Exhibit 4.09
GUARANTEE AGREEMENT
Between
Entergy London Investments UK plc
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
_______ __, 1997
TABLE OF CONTENTS
ARTICLE I DEFINITIONS....................................... Page
.
SECTION 1.01 Definitions................................. 1
ARTICLE II TRUST INDENTURE ACT............................... 4
SECTION 2.01 Trust Indenture Act; Application............ 4
SECTION 2.02 List of Holders of Preferred Securities..... 4
SECTION 2.03 Reports by the Guarantee Trustee............ 4
SECTION 2.04 Periodic Reports to Guarantee Trustee....... 4
SECTION 2.05 Evidence of Compliance with Conditions 5
Precedent...................................
SECTION 2.06 Events of Default; Waiver................... 5
SECTION 2.07 Events of Default; Notice................... 5
SECTION 2.08 Conflicting Interests....................... 5
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE.... 5
SECTION 3.01 Powers and Duties of Guarantee Trustee...... 5
SECTION 3.02 Certain Rights of Guarantee Trustee......... 7
ARTICLE IV GUARANTEE TRUSTEE................................. 9
SECTION 4.01 Guarantee Trustee; Eligibility.............. 9
SECTION 4.02 Compensation and Reimbursement 10
SECTION 4.03 Appointment, Removal and Resignation of
Guarantee Trustee........................... 10
ARTICLE V GUARANTEE......................................... 11
SECTION Guarantee..................................... 11
5.01
SECTION Waiver of Notice and Demand................. 11
5.02
SECTION Obligations Not Affected...................... 12
5.03
SECTION Rights of Holders............................ 12
5.042
SECTION Guarantee of Payment.......................... 13
5.05
SECTION Subrogation................................... 13
5.06
SECTION Independent Obligations...................... 13
5.07
ARTICLE VI SUBORDINATION...................................... 13
SECTION Subordination................................. 13
6.01
ARTICLE VII TERMINATION........................................ 14
SECTION Termination................................... 14
7.01
ARTICLE MISCELLANEOUS...................................... 14
VIII
SECTION Successors and Assigns..................... 14
8.01
SECTION Amendments.................................... 14
8.02
SECTION Notices....................................... 15
8.03
SECTION Benefit....................................... 16
8.04
SECTION Interpretation................................ 16
8.05
SECTION Governing Law................................. 16
8.06
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a)........................................... 4.01(a)
310(b)........................................... 4.01(c), 2.08
310(c)........................................... Inapplicable
311(a)........................................... 2.02(b)
311(b)........................................... 2.02(b)
311(c)........................................... Inapplicable
312(a)........................................... 2.02(a)
312(b)........................................... 2.02(b)
313.............................................. 2.03
314(a)........................................... 2.04
314(b)........................................... Inapplicable
314(c)........................................... 2.05
314(d)........................................... Inapplicable
314(e)........................................... 1.01, 2.05, 3.02
314(f)........................................... 2.01, 3.02
315(a)........................................... 3.01(d)
315(b)........................................... 2.07
315(c)........................................... 3.01
315(d)........................................... 3.01(d)
316(a)........................................... 5.04(a), 2.06
316(b)........................................... 5.03
316(c)........................................... 2.02
317(a)........................................... Inapplicable
317(b)........................................... Inapplicable
318(a)........................................... 2.01(b)
318(b)........................................... 2.01
318(c)........................................... 2.01(a)
_____________
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of _______ __, 1997, is executed and delivered by Entergy
London Investments UK plc, a corporation incorporated under the
laws of England and Wales (the "Guarantor"), and The Bank of New
York, as trustee (the "Guarantee Trustee"), for the benefit of
the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of Entergy London
Capital, L.P., a special purpose Delaware limited liability
partnership (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Limited
Partnership Agreement (the "Partnership Agreement"), dated as of
_______ __, 1997 among Entergy London Investments UK plc, as
General Partner (the "General Partner"), the Initial Limited
Partner (as defined therein) and the several Holders (as defined
therein), as Limited Partners, the Issuer is issuing as of the
date hereof __________ of its _____% Cumulative Quarterly Income
Preferred Securities, Series A ($___________ in aggregate
liquidation amount) (the "Preferred Securities") representing
preferred limited partnership interests in the Issuer and having
the terms set forth in the Partnership Agreement;
WHEREAS, the Preferred Securities are to be issued by
the Issuer and the proceeds thereof are to be used to purchase
the Debentures (as defined in the Partnership Agreement) which
will be issued in the name of the Partnership or to its order and
held as assets of the Partnership for the benefit of the Holders;
and
WHEREAS, in order to enhance the value of the Preferred
Securities, the Guarantor desires to irrevocably and
unconditionally agree, to the extent set forth herein, to pay to
the Holders the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase by
each Holder of the Preferred Securities, which purchase the
Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time.
