Exhibit 4(d)
ENTERGY CORPORATION
OFFICER'S CERTIFICATE
Steven C. McNeal, the Vice President and Treasurer of
Entergy Corporation, a Delaware corporation (the "Company"),
pursuant to the authority granted in the Board Resolutions of the
Company dated May 11, 2000 and April 10, 2002, and pursuant to
and as contemplated by Sections 102, 201 and 301 of the Indenture
defined herein, does hereby certify to Deutsche Bank Trust
Company Americas, as trustee (the "Trustee") under the Indenture
(For Unsecured Debt Securities) of the Company dated as of
December 1, 2002 (the "Indenture") that:
1. The Securities of the fourth series to be issued under the
Indenture shall be designated "6.58% Senior Notes due May 15,
2010" (the "Senior Notes"). All capitalized terms used in this
certificate which are not defined herein shall have the meanings
set forth in Exhibit A hereto; all capitalized terms used in this
certificate which are not defined herein or in Exhibit A hereto
shall have the meanings set forth in the Indenture.
2. The Senior Notes shall be issued by the Company in the
initial aggregate principal amount of $75,000,000. Additional
Senior Notes, without limitation as to amount, having
substantially the same terms as the Outstanding Senior Notes
(except a different issue date, issue price and bearing interest
from the last Interest Payment Date to which interest has been
paid or duly provided for on the Outstanding Senior Notes, and,
if no interest has been paid, from May 14, 2003), may also be
issued by the Company pursuant to the Indenture without the
consent of the existing Holders of the Senior Notes. Such
additional Senior Notes shall be part of the same series as the
Outstanding Senior Notes.
3. The Senior Notes shall mature and the principal thereof
shall be due and payable together with all accrued and unpaid
interest thereon on May 15, 2010.
4. The Senior Notes shall bear interest as provided in the form
thereof set forth in Exhibit A hereto. For the purposes of
Section 310 of the Indenture, a period from and including the
15th of one month to but not including the 15th of the next month
will be considered a full month.
5. The principal of, and premium, if any, and each installment
of interest on the Senior Notes shall be payable upon
presentation of the Senior Notes at the office or agency of the
Company in The City of New York; provided that payment of
interest (other than at Maturity) may be made at the option of
the Company by check mailed to the address of the persons
entitled thereto or by wire transfer to an account designated by
the person entitled thereto; and provided further that so long as
any Senior Notes are registered in the name of The Depository
Trust Company ("DTC"), or its nominee as discussed below, all
payments of principal, premium, if any, and interest in respect
of such Senior Notes will be made in immediately available funds.
Notices and demands to or upon the Company in respect of the
Senior Notes and the Indenture may be served at the office or
agency of the Company in The City of New York. The Corporate
Trust Office of the Trustee will initially be the agency of the
Company for such payment and service of notices and demands and
the Company hereby appoints Deutsche Bank Trust Company Americas
as its agent for all such purposes; provided, however, that the
Company reserves the right to change, by one or more Officer's
Certificates, any such office or agency and such agent. The
registration and registration of transfers and exchanges in
respect of the Senior Notes may be effected at the Corporate
Trust Office of the Trustee. The Trustee will initially be the
Security Registrar and the Paying Agent for the Senior Notes.
6. The Senior Notes will be redeemable at the option of the
Company prior to the Stated Maturity of the principal thereof as
provided in the form thereof set forth in Exhibit A hereto.
7. Initially the Senior Notes will be issued in global form
registered in the name of Cede & Co. (as nominee for DTC, the
initial securities depository for the Senior Notes), and may bear
such legends as DTC may reasonably request. So long as any
Senior Notes are Outstanding in global form registered in the
name of DTC or its nominee (or any successor depository), all
payments of principal, premium, if any, and interest with respect
to the Senior Notes in global form will be made by the Company in
immediately available funds in accordance with the customary
procedures of DTC.
8. No service charge shall be made for the registration of
transfer or exchange of the Senior Notes; provided, however, that
the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with the exchange or transfer.
