository Legend]
<PAGE>
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTERGY ARKANSAS CAPITAL I
__% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation amount $25 per Preferred Security)
Entergy Arkansas Capital I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that ____________ (the "Holder") is the
registered owner of _____ (_____) preferred securities of the
Trust representing an undivided beneficial interest in the assets
of the Trust and designated the Entergy Arkansas Capital I %
Cumulative Quarterly Income Preferred Securities, Series A
(liquidation amount $25 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.04 or 5.11 of
the Trust Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of ___________________, 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., a 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.
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:_____________________
ENTERGY ARKANSAS CAPITAL I
By:______________________________________
[_________________]
not in his (her)
individual capacity, but
solely as Administrative Trustee
Countersigned by:
_____________________
Transfer Agent
<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 4.14
AMENDED AND RESTATED
TRUST AGREEMENT
among
ENTERGY ARKANSAS, INC., as Depositor
and
THE BANK OF NEW YORK, as Property Trustee
THE BANK OF NEW YORK (DELAWARE), as Delaware Trustee
[___________________],
[______________],
and
[_______________], as Administrative Trustees
Dated as of [_________] 1, 1996
ENTERGY ARKANSAS CAPITAL II
<PAGE>
Entergy Arkansas Capital II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) 8.07
(a)(2) 8.07
(a)(3) 8.09
(a)(4) Not Applicable
(b) 8.08
Section 311(a) 8.13
(b) 8.13
Section 312(a) 5.07
(b) 5.07
(c) 5.07
Section 313(a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 8.14(a)
(d) 8.14(a), 8.14(b)
Section 314(a) Not Applicable
(b) Not Applicable
(c)(1) Not Applicable
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) Not Applicable
Section 315(a) 8.01
(b) 8.02, 8.14(b)
(c) 8.01(a)
(d) 8.01, 8.03
(e) Not Applicable
Section 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) Not Applicable
Section 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.09
Section 318(a) 10.10
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name 12
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business 12
Section 2.03. Initial Contribution of Trust
Property; Organizational Expenses 12
Section 2.04. Issuance of the Preferred
Securities 13
Section 2.05. Subscription and Purchase of
Debentures; Issuance of the
Common Securities 13
Section 2.06. Declaration of Trust; Appointment
of Additional Administrative
Trustees 13
Section 2.07. Authorization to Enter into Certain
Transactions 14
Section 2.08. Assets of Trust 18
Section 2.09. Title to Trust Property 18
ARTICLE III.
Payment Account
Section 3.01. Payment Account 18
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions 19
Section 4.02. Redemption 20
Section 4.03. Subordination of Common Securities 22
Section 4.04. Payment Procedures 23
Section 4.05. Tax Returns and Reports 23
Section 4.06. Payment of Taxes, Duties, Etc. of
the Trust 23
Section 4.07. Payments under Subordinated
Indenture 24
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership 24
Section 5.02. The Trust Securities Certificates 24
Section 5.03. Execution and Delivery of Trust
Securities Certificates 25
Section 5.04. Registration of Transfer and
Exchange of Preferred Securities
Certificates 25
Section 5.05. Mutilated, Destroyed, Lost or
Stolen Trust Securities
Certificates 26
Section 5.06. Persons Deemed Securityholders 26
Section 5.07. Access to List of Securityholders'
Names and Addresses 26
Section 5.08. Maintenance of Office or Agency 27
Section 5.09. Appointment of Paying Agent 27
Section 5.10. Ownership of Common Securities by
Depositor; Common
Securities Certificate 28
Section 5.11. Book-Entry Preferred Securities
Certificates 28
Section 5.12. Notices to Securities Depository 29
Section 5.13. Definitive Preferred Securities
Certificates 29
Section 5.14. Rights of Securityholders 30
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights 30
Section 6.02. Notice of Meetings 32
Section 6.03. Meetings of Holders of Preferred
Securities 32
Section 6.04. Voting Rights 32
Section 6.05. Proxies, etc. 33
Section 6.06. Securityholder Action by Written
Consent 33
Section 6.07. Record Date for Voting and Other
Purposes 33
Section 6.08. Acts of Securityholders 33
Section 6.09. Inspection of Records 35
ARTICLE VII.
Representations and Warranties of the Property
Trustee, the Delaware Trustee and the Depositor
Section 7.01. Property Trustee 35
Section 7.02. Delaware Trustee 35
Section 7.03. Depositor 36
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities 37
Section 8.02. Certain Notices 38
Section 8.03. Certain Rights of Property Trustee 39
Section 8.04. Not Responsible for Recitals or
Issuance of Securities 42
Section 8.05. May Hold Securities 42
Section 8.06. Compensation; Fees; Indemnity. 42
Section 8.07. Certain Trustees Required;
Eligibility 43
Section 8.09. Co-Trustees and Separate Trustee 44
Section 8.10. Resignation and Removal;
Appointment of Successor 46
Section 8.11. Acceptance of Appointment by
Successor 47
Section 8.12. Merger, Conversion, Consolidation
or Succession to Business 48
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust 48
Section 8.14. Reports by Property Trustee 48
Section 8.15. Reports to the Property Trustee 49
Section 8.16. Evidence of Compliance With
Conditions Precedent 49
Section 8.17. Number of Trustees. 49
Section 8.18. Delegation of Power. 50
Section 8.19. Fiduciary Duty 50
Section 8.20. Voting 51
ARTICLE IX.
Termination, Liquidation and Merger
Section 9.01. Termination Upon Expiration Date 51
Section 9.02. Early Termination 52
Section 9.03. Termination 52
Section 9.04. Liquidation 52
Section 9.05. Mergers, Consolidations,
Amalgamations or Replacements of
the Trust 54
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and
Assumption of Obligations 56
Section 10.02. Limitation of Rights of
Securityholders 56
Section 10.03. Amendment 56
Section 10.04. Separability 58
Section 10.05. Governing Law 58
Section 10.06. Successors 58
Section 10.07. Headings 58
Section 10.08. Notice and Demand 58
Section 10.09. Agreement Not to Petition 59
Section 10.10. Conflict with Trust Indenture Act 59
Section 10.11. Acceptance of Terms of Trust
Agreement, Guarantee and
Indenture 60
Section 10.12. Counterparts 60
EXHIBIT A Certificate of Trust of Entergy Arkansas
Capital II A-1
EXHIBIT B Certificate Evidencing Common Securities of
Entergy Arkansas Capital II B-1
EXHIBIT C Agreement as to Expenses and Liabilities C-1
EXHIBIT D Certificate Evidencing Preferred Securities of
Entergy Arkansas Capital II D-1
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[_______] 1, 1996, between (i) Entergy Arkansas, Inc., a Arkansas
corporation (the "Depositor"), (ii) The Bank of New York, a
banking corporation duly organized and existing under the laws of
New York, as trustee (the "Property Trustee"), (iii) The Bank of
New York (Delaware), a banking corporation duly organized under
the laws of Delaware, as trustee (the "Delaware Trustee") and
(iv) [__________________], [______________] and [______________],
each an individual, as trustee, and each of whose address is c/o
Entergy Arkansas, Inc., 425 West Capitol Avenue, 40th Floor,
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 Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act (as hereinafter
defined) by the entering into of that certain Trust Agreement,
dated as of 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, filed on April __, 1996, the form 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 (as hereinafter
defined), (ii) the issuance of the Common Securities (as
hereinafter defined) by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities (as hereinafter defined) by
the Trust pursuant to the Underwriting Agreement (as hereinafter
defined) and (iv) the appointment of additional Administrative
Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other parties and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
Defined Terms
Section 1.01. (a) Definitions. For all purposes of
this Trust Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(b) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural
as well as the singular;
(c) all other terms used herein that are defined
in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(d) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an Article or
a Section, as the case may be, of this Trust Agreement; and
(e) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Trust Agreement
as a whole and not to any particular Article, Section or other
subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and for a given period,
the amount of additional interest accrued on interest in arrears
and paid by the Depositor on a Like Amount of Debentures for such
period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust created hereunder and not in their
individual capacities, or such trustee's successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court
having jurisdiction in the premises judging such Person
a bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a
receiver, 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
(ii) the institution by such Person of
proceedings to be adjudicated a bankrupt or insolvent,
or of the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such
Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof or officers of
the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect
on the date of such certification, and delivered to the
appropriate Trustee.
"Book-Entry Preferred Securities Certificates" mean
certificates representing Preferred Securities issued in global,
fully registered form to the Securities Depository (as
hereinafter defined) as described in Section 5.11.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate Depository Agreement" means the agreement
among the Trust, the Depositor and The Depository Trust Company,
as the initial Securities Depository, dated as of the Closing
Date, relating to the Trust Securities Certificate, as the same
may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York.
"Covered Person" means: (a) any officer, director,
shareholder, beneficial owner, partner, member, representative,
employee or agent of the Trust or the Trust's Affiliates; and (b)
any Holder of Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, a New
York banking corporation organized under the laws of the State of
New York and any successor thereto, as trustee under the
Subordinated Indenture.
"Debentures" means the $[________] aggregate principal
amount of the Depositor's [___]% Junior Subordinated Deferrable
Interest Debentures, Series __, 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 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of
any Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of
any Redemption Price (as hereinafter defined) when it
becomes due and payable; or
(iv) default in the performance, or breach,
in any material respect of any covenant or warranty of
the Trustees in this Trust Agreement (other than a
covenant or warranty a default in whose performance or
breach is specifically dealt with in clause (ii) or
(iii), above) and continuation of such default or
breach for a period of 60 days after there has been
given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at
least 10% in Liquidation Amount of the Outstanding
Preferred Securities a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder; or
(v) the occurrence of a Bankruptcy Event with
respect to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c)(iv).
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partner, employee, representative or agent of any Trustee, or any
employee or agent of the Trust or its Affiliates.
"Investment Company Event" means the occurrence of a
change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority to the effect that
the Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), which change in
law becomes effective on or after the date of original issuance
of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount
equal to the principal amount of Debentures to be
contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities and (ii) with respect
to a distribution of Debentures to the Holders of Trust
Securities in connection with a termination and liquidation of
the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by
the Property Trustee or delivered to the Property
Trustee for cancellation;
(ii) Preferred Securities for whose payment
or redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or
in lieu of which other Preferred Securities have been
delivered pursuant to this Trust Agreement, including
pursuant to Sections 5.04, 5.05, 5.11 or 5.13;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in conclusively relying upon any such
request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which such Trustee knows to be
so owned shall be so disregarded and (b) the foregoing shall not
apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner
of a Book-Entry Preferred Securities Certificate as reflected in
the records of the Securities Depository or, if a Securities
Depository Participant is not the beneficial owner, then as
reflected in the records of a Person maintaining an account with
such Securities Depository (directly or indirectly), in
accordance with the rules of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee at The Bank of New York, or such other banking
institution as the Depositor shall select in its trust department
for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to
the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a cumulative quarterly
income preferred security representing an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date and Maturity (as defined in the Subordinated
Indenture as hereinafter defined) of the Debentures shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any
Redemption Date of any Trust Security, the Liquidation Amount of
such Trust Security, plus accumulated and unpaid Distributions
thereon to the Redemption Date and the related amount of the
premium, if any, paid by the Depositor upon the concurrent
redemption of a Like Amount of Debentures, allocated on a pro
rata basis (based on Liquidation Amount) among the Trust
Securities.
"Registrar" shall mean the registrar for the Preferred
Securities appointed by the Trust and shall be initially The Bank
of New York.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matters.
"Securities Depository" shall be The Depository Trust
Company, or a successor thereto.
"Securities Depository Participant" means an
institution which deposits securities with a Securities
Depository for holding thereby and for whom from time to time a
Securities Depository effects book-entry transfers and pledges of
such securities.
"Securities Register" shall mean the Securities
Register described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person is a beneficial owner within
the meaning of the Delaware Business Trust Act.
"Special Event" means either a Tax Event or an
Investment Company Event.
"Subordinated Indenture" means the Indenture, dated as
of June 1, 1996, between the Depositor and the Debenture Trustee,
as trustee, as amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust of an
Opinion of Counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a
result of any official administrative or judicial pronouncement
or decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or
decision is announced on or after the date of original issuance
of the Preferred Securities under this Trust Agreement, there is
more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date thereof, subject to United States
Federal income tax with respect to income received or accrued on
the Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or within 90 days of the date thereof, will
not be, deductible by the Depositor, in whole or in part, for
United States Federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more
than a de minimis amount of other taxes, duties or other
governmental charges.
"Transfer Agent" shall mean one or more transfer agents
for the Preferred Securities appointed by the Administrative
Trustees on behalf of the Trust and shall be initially The Bank
of New York.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities
or the Preferred Securities.
"Trust Securities Certificate" means any one of the
Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of [_____ __] , 1996, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE II.
Establishment of the Trust
Section II.01. Name. The Trust created hereby shall
be known as "Entergy Arkansas Capital II", as such name may be
modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and
the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
Section II.02. Office of the Delaware Trustee;
Principal Place of Business. The office of the Delaware Trustee
in the State of Delaware is White Clay Center, Route 273, Newark,
Delaware 19711, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Entergy Arkansas, Inc., 425 West
Capitol Avenue, 40th Floor, Little Rock, Arkansas 72201.
Section II.03. 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 II.04. Issuance of the Preferred Securities.
The Depositor, on behalf of the Trust, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.02
and the Underwriting Agreement, shall execute manually and
deliver a Preferred Securities Certificate, registered in the
name of the nominee of the Securities Depository, in an aggregate
amount of _________ Preferred Securities having an aggregate
Liquidation Amount of $[________] against receipt of the
aggregate purchase price of such Preferred Securities of
$__________, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee.
Section II.05. Subscription and Purchase of
Debentures; Issuance of the Common Securities. Contemporaneously
with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee, on behalf of the Trust, and having
an aggregate principal amount equal to $[________], and, in
satisfaction of the purchase price for such Debentures, (x) one
of the Administrative Trustees, on behalf of the Trust, shall
execute and deliver to the Depositor Common Securities
Certificates in accordance with Section 5.02, registered in the
name of the Depositor, in an aggregate amount of [_____] 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 II.06. Declaration of Trust; Appointment of
Additional Administrative Trustees. The exclusive purposes and
functions of the Trust are (i) to issue and sell Trust Securities
and invest the proceeds thereof in Debentures, and (ii) to engage
in those activities necessary or incidental thereto. The
Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth
herein. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Securityholders. The
Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. Anything in this Trust
Agreement to the contrary notwithstanding the Delaware Trustee
shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of
the Property Trustee or the Administrative Trustees set forth
herein. The Delaware Trustee shall be one of the Trustees of the
Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act.
Section II.07. Authorization to Enter into Certain
Transactions. (a) The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section 2.07 and Article VIII and in accordance with the
following provisions (A) and (B), the Trustees shall have the
authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees,
acting singly or jointly, shall have the power, duty and
authority to act on behalf of the Trust with respect to the
following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to
cause the Trust to enter into and to execute, deliver
and perform on behalf of the Trust, the Expense
Agreement, and such agreements or other documents as
may be necessary or desirable in connection with the
purposes and function of the Trust;
(iii) to qualify the Trust to do business in
any jurisdiction as may be necessary or desirable;
(iv) to take all action that may be necessary
or appropriate for the preservation and continuation of
the Trust's valid existence, rights, franchises and
privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction
in which such existence is necessary to protect the
limited liability of the Holders of Preferred
Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(v) the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(vi) the listing of the Preferred Securities
upon such securities exchange or exchanges as shall be
determined by the Depositor and the registration of the
Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(vii) the appointments of a Paying Agent
(subject to Section 5.09), a Transfer Agent and a
Registrar in accordance with this Trust Agreement;
(viii) registering transfers of the Trust
Securities in accordance with this Trust Agreement;
(ix) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation, execution
and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(x) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder); and
(xi) the sending of notices (other than
notices of default) and other information regarding the
Trust Securities and the Debentures to the
Securityholders in accordance with this Trust
Agreement.
(B) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and
any other payments made in respect of the Debentures in
the Payment Account;
(iv) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
(vi) the distribution of the Trust Property
in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust; and
(viii) the taking of any ministerial action
incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable
to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration
of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustees set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the
Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders
of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of this Trust
Agreement.
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall
not undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify
as a "grantor trust" for United States Federal income tax
purposes, (iv) incur any indebtedness for borrowed money or (v)
take or consent to any action that would result in the placement
of a Lien on any of the Trust Property. To the extent required
under this Trust Agreement and the Trust Indenture Act, the
Property Trustee shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust
Property adverse to the interests of the Trust or the
Securityholders in their capacity as Securityholders. The
Administrative Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interests of the Trust or the
Securityholders in their capacity as Securityholders to the
extent not required to be done by the Property Trustee in the
preceding sentence.
(c) In connection with the issue and sale of the
Preferred Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect on
behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of
this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation and filing by the Trust with
the Commission and the execution by the Trust of a
registration statement on Form S-3 in relation to the
Preferred Securities, the Debentures, the Guarantee and
certain related obligations, including any amendments
thereto;
(ii) the determination of the States in which
to take appropriate action to qualify or register for
sale all or part of the Preferred Securities and the
taking of any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and
the advising of the Trustees of actions they must take
on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed
and filed by the Trust or on behalf of the Trust, as
the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(iii) the preparation for filing by the Trust
and the execution by the Trust of an application to the
New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities and to
file or cause the Administrative Trustees to file
thereafter with such exchange such notifications and
documents as may be necessary from time to time to
maintain such listing;
(iv) the preparation for filing by the Trust
with the Commission and the execution by the Trust of a
registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section
12(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendments
thereto;
(v) the selection of the investment banker or
bankers to act as underwriters with respect to the
offer and sale by the Trust of Preferred Securities and
the negotiation of the terms of and the execution and
delivery of on behalf of the Trust the Underwriting
Agreement and such other agreements as may be necessary
or desirable in connection with the consummation
thereof; and
(vi) the taking of any other actions
necessary or desirable to carry out any of the
foregoing activities.