IDEFINITIONS
1.01 Definitions. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise
requires, have the following meanings. Capitalized or otherwise
defined terms used but not otherwise defined herein shall have
the meanings assigned to such terms in the Partnership Agreement
as in effect on the date hereof.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the
foregoing.
"Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Guarantee
Agreement.
"Guarantee Payments" shall mean the following payments
or distributions, without duplication, with respect to the
Preferred Securities, to the extent not paid or made by or on
behalf of the Issuer: (i) any accumulated and unpaid
Distributions that are required to be paid on such Preferred
Securities but only if and to the extent that the Partnership has
available funds sufficient to make such payment, (ii) the
redemption price (the "Redemption Price"), and all accumulated
and unpaid Distributions to the date of redemption, with respect
to the Preferred Securities called for redemption by the Issuer
but only if and to the extent that the Partnership has available
funds sufficient to make such payment, (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with a redemption of all of the
Preferred Securities), the lesser of (a) the aggregate of the
Liquidation Amount and all accumulated and unpaid Distributions
on the Preferred Securities to the date of payment, and (b) the
amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee
Trustee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Preferred Securities then
outstanding; provided, however, that in determining whether the
holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indenture" means the Indenture (for Unsecured
Subordinated Debt Securities relating to Preferred Securities)
dated as of _______ __, 1997, among the Guarantor (the "Debenture
Issuer") and The Bank of New York, as trustee, pursuant to which
the Debentures are issued.
"Majority in liquidation amount of the Preferred
Securities" means a vote by Holders, voting separately as a
class, of more than 50% of the aggregate liquidation amount of
all Preferred Securities.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall
include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any vice-president, any assistant vice-
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Corporate Trust Department of
the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
IITRUST INDENTURE ACT
2.01 Trust Indenture Act; Application
(a) This Guarantee Agreement is subject to the provisions
of the Trust Indenture Act that are required or deemed to be part
of this Guarantee Agreement and shall, to the extent applicable,
be governed by such provisions; and
(b) if and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
2.02 Lists of Holders of Preferred Securities
(a) The Guarantor shall furnish or cause to be furnished to
the Guarantee Trustee (a) semiannually, not later than ________
__ and ________ __ in each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not
more than 15 days prior to the delivery thereof, and (b) at such
other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days
prior to the time such list is furnished; provided that, the
Guarantor shall not be obligated to provide such List of Holders
at any time the List of Holders does not differ from the most
recent List of Holders given to the Guarantee Trustee by the
Guarantor. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Section 311(a) of the Trust Indenture Act, subject to the
provisions of Section 311(b) and Section 312(b) of the Trust
Indenture Act.
2.03 Reports by the Guarantee Trustee. Within 60 days after
________ __ of each year, commencing ________ __, 199_, the
Guarantee Trustee shall provide to the Holders such reports, if
any, as are required by Section 313(a) of the Trust Indenture Act
in the form and in the manner provided by Section 313(a) of the
Trust Indenture Act. The Guarantee Trustee shall also comply
with the requirements of Sections 313(b), (c) and (d) of the
Trust Indenture Act.
2.04 Periodic Reports to Guarantee Trustee The Guarantor
shall provide to the Guarantee Trustee such documents, reports
and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
2.05 Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent provided for in this
Guarantee Agreement as and to the extent required by Section
314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1)
of the Trust Indenture Act may be given in the form of an
Officers' Certificate.