9. If the Company shall make any deposit of money and/or
Eligible Obligations with respect to any Senior Notes, or any
portion of the principal amount thereof, as contemplated by
Section 701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first
paragraph of said Section 701 unless the Company shall also
deliver to the Trustee, together with such Officer's Certificate,
either:
(A) an instrument wherein the Company, notwithstanding
the satisfaction and discharge of its indebtedness in
respect of the Senior Notes, shall assume the obligation
(which shall be absolute and unconditional) to irrevocably
deposit with the Trustee or Paying Agent such additional
sums of money, if any, or additional Eligible Obligations
(meeting the requirements of Section 701), if any, or any
combination thereof, at such time or times, as shall be
necessary, together with the money and/or Eligible
Obligations theretofore so deposited, to pay when due the
principal of and premium, if any, and interest due and to
become due on such Senior Notes or portions thereof, all in
accordance with and subject to the provisions of said
Section 701; provided, however, that such instrument may
state that the obligation of the Company to make additional
deposits as aforesaid shall be subject to the delivery to
the Company by the Trustee of a notice asserting the
deficiency accompanied by an opinion of an independent
public accountant of nationally recognized standing,
selected by the Trustee, showing the calculation thereof; or
(B) an Opinion of Counsel to the effect that, as a
result of a change in law occurring after the date of this
certificate, the Holders of such Senior Notes, or portions
of the principal amount thereof, will not recognize income,
gain or loss for United States federal income tax purposes
as a result of the satisfaction and discharge of the
Company's indebtedness in respect thereof and will be
subject to United States federal income tax on the same
amounts, at the same times and in the same manner as if such
satisfaction and discharge had not been effected.
10. So long as any Senior Notes remain Outstanding, the Company
will comply with the following covenants in addition to those
specified in Article Six of the Indenture:
(a) Limitation on Debt. The Company shall not permit the total
principal amount of all Debt of the Company and its subsidiaries,
determined on a consolidated basis and without duplication of
liability therefor, at any time to exceed 65% of Capitalization,
as defined below, determined as of the last day of the Company's
most recently ended fiscal quarter. For purposes of this
restriction "Debt" and "Capitalization" shall not include junior
subordinated deferrable interest debentures of a Significant
Subsidiary issued to a subsidiary trust which has issued
preferred securities that are included in the calculation of
"Capitalization," and any Debt of any subsidiary of the Company
that is Non-Recourse Debt. "Non-Recourse Debt" means any Debt of
any subsidiary of the Company that does not constitute Debt of
the Company or of any Significant Subsidiary. "Capitalization"
means, as of any date of determination, with respect to the
Company and its subsidiaries determined on a consolidated basis,
an amount equal to the sum of (i) the total principal amount of
all Debt of the Company and its subsidiaries outstanding on such
date, (ii) Consolidated Net Worth as of such date and (iii) to
the extent not otherwise included in Capitalization, all
preferred stock and other preferred securities of the Company and
its subsidiaries, including preferred securities issued by any
subsidiary trust, outstanding on such date.
(b) Disposition of Assets. The Company will not sell, lease,
transfer, convey or otherwise dispose of (whether in one
transaction or in a series of transactions) any shares of voting
common stock (or of stock or other instruments convertible into
voting common stock) of any Principal Utility Subsidiary (as
defined below), or permit any Principal Utility Subsidiary to
issue, sell or otherwise dispose of any of its shares of voting
common stock (or of stock or other instruments convertible into
voting common stock) (each such case, a "Stock Disposition"),
except to the Company or to a Principal Utility Subsidiary,
unless within 180 days of such Stock Disposition, the Company
applies (or causes such Principal Utility Subsidiary to apply)
all of the Net Available Cash (as defined below) from such Stock
Disposition (i) to prepay, repay, purchase, repurchase, redeem,
retire, defease or otherwise acquire for value Debt of the
Company and/or Debt of one or more Domestic Regulated Utility
Subsidiaries that remain a subsidiary of the Company and/or (ii)
to reinvest in the business of one or more Domestic Regulated
Utility Subsidiaries. For purposes of this restriction, a Stock
Disposition shall be treated as a separate transaction and not
part of a series of transactions if it occurs 180 days or more
after another Stock Disposition.
"Principal Utility Subsidiary" means Entergy Arkansas, Inc.,
Entergy Gulf States, Inc., Entergy Louisiana, Inc., Entergy
Mississippi, Inc., System Energy Resources, Inc. and any other
Domestic Regulated Utility Subsidiary (i) the total assets (after
intercompany eliminations) of which exceed 20% of total assets of
the Company and the total assets of its subsidiaries or (ii) the
net worth of which exceeds 20% of the Consolidated Net Worth of
the Company and its subsidiaries, in each case as shown on the
most recent audited consolidated balance sheet of the Company and
its subsidiaries. In no event shall "Principal Utility
Subsidiary" include any Domestic Regulated Utility Subsidiary
that as of September 30, 2002, (i) had total assets (after
intercompany eliminations) which were 5% or less of the Company's
total assets and the total assets of its subsidiaries at such
date or (ii) had a net worth which was 5% or less of the
Consolidated Net Worth of the Company and its subsidiaries at
such date.