(d) Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so that
the Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act or
classified other than as a "grantor trust" for United States
Federal income tax purposes so that the Debentures will be
treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, subject to the
provisions of Section 10.03, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with
applicable law, the certificate of trust filed with the Secretary
of State of the State of Delaware with respect to the Trust (as
amended or restated from time to time, the "Certificate of
Trust") or this Trust Agreement, that each of the Depositor and
the Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action
does not materially adversely affect the interests of the Holders
of the Preferred Securities.
Section II.08. Assets of Trust. The assets of the
Trust shall consist of the Trust Property.
Section II.09. Title to Trust Property. Legal title
to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III.
Payment Account
Section III.01. Payment Account.
(a) On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustee and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect to,
the Debentures. Amounts held in the Payment Account shall not be
invested by the Property Trustee pending distribution thereof.
ARTICLE IV.
Distributions; Redemption
Section IV.01. Distributions.
(a) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of
the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except in
the event that the Depositor exercises its right to extend the
interest payment period for the Debentures pursuant to Section
311 of the Subordinated Indenture, shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of
each year, commencing on [_______ __], 1996. If any date on
which Distributions are otherwise payable on the Trust Securities
is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such distribution shall be
made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date (each date
on which distributions are payable in accordance with this
Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities
shall be fixed at a rate of [____]% per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions
payable for any full quarterly period shall be computed on the
basis of twelve 30-day months and a 360-day year and for any
period shorter than a full month, on the basis of the actual
number of days elapsed. If the interest payment period for the
Debentures is extended pursuant to Section 311 of the
Subordinated Indenture, then Distributions on the Preferred
Securities will be deferred for the period equal to the extension
of the interest payment period for the Debentures and the rate
per annum at which Distributions on the Trust Securities
accumulate shall be increased by an amount such that the
aggregate amount of Distributions that accumulate on all Trust
Securities during any such extended interest payment period is
equal to the aggregate amount of interest (including, to the
extent permitted by law, interest payable on unpaid interest at
the percentage rate per annum set forth above, compounded
quarterly) that accrues during any such extended interest payment
period on the Debentures. The amount of Distributions payable
for any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date only
to the extent that the Trust has funds then on hand and
immediately available in the Payment Account for the payment of
such Distributions.
(d) Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities
on the relevant record date, which shall be one Business Day
prior to such Distribution Date; provided, however, that in the
event that the Preferred Securities do not remain in book-entry
only form, the relevant record date shall be 15 days prior to the
relevant Distribution Date.
Section IV.02. Redemption.
(a) On each Debenture Redemption Date and at Maturity
for the Debentures, the Property Trustee will be required to
redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date
to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Security Register. All notices
of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and
the total Liquidation Amount of the particular Trust
Securities to be redeemed; and
(v) that on the Redemption Date the Redemption
Price will become due and payable upon each such Trust
Security to be redeemed and that interest thereon will
cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price with the proceeds
from the contemporaneous redemption of Debentures. Redemptions
of the Trust Securities shall be made and the Redemption Price
shall be deemed payable on each Redemption Date only to the
extent that the Trust has funds immediately available in the
Payment Account for such payment.
(d) If the Property Trustee gives a notice of
redemption in respect of any Preferred Securities, then, by 12:00
noon, New York time, on the Redemption Date, subject to Section
4.02(c), the Property Trustee will, so long as the Preferred
Securities are in book-entry only form, deposit with the
Securities Depository for the Preferred Securities funds
sufficient to pay the applicable Redemption Price and will give
such Securities Depository irrevocable instructions and authority
to pay the applicable Redemption Price to the holders thereof.
If the Preferred Securities are no longer in book-entry only
form, the Property Trustee, subject to Section 4.02(c), will
deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption
Price to the Holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the redemption date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption
shall have been given and funds deposited as required, then on
the Redemption Date, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price, but
without interest thereon, and such Trust Securities will cease to
be outstanding. In the event that any Redemption Date is not a
Business Day, then payment of the Redemption Price payable on
such date shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day
falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be deemed the
date fixed for redemption for purposes of calculating the
Redemption Price.
(e) Payment of the Redemption Price on the Trust
Securities and any distribution of Debentures to the Holders
shall be made to the Holders as they appear on the Securities
Register for the Trust Securities on the relevant record date,
which shall be one Business Day prior to such Redemption Date;
provided, however, that in the event that the Preferred
Securities do not remain in book-entry only form, the relevant
record date shall be the fifteenth day prior to the relevant
Redemption Date.
(f) Subject to Section 4.03(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities
to be redeemed shall be allocated 3% to the Common Securities and
97% to the Preferred Securities. The particular Preferred
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for
a redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Securities selected for redemption and, in the case
of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or
to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities which has been or is to be
redeemed.
Section IV.03. Subordination of Common Securities.
(a) Payment of Distributions (including Additional
Amounts, if applicable) on, and the Redemption Price plus
accumulated and unpaid distributions of, the Trust Securities, as
applicable, shall be made pro rata based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default
resulting from a Debenture Event of Default shall have occurred
and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of,
any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Securities
for all distribution periods terminating on or prior thereto, or
in the case of payment of the Redemption Price the full amount of
such Redemption Price on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or Redemption Price of,
Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the Holder
of Common Securities will be deemed to have waived any such Event
of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Preferred Securities
shall have been cured, waived or otherwise eliminated. Until any
such Events of Default under this Trust Agreement with respect to
the Preferred Securities shall have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Preferred Securities and not the
Holder of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
Section IV.04. Payment Procedures. Payments of
Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed
to the address of the Person entitled thereto as such address
shall appear on the Securities Register or, if the Preferred
Securities are held by a Securities Depository, such
Distributions shall be made to the Securities Depository, which
shall credit the relevant Persons' accounts at such Securities
Depository on the applicable distribution dates. Payments in
respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the
Holder of the Common Securities.
Section IV.05. Tax Returns and Reports. The
Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense and direction, and file all United
States Federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In
this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the Internal Revenue
Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the related Internal Revenue Service Form
1099, or any successor form or the information required to be
provided on such form. The Administrative Trustees shall provide
the Depositor with a copy of all such returns and reports
promptly after such filing or furnishing. The Property Trustee
shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust
Securities.
Section IV.06. Payment of Taxes, Duties, Etc. of the
Trust. Upon receipt under the Debentures of Additional Interest
(as defined in the Subordinated Indenture), the Property Trustee
at the direction of an Administrative Trustee or the Depositor
shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the
Trustee by the United States or any other taxing authority.
Section IV.07. Payments under Subordinated Indenture.
Any amount payable hereunder to any Holder of Preferred
Securities shall be reduced by the amount of any corresponding
payment such Holder has directly received pursuant to Section 808
of the Subordinated Indenture. Notwithstanding the provisions
hereunder to the contrary, Securityholders acknowledge that any
Holder of Preferred Securities that receives payment under
Section 808 of the Subordinated Indenture may receive amounts
greater than the amount such Holder may be entitled to receive
pursuant to the other provisions of this Trust Agreement.
ARTICLE V.
Trust Securities Certificates
Section V.01. Initial Ownership. Upon the creation of
the Trust and the contribution by the Depositor pursuant to
Section 2.03 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section V.02. The Trust Securities Certificates. The
Trust Securities Certificates shall be issued in denominations of
$25 Liquidation Amount and integral multiples thereof. Subject
to Section 2.04 relating to the original issuance of the
Preferred Securities Certificate registered in the name of the
nominee of the Securities Depository, the Trust Securities
Certificates shall be executed on behalf of the Trust by manual
or facsimile signature of at least one Administrative Trustee
and, if executed on behalf of the Trust by facsimile signature,
countersigned by a Transfer Agent or its agent. Trust Securities
Certificates bearing the manual signatures of individuals who
were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust and, if executed on
behalf of the Trust by facsimile signature, countersigned by a
Transfer Agent or its agent, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that
such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery
of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall
be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to
Section 5.04, 5.11 or 5.13.
Section V.03. Execution and Delivery of Trust
Securities Certificates. On the Closing Date, the Administrative
Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 2.04 and
2.05, to be executed on behalf of the Trust by at least one of
the Administrative Trustees, and in the case of Preferred
Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred
without negligence arising out of or in connection with any such
countersigning by it.
Section V.04. Registration of Transfer and Exchange of
Preferred Securities Certificates. The Registrar shall keep or
cause to be kept, at its principal corporate office, a Securities
Register in which, subject to such reasonable regulations as it
may prescribe, the Registrar shall provide for the registration
of Preferred Securities Certificates and registration of
transfers and exchanges of Preferred Securities Certificates as
herein provided.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent
to countersign and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and a Transfer Agent
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Administrative
Trustees in accordance with customary practice. The Trust shall
not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange
any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a
Transfer Agent may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection
with any transfer or exchange of Preferred Securities
Certificates.
Section V.05. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates. If (a) any mutilated Trust
Securities Certificate shall be surrendered to a Transfer Agent,
or if a Transfer Agent shall receive evidence to its satisfaction
of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Transfer
Agent and the Administrative Trustees such security or indemnity
as may be required by them to save each of them and the Depositor
harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on
behalf of the Trust, shall execute by manual or facsimile
signature and, if executed on behalf of the Trust by facsimile
signature, cause a Transfer Agent or its agent to countersign and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section 5.05, the
Administrative Trustees or the Transfer Agent may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section 5.05 shall constitute conclusive evidence of an
ownership interest in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate
shall be found at any time.
Section V.06. Persons Deemed Securityholders. Prior
to due presentation of a Trust Securities Certificate for
registration of transfer, the Trustees, the Paying Agent and the
Registrar shall be entitled to treat the Person in whose name any
Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the
Registrar shall be bound by any notice to the contrary.
Section V.07. 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 V.08. Maintenance of Office or Agency. The
Depositor shall or shall cause the Transfer Agent to maintain in
the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Depositor
or the Transfer Agent in respect of the Trust Securities
Certificates may be served. The Depositor initially designates
The Bank of New York at its principal corporate trust office for
such purposes. The Depositor shall or shall cause the Transfer
Agent to give prompt written notice to the Property Trustee and
to the Securityholders of any change in any such office or
agency.
Section V.09. Appointment of Paying Agent. The Paying
Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such
Distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent in its
sole discretion. The Paying Agent may choose any co-paying agent
that is acceptable to the Administrative Trustees and the
Depositor. The Paying Agent shall be permitted to resign upon 30
days' written notice to the Administrative Trustees and the
Depositor. In the event of the removal or resignation of the
Paying Agent, the Administrative Trustees shall appoint a
successor that is reasonably acceptable to the Property Trustee
and the Depositor to act as Paying Agent (which shall be a bank,
trust company or an Affiliate of the Depositor). The
Administrative Trustees shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06
shall apply to the Paying Agent appointed hereunder, and the
Paying Agent shall be bound by the requirements with respect to
paying agents of securities issued pursuant to the Trust
Indenture Act. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context
requires otherwise.
Section V.10. Ownership of Common Securities by
Depositor; Common Securities Certificate. On the Closing Date,
the Depositor shall acquire, and thereafter retain, beneficial
and record ownership of the Common Securities. Any attempted
transfer of the Common Securities (other than a transfer in
connection with a merger or consolidation of the Depositor into
another corporation pursuant to Section 1101 of the Subordinated
Indenture) shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Depositor
to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE". A single Common Securities Certificate
representing the Common Securities shall be issued to the
Depositor in the form of a definitive Common Securities
Certificate.
Section V.11. Book-Entry Preferred Securities
Certificates. The Preferred Securities Certificates, upon
original issuance, will be issued in the form of a typewritten
Preferred Securities Certificate or Certificates representing
Book-Entry Preferred Securities Certificates, to be delivered to
or held on behalf of The Depository Trust Company, the initial
Securities Depository, by, or on behalf of, the Trust. Such Book-
Entry Preferred Securities Certificate or Certificates shall
initially be registered on the Securities Register in the name of
Cede & Co., the nominee of the initial Securities Depository, and
no beneficial owner will receive a Definitive Preferred
Securities Certificate representing such beneficial owner=s
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to beneficial owners pursuant to
Section 5.13:
(a) the provisions of this Section 5.11 shall be in
full force and effect;
(b) the Registrar, the Paying Agent and the Trustees
shall be entitled to deal with the Securities Depository for all
purposes of this Trust Agreement relating to the Book-Entry
Preferred Securities Certificates (including the payment of the
Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities) as the sole Holder of the Book-Entry
Preferred Securities and shall have no obligations to the Owners
thereof;
(c) to the extent that the provisions of this Section
5.11 conflict with any other provisions of this Trust Agreement,
the provisions of this Section 5.11 shall control; and
(d) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only through
the Securities Depository and shall be limited to those
established by law and agreements between such Owners and the
Securities Depository and/or the Securities Depository
Participants. Pursuant to the Certificate Depository Agreement,
unless and until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.13, the initial Securities
Depository will make book-entry transfers among the Securities
Depository Participants and receive and transmit payments on the
Preferred Securities to such Securities Depository. Any
Securities Depository designated pursuant hereto will not be
deemed an agent of the Trustees for any purpose.
Section V.12. Notices to Securities Depository. To
the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive
Preferred Securities Certificates shall have been issued pursuant
to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the
Securities Depository, and shall have no obligations to the
Owners.
Section V.13. Definitive Preferred Securities
Certificates. If (a) the Depositor advises the Trustees in
writing that the Securities Depository is no longer willing or
able to properly discharge its responsibilities with respect to
the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its
option advises the Trustees in writing that it elects to
terminate the book-entry system through the Securities
Depository, or (c) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing
beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Property Trustee in writing that
the continuation of a book-entry system through the Securities
Depository is no longer in the best interests of the Owners of
Preferred Securities Certificates, then the Property Trustee
shall notify the Securities Depository, and the Securities
Depository shall notify all Owners of Preferred Securities
Certificates, of the occurrence of any such event and of the
availability of the Definitive Preferred Securities Certificates
to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Property Trustee of the typewritten
Preferred Securities Certificate or Certificates representing the
Book-Entry Preferred Securities Certificates by the Securities
Depository, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with
the instructions of the Securities Depository. Neither the
Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the
Trustees shall recognize the Holders of the Definitive Preferred
Securities Certificates as Securityholders. The Definitive
Preferred Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof in accordance with Section
5.02.
Section V.14. Rights of Securityholders. The legal
title to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Preferred
Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable interests in the Trust.
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section VI.01. Limitations on Voting Rights.
(a) Except as provided in this Section 6.01, in
Section 10.03 and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of
the Trust Securities Certificates, be construed so as to
constitute the Securityholders from time to time as partners or
members of an association. If the Property Trustee fails to
enforce its rights under the Debentures or this Trust Agreement,
a Holder of Preferred Securities may institute a legal proceeding
directly against the Depositor to enforce the Property Trustee's
rights under the Debentures or this Trust Agreement, to the
fullest extent permitted by law, without first instituting any
legal proceeding against the Property Trustee or any other
person. Notwithstanding the foregoing, to the fullest extent
permitted by law, a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such Holder
directly of principal of or interest on the Debentures having a
principal amount equal to the aggregate liquidation preference
amount of the Preferred Securities of such Holder on or after the
due dates specified in the Debentures. So long as any Preferred
Securities remain Outstanding, if, upon a Debenture Event of
Default, the Debenture Trustee fails or the holders of not less
than 33% in principal amount of the outstanding Debentures fail
to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 33% in
Liquidation Amount of the Preferred Securities then Outstanding
shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the
Debentures shall become immediately due and payable, provided
that the payment of principal and interest on such Debentures
shall remain subordinated to the extent provided in the
Subordinated Indenture.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or executing any trust or power conferred
on the Debenture Trustee with respect to such Debentures, (ii)
waive any past default which is waivable under Section 813 of the
Subordinated Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the
Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of a
majority of the aggregate Liquidation Amount of the Outstanding
Preferred Securities; provided, however, that where a consent
under the Subordinated Indenture would require the consent of
each holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of each
holder of Preferred Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the
Preferred Securities, except pursuant to a subsequent vote of the
Preferred Securities. The Property Trustee shall notify all
Holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of
the foregoing actions, the Property Trustee shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in
such matters to the effect that the Trust will be classified as a
"grantor trust" and not as an association taxable as a
corporation for United States Federal income tax purposes on
account of such action.
(c) Subject to Section 10.03(c), if any proposed
amendment to the Trust Agreement provides for, or the Trustees
otherwise propose to effect, (i) any action that would materially
adversely affect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of
this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment
or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of a majority in
Liquidation Amount of the Outstanding Preferred Securities. No
amendment to this Trust Agreement may be made if, as a result of
such amendment, the Trust would not be classified as a "grantor
trust" but as an association taxable as a corporation for United
States Federal income tax purposes.
Section VI.02. Notice of Meetings. Notice of all
meetings of the Holders of Preferred Securities, stating the
time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.08 to each Holder of a
Preferred Security, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further
notice.
Section VI.03. 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 VI.04. 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 VI.05. 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 VI.06. 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 VI.07. 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 VI.08. Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner
provided in this Section 6.08.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved
by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
A Securityholder may institute a legal proceeding
directly against the Depositor under the Guarantee to enforce its
rights under the Guarantee without first instituting a legal
proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust or any Person or entity.
Section VI.09. Inspection of Records. Subject to
Section 5.07 concerning access to the list of Securityholders,
upon reasonable notice to the Administrative Trustees and the
Property Trustee, the other records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE VII.
Representations and Warranties of the Property
Trustee, the Delaware Trustee and the Depositor
Section VII.01. Property Trustee. The Property
Trustee hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and constitutes
the valid and legally binding agreement of the Property Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Property Trustee of this Trust Agreement will not violate,
conflict with or constitute a breach of the Property Trustee's
charter or by-laws; and
(e) neither the authorization, execution or delivery
by the Property Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee
contemplated herein require the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency
under any existing Federal or New York law governing the banking
or trust powers of the Property Trustee.
Section VII.02. Delaware Trustee. The Delaware
Trustee hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate,
conflict with or constitute a breach of the Delaware Trustee's
charter or by-laws; and
(e) neither the authorization, execution or delivery
by the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Delaware Trustee
contemplated herein require the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency
under any existing Federal or Delaware law governing the banking
or trust powers of the Delaware Trustee.
Section VII.03. Depositor. The Depositor hereby
represents and warrants for the benefit of the Securityholders
that:
(a) the Trust Securities Certificates issued on the
Closing Date on behalf of the Trust have been duly authorized and
will have been duly and validly executed, issued and delivered by
the Administrative Trustees pursuant to the terms and provisions
of, and in accordance with the requirements of, this Trust
Agreement and the Securityholders will be, as of such date,
entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental
charges payable by the Trust (or the Trustees) under the laws of
the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the
Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII.
The Trustees
Section VIII.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Trust Agreement
against any of the Trustees. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the
Trustees to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Notwithstanding anything
contained in this Trust Agreement to the contrary, the duties and
responsibilities of the Property Trustee under this Trust
Agreement shall be subject to the protections, exculpations and
limitations on liability afforded to the Property Trustee under
the provisions of the Trust Indenture Act and, to the extent
applicable, Rule 3A-7 under the Investment Company Act or any
successor rule thereunder. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Section
8.01.
(b) All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee
or Paying Agent to make payments in accordance with the terms
hereof. Each Securityholder, by its acceptance of a Trust
Security, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not
limit the liability of the Trustees expressly set forth elsewhere
in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
(i) the Property Trustee's sole duty with respect
to the custody, safe keeping and physical preservation
of the Trust Property shall be to deal with such
property in a similar manner as the Property Trustee
deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust
Agreement, the Trust Indenture Act and, to the extent
applicable, Rule 3a-7 under the Investment Company Act;
(ii) the Property Trustee shall have no duty
or liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
(iii) the Property Trustee shall not be liable
for any interest on any money received by it except as
it may otherwise agree with the Depositor. Money held
by the Property Trustee need not be segregated from
other funds held by it except in relation to the
Payment Account established by the Property Trustee
pursuant to this Trust Agreement and except to the
extent otherwise required by law; and
(iv) the Property Trustee shall not be
responsible for monitoring the compliance by the
Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall
the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the
Depositor.
Section VIII.02. Certain Notices.
(a) Within five Business Days after the occurrence of
any Event of Default known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of any Event of Default to the
Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
(b) Within five Business Days after receipt of notice
of the Depositor's exercise of its right to defer the payment of
interest on the Debentures pursuant to the Subordinated
Indenture, an Administrative Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of
such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
Section VIII.03. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.01 and except as provided
by law:
(i) the Property Trustee may conclusively rely
and shall be protected in acting or refraining from
acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any
other certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) if (A) in performing its duties under
this Trust Agreement the Property Trustee is required
to decide between alternative courses of action or (B)
in construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a written notice to the Depositor requesting
written instructions of the Depositor as to the course
of action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this
Trust Agreement the Property Trustee shall deem it
desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, request and rely conclusively upon
an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Depositor
or the Administrative Trustees;
(iv) the Property Trustee may consult with
counsel of its selection and the written advice of such
counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(v) the Property Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to
this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying
with such request or direction;
(vi) the Property Trustee shall not be bound
to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine,
unless requested in writing to do so by one or more
Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Depositor personally or by agent or attorney;
(vii) the Property Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder, provided that the Property Trustee
shall be responsible for its own negligence or
recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(viii) the Property Trustee shall not be liable
for any action taken, suffered, or omitted to be taken
by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
(ix) the Property Trustee shall not be
charged with knowledge of any default or Event of
Default with respect to the Trust Securities unless
either (1) a Responsible Officer of the Property
Trustee shall have actual knowledge of the default or
Event of Default or (2) written notice of such default
or Event of Default shall have been given to the
Property Trustee by the Depositor, the Administrative
Trustees or by any Holder of the Trust Securities;
(x) no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed
on it in any jurisdiction in which it shall be illegal,
or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such
right, power, duty or obligation; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty;
(xi) no provision of this Trust Agreement
shall require the Property Trustee to expend or risk
its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the
Property Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
(xii) the Property Trustee shall have no duty
to see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any tax or securities) (or any
rerecording, refiling or registration thereof);
(xiii) the Property Trustee shall have the
right at any time to seek instructions concerning the
administration of this Trust Agreement from any court
of competent jurisdiction; and
(xiv) whenever in the administration of this
Trust Agreement the Property Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder the Property Trustee (i) may request
instructions from the Holders of the Trust Securities,
which instructions may only be given by the Holders of
the same proportion of Liquidation Amount of the Trust
Securities as would be entitled to direct the Property
Trustee under the terms of this Trust Agreement in
respect of such remedies, rights or actions, (ii) may
refrain from enforcing such remedy or right or taking
such other action until such instructions are received,
and (iii) shall be protected in acting in accordance
with such instructions.
Section VIII.04. 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 VIII.05. May Hold Securities. Any Trustee or
any other agent of any Trustee or the Trust, in its individual or
any other capacity, may become the owner or pledgee of Trust
Securities and, except as provided in the definition of the term
"Outstanding" in Article I, may otherwise deal with the Trust
with the same rights it would have if it were not a Trustee or
such other agent.
Section VIII.06. Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this
Trust Agreement, including the reasonable costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of
the Depositor under this Section 8.06, each of the Trustees shall
have a lien prior to the Trust Securities upon all property and
funds held or collected by such Trustee as such, except funds
held in trust for the payment of Distributions on the Trust
Securities.
The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
Section VIII.07. Certain Trustees Required;
Eligibility.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property
Trustee shall be a Person that has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for
the purposes of this Section 8.07(a), the combined capital and
surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition
so published. If at any time the Property Trustee with respect
to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section 8.07(a), it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article VIII.
(b) There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust
Securities. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal entity
that shall act through one or more persons authorized to bind
such entity.
(c) There shall at all times be a Delaware Trustee
with respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
with its principal place of business in the State of Delaware
that otherwise meets the requirements of applicable Delaware law
and that shall act through one or more persons authorized to bind
such entity.
Section VIII.08. 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 VIII.09. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section 8.09. If the Depositor does not
join in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments
shall, on request, be executed, acknowledged, and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties, and
obligations shall be exercised and performed by such co-
trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the
execution, delivery, and performance of all instruments and
agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in
the manner provided in this Section 8.09.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section VIII.10. Resignation and Removal; Appointment
of Successor. No resignation or removal of any Trustee (as the
case may be, the "Relevant Trustee") and no appointment of a
successor Relevant Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Relevant Trustee in accordance with the applicable requirements
of Section 8.11.
Subject to the immediately preceding paragraph, the
Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance
by a successor Relevant Trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within 30 days
after the giving of such notice of resignation, the resigning
Relevant Trustee may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
An Administrative Trustee may be removed by the Holder
of Common Securities at any time. Unless a Debenture Event of
Default shall have occurred and be continuing, the Property
Trustee or the Delaware Trustee may be removed at any time by Act
of the Common Securityholder. If a Debenture Event of Default
shall have occurred and be continuing, the Relevant Trustee may
be removed at such time by Act of the Securityholders of a
majority of the aggregate Liquidation Amount of the Outstanding
Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or
Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Relevant Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing,
the Preferred Securityholders, by Act of the Preferred
Securityholders of a majority in Liquidation Amount of the
Outstanding Preferred Securities delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and the Relevant Trustee shall comply with
the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common
Securityholders or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirements for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
Section VIII.11. 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 VIII.12. 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 VIII.13. 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 VIII.14. Reports by Property Trustee.
(a) The Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and
its actions under this Trust Agreement as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. Such of those reports as are
required to be transmitted by the Property Trustee pursuant to
Section 313(a) of the Trust Indenture Act shall be so transmitted
within 60 days after [________ __] of each year, commencing
[_______ __], 199[_].
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
Section VIII.15. 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 VIII.16. 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 VIII.17. Number of Trustees.
(a) The number of Trustees shall be five, provided
that the Depositor, by written instrument may increase or
decrease the number of Administrative Trustees. The Property
Trustee and the Delaware Trustee may be the same person.
(b) If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced pursuant
to Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative Trustee
in accordance with Section 8.10, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted
to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section VIII.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment
thereto filed with the Commission, or making any other
governmental filing; and
(b) the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section VIII.19. Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement
shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or
arises between an Indemnified Person and any Covered
Person; or
(ii) whenever this Trust Agreement or any
other agreement contemplated herein or therein provides
that an Indemnified Person shall act in a manner that
is, or provides terms that are, fair and reasonable to
the Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable
generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
(c) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, whenever in
this Trust Agreement an Indemnified Person is permitted or
required to make a decision
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be
entitled to consider such interests and factors as it
reasonably desires, including its own interests, and
shall have no duty or obligation to give any
consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another
express standard, the Indemnified Person shall act
under such express standard and shall not be subject to
any other or different standard imposed by this Trust
Agreement or by applicable law.
Section 8.20 Voting. Except as otherwise provided in
this Trust Agreement, the consent or vote of the Administrative
Trustees shall be approved by not less than a majority of the
Administrative Trustees.
ARTICLE IX.
Termination, Liquidation and Merger
Section IX.01. Termination Upon Expiration Date.
Unless terminated earlier, 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 IX.02. Early Termination. Upon the first to
occur of any of the following events (such first occurrence, an
"Early Termination Event"):
(a) the occurrence of a Bankruptcy Event in
respect of, or the dissolution or liquidation of, the
Depositor;
(b) the delivery of written direction to the
Property Trustee by the Depositor at any time (which
direction is wholly optional and within the discretion
of the Depositor) to terminate the Trust and distribute
the Debentures to Securityholders in exchange for the
Trust Securities in accordance with Section 9.04;
(c) the redemption of all of the Preferred
Securities;
(d) the termination of the Trust in accordance
with Section 9.04(d); and
(e) an order for judicial termination of the
Trust having been entered by a court of competent
jurisdiction;
the Trust shall automatically terminate and the Trustees shall
take such action as is required by Section 9.04.
Section IX.03. 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 IX.04. Liquidation.
(a) If an Early Termination Event specified in clause
(a), (b), (d) or (e) of Section 9.02 occurs or upon the
Expiration Date, after satisfaction of creditors of the Trust, if
any, as provided by applicable law, the Trust shall be liquidated
by the Property Trustee as expeditiously as the Property Trustee
determines to be appropriate by distributing to each
Securityholder a Like Amount of Debentures, subject to Section
9.04(e). Notice of liquidation shall be given by the
Administrative Trustees by first-class mail, postage prepaid,
mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the
Liquidation Date, the Trust Securities will no longer
be deemed to be outstanding and any Trust Securities
Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to
the mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section
9.04(e) applies receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.02(c) or Section 9.04(e)
applies, in order to effect any liquidation of the Trust
hereunder, and any resulting distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45 days
prior to the Liquidation Date) and, either itself acting as
exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.02(c) or Section 9.04(e)
applies, after any Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
(or, at the election of the Depositor, Debentures in global form,
subject to the provisions of the Subordinated Indenture)
representing a Like Amount of Debentures will be issued to
Holders of Trust Securities Certificates, upon surrender of such
Trust Securities Certificates to the Administrative Trustees or
their agent for exchange, (iii) the Depositor shall use its
reasonable efforts to have the Debentures listed on the New York
Stock Exchange or on such other stock exchange or other
organization as the Preferred Securities are then listed or
traded, (iv) any Trust Securities Certificates not so surrendered
for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the
Debentures from the last Distribution Date on which a
Distribution was made on such Trust Certificates until such Trust
Securities Certificates are so surrendered (and until such Trust
Securities Certificates are so surrendered, no payments or
interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights
of Securityholders holding Trust Securities will cease, except
the right of such Securityholders to receive Debentures upon
surrender of Trust Securities Certificates.
(d) If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to redeem the Debentures
in whole but not in part and therefore cause a mandatory
redemption of all the Preferred Securities at the Redemption
Price within 90 days following the occurrence of such Special
Event. The Common Securities will be redeemed on a pro rata
basis with the Preferred Securities, except that if a Debenture
Event of Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price.
(e) In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order for
termination entered by a court of competent jurisdiction or
otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical,
the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in
such manner as the Property Trustee determines. In such event,
on the date of the dissolution, winding-up or other termination
of the Trust, Securityholders will be entitled to receive out of
the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors
of the Trust, if any, as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If,
upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the
Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities will be
entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if
a Debenture Event of Default has occurred and is continuing or if
a Debenture Event of Default has not occurred solely by reason of
a requirement that time lapse or notice be given, the Preferred
Securities shall have a priority over the Common Securities.
Section IX.05. Mergers, Consolidations, Amalgamations
or Replacements of the Trust.
The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any
corporation or other Person, except pursuant to this Trust
Agreement. At the request of the Depositor, with the consent of
the Administrative Trustees and without the consent of the
Holders of the Preferred Securities, the Trust may merge with or
into, consolidate, amalgamate, be replaced by or convey, transfer
or lease its properties and assets substantially as an entirety
to a trust organized as such under the laws of any state;
provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms
as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred
Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity
possessing substantially the same powers and duties as the
Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed or traded, or any Successor
Securities will be listed or traded upon notification of
issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed,
if any, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of
Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Depositor has received an Opinion of
Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor
Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor any successor entity
will be required to register as an investment company under the
Investment Company Act and (viii) the Depositor or any permitted
successor or assignee owns all of the Common Securities of such
successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the
Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an
entirety to any other Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other
than a grantor trust for United States Federal income tax
purposes.
ARTICLE X.
Miscellaneous Provisions
Section X.01. 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 X.02. 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 X.03. Amendment.
(a) This Trust Agreement may be amended from time to
time by the Trust (on approval of a majority of the
Administrative Trustees and the Depositor, without the consent of
any Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, that shall not be
inconsistent with the other provisions of this Trust Agreement,
(ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax
purposes other than as a "grantor trust" and not as an
association taxable as a corporation at any time that any Trust
Securities are Outstanding or to ensure the Trust's exemption
from the status of an "investment company" under the Investment
Company Act, or (iii) to effect the acceptance of a successor
Relevant Trustee's appointment; provided, however, that, except
in the case of clause (ii), such action shall not adversely
affect in any material respect the interests of any
Securityholder and, in the case of clause (i), any amendments of
this Trust Agreement shall become effective when notice thereof
is given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and
10.03(c), any provision of this Trust Agreement may be amended by
the Administrative Trustees and the Depositor with (i) the
consent of Holders of Trust Securities representing not less than
a majority (based upon Liquidation Amounts) of the Outstanding
Trust Securities and (ii) receipt by the Trustees of an Opinion
of Counsel to the effect that such amendment or the exercise of
any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust
for United States Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the
Investment Company Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder (such consent being obtained in
accordance with Section 6.03 or 6.06), this Trust Agreement may
not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date, (ii)
restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date, or (iii)
change the provisions of this Section 10.03(c).
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status of an
"investment company" under the Investment Company Act afforded by
Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement
to the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or any
Trustee.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
(g) The Property Trustee is entitled to receive an
Opinion of Counsel as conclusive evidence that any amendment to
this Trust Agreement executed pursuant to this Section 10.03 is
authorized or permitted by, and conforms to, the terms of this
Section 10.03, has been duly authorized by and lawfully executed
and delivered on behalf of the other requisite parties, and that
it is proper for the Property Trustee under the provisions of
this Section 10.03 to join in the execution thereof.
Section X.04. 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 X.05. 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 X.06. 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 X.07. Headings. The Article and Section
headings are for convenience only and shall not affect the
construction of this Trust Agreement.
Section X.08. 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., 425 West Capitol Avenue, 40th Floor, Little Rock,
Arkansas 72201, Attention: [Treasurer], facsimile no. (501) 377-
[____], with a copy to the Secretary, facsimile no. (501) 377-
[____]. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, 101 Barclay Street, 21 West, New York, New
York 10286 marked "Attention: Corporate Trust Trustee
Administration" with a copy to: The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711 and (ii)
with respect to the Trust or the Administrative Trustees, at the
address above for notice to the Depositor, marked "Attention:
Administrative Trustees for Entergy Arkansas Capital II". Such
notice, demand or other communication to or upon the Trust or the
Property Trustee shall be deemed to have been sufficiently given
or made only upon actual receipt of the writing by the Trust or
the Property Trustee.
Section X.09. Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders and at the expense of the Depositor, which
expense shall be paid prior to filing an answer, that it shall
file an answer with the bankruptcy court or otherwise properly
contest the filing of such petition by the Depositor against the
Trust or the commencement of such action and raise the defense
that the Depositor has agreed in writing not to take such action
and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Property Trustee or the
Trust may assert. The provisions of this Section 10.09 shall
survive the termination of this Trust Agreement.
Section X.10. Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions
of the Trust Indenture Act that are required or deemed to be part
of this Trust Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
Section 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
Section 10.12. Counterparts. This Trust Agreement may
be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all counterparts
shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Trust Agreement
to be duly executed, all as of the day and year first above
written.
ENTERGY ARKANSAS, INC.
By:
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 II
THIS CERTIFICATE OF TRUST of Entergy Arkansas Capital
II (the "Trust"), dated as of , 1996, is being
duly executed and filed by the undersigned, as trustees, to
create a business trust under the Delaware Business Trust Act (12
Del. C. ' 3801, et seq.).
1. Name. The name of the business trust being created
hereby is Entergy Arkansas Capital II.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in
the State of Delaware are The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
<PAGE>
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 II
__%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 _______ ___, 1996, as
the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy
of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the
Trust has executed this certificate for and on behalf of the
Trust this ____ day of _________, 199 .