2.06 Events of Default; Waiver. The Holders of a Majority
in liquidation amount of Preferred Securities may, by vote, on
behalf of all of the Holders, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any
right consequent thereon.
2.07 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notices of all Events of Default
known to the Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided that, the
Guarantee Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust committee of directors or Responsible
Officers of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a Responsible Officer
charged with the administration of the Partnership Agreement
shall have obtained written notice, of such Event of Default.
2.08 Conflicting Interests. The Partnership Agreement and
the Indenture shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture
Act.
III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
3.01 Powers and Duties of the Guarantee Trustee
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee
shall not transfer this Guarantee Agreement or any rights
hereunder to any Person except a Holder exercising his or her
rights pursuant to Section 5.04 or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee. The right,
title and interest of the Guarantee Trustee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) The Guarantee Trustee, prior to the occurrence of any
Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Guarantee Agreement,
and no implied covenants or obligations shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.06), the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee
Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such
Events of Default that may have occurred:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties
and obligations as are specifically set forth in
this Guarantee Agreement; and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee
Agreement; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Guarantee Trustee, the Guarantee Trustee
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Guarantee Trustee, unless it
shall be proved that the Guarantee Trustee or such
Responsible Officer was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of
the Holders of a Majority in liquidation amount of the
Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any
trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall
require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
3.02 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem
it desirable that a matter be proved or established
before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with
counsel of its choice, and the written advice or
opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such
advice or opinion; such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any
of its employees; the Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any
court of competent jurisdiction;
(v) the Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Guarantee Agreement at the request
or direction of any Holder, unless such Holder shall
have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable
person in the position of the Guarantee Trustee,
against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by
it in complying with such request or direction,
including such reasonable advances as may be requested
by the Guarantee Trustee; provided that, nothing
contained in this Section 3.02(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee
Agreement;
(vi) the Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably
believed by it to be genuine, but the Guarantee
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as
it may see fit;
(vii) the Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder;
(viii) whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (1) may request
instructions from the Holders, (2) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and (3)
shall be protected in acting in accordance with such
instructions; and
(ix) the Guarantee Trustee shall not be liable for
any action taken, suffered or omitted to be taken by it
in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Guarantee.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed
to be a duty.
IV
GUARANTEE TRUSTEE
4.01 Guarantee Trustee; Eligibility
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section
4.01(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition
so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 4.03(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
4.02 Compensation and Reimbursement
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time
such reasonable compensation as the Guarantor and the Guarantee
Trustee shall from time to time agree in writing for all services
rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with the provisions of
this Guarantee (including the reasonable compensation and
expenses of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless from
and against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based upon the income
of the Guarantee Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance of the administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any its powers or duties hereunder.
As security for the performance of the obligations of
the Guarantor under this Section, the Guarantee Trustee shall
have a lien prior to the Preferred Securities upon all the
property and funds held or collected by the Guarantee Trustee as
such, except funds held in trust for the payment of principal of,
and premium (if any) or interest on, particular obligations of
the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
4.03 Appointment, Removal and Resignation of Guarantee
Trustee.
(a) Subject to Section 4.03(b), unless an Event of Default
shall have occurred and be continuing, the Guarantee Trustee may
be appointed or removed without cause at any time by the
Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold
office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.03 within 60 days after delivery to the Guarantor of an
instrument of resignation, the resigning Guarantee Trustee may
petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) The Guarantor shall give notice of each resignation and
each removal of the Guarantee Trustee and each appointment of a
successor Guarantee Trustee to all Holders in the manner provided
in Section 8.03 hereof. Each notice shall include the name of
the successor Guarantee Trustee and the address of its Corporate
Trust Office.