"Net Available Cash" from a Stock Disposition means cash payments
received therefrom net of all legal, title and recording tax
expenses, commissions and other fees and expenses incurred, and
all federal, state and local taxes required to be paid or accrued
as a liability under United States generally accepted accounting
principles, as a result of such Stock Disposition.
(c) Insurance. The Company will maintain insurance with
responsible and reputable insurance companies or associations or
through its own program of self-insurance in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same
general areas in which it operates and furnish to the Trustee,
within a reasonable time after written request therefor, such
information as to the insurance carried as the Trustee may
reasonably request;
(d) Compliance with Law. The Company will comply in all
material respects with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation,
paying before the same become delinquent all taxes, assessments
and governmental charges imposed upon it or its property, except
to the extent being contested in good faith by appropriate
proceedings, and compliance with ERISA and Environmental Laws.
"Environmental Laws" means any federal, state or local laws,
ordinances or codes, rules, orders, or regulations relating to
pollution or protection of the environment, including, without
limitation, laws relating to hazardous substances, laws relating
to reclamation of land and waterways and laws relating to
emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes into the environment (including,
without limitation, ambient air, surface water, ground water,
land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollution, contaminants,
chemicals, or industrial, toxic or hazardous substances or
wastes; and
(e) Reports to Holders of Senior Notes. The Company will
deliver documents and reports specified in Section 1002 of the
Indenture to the Holders of Senior Notes.
11. So long as any Senior Notes remain Outstanding, each of the
following events will constitute an "Event of Default" with
respect to the Senior Notes in addition to those Events of
Default specified in Section 801 of the Indenture:
(a) Failure to pay any principal of or premium or interest on
any Debt of the Company that is outstanding in a principal amount
in excess of $50,000,000 in the aggregate, including such a
failure with respect to Securities of another series, when the
same becomes due and payable, whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise, and such
failure continues after the expiration of any applicable grace
period specified in the agreement or instrument relating to such
Debt; or
(b) Failure by the Company or any Significant Subsidiary to
generally pay its debts as such debts become due, or admission in
writing of its inability to pay debts generally, or making a
general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Company or any
Significant Subsidiary seeking to adjudicate the Company or any
such Significant Subsidiary a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding
shall remain undismissed or unstayed for a period of 30 days, or
any of the actions sought in such proceeding, including, without
limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property,
shall occur; or the Company or any Significant Subsidiary shall
take any corporate action to authorize or to consent to any of
the actions set forth in this clause (b); or
(c) Any judgment or order for the payment of money in excess of
$25,000,000 has been rendered against the Company and either (i)
enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of
10 consecutive Business Days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
12. (a) So long as any Senior Notes remain Outstanding, the
first sentence of Section 802 of the Indenture shall read, and
shall be applicable to the Senior Notes, as follows:
"If an Event of Default applicable to the Securities of any
series but not applicable to other series of Outstanding
Securities shall have occurred and be continuing or, if a
Prepayment Event (as defined below) with respect to the
Senior Notes shall have occurred and be continuing, either
the Trustee or the Holders of a majority in aggregate
principal amount of the Securities of such series or the
Senior Notes, as the case may be, may then declare the
principal amount (or, if any of the Securities of such
series are Discount Securities, such portion of the
principal amount as may be specified in the terms thereof as
contemplated by Section 301) of all Securities of such
series or the Senior Notes, as the case may be, and interest
accrued thereon to be due and payable immediately."
(b) For the purposes of paragraph 12(a) above, "Prepayment
Event" means the occurrence of any event or the existence of any
condition under any agreement or instrument relating to Debt of a
Significant Subsidiary that is outstanding in a principal amount
in excess of $50,000,000 in the aggregate, which occurrence or
event results in the declaration of such Debt being due and
payable, or such Debt being required to be prepaid (other than by
a regularly scheduled required prepayment), prior to the stated
maturity thereof.
(c) So long as any Senior Notes remain Outstanding,
notwithstanding anything set forth in Section 802 of the
Indenture, the Senior Notes shall become automatically due and
payable upon an actual entry of an order for relief under the
United States federal bankruptcy code with respect to the Company
or any Significant Subsidiary.
13. The Senior Notes shall have such other terms and provisions
as are provided in the form thereof set forth in Exhibit A
hereto, and shall be issued in substantially such form.
14. The Senior Notes shall be initially issued in global form
registered in the name of Cede & Co. (as nominee of DTC, the
initial securities depository for the Senior Notes; provided,
that the Company reserves the right to provide for another
depository, registered as a clearing agency under the Exchange
Act, to act as depository for the global Senior Notes (DTC and
any such successor depository, the "Depository"); except in
connection with a transfer of a Senior Note to an IAI, as
described in paragraph 16 below, beneficial interests in Senior
Notes issued in global form may not be exchanged in whole or in
part for individual certificated Senior Notes in definitive form,
and no transfer of a global Senior Note in whole or in part may
be registered in the name of any Person other than the Depository
or its nominee except that (i) if the Depository (A) has notified
the Company that it is unwilling or unable to continue as
depository for the global Senior Notes or (B) has ceased to be a
clearing agency registered under the Exchange Act or other
applicable statute or regulation and, in either case, a successor
depository for such global Senior Notes has not been appointed by
the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, (ii) if the Company, in
its sole discretion, determines that the Senior Notes will no
longer be represented by Senior Notes in global form or (iii) if
an Event of Default with respect to the Senior Notes has occurred
and is continuing, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and
delivery of definitive Senior Notes, will authenticate and
deliver Senior Notes in definitive certificated form in an
aggregate principal amount equal to the principal amount of the
global Senior Notes representing such Senior Notes in exchange
for such global Senior Notes, such definitive Senior Notes to be
registered in the names provided by the Depository to the
Trustee; each global Senior Note (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount
of the Outstanding Senior Notes to be represented by such global
Senior Note, (ii) shall be registered in the name of the
Depository or its nominee, (iii) shall be delivered by the
Trustee to the Depository, its nominee, any custodian for the
Depository or otherwise pursuant to the Depository's instructions
and (iv) shall bear a legend restricting the transfer of such
global Senior Note to any person other than the Depository or its
nominee; none of the Company, the Trustee, any Paying Agent or
any Authenticating Agent will have any responsibility or
liability for any aspect of the records relating to, or payments
made on account of, beneficial ownership interests in a global
Senior Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
15. The Senior Notes will be issued and sold by the Company
pursuant to Section 4(2) of the Securities Act or in offshore
transactions to persons other than U.S. persons as defined in
Regulation S under the Securities Act in reliance on such
Regulation S. Except for Senior Notes issued to foreign
purchasers after the expiration of the 40-day distribution
compliance period under Regulation S under the Securities Act or
in substitution or exchange therefor, each Senior Note, whether
in a global form or in a certificated form, shall bear the non-
registration legend in substantially the form set forth in such
form set forth in Exhibit A hereto. By its acquisition of any
Senior Notes, each Holder will be deemed to have agreed to the
transfer restrictions contained in such legend and the other
procedures and requirements relating to a transfer of Senior
Notes. Nothing in the Indenture, the Senior Notes or this
certificate shall be construed to require the Company to register
any Senior Notes under the Securities Act, unless otherwise
expressly agreed by the Company, confirmed in writing to the
Trustee, or to make any transfer of such Senior Notes in
violation of applicable law.
16. It is contemplated that (i) beneficial interests in Senior
Notes owned by qualified institutional buyers (as defined in Rule
144A under the Securities Act) ("QIBs") or sold to QIBs in
reliance upon Rule 144A under the Securities Act will be
represented by one or more separate certificates in global form
(each, a "QIB Global Certificate") registered in the name of Cede
& Co., as registered owner and as nominee for DTC; (ii)
beneficial interests in Senior Notes sold to foreign purchasers
pursuant to Regulation S under the Securities Act will be
evidenced by one or more separate certificates in global form
(each, a "Regulation S Global Certificate") registered in the
name of Cede & Co., as registered owner and as nominee for DTC,
initially, for the accounts of Euroclear Bank S.A./N.V., as
operator of the Euroclear System ("Euroclear"), or Clearstream
Banking, societe anonyme, Luxembourg ("Clearstream Luxembourg"),
it being understood that prior to the 40th day after the date of
initial issuance of the Senior Notes, beneficial interests in a
Regulation S Global Certificate may be held only through
Euroclear or Clearstream Luxembourg; and (iii) Senior Notes
transferred to institutional "accredited investors" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
("IAIs"), who are not QIBs and who are not foreign purchasers
pursuant to Regulation S under the Securities Act, will be in
certificated form. The Trustee, the Security Registrar and the
Company will have no responsibility under the Indenture for
transfers of beneficial interests in the Senior Notes in global
form, which transfers will be conducted pursuant to the customary
procedures of the Depository.
In connection with any transfer of Senior Notes, the
Trustee, the Security Registrar and the Company shall be
under no duty to inquire into, may conclusively presume the
correctness of, and shall be fully protected in relying upon
the certificates and other information (in the forms
attached hereto as Exhibit A-1, for use in connection with
the transfer of the Senior Notes in certificated form, or
Exhibit A-2, for use in connection with the transfer of
beneficial interests in one certificate in global form to
another certificate in global form or to a Senior Note in
certificated form, or otherwise) received from the Holders
and any transferees of any Senior Notes regarding the
validity, legality and due authorization of any such
transfer, the eligibility of the transferee to receive such
Senior Notes and any other facts and circumstances related
to such transfer. Transfers of beneficial interests between
a QIB Global Certificate and a Regulation S Global
Certificate, and other transfers relating to interests in
the Senior Notes in global form, shall be reflected by
endorsements of the Trustee, as custodian for the
Depository, on the schedule attached to such certificate.