ENTERGY ARKANSAS CAPITAL II
By:_______________________________
not in his (her) individual
capacity, but solely as
Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1996, between
Entergy Arkansas, Inc., a 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 ___% Cumulative Quarterly
Income Preferred Securities, Series A (the "Preferred
Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust
Agreement of the Trust dated as of ________ __, 1996 as the same
may be amended from time to time (the "Trust Agreement");
WHEREAS, Entergy Arkansas will directly own all of the
Common Securities and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by
each holder of the Preferred Securities, which purchase Entergy
Arkansas hereby agrees shall benefit Entergy Arkansas and which
purchase Entergy Arkansas acknowledges will be made in reliance
upon the execution and delivery of this Agreement, Entergy
Arkansas, including in its capacity as holder of the Common
Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by Entergy Arkansas. Subject
to the terms and conditions hereof, Entergy Arkansas hereby
irrevocably and unconditionally guarantees the full payment, when
and as due, of any and all Obligations (as hereinafter defined)
to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (i) obligations of the Trust
to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be and (ii) obligations arising out of
the negligence, willful misconduct or bad faith of the Trustees
of the Trust. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by Entergy Arkansas and The Bank of New York, as guarantee
trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Entergy Arkansas
hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and Entergy Arkansas
hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations,
covenants, agreements and duties of Entergy Arkansas under this
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, Entergy Arkansas with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
this Agreement directly against Entergy Arkansas and Entergy
Arkansas waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before
proceeding against Entergy Arkansas.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the successors,
assigns, receivers, trustees and representatives of Entergy
Arkansas and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
Entergy Arkansas Capital II
c/o [_________________], Administrative Trustee
425 West Capitol Avenue, 40th Floor
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Entergy Arkansas, Inc.
425 West Capitol Avenue, 40th Floor
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).
<PAGE>
THIS AGREEMENT is executed as of the day and year first
above
written.
ENTERGY ARKANSAS, INC.
By:
Name:
Title:
ENTERGY ARKANSAS CAPITAL II
By:
[_________________]
not in his individual
capacity, but solely
as Administrative Trustee
[Securities Depository Legend]
<PAGE>
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTERGY ARKANSAS CAPITAL II
__% Cumulative Quarterly Income Preferred Securities, Series A
(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 %
Cumulative Quarterly Income Preferred Securities, Series A
(liquidation amount $25 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.04 or 5.11 of
the Trust Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of , 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., a 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.
<PAGE>
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 II
By:____________________________________
[_______________________]
not in his (her)
individual capacity, but
solely as Administrative Trustee
Countersigned by:
_________________________
Transfer Agent
<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 4.17
AMENDED AND RESTATED
TRUST AGREEMENT
among
ENTERGY ARKANSAS, INC., as Depositor
and
THE BANK OF NEW YORK, as Property Trustee
THE BANK OF NEW YORK (DELAWARE), as Delaware Trustee
[___________________],
[______________],
and
[_______________], as Administrative 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>
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name 12
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business 12
Section 2.03. Initial Contribution of Trust
Property; Organizational Expenses 12
Section 2.04. Issuance of the Preferred Securities 13
Section 2.05. Subscription and Purchase of
Debentures; Issuance of the
Common Securities 13
Section 2.06. Declaration of Trust; Appointment
of Additional Administrative
Trustees 13
Section 2.07. Authorization to Enter into Certain
Transactions 14
Section 2.08. Assets of Trust 18
Section 2.09. Title to Trust Property 18
ARTICLE III.
Payment Account
Section 3.01. Payment Account 18
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions 19
Section 4.02. Redemption 20
Section 4.03. Subordination of Common Securities 22
Section 4.04. Payment Procedures 23
Section 4.05. Tax Returns and Reports 23
Section 4.06. Payment of Taxes, Duties, Etc. of
the Trust 23
Section 4.07. Payments under Subordinated
Indenture 24
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership 24
Section 5.02. The Trust Securities Certificates 24
Section 5.03. Execution and Delivery of Trust
Securities Certificates 25
Section 5.04. Registration of Transfer and
Exchange of Preferred Securities
Certificates 25
Section 5.05. Mutilated, Destroyed, Lost or
Stolen Trust Securities
Certificates 26
Section 5.06. Persons Deemed Securityholders 26
Section 5.07. Access to List of Securityholders'
Names and Addresses 26
Section 5.08. Maintenance of Office or Agency 27
Section 5.09. Appointment of Paying Agent 27
Section 5.10. Ownership of Common Securities by
Depositor; Common
Securities Certificate 28
Section 5.11. Book-Entry Preferred Securities
Certificates 28
Section 5.12. Notices to Securities Depository 29
Section 5.13. Definitive Preferred Securities
Certificates 29
Section 5.14. Rights of Securityholders 30
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights 30
Section 6.02. Notice of Meetings 32
Section 6.03. Meetings of Holders of Preferred
Securities 32
Section 6.04. Voting Rights 32
Section 6.05. Proxies, etc. 33
Section 6.06. Securityholder Action by Written
Consent 33
Section 6.07. Record Date for Voting and Other
Purposes 33
Section 6.08. Acts of Securityholders 33
Section 6.09. Inspection of Records 35
ARTICLE VII.
Representations and Warranties of the Property
Trustee, the Delaware Trustee and the Depositor
Section 7.01. Property Trustee 35
Section 7.02. Delaware Trustee 35
Section 7.03. Depositor 36
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities 37
Section 8.02. Certain Notices 38
Section 8.03. Certain Rights of Property Trustee 39
Section 8.04. Not Responsible for Recitals or
Issuance of Securities 42
Section 8.05. May Hold Securities 42
Section 8.06. Compensation; Fees; Indemnity. 42
Section 8.07. Certain Trustees Required;
Eligibility 43
Section 8.09. Co-Trustees and Separate Trustee 44
Section 8.10. Resignation and Removal;
Appointment of Successor 46
Section 8.11. Acceptance of Appointment by
Successor 47
Section 8.12. Merger, Conversion, Consolidation
or Succession to Business 48
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust 48
Section 8.14. Reports by Property Trustee 48
Section 8.15. Reports to the Property Trustee 49
Section 8.16. Evidence of Compliance With
Conditions Precedent 49
Section 8.17. Number of Trustees. 49
Section 8.18. Delegation of Power. 50
Section 8.19. Fiduciary Duty 50
Section 8.20. Voting 51
ARTICLE IX.
Termination, Liquidation and Merger
Section 9.01. Termination Upon Expiration Date 51
Section 9.02. Early Termination 52
Section 9.03. Termination 52
Section 9.04. Liquidation 52
Section 9.05. Mergers, Consolidations,
Amalgamations or Replacements of
the Trust 54
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and
Assumption of Obligations 56
Section 10.02. Limitation of Rights of
Securityholders 56
Section 10.03. Amendment 56
Section 10.04. Separability 58
Section 10.05. Governing Law 58
Section 10.06. Successors 58
Section 10.07. Headings 58
Section 10.08. Notice and Demand 58
Section 10.09. Agreement Not to Petition 59
Section 10.10. Conflict with Trust Indenture Act 59
Section 10.11. Acceptance of Terms of Trust
Agreement, Guarantee and
Indenture 60
Section 10.12. Counterparts 60
EXHIBIT A Certificate of Trust of Entergy Arkansas
Capital III A-1
EXHIBIT B Certificate Evidencing Common Securities of
Entergy Arkansas Capital III B-1
EXHIBIT C Agreement as to Expenses and Liabilities C-1
EXHIBIT D Certificate Evidencing Preferred Securities of
Entergy Arkansas Capital III D-1
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[_______] 1, 1996, between (i) Entergy Arkansas, Inc., a Arkansas
corporation (the "Depositor"), (ii) The Bank of New York, a
banking corporation duly organized and existing under the laws of
New York, as trustee (the "Property Trustee"), (iii) The Bank of
New York (Delaware), a banking corporation duly organized under
the laws of Delaware, as trustee (the "Delaware Trustee") and
(iv) [__________________], [______________] and [______________],
each an individual, as trustee, and each of whose address is c/o
Entergy Arkansas, Inc., 425 West Capitol Avenue, 40th Floor,
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 Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act (as hereinafter
defined) by the entering into of that certain Trust Agreement,
dated as of 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, filed on April __, 1996, the form 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 (as hereinafter
defined), (ii) the issuance of the Common Securities (as
hereinafter defined) by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities (as hereinafter defined) by
the Trust pursuant to the Underwriting Agreement (as hereinafter
defined) and (iv) the appointment of additional Administrative
Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other parties and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
Defined Terms
Section 1.01. (a) Definitions. For all purposes of
this Trust Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(b) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural
as well as the singular;
(c) all other terms used herein that are defined
in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(d) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an Article or
a Section, as the case may be, of this Trust Agreement; and
(e) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Trust Agreement
as a whole and not to any particular Article, Section or other
subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and for a given period,
the amount of additional interest accrued on interest in arrears
and paid by the Depositor on a Like Amount of Debentures for such
period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust created hereunder and not in their
individual capacities, or such trustee's successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court
having jurisdiction in the premises judging such Person
a bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a
receiver, 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
(ii) the institution by such Person of
proceedings to be adjudicated a bankrupt or insolvent,
or of the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such
Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof or officers of
the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect
on the date of such certification, and delivered to the
appropriate Trustee.
"Book-Entry Preferred Securities Certificates" mean
certificates representing Preferred Securities issued in global,
fully registered form to the Securities Depository (as
hereinafter defined) as described in Section 5.11.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate Depository Agreement" means the agreement
among the Trust, the Depositor and The Depository Trust Company,
as the initial Securities Depository, dated as of the Closing
Date, relating to the Trust Securities Certificate, as the same
may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York.
"Covered Person" means: (a) any officer, director,
shareholder, beneficial owner, partner, member, representative,
employee or agent of the Trust or the Trust's Affiliates; and (b)
any Holder of Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, a New
York banking corporation organized under the laws of the State of
New York and any successor thereto, as trustee under the
Subordinated Indenture.
"Debentures" means the $[________] aggregate principal
amount of the Depositor's [___]% Junior Subordinated Deferrable
Interest Debentures, Series __, 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 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of
any Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of
any Redemption Price (as hereinafter defined) when it
becomes due and payable; or
(iv) default in the performance, or breach,
in any material respect of any covenant or warranty of
the Trustees in this Trust Agreement (other than a
covenant or warranty a default in whose performance or
breach is specifically dealt with in clause (ii) or
(iii), above) and continuation of such default or
breach for a period of 60 days after there has been
given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at
least 10% in Liquidation Amount of the Outstanding
Preferred Securities a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder; or
(v) the occurrence of a Bankruptcy Event with
respect to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c)(iv).
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partner, employee, representative or agent of any Trustee, or any
employee or agent of the Trust or its Affiliates.
"Investment Company Event" means the occurrence of a
change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority to the effect that
the Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), which change in
law becomes effective on or after the date of original issuance
of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount
equal to the principal amount of Debentures to be
contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities and (ii) with respect
to a distribution of Debentures to the Holders of Trust
Securities in connection with a termination and liquidation of
the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by
the Property Trustee or delivered to the Property
Trustee for cancellation;
(ii) Preferred Securities for whose payment
or redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or
in lieu of which other Preferred Securities have been
delivered pursuant to this Trust Agreement, including
pursuant to Sections 5.04, 5.05, 5.11 or 5.13;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in conclusively relying upon any such
request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which such Trustee knows to be
so owned shall be so disregarded and (b) the foregoing shall not
apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner
of a Book-Entry Preferred Securities Certificate as reflected in
the records of the Securities Depository or, if a Securities
Depository Participant is not the beneficial owner, then as
reflected in the records of a Person maintaining an account with
such Securities Depository (directly or indirectly), in
accordance with the rules of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee at The Bank of New York, or such other banking
institution as the Depositor shall select in its trust department
for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to
the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a cumulative quarterly
income preferred security representing an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date and Maturity (as defined in the Subordinated
Indenture as hereinafter defined) of the Debentures shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any
Redemption Date of any Trust Security, the Liquidation Amount of
such Trust Security, plus accumulated and unpaid Distributions
thereon to the Redemption Date and the related amount of the
premium, if any, paid by the Depositor upon the concurrent
redemption of a Like Amount of Debentures, allocated on a pro
rata basis (based on Liquidation Amount) among the Trust
Securities.
"Registrar" shall mean the registrar for the Preferred
Securities appointed by the Trust and shall be initially The Bank
of New York.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matters.
"Securities Depository" shall be The Depository Trust
Company, or a successor thereto.
"Securities Depository Participant" means an
institution which deposits securities with a Securities
Depository for holding thereby and for whom from time to time a
Securities Depository effects book-entry transfers and pledges of
such securities.
"Securities Register" shall mean the Securities
Register described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person is a beneficial owner within
the meaning of the Delaware Business Trust Act.
"Special Event" means either a Tax Event or an
Investment Company Event.
"Subordinated Indenture" means the Indenture, dated as
of June 1, 1996, between the Depositor and the Debenture Trustee,
as trustee, as amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust of an
Opinion of Counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a
result of any official administrative or judicial pronouncement
or decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or
decision is announced on or after the date of original issuance
of the Preferred Securities under this Trust Agreement, there is
more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date thereof, subject to United States
Federal income tax with respect to income received or accrued on
the Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or within 90 days of the date thereof, will
not be, deductible by the Depositor, in whole or in part, for
United States Federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more
than a de minimis amount of other taxes, duties or other
governmental charges.
"Transfer Agent" shall mean one or more transfer agents
for the Preferred Securities appointed by the Administrative
Trustees on behalf of the Trust and shall be initially The Bank
of New York.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities
or the Preferred Securities.
"Trust Securities Certificate" means any one of the
Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of [_____ __] , 1996, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE II.
Establishment of the Trust
Section II.01. Name. The Trust created hereby shall
be known as "Entergy Arkansas Capital III", as such name may be
modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and
the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
Section II.02. Office of the Delaware Trustee;
Principal Place of Business. The office of the Delaware Trustee
in the State of Delaware is White Clay Center, Route 273, Newark,
Delaware 19711, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Entergy Arkansas, Inc., 425 West
Capitol Avenue, 40th Floor, Little Rock, Arkansas 72201.
Section II.03. 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 II.04. Issuance of the Preferred Securities.
The Depositor, on behalf of the Trust, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.02
and the Underwriting Agreement, shall execute manually and
deliver a Preferred Securities Certificate, registered in the
name of the nominee of the Securities Depository, in an aggregate
amount of _________ Preferred Securities having an aggregate
Liquidation Amount of $[________] against receipt of the
aggregate purchase price of such Preferred Securities of
$__________, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee.
Section II.05. Subscription and Purchase of
Debentures; Issuance of the Common Securities. Contemporaneously
with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee, on behalf of the Trust, and having
an aggregate principal amount equal to $[________], and, in
satisfaction of the purchase price for such Debentures, (x) one
of the Administrative Trustees, on behalf of the Trust, shall
execute and deliver to the Depositor Common Securities
Certificates in accordance with Section 5.02, registered in the
name of the Depositor, in an aggregate amount of [_____] 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 II.06. Declaration of Trust; Appointment of
Additional Administrative Trustees. The exclusive purposes and
functions of the Trust are (i) to issue and sell Trust Securities
and invest the proceeds thereof in Debentures, and (ii) to engage
in those activities necessary or incidental thereto. The
Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth
herein. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Securityholders. The
Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. Anything in this Trust
Agreement to the contrary notwithstanding the Delaware Trustee
shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of
the Property Trustee or the Administrative Trustees set forth
herein. The Delaware Trustee shall be one of the Trustees of the
Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act.
Section II.07. Authorization to Enter into Certain
Transactions. (a) The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section 2.07 and Article VIII and in accordance with the
following provisions (A) and (B), the Trustees shall have the
authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees,
acting singly or jointly, shall have the power, duty and
authority to act on behalf of the Trust with respect to the
following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to
cause the Trust to enter into and to execute, deliver
and perform on behalf of the Trust, the Expense
Agreement, and such agreements or other documents as
may be necessary or desirable in connection with the
purposes and function of the Trust;
(iii) to qualify the Trust to do business in
any jurisdiction as may be necessary or desirable;
(iv) to take all action that may be necessary
or appropriate for the preservation and continuation of
the Trust's valid existence, rights, franchises and
privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction
in which such existence is necessary to protect the
limited liability of the Holders of Preferred
Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(v) the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(vi) the listing of the Preferred Securities
upon such securities exchange or exchanges as shall be
determined by the Depositor and the registration of the
Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(vii) the appointments of a Paying Agent
(subject to Section 5.09), a Transfer Agent and a
Registrar in accordance with this Trust Agreement;
(viii) registering transfers of the Trust
Securities in accordance with this Trust Agreement;
(ix) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation, execution
and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(x) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder); and
(xi) the sending of notices (other than
notices of default) and other information regarding the
Trust Securities and the Debentures to the
Securityholders in accordance with this Trust
Agreement.
(B) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and
any other payments made in respect of the Debentures in
the Payment Account;
(iv) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
(vi) the distribution of the Trust Property
in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust; and
(viii) the taking of any ministerial action
incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable
to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration
of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustees set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the
Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders
of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of this Trust
Agreement.
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall
not undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify
as a "grantor trust" for United States Federal income tax
purposes, (iv) incur any indebtedness for borrowed money or (v)
take or consent to any action that would result in the placement
of a Lien on any of the Trust Property. To the extent required
under this Trust Agreement and the Trust Indenture Act, the
Property Trustee shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust
Property adverse to the interests of the Trust or the
Securityholders in their capacity as Securityholders. The
Administrative Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interests of the Trust or the
Securityholders in their capacity as Securityholders to the
extent not required to be done by the Property Trustee in the
preceding sentence.
(c) In connection with the issue and sale of the
Preferred Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect on
behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of
this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation and filing by the Trust with
the Commission and the execution by the Trust of a
registration statement on Form S-3 in relation to the
Preferred Securities, the Debentures, the Guarantee and
certain related obligations, including any amendments
thereto;
(ii) the determination of the States in which
to take appropriate action to qualify or register for
sale all or part of the Preferred Securities and the
taking of any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and
the advising of the Trustees of actions they must take
on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed
and filed by the Trust or on behalf of the Trust, as
the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(iii) the preparation for filing by the Trust
and the execution by the Trust of an application to the
New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities and to
file or cause the Administrative Trustees to file
thereafter with such exchange such notifications and
documents as may be necessary from time to time to
maintain such listing;
(iv) the preparation for filing by the Trust
with the Commission and the execution by the Trust of a
registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section
12(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendments
thereto;
(v) the selection of the investment banker or
bankers to act as underwriters with respect to the
offer and sale by the Trust of Preferred Securities and
the negotiation of the terms of and the execution and
delivery of on behalf of the Trust the Underwriting
Agreement and such other agreements as may be necessary
or desirable in connection with the consummation
thereof; and
(vi) the taking of any other actions
necessary or desirable to carry out any of the
foregoing activities.
(d) Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so that
the Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act or
classified other than as a "grantor trust" for United States
Federal income tax purposes so that the Debentures will be
treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, subject to the
provisions of Section 10.03, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with
applicable law, the certificate of trust filed with the Secretary
of State of the State of Delaware with respect to the Trust (as
amended or restated from time to time, the "Certificate of
Trust") or this Trust Agreement, that each of the Depositor and
the Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action
does not materially adversely affect the interests of the Holders
of the Preferred Securities.
Section II.08. Assets of Trust. The assets of the
Trust shall consist of the Trust Property.
Section II.09. Title to Trust Property. Legal title
to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III.
Payment Account
Section III.01. Payment Account.
(a) On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustee and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect to,
the Debentures. Amounts held in the Payment Account shall not be
invested by the Property Trustee pending distribution thereof.
ARTICLE IV.
Distributions; Redemption
Section IV.01. Distributions.
(a) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of
the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except in
the event that the Depositor exercises its right to extend the
interest payment period for the Debentures pursuant to Section
311 of the Subordinated Indenture, shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of
each year, commencing on [_______ __], 1996. If any date on
which Distributions are otherwise payable on the Trust Securities
is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such distribution shall be
made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date (each date
on which distributions are payable in accordance with this
Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities
shall be fixed at a rate of [____]% per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions
payable for any full quarterly period shall be computed on the
basis of twelve 30-day months and a 360-day year and for any
period shorter than a full month, on the basis of the actual
number of days elapsed. If the interest payment period for the
Debentures is extended pursuant to Section 311 of the
Subordinated Indenture, then Distributions on the Preferred
Securities will be deferred for the period equal to the extension
of the interest payment period for the Debentures and the rate
per annum at which Distributions on the Trust Securities
accumulate shall be increased by an amount such that the
aggregate amount of Distributions that accumulate on all Trust
Securities during any such extended interest payment period is
equal to the aggregate amount of interest (including, to the
extent permitted by law, interest payable on unpaid interest at
the percentage rate per annum set forth above, compounded
quarterly) that accrues during any such extended interest payment
period on the Debentures. The amount of Distributions payable
for any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date only
to the extent that the Trust has funds then on hand and
immediately available in the Payment Account for the payment of
such Distributions.
(d) Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities
on the relevant record date, which shall be one Business Day
prior to such Distribution Date; provided, however, that in the
event that the Preferred Securities do not remain in book-entry
only form, the relevant record date shall be 15 days prior to the
relevant Distribution Date.
Section IV.02. Redemption.
(a) On each Debenture Redemption Date and at Maturity
for the Debentures, the Property Trustee will be required to
redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date
to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Security Register. All notices
of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and
the total Liquidation Amount of the particular Trust
Securities to be redeemed; and
(v) that on the Redemption Date the Redemption
Price will become due and payable upon each such Trust
Security to be redeemed and that interest thereon will
cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price with the proceeds
from the contemporaneous redemption of Debentures. Redemptions
of the Trust Securities shall be made and the Redemption Price
shall be deemed payable on each Redemption Date only to the
extent that the Trust has funds immediately available in the
Payment Account for such payment.
(d) If the Property Trustee gives a notice of
redemption in respect of any Preferred Securities, then, by 12:00
noon, New York time, on the Redemption Date, subject to Section
4.02(c), the Property Trustee will, so long as the Preferred
Securities are in book-entry only form, deposit with the
Securities Depository for the Preferred Securities funds
sufficient to pay the applicable Redemption Price and will give
such Securities Depository irrevocable instructions and authority
to pay the applicable Redemption Price to the holders thereof.
If the Preferred Securities are no longer in book-entry only
form, the Property Trustee, subject to Section 4.02(c), will
deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption
Price to the Holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the redemption date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption
shall have been given and funds deposited as required, then on
the Redemption Date, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price, but
without interest thereon, and such Trust Securities will cease to
be outstanding. In the event that any Redemption Date is not a
Business Day, then payment of the Redemption Price payable on
such date shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day
falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be deemed the
date fixed for redemption for purposes of calculating the
Redemption Price.
(e) Payment of the Redemption Price on the Trust
Securities and any distribution of Debentures to the Holders
shall be made to the Holders as they appear on the Securities
Register for the Trust Securities on the relevant record date,
which shall be one Business Day prior to such Redemption Date;
provided, however, that in the event that the Preferred
Securities do not remain in book-entry only form, the relevant
record date shall be the fifteenth day prior to the relevant
Redemption Date.
(f) Subject to Section 4.03(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities
to be redeemed shall be allocated 3% to the Common Securities and
97% to the Preferred Securities. The particular Preferred
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for
a redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Securities selected for redemption and, in the case
of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or
to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities which has been or is to be
redeemed.
Section IV.03. Subordination of Common Securities.
(a) Payment of Distributions (including Additional
Amounts, if applicable) on, and the Redemption Price plus
accumulated and unpaid distributions of, the Trust Securities, as
applicable, shall be made pro rata based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default
resulting from a Debenture Event of Default shall have occurred
and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of,
any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Securities
for all distribution periods terminating on or prior thereto, or
in the case of payment of the Redemption Price the full amount of
such Redemption Price on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or Redemption Price of,
Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the Holder
of Common Securities will be deemed to have waived any such Event
of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Preferred Securities
shall have been cured, waived or otherwise eliminated. Until any
such Events of Default under this Trust Agreement with respect to
the Preferred Securities shall have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Preferred Securities and not the
Holder of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
Section IV.04. Payment Procedures. Payments of
Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed
to the address of the Person entitled thereto as such address
shall appear on the Securities Register or, if the Preferred
Securities are held by a Securities Depository, such
Distributions shall be made to the Securities Depository, which
shall credit the relevant Persons' accounts at such Securities
Depository on the applicable distribution dates. Payments in
respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the
Holder of the Common Securities.
Section IV.05. Tax Returns and Reports. The
Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense and direction, and file all United
States Federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In
this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the Internal Revenue
Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the related Internal Revenue Service Form
1099, or any successor form or the information required to be
provided on such form. The Administrative Trustees shall provide
the Depositor with a copy of all such returns and reports
promptly after such filing or furnishing. The Property Trustee
shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust
Securities.
Section IV.06. Payment of Taxes, Duties, Etc. of the
Trust. Upon receipt under the Debentures of Additional Interest
(as defined in the Subordinated Indenture), the Property Trustee
at the direction of an Administrative Trustee or the Depositor
shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the
Trustee by the United States or any other taxing authority.
Section IV.07. Payments under Subordinated Indenture.
Any amount payable hereunder to any Holder of Preferred
Securities shall be reduced by the amount of any corresponding
payment such Holder has directly received pursuant to Section 808
of the Subordinated Indenture. Notwithstanding the provisions
hereunder to the contrary, Securityholders acknowledge that any
Holder of Preferred Securities that receives payment under
Section 808 of the Subordinated Indenture may receive amounts
greater than the amount such Holder may be entitled to receive
pursuant to the other provisions of this Trust Agreement.
ARTICLE V.
Trust Securities Certificates
Section V.01. Initial Ownership. Upon the creation of
the Trust and the contribution by the Depositor pursuant to
Section 2.03 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section V.02. The Trust Securities Certificates. The
Trust Securities Certificates shall be issued in denominations of
$25 Liquidation Amount and integral multiples thereof. Subject
to Section 2.04 relating to the original issuance of the
Preferred Securities Certificate registered in the name of the
nominee of the Securities Depository, the Trust Securities
Certificates shall be executed on behalf of the Trust by manual
or facsimile signature of at least one Administrative Trustee
and, if executed on behalf of the Trust by facsimile signature,
countersigned by a Transfer Agent or its agent. Trust Securities
Certificates bearing the manual signatures of individuals who
were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust and, if executed on
behalf of the Trust by facsimile signature, countersigned by a
Transfer Agent or its agent, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that
such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery
of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall
be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to
Section 5.04, 5.11 or 5.13.
Section V.03. Execution and Delivery of Trust
Securities Certificates. On the Closing Date, the Administrative
Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 2.04 and
2.05, to be executed on behalf of the Trust by at least one of
the Administrative Trustees, and in the case of Preferred
Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred
without negligence arising out of or in connection with any such
countersigning by it.
Section V.04. Registration of Transfer and Exchange of
Preferred Securities Certificates. The Registrar shall keep or
cause to be kept, at its principal corporate office, a Securities
Register in which, subject to such reasonable regulations as it
may prescribe, the Registrar shall provide for the registration
of Preferred Securities Certificates and registration of
transfers and exchanges of Preferred Securities Certificates as
herein provided.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent
to countersign and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and a Transfer Agent
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Administrative
Trustees in accordance with customary practice. The Trust shall
not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange
any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a
Transfer Agent may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection
with any transfer or exchange of Preferred Securities
Certificates.
Section V.05. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates. If (a) any mutilated Trust
Securities Certificate shall be surrendered to a Transfer Agent,
or if a Transfer Agent shall receive evidence to its satisfaction
of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Transfer
Agent and the Administrative Trustees such security or indemnity
as may be required by them to save each of them and the Depositor
harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on
behalf of the Trust, shall execute by manual or facsimile
signature and, if executed on behalf of the Trust by facsimile
signature, cause a Transfer Agent or its agent to countersign and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section 5.05, the
Administrative Trustees or the Transfer Agent may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section 5.05 shall constitute conclusive evidence of an
ownership interest in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate
shall be found at any time.
Section V.06. Persons Deemed Securityholders. Prior
to due presentation of a Trust Securities Certificate for
registration of transfer, the Trustees, the Paying Agent and the
Registrar shall be entitled to treat the Person in whose name any
Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the
Registrar shall be bound by any notice to the contrary.
Section V.07. 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 V.08. Maintenance of Office or Agency. The
Depositor shall or shall cause the Transfer Agent to maintain in
the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Depositor
or the Transfer Agent in respect of the Trust Securities
Certificates may be served. The Depositor initially designates
The Bank of New York at its principal corporate trust office for
such purposes. The Depositor shall or shall cause the Transfer
Agent to give prompt written notice to the Property Trustee and
to the Securityholders of any change in any such office or
agency.
Section V.09. Appointment of Paying Agent. The Paying
Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such
Distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent in its
sole discretion. The Paying Agent may choose any co-paying agent
that is acceptable to the Administrative Trustees and the
Depositor. The Paying Agent shall be permitted to resign upon 30
days' written notice to the Administrative Trustees and the
Depositor. In the event of the removal or resignation of the
Paying Agent, the Administrative Trustees shall appoint a
successor that is reasonably acceptable to the Property Trustee
and the Depositor to act as Paying Agent (which shall be a bank,
trust company or an Affiliate of the Depositor). The
Administrative Trustees shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06
shall apply to the Paying Agent appointed hereunder, and the
Paying Agent shall be bound by the requirements with respect to
paying agents of securities issued pursuant to the Trust
Indenture Act. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context
requires otherwise.
Section V.10. Ownership of Common Securities by
Depositor; Common Securities Certificate. On the Closing Date,
the Depositor shall acquire, and thereafter retain, beneficial
and record ownership of the Common Securities. Any attempted
transfer of the Common Securities (other than a transfer in
connection with a merger or consolidation of the Depositor into
another corporation pursuant to Section 1101 of the Subordinated
Indenture) shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Depositor
to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE". A single Common Securities Certificate
representing the Common Securities shall be issued to the
Depositor in the form of a definitive Common Securities
Certificate.
Section V.11. Book-Entry Preferred Securities
Certificates. The Preferred Securities Certificates, upon
original issuance, will be issued in the form of a typewritten
Preferred Securities Certificate or Certificates representing
Book-Entry Preferred Securities Certificates, to be delivered to
or held on behalf of The Depository Trust Company, the initial
Securities Depository, by, or on behalf of, the Trust. Such Book-
Entry Preferred Securities Certificate or Certificates shall
initially be registered on the Securities Register in the name of
Cede & Co., the nominee of the initial Securities Depository, and
no beneficial owner will receive a Definitive Preferred
Securities Certificate representing such beneficial owner=s
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to beneficial owners pursuant to
Section 5.13:
(a) the provisions of this Section 5.11 shall be in
full force and effect;
(b) the Registrar, the Paying Agent and the Trustees
shall be entitled to deal with the Securities Depository for all
purposes of this Trust Agreement relating to the Book-Entry
Preferred Securities Certificates (including the payment of the
Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities) as the sole Holder of the Book-Entry
Preferred Securities and shall have no obligations to the Owners
thereof;
(c) to the extent that the provisions of this Section
5.11 conflict with any other provisions of this Trust Agreement,
the provisions of this Section 5.11 shall control; and
(d) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only through
the Securities Depository and shall be limited to those
established by law and agreements between such Owners and the
Securities Depository and/or the Securities Depository
Participants. Pursuant to the Certificate Depository Agreement,
unless and until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.13, the initial Securities
Depository will make book-entry transfers among the Securities
Depository Participants and receive and transmit payments on the
Preferred Securities to such Securities Depository. Any
Securities Depository designated pursuant hereto will not be
deemed an agent of the Trustees for any purpose.
Section V.12. Notices to Securities Depository. To
the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive
Preferred Securities Certificates shall have been issued pursuant
to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the
Securities Depository, and shall have no obligations to the
Owners.
Section V.13. Definitive Preferred Securities
Certificates. If (a) the Depositor advises the Trustees in
writing that the Securities Depository is no longer willing or
able to properly discharge its responsibilities with respect to
the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its
option advises the Trustees in writing that it elects to
terminate the book-entry system through the Securities
Depository, or (c) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing
beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Property Trustee in writing that
the continuation of a book-entry system through the Securities
Depository is no longer in the best interests of the Owners of
Preferred Securities Certificates, then the Property Trustee
shall notify the Securities Depository, and the Securities
Depository shall notify all Owners of Preferred Securities
Certificates, of the occurrence of any such event and of the
availability of the Definitive Preferred Securities Certificates
to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Property Trustee of the typewritten
Preferred Securities Certificate or Certificates representing the
Book-Entry Preferred Securities Certificates by the Securities
Depository, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with
the instructions of the Securities Depository. Neither the
Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the
Trustees shall recognize the Holders of the Definitive Preferred
Securities Certificates as Securityholders. The Definitive
Preferred Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof in accordance with Section
5.02.
Section V.14. Rights of Securityholders. The legal
title to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Preferred
Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable interests in the Trust.
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section VI.01. Limitations on Voting Rights.
(a) Except as provided in this Section 6.01, in
Section 10.03 and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of
the Trust Securities Certificates, be construed so as to
constitute the Securityholders from time to time as partners or
members of an association. If the Property Trustee fails to
enforce its rights under the Debentures or this Trust Agreement,
a Holder of Preferred Securities may institute a legal proceeding
directly against the Depositor to enforce the Property Trustee's
rights under the Debentures or this Trust Agreement, to the
fullest extent permitted by law, without first instituting any
legal proceeding against the Property Trustee or any other
person. Notwithstanding the foregoing, to the fullest extent
permitted by law, a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such Holder
directly of principal of or interest on the Debentures having a
principal amount equal to the aggregate liquidation preference
amount of the Preferred Securities of such Holder on or after the
due dates specified in the Debentures. So long as any Preferred
Securities remain Outstanding, if, upon a Debenture Event of
Default, the Debenture Trustee fails or the holders of not less
than 33% in principal amount of the outstanding Debentures fail
to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 33% in
Liquidation Amount of the Preferred Securities then Outstanding
shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the
Debentures shall become immediately due and payable, provided
that the payment of principal and interest on such Debentures
shall remain subordinated to the extent provided in the
Subordinated Indenture.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or executing any trust or power conferred
on the Debenture Trustee with respect to such Debentures, (ii)
waive any past default which is waivable under Section 813 of the
Subordinated Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the
Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of a
majority of the aggregate Liquidation Amount of the Outstanding
Preferred Securities; provided, however, that where a consent
under the Subordinated Indenture would require the consent of
each holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of each
holder of Preferred Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the
Preferred Securities, except pursuant to a subsequent vote of the
Preferred Securities. The Property Trustee shall notify all
Holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of
the foregoing actions, the Property Trustee shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in
such matters to the effect that the Trust will be classified as a
"grantor trust" and not as an association taxable as a
corporation for United States Federal income tax purposes on
account of such action.
(c) Subject to Section 10.03(c), if any proposed
amendment to the Trust Agreement provides for, or the Trustees
otherwise propose to effect, (i) any action that would materially
adversely affect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of
this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment
or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of a majority in
Liquidation Amount of the Outstanding Preferred Securities. No
amendment to this Trust Agreement may be made if, as a result of
such amendment, the Trust would not be classified as a "grantor
trust" but as an association taxable as a corporation for United
States Federal income tax purposes.
Section VI.02. Notice of Meetings. Notice of all
meetings of the Holders of Preferred Securities, stating the
time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.08 to each Holder of a
Preferred Security, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further
notice.
Section VI.03. 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 VI.04. 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 VI.05. 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 VI.06. 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 VI.07. 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 VI.08. Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner
provided in this Section 6.08.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved
by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
A Securityholder may institute a legal proceeding
directly against the Depositor under the Guarantee to enforce its
rights under the Guarantee without first instituting a legal
proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust or any Person or entity.
Section VI.09. Inspection of Records. Subject to
Section 5.07 concerning access to the list of Securityholders,
upon reasonable notice to the Administrative Trustees and the
Property Trustee, the other records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE VII.
Representations and Warranties of the Property
Trustee, the Delaware Trustee and the Depositor
Section VII.01. Property Trustee. The Property
Trustee hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and constitutes
the valid and legally binding agreement of the Property Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Property Trustee of this Trust Agreement will not violate,
conflict with or constitute a breach of the Property Trustee's
charter or by-laws; and
(e) neither the authorization, execution or delivery
by the Property Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee
contemplated herein require the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency
under any existing Federal or New York law governing the banking
or trust powers of the Property Trustee.
Section VII.02. Delaware Trustee. The Delaware
Trustee hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate,
conflict with or constitute a breach of the Delaware Trustee's
charter or by-laws; and
(e) neither the authorization, execution or delivery
by the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Delaware Trustee
contemplated herein require the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency
under any existing Federal or Delaware law governing the banking
or trust powers of the Delaware Trustee.
Section VII.03. Depositor. The Depositor hereby
represents and warrants for the benefit of the Securityholders
that:
(a) the Trust Securities Certificates issued on the
Closing Date on behalf of the Trust have been duly authorized and
will have been duly and validly executed, issued and delivered by
the Administrative Trustees pursuant to the terms and provisions
of, and in accordance with the requirements of, this Trust
Agreement and the Securityholders will be, as of such date,
entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental
charges payable by the Trust (or the Trustees) under the laws of
the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the
Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII.
The Trustees
Section VIII.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Trust Agreement
against any of the Trustees. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the
Trustees to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Notwithstanding anything
contained in this Trust Agreement to the contrary, the duties and
responsibilities of the Property Trustee under this Trust
Agreement shall be subject to the protections, exculpations and
limitations on liability afforded to the Property Trustee under
the provisions of the Trust Indenture Act and, to the extent
applicable, Rule 3A-7 under the Investment Company Act or any
successor rule thereunder. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Section
8.01.
(b) All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee
or Paying Agent to make payments in accordance with the terms
hereof. Each Securityholder, by its acceptance of a Trust
Security, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not
limit the liability of the Trustees expressly set forth elsewhere
in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
(i) the Property Trustee's sole duty with respect
to the custody, safe keeping and physical preservation
of the Trust Property shall be to deal with such
property in a similar manner as the Property Trustee
deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust
Agreement, the Trust Indenture Act and, to the extent
applicable, Rule 3a-7 under the Investment Company Act;
(ii) the Property Trustee shall have no duty
or liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
(iii) the Property Trustee shall not be liable
for any interest on any money received by it except as
it may otherwise agree with the Depositor. Money held
by the Property Trustee need not be segregated from
other funds held by it except in relation to the
Payment Account established by the Property Trustee
pursuant to this Trust Agreement and except to the
extent otherwise required by law; and
(iv) the Property Trustee shall not be
responsible for monitoring the compliance by the
Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall
the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the
Depositor.
Section VIII.02. Certain Notices.
(a) Within five Business Days after the occurrence of
any Event of Default known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of any Event of Default to the
Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
(b) Within five Business Days after receipt of notice
of the Depositor's exercise of its right to defer the payment of
interest on the Debentures pursuant to the Subordinated
Indenture, an Administrative Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of
such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
Section VIII.03. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.01 and except as provided
by law:
(i) the Property Trustee may conclusively rely
and shall be protected in acting or refraining from
acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any
other certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) if (A) in performing its duties under
this Trust Agreement the Property Trustee is required
to decide between alternative courses of action or (B)
in construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a written notice to the Depositor requesting
written instructions of the Depositor as to the course
of action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this
Trust Agreement the Property Trustee shall deem it
desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, request and rely conclusively upon
an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Depositor
or the Administrative Trustees;
(iv) the Property Trustee may consult with
counsel of its selection and the written advice of such
counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(v) the Property Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to
this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying
with such request or direction;
(vi) the Property Trustee shall not be bound
to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine,
unless requested in writing to do so by one or more
Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Depositor personally or by agent or attorney;
(vii) the Property Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder, provided that the Property Trustee
shall be responsible for its own negligence or
recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(viii) the Property Trustee shall not be liable
for any action taken, suffered, or omitted to be taken
by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
(ix) the Property Trustee shall not be
charged with knowledge of any default or Event of
Default with respect to the Trust Securities unless
either (1) a Responsible Officer of the Property
Trustee shall have actual knowledge of the default or
Event of Default or (2) written notice of such default
or Event of Default shall have been given to the
Property Trustee by the Depositor, the Administrative
Trustees or by any Holder of the Trust Securities;
(x) no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed
on it in any jurisdiction in which it shall be illegal,
or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such
right, power, duty or obligation; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty;
(xi) no provision of this Trust Agreement
shall require the Property Trustee to expend or risk
its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the
Property Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
(xii) the Property Trustee shall have no duty
to see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any tax or securities) (or any
rerecording, refiling or registration thereof);
(xiii) the Property Trustee shall have the
right at any time to seek instructions concerning the
administration of this Trust Agreement from any court
of competent jurisdiction; and
(xiv) whenever in the administration of this
Trust Agreement the Property Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder the Property Trustee (i) may request
instructions from the Holders of the Trust Securities,
which instructions may only be given by the Holders of
the same proportion of Liquidation Amount of the Trust
Securities as would be entitled to direct the Property
Trustee under the terms of this Trust Agreement in
respect of such remedies, rights or actions, (ii) may
refrain from enforcing such remedy or right or taking
such other action until such instructions are received,
and (iii) shall be protected in acting in accordance
with such instructions.
Section VIII.04. 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 VIII.05. May Hold Securities. Any Trustee or
any other agent of any Trustee or the Trust, in its individual or
any other capacity, may become the owner or pledgee of Trust
Securities and, except as provided in the definition of the term
"Outstanding" in Article I, may otherwise deal with the Trust
with the same rights it would have if it were not a Trustee or
such other agent.
Section VIII.06. Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this
Trust Agreement, including the reasonable costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of
the Depositor under this Section 8.06, each of the Trustees shall
have a lien prior to the Trust Securities upon all property and
funds held or collected by such Trustee as such, except funds
held in trust for the payment of Distributions on the Trust
Securities.
The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
Section VIII.07. Certain Trustees Required;
Eligibility.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property
Trustee shall be a Person that has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for
the purposes of this Section 8.07(a), the combined capital and
surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition
so published. If at any time the Property Trustee with respect
to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section 8.07(a), it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article VIII.
(b) There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust
Securities. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal entity
that shall act through one or more persons authorized to bind
such entity.
(c) There shall at all times be a Delaware Trustee
with respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
with its principal place of business in the State of Delaware
that otherwise meets the requirements of applicable Delaware law
and that shall act through one or more persons authorized to bind
such entity.
Section VIII.08. 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 VIII.09. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section 8.09. If the Depositor does not
join in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments
shall, on request, be executed, acknowledged, and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties, and
obligations shall be exercised and performed by such co-
trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the
execution, delivery, and performance of all instruments and
agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in
the manner provided in this Section 8.09.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section VIII.10. Resignation and Removal; Appointment
of Successor. No resignation or removal of any Trustee (as the
case may be, the "Relevant Trustee") and no appointment of a
successor Relevant Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Relevant Trustee in accordance with the applicable requirements
of Section 8.11.
Subject to the immediately preceding paragraph, the
Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance
by a successor Relevant Trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within 30 days
after the giving of such notice of resignation, the resigning
Relevant Trustee may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
An Administrative Trustee may be removed by the Holder
of Common Securities at any time. Unless a Debenture Event of
Default shall have occurred and be continuing, the Property
Trustee or the Delaware Trustee may be removed at any time by Act
of the Common Securityholder. If a Debenture Event of Default
shall have occurred and be continuing, the Relevant Trustee may
be removed at such time by Act of the Securityholders of a
majority of the aggregate Liquidation Amount of the Outstanding
Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or
Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Relevant Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing,
the Preferred Securityholders, by Act of the Preferred
Securityholders of a majority in Liquidation Amount of the
Outstanding Preferred Securities delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and the Relevant Trustee shall comply with
the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common
Securityholders or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirements for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
Section VIII.11. 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 VIII.12. 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 VIII.13. 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 VIII.14. Reports by Property Trustee.
(a) The Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and
its actions under this Trust Agreement as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. Such of those reports as are
required to be transmitted by the Property Trustee pursuant to
Section 313(a) of the Trust Indenture Act shall be so transmitted
within 60 days after [________ __] of each year, commencing
[_______ __], 199[_].
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
Section VIII.15. 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 VIII.16. 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 VIII.17. Number of Trustees.
(a) The number of Trustees shall be five, provided
that the Depositor, by written instrument may increase or
decrease the number of Administrative Trustees. The Property
Trustee and the Delaware Trustee may be the same person.
(b) If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced pursuant
to Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative Trustee
in accordance with Section 8.10, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted
to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section VIII.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment
thereto filed with the Commission, or making any other
governmental filing; and
(b) the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section VIII.19. Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement
shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or
arises between an Indemnified Person and any Covered
Person; or
(ii) whenever this Trust Agreement or any
other agreement contemplated herein or therein provides
that an Indemnified Person shall act in a manner that
is, or provides terms that are, fair and reasonable to
the Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable
generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
(c) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, whenever in
this Trust Agreement an Indemnified Person is permitted or
required to make a decision
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be
entitled to consider such interests and factors as it
reasonably desires, including its own interests, and
shall have no duty or obligation to give any
consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another
express standard, the Indemnified Person shall act
under such express standard and shall not be subject to
any other or different standard imposed by this Trust
Agreement or by applicable law.
Section 8.20 Voting. Except as otherwise provided in
this Trust Agreement, the consent or vote of the Administrative
Trustees shall be approved by not less than a majority of the
Administrative Trustees.
ARTICLE IX.
Termination, Liquidation and Merger
Section IX.01. Termination Upon Expiration Date.
Unless terminated earlier, 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 IX.02. Early Termination. Upon the first to
occur of any of the following events (such first occurrence, an
"Early Termination Event"):
(a) the occurrence of a Bankruptcy Event in
respect of, or the dissolution or liquidation of, the
Depositor;
(b) the delivery of written direction to the
Property Trustee by the Depositor at any time (which
direction is wholly optional and within the discretion
of the Depositor) to terminate the Trust and distribute
the Debentures to Securityholders in exchange for the
Trust Securities in accordance with Section 9.04;
(c) the redemption of all of the Preferred
Securities;
(d) the termination of the Trust in accordance
with Section 9.04(d); and
(e) an order for judicial termination of the
Trust having been entered by a court of competent
jurisdiction;
the Trust shall automatically terminate and the Trustees shall
take such action as is required by Section 9.04.
Section IX.03. 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 IX.04. Liquidation.
(a) If an Early Termination Event specified in clause
(a), (b), (d) or (e) of Section 9.02 occurs or upon the
Expiration Date, after satisfaction of creditors of the Trust, if
any, as provided by applicable law, the Trust shall be liquidated
by the Property Trustee as expeditiously as the Property Trustee
determines to be appropriate by distributing to each
Securityholder a Like Amount of Debentures, subject to Section
9.04(e). Notice of liquidation shall be given by the
Administrative Trustees by first-class mail, postage prepaid,
mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the
Liquidation Date, the Trust Securities will no longer
be deemed to be outstanding and any Trust Securities
Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to
the mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section
9.04(e) applies receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.02(c) or Section 9.04(e)
applies, in order to effect any liquidation of the Trust
hereunder, and any resulting distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45 days
prior to the Liquidation Date) and, either itself acting as
exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.02(c) or Section 9.04(e)
applies, after any Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
(or, at the election of the Depositor, Debentures in global form,
subject to the provisions of the Subordinated Indenture)
representing a Like Amount of Debentures will be issued to
Holders of Trust Securities Certificates, upon surrender of such
Trust Securities Certificates to the Administrative Trustees or
their agent for exchange, (iii) the Depositor shall use its
reasonable efforts to have the Debentures listed on the New York
Stock Exchange or on such other stock exchange or other
organization as the Preferred Securities are then listed or
traded, (iv) any Trust Securities Certificates not so surrendered
for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the
Debentures from the last Distribution Date on which a
Distribution was made on such Trust Certificates until such Trust
Securities Certificates are so surrendered (and until such Trust
Securities Certificates are so surrendered, no payments or
interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights
of Securityholders holding Trust Securities will cease, except
the right of such Securityholders to receive Debentures upon
surrender of Trust Securities Certificates.
(d) If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to redeem the Debentures
in whole but not in part and therefore cause a mandatory
redemption of all the Preferred Securities at the Redemption
Price within 90 days following the occurrence of such Special
Event. The Common Securities will be redeemed on a pro rata
basis with the Preferred Securities, except that if a Debenture
Event of Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price.
(e) In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order for
termination entered by a court of competent jurisdiction or
otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical,
the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in
such manner as the Property Trustee determines. In such event,
on the date of the dissolution, winding-up or other termination
of the Trust, Securityholders will be entitled to receive out of
the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors
of the Trust, if any, as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If,
upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the
Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities will be
entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if
a Debenture Event of Default has occurred and is continuing or if
a Debenture Event of Default has not occurred solely by reason of
a requirement that time lapse or notice be given, the Preferred
Securities shall have a priority over the Common Securities.
Section IX.05. Mergers, Consolidations, Amalgamations
or Replacements of the Trust.
The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any
corporation or other Person, except pursuant to this Trust
Agreement. At the request of the Depositor, with the consent of
the Administrative Trustees and without the consent of the
Holders of the Preferred Securities, the Trust may merge with or
into, consolidate, amalgamate, be replaced by or convey, transfer
or lease its properties and assets substantially as an entirety
to a trust organized as such under the laws of any state;
provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms
as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred
Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity
possessing substantially the same powers and duties as the
Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed or traded, or any Successor
Securities will be listed or traded upon notification of
issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed,
if any, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of
Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Depositor has received an Opinion of
Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor
Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor any successor entity
will be required to register as an investment company under the
Investment Company Act and (viii) the Depositor or any permitted
successor or assignee owns all of the Common Securities of such
successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the
Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an
entirety to any other Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other
than a grantor trust for United States Federal income tax
purposes.
ARTICLE X.
Miscellaneous Provisions
Section X.01. 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 X.02. 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 X.03. Amendment.
(a) This Trust Agreement may be amended from time to
time by the Trust (on approval of a majority of the
Administrative Trustees and the Depositor, without the consent of
any Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, that shall not be
inconsistent with the other provisions of this Trust Agreement,
(ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax
purposes other than as a "grantor trust" and not as an
association taxable as a corporation at any time that any Trust
Securities are Outstanding or to ensure the Trust's exemption
from the status of an "investment company" under the Investment
Company Act, or (iii) to effect the acceptance of a successor
Relevant Trustee's appointment; provided, however, that, except
in the case of clause (ii), such action shall not adversely
affect in any material respect the interests of any
Securityholder and, in the case of clause (i), any amendments of
this Trust Agreement shall become effective when notice thereof
is given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and
10.03(c), any provision of this Trust Agreement may be amended by
the Administrative Trustees and the Depositor with (i) the
consent of Holders of Trust Securities representing not less than
a majority (based upon Liquidation Amounts) of the Outstanding
Trust Securities and (ii) receipt by the Trustees of an Opinion
of Counsel to the effect that such amendment or the exercise of
any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust
for United States Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the
Investment Company Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder (such consent being obtained in
accordance with Section 6.03 or 6.06), this Trust Agreement may
not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date, (ii)
restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date, or (iii)
change the provisions of this Section 10.03(c).
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status of an
"investment company" under the Investment Company Act afforded by
Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement
to the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or any
Trustee.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
(g) The Property Trustee is entitled to receive an
Opinion of Counsel as conclusive evidence that any amendment to
this Trust Agreement executed pursuant to this Section 10.03 is
authorized or permitted by, and conforms to, the terms of this
Section 10.03, has been duly authorized by and lawfully executed
and delivered on behalf of the other requisite parties, and that
it is proper for the Property Trustee under the provisions of
this Section 10.03 to join in the execution thereof.
Section X.04. 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 X.05. 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 X.06. 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 X.07. Headings. The Article and Section
headings are for convenience only and shall not affect the
construction of this Trust Agreement.
Section X.08. 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., 425 West Capitol Avenue, 40th Floor, Little Rock,
Arkansas 72201, Attention: [Treasurer], facsimile no. (501) 377-
[____], with a copy to the Secretary, facsimile no. (501) 377-
[____]. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, 101 Barclay Street, 21 West, New York, New
York 10286 marked "Attention: Corporate Trust Trustee
Administration" with a copy to: The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711 and (ii)
with respect to the Trust or the Administrative Trustees, at the
address above for notice to the Depositor, marked "Attention:
Administrative Trustees for Entergy Arkansas Capital 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 X.09. Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders and at the expense of the Depositor, which
expense shall be paid prior to filing an answer, that it shall
file an answer with the bankruptcy court or otherwise properly
contest the filing of such petition by the Depositor against the
Trust or the commencement of such action and raise the defense
that the Depositor has agreed in writing not to take such action
and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Property Trustee or the
Trust may assert. The provisions of this Section 10.09 shall
survive the termination of this Trust Agreement.
Section X.10. Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions
of the Trust Indenture Act that are required or deemed to be part
of this Trust Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
Section 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
Section 10.12. Counterparts. This Trust Agreement may
be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all counterparts
shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Trust Agreement
to be duly executed, all as of the day and year first above
written.
ENTERGY ARKANSAS, INC.
By:
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.
<PAGE>
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 _______ ___, 1996, as
the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy
of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits
thereunder.
<PAGE>
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 ________ ___, 1996, between
Entergy Arkansas, Inc., a 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 ___% Cumulative Quarterly
Income Preferred Securities, Series A (the "Preferred
Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust
Agreement of the Trust dated as of ________ __, 1996 as the same
may be amended from time to time (the "Trust Agreement");
WHEREAS, Entergy Arkansas will directly own all of the
Common Securities and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by
each holder of the Preferred Securities, which purchase Entergy
Arkansas hereby agrees shall benefit Entergy Arkansas and which
purchase Entergy Arkansas acknowledges will be made in reliance
upon the execution and delivery of this Agreement, Entergy
Arkansas, including in its capacity as holder of the Common
Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by Entergy Arkansas. Subject
to the terms and conditions hereof, Entergy Arkansas hereby
irrevocably and unconditionally guarantees the full payment, when
and as due, of any and all Obligations (as hereinafter defined)
to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (i) obligations of the Trust
to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be and (ii) obligations arising out of
the negligence, willful misconduct or bad faith of the Trustees
of the Trust. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by Entergy Arkansas and The Bank of New York, as guarantee
trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Entergy Arkansas
hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and Entergy Arkansas
hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations,
covenants, agreements and duties of Entergy Arkansas under this
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, Entergy Arkansas with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
this Agreement directly against Entergy Arkansas and Entergy
Arkansas waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before
proceeding against Entergy Arkansas.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the successors,
assigns, receivers, trustees and representatives of Entergy
Arkansas and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
Entergy Arkansas Capital III
c/o [_________________], Administrative Trustee
425 West Capitol Avenue, 40th Floor
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Entergy Arkansas, Inc.
425 West Capitol Avenue, 40th Floor
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).
<PAGE>
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
[Securities Depository Legend]
<PAGE>
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTERGY ARKANSAS CAPITAL III
__% Cumulative Quarterly Income Preferred Securities, Series A
(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
% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation amount $25 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.04 or 5.11 of
the Trust Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of __________________, 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., a 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.
<PAGE>
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
Countersigned by:
_________________________
Transfer Agent
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Security to:
_______________________________________________________________________
_______________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________
_______________________________________________________________________
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred
Securities Certificate and irrevocably appoints
______________________________________________________________________
______________________________________________________________________
attorney to transfer such Preferred Securities Certificate on the
books of the Trust. The attorney may substitute another to act for him or
her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
EXHIBIT 4.20
Entergy Arkansas, Inc.
OFFICER'S CERTIFICATE
William J. Regan, Jr., the Vice President and Treasurer of
Entergy Arkansas, Inc. (the "Company"), pursuant to the authority
granted in the Board Resolutions of the Company dated ______,
____, and Sections 201 and 301 of the Indenture defined herein,
does hereby certify to The Bank of New York (the "Trustee"), as
Trustee under the Indenture of the Company (For Unsecured
Subordinated Debt Securities) dated as of ______, 1996 (the
"Indenture") that:
I. The securities of the first series to be issued
under the Indenture shall be designated "_% Junior
Subordinated Deferrable Interest Debentures, Due
_________ __, ____" (the "Debentures of the First
Series"). All capitalized terms used in this
certificate which are not defined herein but are
defined in the Indenture shall have the meanings set
forth in the Indenture;
2. The Debentures of the First Series shall be
limited in aggregate principal amount to $__________ at
any time Outstanding, except as contemplated in Section
301(b) of the Indenture;
3. The Debentures of the First Series shall mature
and the principal shall be due and payable together
with all accrued and unpaid interest thereon on
____________, ____;
4. The Debentures of the First Series shall bear
interest from, and including, the date of original
issuance, at the rate of _% per annum payable quarterly
in arrears on March 31, June 30, September 30 and
December 31 of each year (each, an "Interest Payment
Date") commencing ____________, 1996. The amount of
interest payable for any such period will be computed
on the basis of a 360-day year of twelve 30-day months.
Interest on the Debentures of the First Series will
accrue from, and including, the date of original
issuance and will accrue to, and including, the first
Interest Payment Date, and thereafter will accrue from,
and excluding, the last Interest Payment Date through
which interest has been paid or duly provided for. In
the event that any Interest Payment Date is not a
Business Day, then payment of the interest payable on
such date will be made on the next succeeding day which
is a Business Day (and without any interest or other
payment in respect of such delay), except that, if such
Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding
Business Day, in each case with the same force and
effect as if made on such Interest Payment Date;
5. Each installment of interest on a Debenture of the
First Series shall be payable to the Person in whose
name such Debenture of the First Series is registered
at the close of business on the Business Day ______
days preceding the corresponding Interest Payment Date
(the "Regular Record Date") for the Debentures of the
First Series; provided, however, that if the Debentures
of the First Series are not held by the by a securities
depositary, the Company shall have the right to change
the Regular Record Date by one or more Officer's
Certificates. Any installment of interest on the
Debentures of the First Series not punctually paid or
duly provided for shall forthwith cease to be payable
to the Holders of such Debentures of the First Series
on such Regular Record Date, and may be paid to the
Persons in whose name the Debentures of the First
Series are registered at the close of business on a
Special Record Date to be fixed by the Trustee for the
payment of such Defaulted Interest. Notice of such
Defaulted Interest and Special Record Date shall be
given to the Holders of the Debentures of the First
Series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures of the
First Series may be listed, and upon such notice as may
be required by such exchange, all as more fully
provided in the Indenture;
6. The principal and each installment of interest on
the Debentures of the First Series shall be payable at,
and registration and registration of transfers and
exchanges in respect of the Debentures of the First
Series may be effected at, the office or agency of the
Company in The City of New York; provided that payment
of interest may be made at the option of the Company by
check mailed to the address of the persons entitled
thereto under the Indenture. Notices, demands to or
upon the Company in respect of the Debentures of the
First Series may be served at the office or agency of
the Company in The City of New York. The Trustee will
initially be the agency of the Company for such service
of notices and demands; provided, however, that the
Company reserves the right to change, by one or more
Officer's Certificates any such office or agency. The
[Trustee] will initially be the Security Registrar and
the Paying Agent for the Debentures of the First
Series;
7. The Debentures of the First Series will be
redeemable on or after _______, ____ at the option of
the Company, at any time and from time to time, in
whole or in part, at a redemption price equal to ___%
of the principal amount of the Debentures of the First
Series being redeemed, together with any accrued and
unpaid interest, including Additional Interest, if any,
to the redemption date, upon not less than 30 nor more
than 60 days' notice given as provided in the
Indenture. The Company, however, may not redeem less
than all Outstanding Debentures of the First Series
unless the conditions specified in the last paragraph
of this item are met;
The Debentures of the First Series will also be
redeemable at the option of the Company upon the
occurrence and during the continuation of a Debenture
Tax Event, 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 the Debentures of the First Series then
Outstanding plus any accrued and unpaid interest,
including Additional Interest, if any, to the
redemption date, upon not less than 30 nor more than 60
days' notice given as provided in the Indenture.
"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
decision interpreting or applying such laws or
regulations, which amendment or change is effective or
which pronouncement or decision is announced on or
after the date of original issuance of the Debentures
of the First Series, there is more than an
insubstantial risk that interest payable by the Company
on the Debentures of the First Series is not, or within
90 days of the date thereof will not be, deductible by
the Company, in whole or in part, for United States
Federal income tax purposes.
The Company may not redeem less than all the
Debentures of the First Series Outstanding unless all
accrued and unpaid interest (including any Additional
Interest) has been paid in full on all Debentures of
the First Series Outstanding under the Indenture for
all quarterly interest periods terminating on or prior
to the date of redemption;
8. So long as any Debentures of the First Series are
Outstanding, the failure of the Company to pay interest
on any Debentures of the First Series within 60 days
after the same becomes due and payable (whether or not
payment is prohibited by the provisions of Article
Fifteen of the Indenture) shall constitute an Event of
Default; provided, however, that a valid extension of
the interest payment period by the Company as
contemplated in Section 311 of the Indenture and
paragraph (9) of this Certificate shall not constitute
a failure to pay interest for this purpose;
9. Pursuant to Section 311 of the Indenture, so long
as the Company is not in default under the Indenture
the Company shall have the right, at any time and from
time to time during the term of the Debentures of the
First Series, to extend the interest payment period to
a period not exceeding 20 consecutive quarters from the
last Interest Payment Date to which interest was paid
in full (an "Extension Period") during which period
interest will be compounded quarterly. Prior to the
termination of the Extension Period, the Company may,
and at the end of the Extension Period the Company
shall, pay all interest accrued and unpaid (together
with interest thereon at the annual rate of _% to the
extent permitted by applicable law). Upon such payment
in full, such Extension Period shall terminate.
However, 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 its
capital stock, or (ii) make any payment of principal,
interest or premium , if any, on or repay, repurchase
or redeem any indebtedness that is pari passu with or
junior in interest to the Debentures of the First
Series (including other Securities issued under the
Indenture), or make any guarantee payments with respect
to the foregoing (other than (a) dividends or
distributions in common stock of the Company and (b)
payment under any guarantee relating to subordinated
debt securities issued to a trust). Prior to the
termination of any such Extension Period, the Company
may further extend the interest payment period,
provided that such Extension Period together with all
such previous and further extensions thereof shall not
exceed 20 consecutive quarters or extend beyond the
maturity date of the Debentures of the First Series.
Upon termination of any such Extension Period and upon
the payment of all accrued and unpaid interest 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 shall give the
Holders and the Trustee written notice of (i) any
election by the Company to initiate an Extension Period
and the duration thereof, (ii) any election by the
Company to extend an Extension Period beyond the date
on which that Extension Period is then scheduled to
terminate and the duration of such extension and (iii)
any election by the Company to make a full payment of
interest accrued on the Debentures of the First Series
on any date during an Extension Period and the amount
of such payment. The Company shall give such notice
prior to the earlier of (i) one Business Day prior to
the record date for the distribution which would occur
but for such election or (ii) the date the Company is
required to give notice to the New York Stock Exchange
or other applicable self-regulatory organization;
10. The Debentures of the First Series will be
originally issued in global form payable to Cede & Co.
and will, unless and until the Debentures of the First
Series are exchanged in whole or in part for
certificated Debentures of the First Series registered
in the names of various beneficial holders thereof (in
accordance with the conditions set forth in the legend
appearing in the form of the Debentures of the First
Series, hereto attached as Exhibit A), contain
restrictions on transfer, substantially as described in
such form;
11. No service charge shall be made for the
registration of transfer or exchange of the Debentures
of the First Series; provided, however, that the
Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be
imposed in connection with the exchange or transfer;
12. The Debentures of the First Series shall rank pari
passu with the securities issued pursuant to the
Indenture (For Unsecured Subordinated Debt Securities
relating to Trust Securities) dated as of ______, 1996
between the Company and the Trustee;
13. The Debentures of the First Series shall have such
other terms and provisions as are provided in the form
set forth in Exhibit A hereto, and shall be issued in
substantially such form;
14. The undersigned has read all of the covenants and
conditions contained in the Indenture relating to the
issuance of the Debentures of the First Series and the
definitions in the Indenture relating thereto and in
respect of which this certificate is made;
15. The statements contained in this certificate are
based upon the familiarity of the undersigned with the
Indenture, the documents accompanying this certificate,
and upon discussions by the undersigned with officers
and employees of the Company familiar with the matters
set forth herein;
16. In the opinion of the undersigned, he has made
such examination or investigation as is necessary to
express an informed opinion whether or not such
covenants and conditions have been complied with; and
17. In the opinion of the undersigned, such conditions
and covenants and conditions precedent, if any
(including any covenants compliance with which
constitutes a condition precedent) to the
authentication and delivery of the Debentures of the
First Series requested in the accompanying Company
Order have been complied with.
IN WITNESS WHEREOF, the undersigned has executed this
Officer's Certificate this ____ day of ____, 1996.
William J. Regan, Jr.
Vice President and Treasurer
<PAGE>
No. R-1
CUSIP No.
EXHIBIT A
(See legend at the end of this Security
for restrictions on transferability and change of form)
ENTERGY ARKANSAS, INC.
_% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, SERIES A,
DUE ____________, ____
ENTERGY ARKANSAS, INC., a corporation duly organized and
existing under the laws of the State of Arkansas (herein referred
to as the "Company", which term includes any successor Person
under the Indenture), for value received, hereby promises to pay
to
, or registered
assigns, the principal sum of
Dollars on ____________, ____, and to
pay interest on said principal sum, from and including, _______,
1996 or from, and excluding, the most recent Interest Payment
Date through which interest has been paid or duly provided for,
quarterly on March 31, June 30, September 30 and December 31 of
each year, commencing ____________, 1996 at the rate of _% per
annum until the principal hereof is paid or made available for
payment. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve
30-day months. Interest on the Securities of this series will
accrue from, and including, _______, 1996 through the first
Interest Payment Date, and thereafter will accrue, from, and
excluding, the last Interest Payment Date through which interest
has been paid or duly provided for. In the event that any
Interest Payment Date is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment
Date. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest,
which shall be the Business Day next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of and premium, if any, and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
the State of New York in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at
the option of the Company, interest on this Security may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
ENTERGY ARKANSAS, INC.
By:_______________________________________
ATTEST:
____________________________
CERTIFICATE OF AUTHENTICATION
Dated: _____ __, 1996
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
REVERSE OF _% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE, SERIES A, DUE ____________, ____
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of ______, 1996 (herein, together with any amendments
thereto, called the "Indenture", which term shall have the
meaning assigned to it in such instrument), between the Company
and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture,
including the Board Resolutions and Officer's Certificate filed
with the Trustee on _______, 1996 creating the series designated
on the face hereof, for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated
and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to
$__________.
The Securities of this series are subject to redemption
upon not less than 30 nor more than 60 days' notice by mail, at
any time on or after _______, ____ as a whole or in part, at the
election of the Company, at a redemption price equal to ___% of
the principal amount, together in the case of any such redemption
with accrued and unpaid interest, including Additional Interest,
to, but not including, the redemption date, but interest
installments whose Stated Maturity is on or prior to such
redemption date will be payable to the Holder of such Security,
or one or more Predecessor Securities, of record at the close of
business on the related Regular Record Date referred to on the
face hereof, all as provided in the Indenture.
The Securities of this series will also be redeemable
at the option of the Company if a Debenture Tax Event shall occur
and be continuing, 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 the
Securities of this series then Outstanding plus any accrued and
unpaid interest, including Additional Interest, if any, to the
redemption date, upon not less than 30 nor more than 60 days'
notice given as provided in the Indenture. "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 decision interpreting or
applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or
after the date of original issuance of the Securities of this
Series, there is more than an insubstantial risk that interest
payable by the Company on the Securities of this series is not,
or within 90 days of the date thereof will not be, deductible by
the Company, in whole or in part, for United States Federal
income tax purposes.
In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
So long as the Company is not in default under the
Indenture the Company has the right, at any time and from time to
time during the term of the Securities of this series, to extend
the interest payment period to a period not exceeding 20
consecutive quarters (an "Extended Interest Payment Period").
Prior to the termination of the Extended Interest Payment Period
the Company may, and at the end of such Extended Interest Payment
Period the Company shall, pay all interest then accrued and
unpaid (together with interest thereon at the annual rate of _%
to the extent permitted by applicable law) and upon such payment
in full, such Extended Interest Payment Period shall terminate.
However, during such Extended Interest Payment Period the Company
shall not declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, or make any payment of
principal on, interest or premium if any, on or repay, repurchase
or redeem any indebtedness that is pari passu with or junior in
interest to the Securities of this series (including other
Securities issued under the Indenture), or make any guarantee
payments with respect to the foregoing (other than dividends or
distributions in common stock of the Company and payments under
any guarantee relating to subordinated debt securities issued to
a trust). Prior to the termination of any such Extended Interest
Payment Period, the Company may further extend the interest
payment period, provided that such Extended Interest Payment
Period, together with all such previous and further extensions
thereof, may not exceed 20 consecutive quarters or extend beyond
the Stated Maturity of the Securities of this series. Upon
termination of any such Extended Interest Payment Period and upon
the payment of all accrued and unpaid interest then due, the
Company may elect to begin a new Extended Interest Payment
Period, subject to the above requirements. No interest shall be
due and payable during an Extended Interest Payment Period,
except at the end thereof. The Company shall give the Holder
hereof and the Trustee written notice of (i) any election by the
Company to initiate an Extended Interest Payment Period and the
duration thereof, (ii) any election by the Company to extend an
Extended Interest Payment Period beyond the date on which that
Extended Interest Payment Period is then scheduled to terminate
and the duration of such extension and (iii) any election by the
Company to make a full payment of interest accrued on the
Securities of this series on any date during an Extended Interest
Payment Period. The Company shall give such notice prior to the
earlier of (i) one Business Day prior to the record date for the
distribution which would occur but for such election or (ii) the
date the Company is required to give notice to the New York Stock
Exchange or other applicable self-regulatory organization.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
As provided in the Indenture, the Company shall not be
required to make transfers or exchanges of Securities of this
series for a period of 15 days immediately preceding the date of
the mailing of any notice of redemption of such Securities and
the Company shall not be required to make transfers or exchanges
of any Securities of this series so selected for redemption in
whole or in part (except the unredeemed portion of thereof).
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
LEGEND
Unless and until this Security is exchanged in whole or
in part for certificated Securities registered in the names of
the various beneficial holders hereof as then certified to the
Trustee by The Depository Trust Company or its successor (the
"Depositary"), this Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This Security may be exchanged for certificated
Securities registered in the names of the various beneficial
owners hereof if (a) the Depositary is at any time unwilling or
unable to continue as depositary and a successor depositary is
not appointed by the Company within 90 days, or (b) the Company
elects to issue certificated Securities to all beneficial owners.
Any such exchange shall be made upon receipt by the Trustee of a
Company Order therefor and certificated Securities of this series
shall be registered in such names and in such denominations as
shall be certified to the Company and the Trustee by the
Depositary.
EXHIBIT 4.21
Entergy Arkansas, Inc.
OFFICER'S CERTIFICATE
William J. Regan, Jr., the Vice President and Treasurer of
Entergy Arkansas, Inc. (the "Company"), pursuant to the authority
granted in the Board Resolutions of the Company dated ______,
____, and Sections 201 and 301 of the Indenture defined herein,
does hereby certify to The Bank of New York (the "Trustee"), as
Trustee under the Indenture of the Company (For Unsecured
Subordinated Debt Securities relating to Trust Securities) dated
as of ______, 1996 (the "Indenture") that:
I. The securities of the first series to be issued
under the Indenture shall be designated "_% Junior
Subordinated Deferrable Interest Debentures, Series A,
Due _________ __, ____" (the "Debentures of the First
Series"). The Debentures of the First Series are to be
issued in the name of The Bank of New York, as property
trustee (the "Property Trustee"), pursuant to the
Amended and Restated Trust Agreement dated as of
_______, 1996 (the "Trust Agreement") relating to
Entergy Arkansas Capital I, a Delaware statutory
business trust (the "Trust"), on behalf of the Trust.
All capitalized terms used in this certificate which
are not defined herein but are defined in the Indenture
shall have the meanings set forth in the Indenture;
2. The Debentures of the First Series shall be
limited in aggregate principal amount to $__________ at
any time Outstanding, except as contemplated in Section
301(b) of the Indenture;
3. The Debentures of the First Series shall mature
and the principal shall be due and payable together
with all accrued and unpaid interest thereon on
____________, ____;
4. The Debentures of the First Series shall bear
interest from, and including, the date of original
issuance, at the rate of _% per annum payable quarterly
in arrears on March 31, June 30, September 30 and
December 31 of each year (each, an "Interest Payment
Date") commencing ____________, 1996. The amount of
interest payable for any such period will be computed
on the basis of a 360-day year of twelve 30-day months.
Interest on the Debentures of the First Series will
accrue from, and including, the date of original
issuance and will accrue to, and including, the first
Interest Payment Date, and thereafter will accrue from,
and excluding, the last Interest Payment Date through
which interest has been paid or duly provided for. In
the event that any Interest Payment Date is not a
Business Day, then payment of the interest payable on
such date will be made on the next succeeding day which
is a Business Day (and without any interest or other
payment in respect of such delay), except that, if such
Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding
Business Day, in each case with the same force and
effect as if made on such Interest Payment Date;
5. Each installment of interest on a Debenture of the
First Series shall be payable to the Person in whose
name such Debenture of the First Series is registered
at the close of business on the Business Day next
preceding the corresponding Interest Payment Date (the
"Regular Record Date") for the Debentures of the First
Series; provided, however, that if the Debentures of
the First Series are held neither by the Property
Trustee, for the benefit of the Trust, nor by a
securities depositary, the Company shall have the right
to change the Regular Record Date by one or more
Officer's Certificates. Any installment of interest on
the Debentures of the First Series not punctually paid
or duly provided for shall forthwith cease to be
payable to the Holders of such Debentures of the First
Series on such Regular Record Date, and may be paid to
the Persons in whose name the Debentures of the First
Series are registered at the close of business on a
Special Record Date to be fixed by the Trustee for the
payment of such Defaulted Interest. Notice of such
Defaulted Interest and Special Record Date shall be
given to the Holders of the Debentures of the First
Series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures of the
First Series may be listed, and upon such notice as may
be required by such exchange, all as more fully
provided in the Indenture;
6. The principal and each installment of interest on
the Debentures of the First Series shall be payable at,
and registration and registration of transfers and
exchanges in respect of the Debentures of the First
Series may be effected at, the office or agency of the
Company in The City of New York; provided that payment
of interest may be made at the option of the Company by
check mailed to the address of the persons entitled
thereto under the Indenture. Notices, demands to or
upon the Company in respect of the Debentures of the
First Series may be served at the office or agency of
the Company in The City of New York. The Trustee will
initially be the agency of the Company for such service
of notices and demands; provided, however, that the
Company reserves the right to change, by one or more
Officer's Certificates any such office or agency. The
Company will be the Security Registrar and the Paying
Agent for the Debentures of the First Series;
7. The Debentures of the First Series will be
redeemable on or after _______, ____ at the option of
the Company, at any time and from time to time, in
whole or in part, at a redemption price equal to 100%
of the principal amount of the Debentures of the First
Series being redeemed, together with any accrued and
unpaid interest, including Additional Interest, if any,
to the redemption date, upon not less than 30 nor more
than 60 days' notice given as provided in the
Indenture. The Company, however, may not redeem less
than all Outstanding Debentures of the First Series
unless the conditions specified in the last paragraph
of this item are met;
The Debentures of the First Series will also be
redeemable at the option of the Company upon the
occurrence and during the continuation of a Tax Event
or an Investment Company Event in whole but not in part
on any date within 90 days of the occurrence of such
Tax Event or an Investment Company Event, at a
redemption price equal to 100% of the principal amount
of the Debentures of the First Series then Outstanding
plus any accrued and unpaid interest, including
Additional Interest, if any, to the redemption date,
upon not less than 30 nor more than 60 days' notice
given as provided in the Indenture. "Tax Event" means
the receipt by the Trust of an opinion of counsel
experienced in such matters to the effect that, as a
result of any amendment to, or change (including any
announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or
therein affecting taxation, or as a result of any
official administrative pronouncement or decision
interpreting or applying such laws or regulations,
which amendment or change is effective or which
pronouncement or decision is announced on or after the
date of original issuance of the _% Cumulative
Quarterly Income Preferred Securities, Series A (the
"Preferred Securities") under the Trust Agreement,
there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date
thereof, subject to United States Federal income tax
with respect to income received or accrued on the
Debentures of the First Series, (ii) interest payable
by the Company on the Debentures of the First Series is
not, or within 90 days of the date thereof will not be,
deductible by the Company, in whole or in part, for
United States Federal income tax purposes, or (iii) the
Trust is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Investment Company Event" means the occurrence of a
change in law or regulation or a change in
interpretation or application of law or regulation by
any legislative body, court, governmental agency or
regulatory authority to the effect that the Trust is or
will be considered an "investment company" that is
required to be registered under the Investment Company
Act of 1940, as amended, which change in law becomes
effective on or after the date of original issuance of
the Preferred Securities.
The Company may not redeem less than all the
Debentures of the First Series Outstanding unless all
accrued and unpaid interest (including any Additional
Interest) has been paid in full on all Debentures of
the First Series Outstanding under the Indenture for
all quarterly interest periods terminating on or prior
to the date of redemption;
8. So long as any Debentures of the First Series are
Outstanding, the failure of the Company to pay interest
on any Debentures of the First Series within 60 days
after the same becomes due and payable (whether or not
payment is prohibited by the provisions of Article
Fifteen of the Indenture) shall constitute an Event of
Default; provided, however, that a valid extension of
the interest payment period by the Company as
contemplated in Section 311 of the Indenture and
paragraph (9) of this Certificate shall not constitute
a failure to pay interest for this purpose;
9. Pursuant to Section 311 of the Indenture, so long
as the Company is not in default under the Indenture
the Company shall have the right, at any time and from
time to time during the term of the Debentures of the
First Series, to extend the interest payment period to
a period not exceeding 20 consecutive quarters from the
last Interest Payment Date to which interest was paid
in full (an "Extension Period") during which period
interest will be compounded quarterly. Prior to the
termination of the Extension Period, the Company may,
and at the end of the Extension Period the Company
shall, pay all interest accrued and unpaid (together
with interest thereon at the annual rate of _% to the
extent permitted by applicable law). Upon such payment
in full, such Extension Period shall terminate.
However, 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 its
capital stock, or (ii) make any payment of principal,
interest or premium , if any, on or repay, repurchase
or redeem any indebtedness that is pari passu with or
junior in interest to the Debentures of the First
Series (including other Securities issued under the
Indenture), or make any guarantee payments with respect
to the foregoing (other than (a) dividends or
distributions in common stock of the Company and (b)
payment under any Guarantee). Prior to the termination
of any such Extension Period, the Company may further
extend the interest payment period, provided that such
Extension Period together with all such previous and
further extensions thereof shall not exceed 20
consecutive quarters or extend beyond the maturity date
of the Debentures of the First Series. Upon
termination of any such Extension Period and upon the
payment of all accrued and unpaid interest 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 shall give the
Property Trustee, the administrative trustees named in
the Trust Agreement and the Trustee written notice of
(i) any election by the Company to initiate an
Extension Period and the duration thereof, (ii) any
election by the Company to extend an Extension Period
beyond the date on which that Extension Period is then
scheduled to terminate and the duration of such
extension and (iii) any election by the Company to make
a full payment of interest accrued on the Debentures of
the First Series on any date during an Extension Period
and the amount of such payment. The Company shall give
such notice at least one Business Day prior to the
earlier of (i) the date distributions on the Preferred
Securities are payable and (ii) the date the
administrative trustees are required to give notice to
the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the
Preferred Securities of the record date or the date
such distributions are payable, but in any event not
less than one Business Day prior to such record date;
10. In the event that, at any time subsequent to the
initial authentication and delivery of the Debentures
of the First Series, the Debentures of the First Series
are to be held by a securities depositary, the Company
may at such time establish the matters contemplated in
clause (r) in the second paragraph of Section 301 of
the Indenture in an Officer's Certificate supplemental
to this Certificate;
11. No service charge shall be made for the
registration of transfer or exchange of the Debentures
of the First Series; provided, however, that the
Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be
imposed in connection with the exchange or transfer;
12. The Debentures of the First Series shall rank pari
passu with the securities issued pursuant to the
Indenture (For Unsecured Subordinated Debt Securities)
dated as of ______, 1996 between the Company and the
Trustee;
13. The Debentures of the First Series shall have such
other terms and provisions as are provided in the form
set forth in Exhibit A hereto, and shall be issued in
substantially such form;
14. In the event that the Debentures of the First
Series are distributed to holders of the Preferred
Securities upon the liquidation of the Trust, the
Company will use its best efforts to list the
Debentures of the First Series on the New York Stock
Exchange or on such other exchange or organization as
the Preferred Securities are then listed or traded;
15. The undersigned has read all of the covenants and
conditions contained in the Indenture relating to the
issuance of the Debentures of the First Series and the
definitions in the Indenture relating thereto and in
respect of which this certificate is made;
16. The statements contained in this certificate are
based upon the familiarity of the undersigned with the
Indenture, the documents accompanying this certificate,
and upon discussions by the undersigned with officers
and employees of the Company familiar with the matters
set forth herein;
17. In the opinion of the undersigned, he has made
such examination or investigation as is necessary to
express an informed opinion whether or not such
covenants and conditions have been complied with; and
18. In the opinion of the undersigned, such conditions
and covenants and conditions precedent, if any
(including any covenants compliance with which
constitutes a condition precedent) to the
authentication and delivery of the Debentures of the
First Series requested in the accompanying Company
Order have been complied with.
IN WITNESS WHEREOF, the undersigned has executed this
Officer's Certificate this ____ day of ____, 1996.
William J. Regan, Jr.
Vice President and Treasurer
<PAGE>
No. R-1
EXHIBIT A
ENTERGY ARKANSAS, INC.
_% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, SERIES A,
DUE ____________, ____
ENTERGY ARKANSAS, INC., a corporation duly organized and
existing under the laws of the State of Arkansas (herein referred
to as the "Company", which term includes any successor Person
under the Indenture), for value received, hereby promises to pay
to
, or registered
assigns, the principal sum of
Dollars on ____________, ____, and to
pay interest on said principal sum, from and including, _______,
1996 or from, and excluding, the most recent Interest Payment
Date through which interest has been paid or duly provided for,
quarterly on March 31, June 30, September 30 and December 31 of
each year, commencing ____________, 1996 at the rate of _% per
annum until the principal hereof is paid or made available for
payment. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve
30-day months. Interest on the Securities of this series will
accrue from, and including, _______, 1996 through the first
Interest Payment Date, and thereafter will accrue, from, and
excluding, the last Interest Payment Date through which interest
has been paid or duly provided for. In the event that any
Interest Payment Date is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment
Date. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest,
which shall be the Business Day next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of and premium, if any, and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
the State of New York in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at
the option of the Company, interest on this Security may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
ENTERGY ARKANSAS, INC.
By:_______________________________________
ATTEST:
____________________________
CERTIFICATE OF AUTHENTICATION
Dated: _____ __, 1996
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
REVERSE OF _% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE, SERIES A, DUE ____________, ____
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of ______, 1996 (herein, together with any amendments
thereto, called the "Indenture", which term shall have the
meaning assigned to it in such instrument), between the Company
and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture,
including the Board Resolutions and Officer's Certificate filed
with the Trustee on _______, 1996 creating the series designated
on the face hereof, for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated
and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to
$__________.
The Securities of this series are subject to redemption
upon not less than 30 nor more than 60 days' notice by mail, at
any time on or after _______, 2001 as a whole or in part, at the
election of the Company, at a redemption price equal to 100% of
the principal amount, together in the case of any such redemption
with accrued and unpaid interest, including Additional Interest,
to, but not including, the redemption date, but interest
installments whose Stated Maturity is on or prior to such
redemption date will be payable to the Holder of such Security,
or one or more Predecessor Securities, of record at the close of
business on the related Regular Record Date referred to on the
face hereof, all as provided in the Indenture.
The Securities of this series will also be redeemable
at the option of the Company if a Tax Event or an Investment
Company Event shall occur and be continuing, in whole but not in
part on any date within 90 days of the occurrence of such Tax
Event or Investment Company Event, at a redemption price equal to
100% of the principal amount of the Securities of this series
then Outstanding plus any accrued and unpaid interest, including
Additional Interest, if any, to the redemption date, upon not
less than 30 nor more than 60 days' notice given as provided in
the Indenture. "Tax Event" means the receipt by Entergy Arkansas
Capital I, a Delaware statutory business trust (the "Trust") of
an opinion of counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a
result of any official administrative pronouncement or decision
interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or
decision is announced on or after the date of original issuance
of the _% Cumulative Quarterly Income Preferred Securities,
Series A (the "Preferred Securities") under the Trust Agreement,
there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income received or
accrued on the Securities of this series, (ii) interest payable
by the Company on the Securities of this series not, or within 90
days of the date thereof will not be, deductible by the Company,
in whole or in part, for United States Federal income tax
purposes, or (iii) the Trust is, or will be within 90 days of the
date thereof, subject to more than a de minimis amount of other
taxes, duties or other governmental charges. "Investment Company
Event" means the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory
authority to the effect that the Trust is or will be considered
an "investment company" that is required to be registered under
the Investment Company Act of 1940, as amended, which change in
law becomes effective on or after the date of original issuance
of the Preferred Securities.
In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
So long as the Company is not in default under the
Indenture the Company has the right, at any time and from time to
time during the term of the Securities of this series, to extend
the interest payment period to a period not exceeding 20
consecutive quarters (an "Extended Interest Payment Period").
Prior to the termination of the Extended Interest Payment Period
the Company may, and at the end of such Extended Interest Payment
Period the Company shall, pay all interest then accrued and
unpaid (together with interest thereon at the annual rate of _%
to the extent permitted by applicable law) and upon such payment
in full, such Extended Interest Payment Period shall terminate.
However, during such Extended Interest Payment Period the Company
shall not declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, or make any payment of
principal on, interest or premium if any, on or repay, repurchase
or redeem any indebtedness that is pari passu with or junior in
interest to the Securities of this series (including other
Securities issued under the Indenture), or make any guarantee
payments with respect to the foregoing (other than dividends or
distributions in common stock of the Company and payments under
any Guarantee). Prior to the termination of any such Extended
Interest Payment Period, the Company may further extend the
interest payment period, provided that such Extended Interest
Payment Period, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarters or
extend beyond the Stated Maturity of the Securities of this
series. Upon termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest
then due, the Company may elect to begin a new Extended Interest
Payment Period, subject to the above requirements. No interest
shall be due and payable during an Extended Interest Payment
Period, except at the end thereof. The Company shall give the
Property Trustee, the administrative trustees named in the Trust
Agreement and the Trustee written notice of (i) any election by
the Company to initiate an Extended Interest Payment Period and
the duration thereof, (ii) any election by the Company to extend
an Extended Interest Payment Period beyond the date on which that
Extended Interest Payment Period is then scheduled to terminate
and the duration of such extension and (iii) any election by the
Company to make a full payment of interest accrued on the
Securities of this series on any date during an Extended Interest
Payment Period. The Company shall give such notice at least one
Business Day prior to the earlier of (i) the date distributions
on the Preferred Securities are payable and (ii) the date the
Administrative Trustees are required to give notice to the New
York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities of the
record date or the date such distributions are payable, but in
any event not less than one Business Day prior to such record
date.
The Securities of this series are issuable only in
registered form without coupons in denominations of $25 and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
As provided in the Indenture, the Company shall not be
required to make transfers or exchanges of Securities of this
series for a period of 15 days immediately preceding the date of
the mailing of any notice of redemption of such Securities and
the Company shall not be required to make transfers or exchanges
of any Securities of this series so selected for redemption in
whole or in part (except the unredeemed portion of thereof).
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