V
GUARANTEE
5.01 Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
5.02 Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of this Guarantee Agreement and of
any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against
the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
5.03 Obligations Not Affected. The obligation of the
Guarantor to make the Guarantee Payments under this Guarantee
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of
any express or implied agreement, covenant, term or
condition relating to the Preferred Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions,
Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Securities or the
extension of time for the performance of any other
obligation under, arising out of, or in connection with, the
Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the
extension of any interest payment period or deferral of
interest payment on the Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Holders pursuant to the terms of the Preferred Securities,
or any action on the part of the Issuer granting indulgence
or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or
defense of a guarantor, it being the intent of this Section
5.03 that the obligations of the Guarantor hereunder shall
be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
5.04 Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited
with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders
of a Majority in liquidation amount of the Preferred Securities
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee
in respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement without first instituting a legal proceeding
against the Issuer or any other person or entity.
5.05 Guarantee of Payment. This Guarantee Agreement creates
a guarantee of payment and not of collection. This Guarantee
Agreement will not be discharged except by payment of the
Guarantee Payments in full (without duplication).
5.06 Subrogation. The Guarantor shall be subrogated to all
(if any) rights of the Holders against the Issuer in respect of
any amounts paid to the Holders by the Guarantor under this
Guarantee Agreement; provided, however, that the Guarantor shall
not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any
amounts of Guarantee Payments are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
5.07 Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Preferred Securities and that
the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of
this Guarantee Agreement notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of
Section 5.03.
VI
SUBORDINATION
6.01 Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all Senior Debt
of the Guarantor (which is defined as all obligations (other than
non-recourse obligations and the indebtedness issued under the
Indenture) of, or guaranteed or assumed by, the Guarantor for
borrowed money, including both senior and subordinated
indebtedness for borrowed money (other than the Debentures), or
for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Guarantor
and its subsidiaries in accordance with generally accepted
accounting principles as in effect from time to time, or
evidenced by bonds, debentures, notes or other similar
instruments, and in each case, amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligations, whether existing as of the date of the Indenture or
subsequently incurred by the Guarantor unless, in the case of any
particular indebtedness, obligation, renewal, extension or
refunding, the instrument creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such
indebtedness, renewal, extension or refunding is not superior in
right of payment to or is pari passu with the Debentures;
provided that the Guarantor's obligations under this Guarantee or
any guarantee issued by the Guarantor on behalf of the holders of
Preferred Securities issued by entities affiliated with the
Guarantor similar to the Issuer shall not be deemed to be Senior
Debt of the Guarantor), and (ii) pari passu with any similar
guarantee now or hereafter issued by the Guarantor on behalf of
the holders of preferred securities issued by entities affiliated
with the Guarantor similar to the Issuer. Nothing in this
Section 6.01 shall apply to claims of, or payments to, the
Guarantee Trustee under or pursuant to Section 4.02 hereof.
VII
TERMINATION
7.01 Termination. This Guarantee Agreement shall terminate
and be of no further force and effect upon: (i) full payment of
the Redemption Price of all Preferred Securities, (ii) the
distribution of Debentures to Holders in exchange for all of the
Preferred Securities or (iii) full payment of the amounts payable
in accordance with the Partnership Agreement upon dissolution of
the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment
of any sums paid with respect to the Preferred Securities or
under this Guarantee Agreement.
VIII
MISCELLANEOUS
8.01 Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is
permitted under Article Eleven of the Indenture and pursuant to
which the assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
8.02 Amendments. This Guarantee Agreement may be amended
only by an instrument in writing entered into by the Guarantor
and the Guarantee Trustee. Except with respect to any changes
which do not materially adversely affect the rights of Holders
(in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval
of the Holders of not less than a majority in aggregate
liquidation amount of all the outstanding Preferred Securities.
The provisions of Article __ of the Partnership Agreement
concerning meetings of Holders shall apply to the giving of such
approval. Nothing herein contained shall be deemed to require
that the Guarantee Trustee enter into any amendment of this
Guarantee Agreement.
8.03 Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered,
telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set
forth below or such other address as the Guarantor may give
notice of to the Holders of the Preferred Securities:
Entergy London Investments UK plc
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
(b) if given to the Issuer, in care of the General
Partner, at the Issuer's (and the General Partner's) address
set forth below or such other address as the General Partner
on behalf of the Issuer may give notice of to the Holders:
Entergy London Capital, L.P.
c/o Entergy London Investments UK plc
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Partner
(c) if given to the Guarantee Trustee, to the address
set forth below or such other address as the Guarantee
Trustee may give notice of to the Holders of the Preferred
Securities:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth
on the books and records of the Issuer.