17. (a) The undersigned has read all of the covenants and
conditions contained in the Indenture, and the definitions in the
Indenture relating thereto, relating to the issuance,
authentication and delivery of the Senior Notes and in respect of
compliance with which this certificate is made;
(b) The statements contained in this certificate are based upon
the familiarity of the undersigned with the Indenture, the
documents accompanying this certificate, and upon discussions by
the undersigned with officers and employees of the Company
familiar with the matters set forth herein;
(c) In the opinion of the undersigned, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenants
and conditions have been complied with; and
(d) In the opinion of the undersigned, such conditions and
covenants and conditions precedent provided for in the Indenture
(including any covenants compliance with which constitutes a
condition precedent) relating to the authentication and delivery
of the Senior Notes requested in the accompanying Company Order
No. 4, have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this 14th day of May, 2003.
/s/ Steven C. McNeal
Steven C. McNeal
Vice President and Treasurer
EXHIBIT A
[depository legend for Senior Notes in global form]
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for registration
of transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
[non-registration legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT "), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR "(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR ") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION
OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE ISSUER HEREOF OR ONE OF ITS
SUBSIDIARIES, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE (OR
A SUCCESSOR TRUSTEE, AS APPLICABLE), A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER IS ATTACHED TO THIS SECURITY) AND, IF REQUESTED BY THE
ISSUER, AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER
HEREOF TO THE EFFECT THAT THE PROPOSED TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR PURSUANT TO ANOTHER
AVAILABLE EXEMPTION UNDER THE SECURITIES ACT, (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (F)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT,
PROVIDED THAT THE FOREGOING AGREEMENT OF THE HOLDER IS SUBJECT TO
ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF THE PROPERTY OF
THE HOLDER OR ANY INVESTOR ACCOUNTS FOR WHICH THE HOLDER IS
ACTING SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS OR THEIR
CONTROL; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY
TO DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFEREE IS
AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE PROPOSED TRANSFER
IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE
903 OR RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR PURSUANT TO ANOTHER
AVAILABLE EXEMPTION UNDER THE SECURITIES ACT, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO DEUTSCHE BANK TRUST COMPANY
AMERICAS, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE),
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
ISSUER HEREOF MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF
THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE
2(E) ABOVE OR UPON ANY TRANSFER OF THIS SECURITY UNDER RULE
144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).
No. R- CUSIP No.__________
[FORM OF FACE OF SENIOR NOTE]
ENTERGY CORPORATION
6.58% SENIOR NOTES DUE MAY 15, 2010
Entergy Corporation, a corporation duly organized and
existing under the laws of the State of Delaware (herein referred
to as the "Company", which term includes any successor Person
under the Indenture), for value received, hereby promises to pay
to
or registered assigns, the principal sum [of _____________________
Dollars] [listed on Schedule I hereto] on May 15, 2010, and to
pay interest on said principal sum semi-annually on May 15 and
November 15 of each year commencing November 15, 2003 (each an
Interest Payment Date) at the rate of 6.58% per annum, until the
principal hereof is paid or made available for payment and to pay
interest, to the extent permitted by law, on any overdue
principal and interest, at the rate of 6.58% per annum.
Interest on the Securities of this series will accrue from, and
include, May 14, 2003, to the first Interest Payment Date, and
thereafter will accrue from the last Interest Payment Date to
which interest has been paid or duly provided for. In the event
that any Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of such delay) with the same force
and effect as if made on the Interest Payment Date. The interest
so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
15th calendar day next preceding such Interest Payment Date,
provided, however, that interest payable at Maturity will be paid
to the Person to whom principal is paid. Any such interest not
so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the
Indenture referred to on the reverse hereof.
Payment of the principal of, and premium, if any, and
interest on this Security will be made upon presentation at the
office or agency of the Company maintained for that purpose in
The City of New York, the State of New York in such coin or
currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts,
provided, however, that, at the option of the Company, interest
on this Security (other than at Maturity) may be paid by check
mailed to the address of the person entitled thereto, as such
address shall appear on the Security Register or by wire transfer
to an account designated by the person entitled thereto; and
provided further, that so long as any Securities of this series
are registered in the name of The Depository Trust Company or a
nominee thereof (or any successor), all payments of principal,
premium, if any, and interest in respect of the Securities of
this series in global form will be made in immediately available
funds.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place. Any capitalized term which is used herein
and not otherwise defined shall have the meaning ascribed to such
term in the Indenture.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed.
ENTERGY CORPORATION
By:________________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as Trustee
By:________________________________
Authorized Signatory
[FORM OF REVERSE OF SENIOR NOTE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture
(For Unsecured Debt Securities), dated as of December 1, 2002
(herein, together with any amendments thereto, called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and Deutsche Bank Trust
Company Americas, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture, including the Board
Resolutions and Officer's Certificate filed with the Trustee on
May 14, 2003 creating the series designated on the face hereof,
for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and
the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities of this series will be redeemable at the
option of the Company prior to the Stated Maturity (each a
"Redemption Date"), in whole or in part, at any time. The
Company will give notice of its intent to redeem such Securities
of this series at least 30 days prior to the Redemption Date. If
the Company redeems all or any part of the Securities of this
series, it will pay a Redemption Price (the "Redemption Price")
equal to the greater of
(1) 100% of the principal amount of the Securities of this
series being redeemed, or
(2) as determined by the Independent Investment Banker, the
sum of the present values of the remaining scheduled payments of
principal of and interest on the Securities of this series being
redeemed (excluding the portion of any such interest accrued to
the Redemption Date), discounted (for purposes of determining
such present values) to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate plus 0.50%,
plus, in each case, accrued and unpaid interest on the
Securities of this series being redeemed to the Redemption Date.
"Adjusted Treasury Rate" means, with respect to any
Redemption Date:
(1) the yield, under the heading which represents the
average for the immediately preceding week, appearing in the
most recently published statistical release designated
"H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve
System and which establishes yields on actively traded
United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities,"
for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after
the remaining term of the Securities of this series, yields
for the two published maturities most closely corresponding
to the Comparable Treasury Issue shall be determined and the
Adjusted Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the
nearest month); or
(2) if such release (or any successor release) is not
published during the week preceding the calculation date for
the Adjusted Treasury Rate or does not contain such yields,
the rate per annum equal to the semi-annual equivalent yield
to maturity of the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date. The
Adjusted Treasury Rate shall be calculated on the third
Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having
a maturity comparable to the remaining term of the Securities of
this series that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of the Securities of this series.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (1) the average of five Reference Treasury
Dealer Quotations for such Redemption Date after excluding the
highest and lowest such Reference Treasury Dealer Quotations or
(2) if the Independent Investment Banker obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations.
"Independent Investment Banker" means Morgan Stanley & Co.
Incorporated or, if such firm is unwilling or unable to select
the Comparable Treasury Issue, an independent investment banking
institution of national standing appointed by the Company.
"Reference Treasury Dealer" means (1) Morgan Stanley & Co.
Incorporated and its successors; provided, however, that if such
firm shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the
Company will substitute therefor another Primary Treasury Dealer,
and (2) any other Primary Treasury Dealer selected by the
Independent Investment Banker after consultation with the
Company.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any Redemption Date, the
average, as determined by the Independent Investment Banker, of
the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount)
quoted in writing to the Independent Investment Banker at 5:00
p.m. on the third Business Day preceding such Redemption Date.
The Company shall deliver to the Trustee before any
Redemption Date for the Securities of this series its calculation
of the Redemption Price applicable to such redemption. The
Trustee shall be under no duty to inquire into, may presume the
correctness of, and shall be fully protected in acting upon the
Company's calculation of any Redemption Price of the Securities
of this series.
In lieu of stating the Redemption Price, notices of
redemption of the Securities of this series shall state
substantially the following: "The Redemption Price of the
Securities of this series to be redeemed shall equal the sum of
(a) the greater of (i) 100% of the principal amount of such
Senior Notes, or (ii) as determined by the Independent Investment
Banker, the sum of the present values of the remaining scheduled
payments of principal of and interest on the Senior Notes being
redeemed (excluding the portion of any such interest accrued to
the redemption date), discounted (for purposes of determining
such present values) to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate plus 0.50%."
If at the time notice of redemption is given, the redemption
moneys are not on deposit with the Trustee, then the redemption
shall be subject to their receipt on or before the Redemption
Date and such notice shall be of no effect unless such moneys are
received.
Upon payment of the Redemption Price, on and after the
Redemption Date, interest will cease to accrue on the Securities
of this series or portions thereof called for redemption.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Security upon compliance with
certain conditions set forth in the Indenture including the
Officer's Certificate described above.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
Each Holder shall be deemed to understand that the offer and
sale of the Securities of this series have not been registered
under the Securities Act and that the Securities of this series
may not be offered or sold except as permitted in the non-
registration legend on the face of this Security.
This Security shall be governed by and construed in
accordance with the laws of the State of New York (including
without limitation Section 5-1401 of the New York General
Obligations Law or any successor statute), except to the extent
that the law of any other jurisdiction shall be mandatorily
applicable.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of all series to
be affected. The Indenture contains provisions permitting the
Holders of a majority in aggregate principal amount of the
Securities of all series then Outstanding to waive compliance by
the Company with certain provisions of the Indenture. The
Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the
Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of a
majority in aggregate principal amount of the Securities of all
series at the time Outstanding in respect of which an Event of
Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred in compliance with
such request, and the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of Securities
of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing a
direction inconsistent with such request, and shall have failed
to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall
not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and in
integral multiples thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is
registered as the absolute owner hereof for all purposes, whether
or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture and in the Officer's Certificate establishing the terms
of the Securities of this series.
SCHEDULE I
[QIB][REGULATION S] GLOBAL CERTIFICATE
The initial principal amount of Securities evidenced by this
global certificate is $__________.
CHANGES TO PRINCIPAL AMOUNT OF SECURITIES EVIDENCED BY
GLOBALCERTIFICATE
Date Principal Remaining Notation Made
Amount of Principal by
Securities by Amount of
which this Securities
Global Represented by
Certificate is this Global
to be Reduced Certificate
or Increased,
and Reason for
Reduction or
Increase
EXHIBIT A-1
(FOR DEFINITIVE NOTES)
[CERTIFICATE OF TRANSFER]
Entergy Corporation
6.58% Senior Notes due May 15, 2010
FOR VALUE RECEIVED, the undersigned sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Name and address of assignee must be printed or typewritten.
the within Security of the Company and does hereby irrevocably
constitute and appoint
to transfer the said Security on the books of the within-named
Company, with full power of substitution in the premises.
The undersigned certifies that said Security is being resold,
pledged or otherwise transferred as follows: (check one)
to the Company or one of its subsidiaries;
to a Person whom the undersigned reasonably believes is a
qualified institutional buyer within the meaning of Rule
144A under the Securities Act of 1933, as amended (the
"Securities Act");
in an offshore transaction in accordance with Rule 903 or
Rule 904 of Regulation S under the Securities Act;
to an institution that is an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act in a minimum principal amount of $250,000 for
its own account or in a minimum principal amount of $250,000
for the account of another such "accredited investor"
(attach a copy of an Accredited Investor Certificate in the
form annexed signed by an authorized officer of the
transferee);
as otherwise permitted by the non-registration legend
appearing on this Security; or
as otherwise agreed by the Company, confirmed in writing to
the Trustee, as follows: [describe]
Dated: ______________
[FORM OF ACCREDITED INVESTOR CERTIFICATE]
[Transferor Name and Address]
Ladies and Gentlemen:
In connection with our proposed purchase of 6.58% Senior
Notes due May 15, 2010 (the "Senior Notes") issued by Entergy
Corporation (the "Issuer") we confirm that:
1. We understand that any subsequent transfer of the
Senior Notes is subject to certain restrictions and
conditions set forth in the Indenture relating to the Senior
Notes, including the officer's certificate establishing the
terms of the Senior Notes (the "Indenture"), and that any
subsequent transfer of the Senior Notes is subject to
certain restrictions and conditions set forth in the
Indenture and the Senior Notes and the undersigned agrees to
be bound by, and not to resell, pledge or otherwise transfer
the Senior Notes except in compliance with, such
restrictions and conditions and the Securities Act of 1933,
as amended ("Securities Act").
2. We understand that the offer and sale of the Senior
Notes have not been registered under the Securities Act, and
that the Senior Notes may not be offered or sold except as
permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we sell any Senior Notes, we
will do so only (A) to the Company or one of its
subsidiaries, (B) to a person whom we reasonably believe is
a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act, (C) to an institutional
"accredited investor" (as defined below) that, prior to such
transfer, furnishes to the Trustee (as defined in the
Indenture) a signed letter containing certain
representations and agreements relating to the restrictions
on transfer of the Senior Notes (substantially in the form
of this letter), (D) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act
(if available) or pursuant to another available exemption
under the Securities Act, (E) pursuant to an effective
registration statement under the Securities Act, or (F)
outside the United States in an offshore transaction in
accordance with Rule 903 or Rule 904 of Regulation S under
the Securities Act and we further agree to provide to any
person purchasing any of the Senior Notes from us a notice
advising such purchaser that resales of the Senior Notes are
restricted as stated herein.
3. We understand that, in connection with certain proposed
resales of any Senior Note, we will be required to furnish
to the Trustee and Company such certifications, legal
opinions and other information as the Trustee and Company
may reasonably require to confirm that the proposed resale
complies with the foregoing restrictions. We further
understand that the Senior Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act) and have such knowledge and
experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment
in the Senior Notes, and we and any accounts for which we
are acting are each able to bear the economic risk of our or
its investment.
5. We are acquiring the Senior Notes purchased by us for
our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of
which we exercise sole investment discretion in a minimum
principal amount of $250,000 for our own account or in a
minimum principal amount of $250,000 for such other
accounts.
You, the Issuer and the Trustee are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters
covered hereby.
Very truly yours,
By: ___________________________
Name:
Title:
EXHIBIT A-2
(FOR GLOBAL NOTES)
[CERTIFICATE OF TRANSFER]
ENTERGY CORPORATION
6.58% Senior Notes due May 15, 2010
FOR VALUE RECEIVED, the undersigned sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Name and address of assignee must be printed or typewritten.
$__________________________________________________
principal amount of beneficial interest in the referenced
Security of the Company and does hereby irrevocably constitute
and appoint
to transfer the said beneficial interest in such Security, with
full power of substitution in the premises.
The undersigned certifies that said beneficial interest in said
Security is being resold, pledged or otherwise transferred as
follows: (check one)
to the Company or one of its subsidiaries;
to a Person whom the undersigned reasonably believes is a
qualified institutional buyer within the meaning of Rule
144A under the Securities Act of 1933, as amended (the
"Securities Act");
in an offshore transaction in accordance with Rule 903 or
Rule 904 of Regulation S under the Securities Act;
to an institution that is an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities in a minimum principal amount of $250,000 for its
own account or in a minimum principal amount of $250,000 for
the account of another such "accredited investor" (attach a
copy of an Accredited Investor Certificate in the form
annexed signed by an authorized officer of the transferee);
as otherwise permitted by the non-registration legend
appearing on this Security; or
as otherwise agreed by the Company, confirmed in writing to
the Trustee, as follows: [describe]
Dated:____________________________
All terms used in this certificate which are defined in the
Indenture pursuant to which said Security was issued shall have
the meanings assigned to them in the Indenture.
[FORM OF ACCREDITED INVESTOR CERTIFICATE]
[Transferor Name and Address]
Ladies and Gentlemen:
In connection with our proposed purchase of 6.58% Senior
Notes due May 15, 2010 (the "Senior Notes") issued by Entergy
Corporation (the "Issuer"), we confirm that:
1. We understand that any subsequent transfer of the
Senior Notes is subject to certain restrictions and
conditions set forth in the Indenture relating to the Senior
Notes (the "Indenture"), and that any subsequent transfer of
the Senior Notes is subject to certain restrictions and
conditions set forth in the Indenture and the Senior Notes
and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Senior Notes except
in compliance with, such restrictions and conditions and the
Securities Act of 1933, as amended ("Securities Act").
2. We understand that the offer and sale of the Senior
Notes have not been registered under the Securities Act, and
that the Senior Notes may not be offered or sold except as
permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we sell any Senior Notes, we
will do so only (A) to the Company or one of its
subsidiaries, (B) to a person whom we reasonably believe is
a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act, (C) to an institutional
"accredited investor" (as defined below) that, prior to such
transfer, furnishes to the Trustee (as defined in the
Indenture) a signed letter containing certain
representations and agreements relating to the restrictions
on transfer of the Senior Notes (substantially in the form
of this letter), (D) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act
(if available) or pursuant to another available exemption
under the Securities Act, (E) pursuant to an effective
registration statement under the Securities Act, or (F)
outside the United States in an offshore transaction in
accordance with Rule 903 or Rule 904 of Regulation S under
the Securities Act, and we further agree to provide to any
person purchasing any of the Senior Notes from us a notice
advising such purchaser that resales of the Senior Notes are
restricted as stated herein.
3. We understand that, in connection with any proposed
resales of any Senior Notes, we will be required to furnish
to the Trustee and Company such certifications, legal
opinions and other information as the Trustee and Company
may reasonably require to confirm that the proposed resale
complies with the foregoing restrictions. We further
understand that the Senior Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act) and have such knowledge and
experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment
in the Senior Notes, and we and any accounts for which we
are acting are each able to bear the economic risk of our or
its investment.
5. We are acquiring the Senior Notes purchased by us for
our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of
which we exercise sole investment discretion in a minimum
principal amount of $250,000 for our own account or in a
minimum principal amount of $250,000 for such other
accounts.
You, the Issuer and the Trustee are entitled to rely upon
this letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters
covered hereby.
Very truly yours,
By: ___________________________
Name:
Title: