Exhibit A-6(a)
GUARANTEE AGREEMENT
Between
Entergy London Investments plc
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
November 19, 1997
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 1.1, 2.5, 3.2
314(f) 2.1, 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1
315(d) 3.1(d)
316(a) 5.4(a), 2.6
316(b) 5.3
316(c) 2.2
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.1(b)
318(b) 2.1
318(c) 2.1(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 November 19, 1997, is executed and delivered by Entergy
London Investments plc, a public limited company 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 Delaware limited partnership (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Limited
Partnership Agreement (the "Partnership Agreement"), dated as of
November 19, 1997 among Entergy London Investments 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 12,000,000 of its 8 5/8% Cumulative Quarterly Income
Preferred Securities, Series A ($300,000,000 in aggregate
liquidation amount) (the "Preferred Securities") representing
preferred limited partner 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 a
series of Debentures (as defined in the Partnership Agreement)
which will be issued in the name of the Partnership or to its
order and held, directly or indirectly, 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.
ARTICLE 1
DEFINITIONS
1.1 Definitions.
As used in this Guarantee Agreement, the terms set
forth below shall, unless the context otherwise requires, have
the following meanings. Capitalized or otherwise defined terms
used but not otherwise defined herein shall have the meanings
assigned to such terms in the 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 November 1, 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 4.1.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
ARTICLE 2
TRUST INDENTURE ACT
2.1 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required or
deemed to be part of this Guarantee Agreement and shall, to
the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
2.2 Lists of Holders of Preferred Securities.
(a) The Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee (a) semiannually, not
later than June 30 and December 31 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.
2.3 Reports by the Guarantee Trustee.
Within 60 days after June 30 of each year, commencing
June 30, 1998, 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.
2.4 Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee
such documents, reports and information as required by Section
314 (if any) and the compliance certificate required by Section
314 of the Trust Indenture Act in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee
such evidence of compliance with any conditions precedent
provided for in this Guarantee Agreement as and to the extent
required by Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may be
given in the form of an Officers' Certificate.
2.6 Events of Default; Waiver.
The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of all of the
Holders, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement,
but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent
thereon.
2.7 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days
after the occurrence of an Event of Default, transmit
by mail, first class postage prepaid, to the Holders,
notices of all Events of Default known to the Guarantee
Trustee, unless such defaults have been cured before
the giving of such notice, provided that, the Guarantee
Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust committee of directors or
Responsible Officers of the Guarantee Trustee in good
faith determines that the withholding of such notice is
in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee
Trustee shall have received written notice, or a Responsible
Officer charged with the administration of the Partnership
Agreement shall have obtained written notice, of such Event
of Default.
2.8 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.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders, and the
Guarantee Trustee shall not transfer this Guarantee
Agreement or any rights hereunder to any Person except a
Holder exercising his or her rights pursuant to Section 5.4
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 2.6),
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.
3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(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 3.2(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.
ARTICLE 4
GUARANTEE TRUSTEE
4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor;
and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to
above, then, for the purposes of this Section
4.1(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 4.1(a), the Guarantee
Trustee shall immediately resign in the manner and with the
effect set out in Section 4.3(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.
4.2 Compensation and Reimbursement.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time
such reasonable compensation as the Guarantor and the
Guarantee Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Guarantee Trustee in accordance with the
provisions of this Guarantee (including the reasonable
compensation and expenses of its agents and counsel), except
any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless
from and against, any and all loss, damage, claim, liability
or expense, including taxes (other than taxes based upon the
income of the Guarantee Trustee) incurred without negligence
or bad faith on its part, arising out of or in connection
with the acceptance of the administration of this Guarantee
Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any its powers or duties
hereunder.
As security for the performance of the obligations of
the Guarantor under this Section, the Guarantee Trustee shall
have a lien prior to the Preferred Securities upon all the
property and funds held or collected by the Guarantee Trustee as
such, except funds held in trust for the payment of principal of,
and premium (if any) or interest on, particular obligations of
the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
4.3 Appointment, Removal and Resignation of Guarantee
Trustee.
(a) Subject to Section 4.3(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 4.3 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 8.3 hereof. Each
notice shall include the name of the successor Guarantee
Trustee and the address of its Corporate Trust Office.
ARTICLE 5
GUARANTEE
5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Issuer), as and
when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of
this Guarantee Agreement and of any liability to which it applies
or may apply, presentment, demand for payment, any right to
require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
5.3 Obligations Not Affected.
The obligation of the Guarantor to make the Guarantee
Payments under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to time
of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of
any express or implied agreement, covenant, term or
condition relating to the Preferred Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions,
Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Securities or the
extension of time for the performance of any other
obligation under, arising out of, or in connection with, the
Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the
extension of any interest payment period 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
5.3 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.
5.4 Rights of Holders.
The Guarantor expressly acknowledges that: (i) this
Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on
behalf of the Holders; (iii) the Holders of a Majority in
liquidation amount of the Preferred Securities have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of
this Guarantee Agreement or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement without first instituting a legal proceeding
against the Issuer or any other person or entity.
5.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment
and not of collection. This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full
(without duplication).
5.6 Subrogation.
The Guarantor shall be subrogated to all (if any)
rights of the Holders against the Issuer in respect of any
amounts paid to the Holders by the Guarantor under this Guarantee
Agreement; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire
by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any
amounts of Guarantee Payments are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
5.7 Independent Obligations.
The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities and that the Guarantor shall
be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3.
ARTICLE 6
SUBORDINATION
6.1 Subordination.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to all 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 6.1 shall apply to claims of, or payments to, the
Guarantee Trustee under or pursuant to Section 4.2 hereof.
ARTICLE 7
TERMINATION
7.1 Termination.
This Guarantee Agreement shall terminate and be of no
further force and effect upon: (i) full payment of the Redemption
Price of all Preferred Securities, (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.
ARTICLE 8
MISCELLANEOUS
8.1 Successors and Assigns.
All guarantees and agreements contained in this
Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and
shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is
permitted under Article Eleven of the Indenture and pursuant to
which the assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
8.2 Amendments.
This Guarantee Agreement may be amended only by an
instrument in writing entered into by the Guarantor and the
Guarantee Trustee. Except with respect to any changes which do
not materially adversely affect the rights of Holders (in which
case no consent of Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the
Holders of not less than a majority in aggregate liquidation
amount of all the outstanding Preferred Securities. The
provisions of Section 12.3 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.
8.3 Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed
by the party giving such notice, and delivered, telecopied or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set
forth below or such other address as the Guarantor may give
notice of to the Holders of the Preferred Securities:
Entergy London Investments 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 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.
8.4 Benefit.
This Guarantee Agreement is solely for the benefit of
the Holders and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
8.5 Interpretation.
In this Guarantee Agreement, unless the context
otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement
but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.1;
(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.
8.6 Governing Law.
This Guarantee Agreement shall be governed by and
construed and interpreted in accordance with the laws of the
State of New York.
8.7 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 8.7 (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 8.3. 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 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.
8.8 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 or proceeding
for 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 8.8 shall be deemed to waive any defense (other than
any such immunity) available to the Guarantor.
8.9 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 United States dollars, at
the nearest business day after 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, United States dollars.
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 plc
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
The Bank of New York, as
Guarantee Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President