All notices hereunder shall be deemed to have been
given when received in person, telecopied with receipt confirmed,
or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
8.04 Benefit. This Guarantee Agreement is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not
separately transferable from the Preferred Securities.
8.05 Interpretation. In this Guarantee Agreement, unless
the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement
but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.01;
(b) a term defined anywhere in this Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Guarantee Agreement" or
"this Guarantee Agreement" are to this Guarantee Agreement
as modified, supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires;
(f) a reference to the singular includes the plural
and vice versa; and
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter
genders.
8.06 Governing Law. This Guarantee Agreement shall be
governed by and construed and interpreted in accordance with the
laws of the State of New York.
9.01 Consent to Jurisdiction; Appointment of Agent to
Accept Service of Process.
(a) The Guarantor agrees (i) that any legal action, suit
or proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in
connection with this Guarantee Agreement may be brought in any
federal or state court in the State of New York, County of New
York, and (ii) to file such consents with such authorities as
may be required to irrevocably evidence such agreement.
(b) The Guarantor agrees to designate a designee,
appointee and agent in The City of New York satisfactory to
the Guarantee Trustee for the purpose of consenting and
agreeing to the service of any and all legal process, summons,
notices and documents in any such action, suit or proceeding
against the Guarantor, by serving a copy thereof upon the
relevant agent for service of process referred to in this
Section 9.01 (whether or not the appointment of such agent
shall for any reason prove to be ineffective or such agent
shall accept or acknowledge such service) with a copy to the
Guarantor as provided in Section ____. The Guarantor agrees
that the failure of any such designee, appointee and agent to
give any notice of such service to it shall not impair or
affect in any way the validity of such service. Nothing
herein shall in any way be deemed to limit the ability of the
Guarantee Trustee or the Holders of the Preferred Securities
to serve any such legal process, summons, notices and
documents in any other manner permitted by applicable law or
to obtain jurisdiction over the Guarantor, or bring actions,
suits or proceedings against it in such other jurisdictions,
and in such manner, as may be permitted by applicable law.
The Guarantor irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection that it may now
or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings arising out of or in
connection with this Guarantee Agreement brought in the
federal courts located in The City of New York or the courts
of the State of New York located in The City of New York and
hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such
action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
10.01. Waiver of Immunities. To the extent that the
Guarantor or any of its properties, assets or revenues may have
or may hereafter become entitled to, or have attributed to it,
any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any thereof, from set-off or
counterclaim, from the jurisdiction of any court, from service or
process, from attachment upon or prior to judgment, from
attachment in aid of execution of judgment, or from execution of
judgment, or other legal process of proceeding fro the giving of
any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Guarantee
Agreement, the Guarantor hereby irrevocably and unconditionally
waives and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement. Nothing in this Section
10.01 shall be deemed to waive any defense (other than any such
immunity) available to the Guarantor.
11.01. Judgment Currency. The Guarantor agrees to
indemnify the Guarantee Trustee and the Holders of the Preferred
Securities against any loss incurred by such indemnified party as
a result of any judgment or order being given or made for any
amount due under this Guarantee Agreement and such judgment or
order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of
any variation as between (i) the rate of exchange at which the
United States dollar amount is converted into the Judgment
Currency for the purpose of such judgment or order, and (ii) the
rate of exchange at which any such indemnified party is able to
purchase Untied States dollars, at the business day nearest the
date of judgment, with the amount of the Judgment Currency
actually received by any such indemnified party. If,
alternatively, any such indemnified party receives a profit as a
result of such currency conversion, it will return any such
profits to the Guarantor (after taking into account any taxes or
other costs arising in connection with such conversion and
repayment). The foregoing indemnity shall constitute a separate
and independent obligation of the Guarantor, and shall continue
in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "rate of exchange" shall include
any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, the relevant currency.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and
year
first above written.
Entergy London Investments UK plc
By:
Name:
Title:
The Bank of New York,
as Guarantee Trustee
By:
Name:
Title: