EXHIBIT B-1(b)
CONFORMED COPY
AMENDED AND RESTATED
REIMBURSEMENT AGREEMENT
AMONG
SYSTEM ENERGY RESOURCES, INC.,
THE CHASE MANHATTAN BANK,
as Administrating Bank
UNION BANK OF CALIFORNIA, N.A.,
as Documentation Agent,
THE BANK OF TOKYO-MITSUBISHI, LTD.,
LOS ANGELES BRANCH,
as Funding Bank
AND THE PARTICIPATING BANKS
NAMED HEREIN
DATED AS OF
DECEMBER 20, 1999
CHASE SECURITIES INC.
as Arranger and Book Manager
TABLE OF CONTENTS
Section Page
SECTION 1. Definitions 2
SECTION 2. Reimbursement and Advances 15
SECTION 3. Fees 22
SECTION 4. Change in Circumstances; Alternate Rate of
Interest 23
SECTION 5. Participations 25
SECTION 6. Payments 30
SECTION 7. Issuance of the Letters of Credit; Conditions
Precedent to Issuance 31
SECTION 8. Adjustment of Maximum Drawing Amounts and
Maximum Available Credit Amounts; Terms of
Drawing 35
SECTION 9. Obligations Absolute 35
SECTION 10. Representations and Warranties 36
SECTION 11. Affirmative Covenants 39
SECTION 12. Negative Covenants 42
SECTION 13. Reimbursement Events of Default; Prepayment
Events 44
SECTION 14. Amendments and Waivers 48
SECTION 15. Notices 49
SECTION 16. No Waiver; Remedies 49
SECTION 17. Right of Setoff 49
SECTION 18. Continuing Obligation 50
SECTION 19. Extension of Letters of Credit 50
SECTION 20. Limited Liability of the Banks 51
SECTION 21. Costs, Expenses and Taxes 51
SECTION 22. Indemnification 52
SECTION 23. Sales of Participations; Assignments 53
SECTION 24. Administrating Bank 54
SECTION 25. Termination by the Company 55
SECTION 26. Termination of Availability Agreement
Assignment 56
SECTION 27. Severability 56
SECTION 28. Governing Law; Jurisdiction; Consent to
Service of Process; Waiver of Jury Trial 56
SECTION 29. Headings 57
SECTION 30. Counterparts 57
Exhibit A Form of Irrevocable Transferable Letter of Credit
issued to Owner Participants
Exhibit 1 to Exhibit A
Exhibit 2 to Exhibit A
Exhibit 3 to Exhibit A
Exhibit 4 to Exhibit A
Exhibit 5 to Exhibit A
Exhibit 6 to Exhibit A
Exhibit 7 to Exhibit A
Schedule I to Exhibit A
Schedule II to Exhibit A
Schedule III to Exhibit A
Exhibit B Form of Notice of Drawing
Exhibit C Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, as
New York Counsel to the Company
Exhibit D-1 Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, as
New York Counsel to Entergy
Exhibit D-2 Form of Opinion of ▇▇▇ ▇. ▇▇▇, as Mississippi and
Louisiana Counsel to Entergy
Exhibit E-1 Form of Opinion of ▇▇▇ ▇. ▇▇▇, as Mississippi
Counsel to the Company
Exhibit E-2 Form of Opinion of Friday, Elredge & ▇▇▇▇▇, as
Arkansas Counsel to the Company
Exhibit F-1 Form of Opinion of ▇▇▇ ▇. ▇▇▇, as Mississippi
Counsel to EMI
Exhibit F-2 Form of Opinion of Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
Arkansas Counsel to EAI
Exhibit F-3 Form of Opinion of ▇▇▇ ▇. ▇▇▇, as Louisiana
Counsel to ▇▇▇
Exhibit F-4 Form of Opinion of ▇▇▇ ▇. ▇▇▇, as Louisiana
Counsel to ENOI
Exhibit G Form of Opinion of King & Spalding, as Special
Counsel to the Administrating Bank and the
Participating Banks
Exhibit H Form of Thirty-Third Supplementary Capital Funds
Agreement and Assignment
Exhibit I Form of Thirty-Third Assignment of Availability
Agreement, Consent and Agreement
Schedule 1 Participating Banks' Risk Percentages
Schedule 2 Beneficiaries and Amounts of Letters of Credit to
be Issued
Appendix A Definitions
AMENDED 1AND RESTATED REIMBURSEMENT AGREEMENT dated as of
December 20, 1999, among SYSTEM ENERGY RESOURCES, INC., an
Arkansas corporation (the "Company"), THE BANK OF TOKYO-
MITSUBISHI, LTD., a foreign banking corporation organized under
the laws of Japan acting through its Los Angeles Branch (the
"Funding Bank"), UNION BANK OF CALIFORNIA, N.A., as documentation
agent (the "Documentation Agent"), THE CHASE MANHATTAN BANK, a
New York banking corporation, as administrating bank (the
"Administrating Bank") and the banks listed on the signature
pages hereof under the heading "Participating Banks" (each, a
"Participating Bank" and, collectively, the "Participating
Banks").
WHEREAS the Company entered into two Participation
Agreements dated as of December 1, 1988, each among (i) the
Company, (ii) Meridian Trust Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for
themselves and as Owner Trustees (the "Owner Trustee"), (iii) the
Original Loan Participants, (iv) the GG1A Funding Corporation, as
Funding Corporation, (v) Bankers Trust Company and ▇▇▇▇▇▇▇ ▇▇▇▇,
for themselves and as Indenture Trustees (the "Indenture
Trustee"), and (vi) each of Public Service Resources Corporation
and Lease Management Realty Corporation IV, as applicable, as
Owner Participant (each, an "Initial Owner Participant" and,
collectively, the "Initial Owner Participants") and each relating
to the acquisition of an undivided interest in the Grand Gulf
Nuclear Station Unit No. 1 located in Claiborne County,
Mississippi ("Unit 1") through a trust for the benefit of each
such Initial Owner Participant (each, a "Participation Agreement"
and, collectively, the "Participation Agreements"), each of which
undivided interest was and continues to be leased to the Company
pursuant to a Facility Lease dated as of December 1, 1988, among
the Owner Trustee and the Company and for the benefit of each
such Initial Owner Participant and its successors, as
supplemented by a Lease Supplement dated as of April 1, 1989 and
as supplemented by a Lease Supplement dated as of January 1, 1994
(each, a "Facility Lease" and, collectively, the "Facility
Leases");
WHEREAS it was a condition precedent to the obligation of
the Owner Trustee to make available, on behalf of the Initial
Owner Participants, the Purchase Price of its Undivided Interest
in Unit 1 that the predecessor to the Funding Bank issue to each
Initial Owner Participant an irrevocable letter of credit
substantially in the form of Exhibit A to the Original
Reimbursement Agreement as defined below (collectively, the
"Original Letters of Credit") and in connection therewith, the
Company, the predecessor to the Funding Bank, the predecessor to
the Administrating Bank and certain Participating Banks entered
into the Reimbursement Agreement dated as of December 1, 1988
(the "Original Reimbursement Agreement");
WHEREAS the Original Reimbursement Agreement was amended on
January 11, 1991, and on December 17, 1993, and, as so amended,
was amended and restated on December 27, 1996 (the "1996 Amended
and Restated Reimbursement Agreement");
WHEREAS the Company, the Administrating Bank, the Funding
Bank and the Participating Banks wish to amend and restate the
1996 Amended and Restated Reimbursement Agreement in the manner,
on the terms and subject to the conditions set forth in this
Agreement;
WHEREAS the Funding Bank is willing, subject to the terms of
this Agreement, to issue to each Owner Participant (as defined in
Section 1) a new irrevocable Letter of Credit substantially in
the form of Exhibit A hereto (each a "Letter of Credit", and,
collectively, the "Letters of Credit").
NOW, THEREFORE, the Funding Bank, the Administrating Bank,
the Participating Banks and the Company hereby agree as follows:
SECTION 1. Definitions. (a) Capitalized terms used herein
and not otherwise defined herein shall have the respective
meanings assigned thereto in Appendix A hereto. The following
terms, as used herein, have the following respective meanings
(such meanings to be applicable to both the singular and plural
forms of the terms defined):
"ABR", when used in reference to any drawing under a
Letter of Credit or any Advance or Borrowing, refers to
whether such drawing, Advance, or the Advances comprising
such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
"ABR Advance" means an Advance in respect of which the
Company has selected in accordance with Section 2(e)(i)
hereof, or this Agreement otherwise provides for, interest
to be computed on the basis of the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any
Eurodollar Rate Advance for any Interest Period, an interest
rate per annum (rounded upwards, if necessary, to the next
1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrating Bank" has the meaning set forth in the
preamble hereto.
"Advance" means any DLE Initial Advance, DLE Term
Advance, EOL Initial Advance or EOL Term Advance, and
"Advances" means DLE Initial Advances, DLE Term Advances,
EOL Initial Advances and EOL Term Advances collectively.
"Aggregate Maximum Credit Amount" means
$192,946,933.64.
"Agreement" means this Amended and Restated
Reimbursement Agreement, as the same may from time to time
be amended, supplemented or modified.
"Alternate Base Rate" means, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1%
and (c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall
mean the rate of interest per annum publicly announced from
time to time by the Administrating Bank as its prime rate in
effect at its principal office in New York City; each change
in the Prime Rate shall be effective on the date such change
is announced. For purposes hereof, "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserve Rate and
(b) the Assessment Rate. "Three-Month Secondary CD Rate"
shall mean, for any day, the secondary market rate for three-
month certificates of deposit reported as being in effect on
such day (or, if such day shall not be a Business Day, the
next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of
New York (which rate will, under the current practices of
the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such
next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of
major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day
(or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrating Bank from
three New York City negotiable certificate of deposit
dealers of recognized standing selected by it. "Federal
Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of
such transactions received by the Administrating Bank from
three Federal funds brokers of recognized standing selected
by it. If for any reason the Administrating Bank shall have
determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Base CD
Rate or the Federal Funds Effective Rate, or both, for any
reason, including the inability or failure of the
Administrating Bank to obtain sufficient quotations in
accordance with the terms thereof, the Alternate Base Rate
shall be determined without regard to clause (b) or (c), or
both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate, respectively.
"Applicable Rate" means, for any day, (a) with respect
to any drawing under a Letter of Credit that bears interest
at a rate determined by reference to the Adjusted LIBO Rate
or any Eurodollar Rate Advance subsequently made by the
Participating Banks in order to reimburse such drawing
(including any Advances resulting from the subsequent
Conversion of such Eurodollar Rate Advance), (i) for the
period commencing on the date of such drawing (the "Draw
Date") to and including the 60th day following the Draw
Date, a rate per annum equal to the Adjusted LIBO Rate for
the Interest Period in effect plus (x) 1.250% per annum
during the Fixed Rate Period and (y) thereafter, if the SEC
Approval Date shall have occurred, the Eurodollar Spread set
forth below under the caption "Eurodollar Spread", based
upon the ratings by ▇▇▇▇▇'▇ & S&P, respectively, applicable
on such date to the Index Debt, (ii) for the period
following the 60th day following the Draw Date to and
including the 180th day following the Draw Date, the
Adjusted LIBO Rate in effect for such Interest Period plus
(x) 1.250% per annum during the Fixed Rate Period and (y)
thereafter, if the SEC Approval Date shall have occurred,
the Eurodollar Spread set forth below under the caption
"Eurodollar Spread", based upon the ratings by ▇▇▇▇▇'▇ and
S&P, respectively, applicable on such date to the Index Debt
plus 0.25% per annum and (iii) for the period following the
180th day following the Draw Date until the date that such
Advance is due and payable, the Adjusted LIBO Rate in effect
for such Interest Period plus (x) 1.250% per annum during
the Fixed Rate Period and (y) thereafter, if the SEC
Approval Date shall have occurred, plus the Eurodollar
Spread set forth below under the caption "Eurodollar
Spread", based upon the ratings by ▇▇▇▇▇'▇ and S&P,
respectively, applicable on such date to the Index Debt plus
1% per annum; and (b) with respect to the Participation Fees
payable hereunder, (x) 1.250% per annum during the Fixed
Rate Period and (y) thereafter, if the SEC Approval Date
shall have occurred, the rate per annum set forth below
under the caption "Participation Fee Rate", based upon the
ratings by ▇▇▇▇▇'▇ and S&P, respectively, applicable on such
date to the Index Debt:
Index Debt Eurodollar Spread Participation
Ratings: Fee Rate
Category 1 .625% .625%
A3/A-
Category 2 .750% .750%
Baa1/BBB+
Category 3 1.000% 1.000%
Baa2/BBB
Category 4 1.250% 1.250%
Baa3/BBB-
Category 5 2.000% 2.000%
Ba1/BB+
Category 6 2.500% 2.500%
Ba2/BB or lower
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or
S&P shall not have in effect a rating for the Index Debt
(other than by reason of the circumstances referred to in
the last sentence of this definition), then such rating
agency shall be deemed to have established a rating in
Category 6; (ii) if the ratings established or deemed to
have been established by ▇▇▇▇▇'▇ and S&P for the Index Debt
shall fall within different Categories, the Applicable Rate
shall be based on the lower of the two ratings; and (iii) if
the ratings established or deemed to have been established
by ▇▇▇▇▇'▇ and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of
▇▇▇▇▇'▇ or S&P), such change shall be effective as of the
date on which it is first announced by the applicable rating
agency. Each change in the Applicable Rate shall apply
during the period commencing on the effective date of such
change and ending on the date immediately preceding the
effective date of the next such change. If the rating
system of ▇▇▇▇▇'▇ or S&P shall change, or if either such
rating agency shall cease to be in the business of rating
corporate debt obligations, the Company and the Banks shall
negotiate in good faith to amend this definition to reflect
such changed rating system or the unavailability of ratings
from such rating agency and, pending the effectiveness of
any such amendment, the Applicable Rate shall be determined
by reference to the rating most recently in effect prior to
such change or cessation.
"Assessment Rate" means for any date the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%)
most recently estimated by the Administrating Bank as the
then current net annual assessment rate that will be
employed in determining amounts payable by the
Administrating Bank to the Federal Deposit Insurance
Corporation (or any successor) for insurance by such
Corporation (or such successor) of time deposits made in
dollars at the Administrating Bank's domestic offices.
"Availability Agreement" means the Availability
Agreement, dated as of June 21, 1974, among the Company and
the Operating Companies, as amended heretofore and as
amended from time to time.
"Availability Agreement Assignment" means the Thirty-
Third Assignment of Availability Agreement, Consent and
Agreement dated as of December 20, 1999, among the Company,
EAI, ▇▇▇, EMI, ENOI, and the Administrating Bank,
substantially in the form of Exhibit I, and as amended from
time to time in accordance with the terms of this Agreement.
"Bank" means the Funding Bank or any Participating
Bank.
"Board" means the Board of Governors of the Federal
Reserve System of the United States.
"Borrowing" means a borrowing consisting of Advances of
the same Type and Interest Period made on the same date by
the Participating Banks, ratably in accordance with their
respective Participation Percentages. A Borrowing may be
referred to herein as being a "Type" of Borrowing,
corresponding to the Type of Advances comprising such
Borrowing. For purposes of this Agreement, all Advances
made as, or Converted to, the same Type and Interest Period
on the same day shall be deemed a single Borrowing until
repaid or next Converted.
"Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in New York, New
York, or Los Angeles, California, are authorized or required
by law to close.
"Capital Funds Agreement" means the Capital Funds
Agreement dated as of June 21, 1974 between the Company and
Middle South Utilities, Inc. (the predecessor of Entergy),
as amended and supplemented heretofore and from time to
time.
"Closing Date" means December 20, 1999.
"Code" means the United States Internal Revenue Code of
1986, as amended, and the applicable regulations thereunder,
as the same may be amended from time to time.
"Collateral Agreements" means the Supplementary Capital
Funds Agreement, the Availability Agreement, and the
Availability Agreement Assignment.
"Company" has the meaning set forth in the preamble
hereto.
"Consolidated Capitalization" means at any time the
Consolidated Equity and all Long-Term Debt of the Company
and its Subsidiaries.
"Consolidated Common Equity" means at any time the
consolidated common stockholders' equity of the Company and
its Subsidiaries, but does not include goodwill.
"Consolidated Equity" means at any time the
consolidated common stockholders' equity, preference and
preferred stock of the Company and its Subsidiaries, but
does not include goodwill.
"Conversion", "Convert" or "Converted" each refers to a
conversion of Advances pursuant to Section 2(f) hereof,
including but not limited to any selection of a longer or
shorter Interest Period to be applicable to such Advances or
any conversion of an Advance as described in
Section 2(f)(iv) hereof.
"Date of Drawing" with respect to a Letter of Credit
has the meaning set forth in such Letter of Credit.
"Date of Early Termination" with respect to a Letter of
Credit has the meaning set forth in such Letter of Credit.
"Date of Issuance" with respect to the Letters of
Credit means the date on which the Letters of Credit are
issued upon request of the Company pursuant to Section 7(a)
hereof.
"Deemed Loss Event" has the meaning assigned to that
term in Appendix A to the Participation Agreements.
"Disclosure Documents" means the following documents,
all of which have been furnished to the Banks prior to the
Closing Date: (i) the Annual Report on Form 10-K with
respect to the Company for the year ended December 31, 1998;
(ii) the Quarterly Report on Form 10-Q with respect to the
Company for the quarter ended September 30, 1999; (iii) the
Annual Report on Form 10-K with respect to Entergy and
certain of its subsidiaries for the year ended December 31,
1998; (iv) the Quarterly Report on Form 10-Q with respect to
Entergy and certain of its subsidiaries for the quarter
ended September 30, 1999; and (v) the Current Reports on
Form 8-K with respect to Entergy and Entergy Gulf States,
Inc. dated January 7, 1999, April 27, 1999, July 23, 1999
and September 9, 1999.
"DLE Initial Advance" has the meaning assigned to that
term in Section 2(c)(iii) hereof, and refers to an ABR
Advance or a Eurodollar Rate Advance (each of which shall be
a "Type" of DLE Initial Advance). The Type of a DLE Initial
Advance may change from time to time when such DLE Initial
Advance is Converted. For purposes of this Agreement, all
DLE Initial Advances of a Participating Bank (or portions
thereof) made as, or Converted to, the same Type and
Interest Period on the same day shall be deemed a single DLE
Initial Advance by such Participating Bank until repaid or
next Converted.
"DLE Initial Advance Repayment Date" has the meaning
assigned to that term in Section 2(b)(iii) hereof.
"DLE Term Advance" has the meaning assigned to that
term in Section 2(c)(iv) hereof, and refers to an ABR
Advance or a Eurodollar Rate Advance (each of which shall be
a "Type" of DLE Term Advance). The Type of a DLE Term
Advance may change from time to time when such DLE Term
Advance is Converted. For purposes of this Agreement, all
DLE Term Advances of a Participating Bank (or portions
thereof) made as, or Converted to, the same Type and
Interest Period on the same day shall be deemed a single DLE
Term Advance by such Participating Bank until repaid or next
Converted.
"Documentation Agent" has the meaning set forth in the
preamble hereto.
"EAI" means Entergy Arkansas, Inc., an Arkansas
corporation.
"▇▇▇" means Entergy Louisiana, Inc., a Louisiana
corporation.
"EMI" means Entergy Mississippi, Inc., a Mississippi
corporation.
"ENOI" means Entergy New Orleans, Inc., a Louisiana
corporation.
"Entergy" means Entergy Corporation, a Delaware
corporation, formerly Middle South Utilities, Inc., and the
holder of all shares of the common stock of the Company as
of the date hereof.
"EOL Initial Advance" has the meaning assigned to that
term in Section 2(c)(i) hereof, and refers to an ABR Advance
or a Eurodollar Rate Advance (each of which shall be a
"Type" of EOL Initial Advance). The Type of a EOL Initial
Advance may change from time to time when such EOL Initial
Advance is Converted. For purposes of this Agreement, all
EOL Initial Advances of a Participating Bank (or portions
thereof) made as, or Converted to, the same Type and
Interest Period on the same day shall be deemed a single EOL
Initial Advance by such Participating Bank until repaid or
next Converted.
"EOL Initial Advance Repayment Date" has the meaning
assigned to that term in Section 2(b)(ii) hereof.
"EOL Term Advance" has the meaning assigned to that
term in Section 2(c)(ii) hereof, and refers to an ABR
Advance or a Eurodollar Rate Advance (each of which shall be
a "Type" of EOL Term Advance). The Type of an EOL Term
Advance may change from time to time when such EOL Term
Advance is Converted. For purposes of this Agreement, all
EOL Term Advances of a Participating Bank (or portions
thereof) made as, or Converted to, the same Type and
Interest Period on the same day shall be deemed a single EOL
Term Advance by such Participating Bank until repaid or next
Converted.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) that is a member of a group of which
the Company is a member and which is treated as a single
employer under Section 414 of the Code.
"Eurodollar", when used in reference to any Advance or
Borrowing, refers to whether such Borrowing, or the Advances
comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.
"Eurodollar Rate Advance" means an Advance in respect
of which the Company has selected in accordance with
Section 2(e)(iii) hereof interest to be computed on the
basis of the Adjusted LIBO Rate.
"Event of Default" means, unless otherwise specified,
an event defined as an Event of Default under the Facility
Leases.
"Event of Loss" has the meaning assigned to that term
in Appendix A to the Participation Agreements.
"Excepted Encumbrances" shall mean, as of any
particular time, any of the following:
(a) liens for taxes, assessments or governmental charges not
then delinquent and liens for workmen's compensation awards and
similar obligations not then delinquent and undetermined liens or
charges incidental to construction, and liens for taxes,
assessments or governmental charges then delinquent but the
validity of which is being contested at the time by the Company
in good faith and as to which adequate reserves shall have been
set aside on the books of the Company;
(b) any liens securing indebtedness, neither assumed nor
guaranteed by the Company nor on which it customarily pays
interest, existing upon real estate or rights in or relating to
real estate acquired by the Company for substation, transmission
line, transportation line, distribution line or right of way
purposes;
(c) rights reserved to or vested in any governmental authority
by the terms of any right, power, franchise, grant, license or
permit, or by any provision of law, to terminate such right,
power, franchise, grant, license or permit or to purchase or
recapture or to designate a purchaser of any of the property of
the Company;
(d) rights currently reserved to or vested in others to take or
receive any part of the power, gas, oil or other minerals or
timber generated, developed, manufactured or produced by, or
grown on, or acquired with, any property of the Company;
(e) easement, restrictions, exceptions or reservations in any
property and/or rights of way of the Company for the purpose or
roads, pipelines, substations, transmission lines, transportation
lines, distribution lines, removal of coal or other minerals or
timber, and other like purposes, or for the joint or common use
of real property, rights of way, facilities and/or equipment, and
defects, irregularities and deficiencies in titles of any
property and/or rights of way, which do not materially impair in
the aggregate the use of such property and/or rights of way for
the purposes for which such property and/or rights of way are
held by the Company;
(f) rights reserved to or vested in any governmental authority
to use, control or regulate any property of the Company;
(g) any obligations or duties, affecting the property of the
Company, to any governmental authority with respect to any
franchise, grant, license or permit; and
(h) any controls, liens, restrictions, regulations, easements,
exceptions or reservations of any governmental authority applying
particularly to nuclear fuel.
"Facility Leases" has the meaning set forth in the
preamble hereto.
"Fed Funds Rate" has the meaning set forth in
Section 5(a) hereof.
"Financing Documents" means, unless otherwise
specified, the Collateral Trust Indenture and the
Underwriting Agreement.
"First Mortgage Bonds" means first mortgage bonds at
any time issued by the Company under the Mortgage.
"Fixed Charge Ratio" has the meaning set forth in
Section 12(g) hereof.
"Fixed Rate Period" means the period commencing on the
Date of Issuance and ending on the later to occur of (a) the
date that is 15 months thereafter, and (b) the SEC Approval
Date.
"Funding Bank" has the meaning set forth in the
preamble hereto.
"Grand Gulf" means the Grand Gulf Nuclear Station
located in Claiborne County, including Unit 1.
"Holding Company Act" means the Public Utility Holding
Company Act of 1935, as amended.
"Indebtedness" of any Person means at any date, without
duplication, the following items to the extent required
under generally accepted accounting principles to be
disclosed in such Person's financial statements (including
the notes thereto): (i) all obligations of such Person for
borrowed money, or with respect to deposits or advances of
any kind; (ii) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments; (iii) all
obligations of such Person upon which interest charges are
customarily paid; (iv) all obligations under leases which
shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases
in respect of which such Person is liable as lessee; (v) all
obligations under the Facility Leases (regardless of
treatment in the financial statements or notes thereto);
(vi) all obligations with respect to any sale and leaseback
transaction permitted under Section 12(a)(v) hereof
(regardless of treatment in the financial statements or
notes thereto); (vii) liabilities in respect of unfunded
vested benefits under Plans, (viii) Withdrawal Liability
incurred under ERISA by such Person or any of its affiliates
to any Multiemployer Plan, (ix) reimbursement obligations of
such Person (whether contingent or otherwise) in respect of
letters of credit, bankers acceptances, surety or other
bonds and similar instruments, (x) the book value of any
asset of such Person upon which a Lien is imposed for the
purpose of securing Indebtedness of others; and
(xi) obligations of such Person under direct or indirect
guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness
or obligations of others of the kinds referred to above;
provided, however, that the liabilities in Sections (vii)
and (viii) above will only be counted as "Indebtedness" to
the extent that they are required to be capitalized on the
balance sheet of such Person under generally accepted
accounting principles.
"Indenture Event of Default" has the meaning assigned
to that term in Appendix A to the Participation Agreements.
"Index Debt" means senior, secured, long-term
indebtedness for borrowed money of the Company that is not
guaranteed by any other Person or subject to any other
credit enhancement.
"Interest Expense" has the meaning set forth in
Section 12(g) hereof.
"Interest Period" means with respect to any Eurodollar
Rate Advance, the period commencing on the date of such
Advance and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months
thereafter, as the Company may elect, provided, that (i) if
any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business
Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding
Business Day and (ii) any Interest Period that commences on
the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a
Eurodollar Rate Advance initially shall be the date on which
such Advance is made and, in the case of an Advance that has
been Converted, thereafter shall be the effective date of
the most recent Conversion or continuation of such Advance.
"Letter of Credit" has the meaning set forth in the
preamble hereto.
"LIBO Rate" means, with respect to any Eurodollar Rate
Advance for any Interest Period, the rate appearing on
Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such
Service, as determined by the Administrating Bank from time
to time for purposes of providing quotations of interest
rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurodollar Rate Advance for
such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office
of the Administrating Bank in immediately available funds in
the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of
such Interest Period.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset. For the purposes of this
Agreement, a Person or any of its Subsidiaries shall be
deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Long-Term Debt" means all Indebtedness which is not
otherwise included in the definition herein of Short-Term
Debt.
"Maximum Available Credit Amount" with respect to any
Letter of Credit means, at any date, the then Maximum
Available Credit Amount, as defined in such Letter of
Credit.
"Maximum Credit Amount" with respect to any Letter of
Credit means, at any date, the then Maximum Credit Amount,
as defined in such Letter of Credit.
"Maximum Drawing Amount" with respect to a Letter of
Credit means, at any date, the then Maximum Drawing Amount,
as defined in such Letter of Credit.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means the Mortgage and Deed of Trust, dated
as of June 15, 1977, to United States Trust Company of New
York and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (successor to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇), as
amended and supplemented from time to time.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Company
or any ERISA Affiliate (other than one considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"Notice of Drawing" means a notice substantially in the
form of Exhibit B hereto.
"Obligations" means, with regard to any Person at any
date, without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of such
Person with respect to deposits or advances of any kind, or
for the deferred purchase price of property or services,
(iii) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (iv) all
obligations of such Person upon which interest charges are
customarily paid, (v) all obligations under leases relating
to any sale and leaseback transaction permitted under
Section 12(a)(v) hereof, (vi) all obligations under leases
which shall have been or should be, in accordance with
generally accepted accounting principles, recorded as
capital leases in respect of which such Person is liable as
lessee, (vii) reimbursement obligations of such Person in
respect of letters of credit, bankers acceptances, surety or
other bonds and similar instruments, and (viii) obligations
of such Person under direct or indirect guaranties in
respect of, and obligations to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or obligations of others of the
kinds referred to above; provided, however, that obligations
under (ii), (vii), or (viii) above shall not be included in
this definition to the extent that such obligations are
being contested by such Person in good faith and in an
appropriate manner.
"Operating Companies" means EAI, ▇▇▇, EMI and ENOI,
each being an "Operating Company".
"Owner Participant" means RCMC I, Inc. (formerly known
as RCMC Del., Inc.), assignee in interest of Resources
Capital Management Corporation, assignee in interest of
Public Service Resources Corporation and/or Textron
Financial Corporation, assignee in interest of Lease
Management Realty Corporation IV, as the case may be, and
their respective permitted successors and assigns.
"Owner Trustee" has the meaning set forth in the
preamble hereto.
"Participant" has the meaning set forth in
Section 23(a) hereof.
"Participating Banks" means the banks whose names are
listed on the signature pages hereof under the heading
"Participating Banks", each being a "Participating Bank".
"Participation Agreements" has the meaning set forth in
the preamble hereto.
"Participation Fee" has the meaning set forth in
Section 3 hereof.
"Participation Percentage" with respect to a
Participating Bank means the percentage set forth opposite
such Participating Bank's name in Schedule 1 hereto.
"Participation Transfer Date" has the meaning set forth
in Section 5(c) hereof.
"Participation Transfer Period" has the meaning set
forth in Section 5(c) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, and any entity succeeding
to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" shall mean any pension plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code and which is maintained for
employees of the Company or any ERISA Affiliate.
"Prepayment Event" has the meaning set forth in
Section 13 hereof.
"Regulation D" means Regulation D of the Board as from
time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Reimbursement Default" means any event or condition
which constitutes a Reimbursement Event of Default or which
with the giving of notice or the lapse of time or both
would, unless cured or waived, become a Reimbursement Event
of Default.
"Reimbursement Event of Default" has the meaning set
forth in Section 13 hereof.
"Reportable Event" means any reportable event as
defined in Section 4043(b) of ERISA or the regulations
issued thereunder with respect to a Plan (other than a Plan
maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of
Code Section 414).
"Required Banks" means at any time Participating Banks
whose aggregate Participation Percentages are equal to at
least 66-2/3% at such time.
"SEC" means the Securities and Exchange Commission of
the United States of America or any successor agency.
"SEC Approval Date" means the date on which the Company
obtains an effective order from the SEC under the Holding
Company Act authorizing the payment in accordance with the
provisions hereof, without exception, of the maximum
Participation Fees reflected in the Participation Fee Rate
pricing grid set forth under the definition of "Applicable
Rate" herein.
"Short-Term Debt" means the principal amount of
Indebtedness which matures by its terms not more than
12 months after the date of the creation or incurrence
thereof, and which is not renewable or extendable at the
option of such Person for a period of more than 12 months
from the date of the creation or incurrence thereof.
"Significant Operating Company" means an Operating
Company whose entitlement percentage under UPSA exceeds 20%.
"Significant Operating Group" means any two or more
Operating Companies whose entitlement percentage under UPSA
exceeds 20% in the aggregate.
"S&P" shall mean Standard & Poor's Ratings Group.
"Stated Expiration Date" means March 20, 2003.
"Statutory Reserve Rate" means a fraction (expressed as
a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate
of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a
decimal established by the Board to which the Administrating
Bank is subject (a) with respect to the Base CD Rate, for
new negotiable nonpersonal time deposits in dollars of over
$100,000 with maturities approximately equal to three months
and (b) with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D). Such reserve percentages
shall include those imposed pursuant to Regulation D.
Drawings under a Letter of Credit that bear interest at a
rate determined by reference to the Adjusted LIBO Rate and
Eurodollar Rate Advances shall be deemed to constitute
eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to
time to any Bank under Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change
in any reserve percentage.
"Subsidiary" means with respect to any Person (herein
referred to as the "parent"), any corporation, association
or other business entity (a) of which securities or other
ownership interests representing more than 50% of the
ordinary voting power are, at the time any determination is
being made, owned, controlled or held or (b) which is, at
the time any determination is made, otherwise controlled (by
contract or agreement or otherwise) by the parent or one or
more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Supplementary Capital Funds Agreement" means the
Thirty-Third Supplementary Capital Funds Agreement and
Assignment dated as of December 20, 1999, between the
Company, Entergy and the Administrating Bank, substantially
in the form of Exhibit H hereto and as amended from time to
time in accordance with the terms of this Agreement.
"Tax" and "Taxes" have the meanings set forth in
Section 4(e) hereof.
"Termination Date" with respect to any Letter of Credit
means the earliest of (A) 10:00 a.m. (New York time) on the
Date of Early Termination (as defined in such Letter of
Credit) applicable to such Letter of Credit, (B) 5:00 p.m.
(New York time) on the date on which the Owner Participant
to which such Letter of Credit is issued surrenders such
Letter of Credit for cancellation to the Funding Bank as
provided therein, (C) 5:00 p.m. (New York time) on the date
on which the Funding Bank pays a Final Draw (as defined in
such Letter of Credit), and (D) either (I) if a draft and
certificate, all in strict conformity with the terms and
conditions of such Letter of Credit, are presented after
10:00 a.m. (New York time) but prior to 5:00 p.m. (New York
time) on the Stated Expiration Date, 5:00 p.m. (New York
time) on the Business Day following the Stated Expiration
Date, or otherwise (II) 5:00 p.m. (New York time) on the
Stated Expiration Date.
"Termination Event" means (i) a Reportable Event or
(ii) the withdrawal of the Company or an ERISA Affiliate
from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) the filing of a notice of intent to
terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, or (iv) the
institution of proceedings to terminate a Plan by the PBGC,
or (v) any other event or condition which is reasonably
expected to constitute grounds for the imposition of a lien
in favor of a Plan for the termination of, or the
appointment of a trustee to administer, a Plan under
Section 4042 of ERISA.
"Transaction Documents" means the Participation
Agreements, the Indentures, the Notes, the Facility Leases,
and the Letters of Credit.
"Transferred Amount" has the meaning set forth in
Section 5(c) hereof.
"Type" has the meaning assigned to such term in the
definitions of "DLE Initial Advance", "DLE Term Advance",
"EOL Initial Advance", "EOL Term Advance" and "Borrowing"
herein.
"Unit 1" has the meaning specified in the preamble
hereto.
"UPSA" means the Unit Power Sales Agreement, dated as
of June 10, 1982, among the Company and the Operating
Companies, as amended heretofore and as amended from time to
time.
"Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
(b) The definitions in Section 1 shall apply equally to
both the singular and plural forms of the terms defined. Unless
otherwise specified herein, all accounting terms used herein
shall be interpreted in accordance with generally accepted
accounting principles, and all accounting determinations with
respect to any Person required to be made hereunder shall be
made, and all financial statements of any Person required to be
delivered hereunder shall be prepared, in accordance with
generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes
concurred in by such Person's independent public accountants)
with the most recent audited consolidated financial statements of
such Person and its Subsidiaries delivered to the Banks.
SECTION 2. Reimbursement and Advances. (a) Reimbursement on
Demand. Subject to the provisions of subsections (b), (c) and
(e), below, the Company hereby agrees to pay (whether with the
proceeds of Advances made pursuant to subsection (c), below, or
otherwise) to the Funding Bank on demand (i) on and after each
date on which the Funding Bank shall pay any amount under a
Letter of Credit pursuant to any draft, but only after so paid by
the Funding Bank, a sum equal to such amount so paid (which sum
shall constitute a demand loan from the Funding Bank to the
Company from the date of such payment by the Funding Bank until
so paid by the Company), plus (ii) if the Company does not pay
the Funding Bank such sum in full by 1:00 p.m., New York City
time, on the same Business Day on which the Funding Bank shall
have made such payment, interest on any amount remaining unpaid
by the Company to the Funding Bank under clause (i) above, from
the date on which the Funding Bank shall have paid such amount
under such Letter of Credit until payment in full, at an interest
rate per annum equal to the Alternate Base Rate in effect from
time to time.
(b) Reimbursement Upon the Occurrence of Certain Events.
The Company shall reimburse the Funding Bank for each payment
made by the Funding Bank under a Letter of Credit in accordance
with the following paragraphs (i), (ii) and (iii):
(i) Reimbursement Defaults. If, on the date of any payment by
the Funding Bank of a drawing under a Letter of Credit, either an
Event of Default or a Reimbursement Default has occurred and is
continuing, the Company shall pay to the Funding Bank not later
than 1:00 p.m., New York City time, on or prior to the fifth day
following the Business Day on which the Funding Bank shall make
such payment a sum equal to the amount so paid under such Letter
of Credit, together with all accrued interest thereon at a rate
per annum equal to the Alternate Base Rate in effect from time to
time.
(ii) Events of Loss. Subject to paragraph (i) above, if, on the
date of any payment by the Funding Bank of a drawing under a
Letter of Credit, an Event of Loss has occurred and is
continuing, the Company shall pay to the Funding Bank (whether
with the proceeds of Advances made pursuant to
subsection (c)(ii), below, or otherwise) not later than
1:00 p.m., New York City time, on or prior to the earlier of
(x) the Stated Expiration Date and (y) the 35th day following the
Business Day on which the Funding Bank shall make such payment
(the "EOL Initial Advance Repayment Date") a sum equal to the
amount so paid under such Letter of Credit, together with all
accrued interest thereon pursuant to subsection (e) below.
(iii) Deemed Loss Events and Other Circumstances. Subject to
paragraphs (i) and (ii) above, if, on the date of any payment by
the Funding Bank of a drawing under a Letter of Credit, (A) a
Deemed Loss Event has occurred and is continuing or (B) any other
event or circumstance (other than a Reimbursement Default, an
Event of Default or an Event of Loss) giving rise to such drawing
has occurred, the Company shall reimburse the Funding Bank
(whether with the proceeds of Advances made pursuant to
subsection (c)(iv) below or otherwise) not later than 1:00 p.m.,
New York City time, on or prior to the earlier of (x) the Stated
Expiration Date and (y) the 90th day following the Business Day
on which the Funding Bank shall make such payment (the "DLE
Initial Advance Repayment Date") a sum equal to the amount so
paid under such Letter of Credit, together with all accrued
interest thereon pursuant to subsection (e) below.
(c) Advances. Each Participating Bank agrees to make
Advances for the account of the Company from time to time upon
the terms and subject to the conditions set forth below:
(i) EOL Initial Advances. If the Funding Bank shall
make any payment under a Letter of Credit under the
circumstances set forth in subsection (b)(ii) above (such
payment referred to herein as an "EOL Payment"), then each
Participating Bank shall be obligated to make, and each
Participating Bank's payment made to the Funding Bank
pursuant to Section 5 hereof in respect of such EOL Payment
shall be deemed to constitute, an advance made for the
account of the Company by such Participating Bank on the
date of such payment (each such advance being an "EOL
Initial Advance" made by such Participating Bank and,
collectively, the "EOL Initial Advances"). Each such EOL
Initial Advance shall be made as an ABR Advance, shall bear
interest at the Alternate Base Rate and shall be entitled to
be Converted in accordance with subsection (f) below. The
Company shall repay the unpaid principal amount of each EOL
Initial Advance in accordance with subsection (h)(i), below.
The Company may repay the principal amount of any EOL
Initial Advance with (and to the extent of) the proceeds of
an EOL Term Advance made pursuant to paragraph (ii) below,
and may prepay EOL Initial Advances in accordance with
subsection (i) below.
(ii) EOL Term Advances. If the Funding Bank shall make
any EOL Payment, then, subject to the satisfaction of the
conditions precedent set forth in Section 7(f) hereof on and
as of the EOL Initial Advance Repayment Date, each
Participating Bank agrees to make one or more advances for
the account of the Company (each such advance being an "EOL
Term Advance" made by such Participating Bank and,
collectively, the "EOL Term Advances") on the EOL Initial
Advance Repayment Date in an aggregate principal amount
equal to the amount of such Participating Bank's EOL Initial
Advances maturing on such EOL Initial Advance Repayment
Date. All EOL Term Advances comprising a single Borrowing
shall be made upon written notice given by the Company to
the Administrating Bank not later than 10:00 a.m. (New York
time) (A) in the case of a Borrowing comprised of ABR
Advances, on the Business Day of such proposed Borrowing and
(B) in the case of a Borrowing comprised of Eurodollar Rate
Advances, three Business Days prior to the date of such
proposed Borrowing. The Administrating Bank shall notify
each Participating Bank of the contents of such notice
promptly after receipt thereof. Each such notice shall
specify therein the following information: (1) the date on
which such Borrowing is to be made (which date shall be the
EOL Initial Advance Repayment Date), (2) the principal
amount of EOL Term Advances comprising such Borrowing,
(3) the Type of Borrowing and (4) the duration of the
initial Interest Period, if applicable, proposed to apply to
the EOL Term Advances comprising such Borrowing. The
proceeds of each Participating Bank's EOL Term Advances
shall be applied solely to the repayment of the EOL Initial
Advances made by such Participating Bank and shall in no
event be made available to the Company. The Company shall
repay the unpaid principal amount of each EOL Term Advance
in accordance with subsection (h)(ii) below, and may prepay
EOL Term Advances in accordance with subsection (i) below.
(iii) DLE Initial Advances. If the Funding Bank
shall make any payment under a Letter of Credit under the
circumstances set forth in subsection (b)(iii) above (such
payment referred to herein as a "DLE Payment"), then each
Participating Bank shall be obligated to make, and each
Participating Bank's payment made to the Funding Bank
pursuant to Section 5 hereof in respect of such DLE Payment
shall be deemed to constitute, an advance made for the
account of the Company by such Participating Bank on the
date of such payment (each such advance being a "DLE Initial
Advance" made by such Participating Bank and, collectively,
the "DLE Initial Advances"). Each such DLE Initial Advance
shall be made as an ABR Advance, shall bear interest at the
Alternate Base Rate and shall be entitled to be Converted in
accordance with subsection (f) below. The Company shall
repay the unpaid principal amount of each DLE Initial
Advance in accordance with subsection (h)(iii) below. The
Company may repay the principal amount of any DLE Initial
Advance with (and to the extent of) the proceeds of a DLE
Term Advance made pursuant to paragraph (iv) below, and may
prepay DLE Initial Advances in accordance with
subsection (i) below.
(iv) DLE Term Advances. If the Funding Bank shall make
any DLE Payment, then, subject to the satisfaction of the
conditions precedent set forth in Section 7(g) hereof on and
as of the DLE Initial Advance Repayment Date, each
Participating Bank agrees to make one or more advances for
the account of the Company (each such advance being a "DLE
Term Advance" made by such Participating Bank and,
collectively, the "DLE Term Advances") on the DLE Initial
Advance Repayment Date in an aggregate principal amount
equal to the amount of such Participating Bank's DLE Initial
Advances maturing on such DLE Initial Advance Repayment
Date. All DLE Term Advances comprising a single Borrowing
shall be made upon written notice given by the Company to
the Administrating Bank not later than 10:00 a.m. (New York
time) (A) in the case of a Borrowing comprised of ABR
Advances, on the Business Day of such proposed Borrowing and
(B) in the case of a Borrowing comprised of Eurodollar Rate
Advances, three Business Days prior to the date of such
proposed Borrowing. The Administrating Bank shall notify
each Participating Bank of the contents of such notice
promptly after receipt thereof. Each such notice shall
specify therein the following information: (1) the date on
which such Borrowing is to be made (which date shall be the
DLE Initial Advance Repayment Date), (2) the principal
amount of DLE Term Advances comprising such Borrowing,
(3) the Type of Borrowing and (4) the duration of the
initial Interest Period, if applicable, proposed to apply to
the DLE Term Advances comprising such Borrowing. The
proceeds of each Participating Bank's DLE Term Advances
shall be applied solely to the repayment of the DLE Initial
Advances made by such Participating Bank and shall in no
event be made available to the Company. The Company shall
repay the unpaid principal amount of each DLE Term Advance
in accordance with subsection (h)(iv) below, and may prepay
DLE Term Advances in accordance with subsection (i) below.
(d) Application of Payments. Any payment made by the
Company pursuant to subsection (a) or (b) above, of less than all
amounts owed to the Funding Bank pursuant thereto shall be
applied first to interest owed pursuant thereto and second to the
amount of the unreimbursed drawings under the Letters of Credit;
provided, however, that if, at the time of any payment made by
the Company pursuant to subsection (a) or (b) above, there shall
be amounts due from the Company pursuant to subsection (a) or (b)
above, with respect to more than one Letter of Credit, such
payment shall be applied to all such Letters of Credit pro rata
(in the above-mentioned order of priority) in accordance with the
proportion that the aggregate amount due from the Company
pursuant to subsection (a) or (b) above with respect to each such
Letter of Credit bears to the aggregate amount due from the
Company pursuant to subsection (a) or (b) above with respect to
all such Letters of Credit.
(e) Interest on Advances. The Company shall pay interest
on the unpaid principal amount of each Advance from the date of
such Advance until such principal amount is paid in full at the
applicable rate set forth below:
(i) Alternate Base Rate. Except to the extent that
the Company shall elect to pay interest on any Advance for
any Interest Period pursuant to paragraph (iii) below, the
Company shall pay interest on each Advance from the date
thereof until the date such Advance is due, at an interest
rate per annum equal to the Alternate Base Rate in effect
from time to time. The Company shall pay interest on each
Advance bearing interest in accordance with this subsection
monthly in arrears on the first Business Day of each
calendar month, on the date of Conversion of any ABR Advance
to a Eurodollar Rate Advance, including any such Advance
made pursuant to subsection (b) above, and on the Stated
Expiration Date or the earlier date for repayment of such
Advance.
(ii) Interest Periods. Subject to the other
requirements of this subsection (e) and in the definition of
"Interest Period" contained in Section 1 hereof, the Company
may from time to time elect to have the interest on all
Advances comprising part of the same Borrowing determined
and payable for a specified Interest Period in accordance
with paragraph (iii) below.
(iii) Eurodollar Rate. Subject to the requirements
of this subsection (e) and subsection (f) below, the Company
may from time to time elect to have any Advances comprising
part of the same Borrowing Converted to Eurodollar Rate
Advances. The Interest Period applicable to (x) any EOL
Initial Advance that has been so Converted shall be of one
month's duration, (y) any DLE Initial Advance that has been
so Converted shall be of one, two or three whole months'
duration, as the Company shall select in its notice
delivered to the Administrating Bank pursuant to
subsection (f) below and (z) any DLE Term Advance or EOL
Term Advance shall be of one, two, three or six whole
months' duration, as the Company shall select in its notice
delivered to the Administrating Bank pursuant to
subsection (f) below. If the Company shall have made such
election, the Company shall pay interest on such Eurodollar
Rate Advances at the Adjusted LIBO Rate, for the applicable
Interest Period for such Eurodollar Rate Advances, plus the
Applicable Rate, payable monthly in arrears on the first
Business Day of each calendar month, on the date of
Conversion of any Eurodollar Rate Advance, including any
such Advance made pursuant to subsection (b) above, and on
the Stated Expiration Date or the earlier date for repayment
of such Advance.
(iv) Interest Rate Determinations. The Administrating
Bank shall give prompt notice to the Company and the
Participating Banks of the Adjusted LIBO Rate determined
from time to time by the Administrating Bank to be
applicable to each Eurodollar Rate Advance.
(f) Conversion of Advances. The Company may elect to
Convert one or more Advances of any Type to one or more Advances
of the same or any other Type on the following terms and subject
to the following conditions:
(i) Each Conversion shall be made as to all Advances
comprising a single Borrowing upon irrevocable written
notice given by the Company to the Administrating Bank not
later than 10:00 a.m. (New York time) on the third Business
Day prior to the date of the proposed Conversion. The
Administrating Bank shall notify each Participating Bank of
the contents of such notice promptly after receipt thereof.
Each such notice shall specify therein the following
information: (A) the date of such proposed Conversion
(which in the case of Eurodollar Rate Advances shall be the
last day of the Interest Period then applicable to such
Advances to be Converted), (B) the Type of, and Interest
Period, if any, applicable to the Advances proposed to be
Converted, (C) the aggregate principal amount of Advances
proposed to be Converted, and (D) the Type of Advances to
which such Advances are proposed to be Converted and the
Interest Period, if any, to be applicable thereto.
(ii) During the continuance of a Reimbursement Default
(other than a Reimbursement Event of Default), the right of
the Company to Convert Advances to Eurodollar Rate Advances
shall be suspended, and all Eurodollar Rate Advances then
outstanding shall be Converted to ABR Advances on the last
day of the Interest Period then in effect, if, on such day,
a Reimbursement Default (other than a Reimbursement Event of
Default) shall be continuing.
(iii) During the continuance of a Reimbursement
Event of Default, the right of the Company to Convert
Advances to Eurodollar Rate Advances shall be suspended, and
upon the occurrence of a Reimbursement Event of Default, all
Eurodollar Rate Advances then outstanding shall immediately,
without further act by the Company, be Converted to ABR
Advances.
(iv) If no notice of Conversion is received by the
Administrating Bank as provided in paragraph (i) above with
respect to any outstanding Eurodollar Rate Advances on or
before the third Business Day prior to the last day of the
Interest Period then in effect for such Eurodollar Rate
Advances, the Administrating Bank shall treat such absence
of notice as a deemed notice of Conversion providing for
such Advances to be Converted to ABR Advances on the last
day of such Interest Period.
(g) Other Terms Relating to the Making and Conversion of
Advances. (i) Notwithstanding anything in subsections (c), (e)
and (f) above, to the contrary:
(A) at no time shall more than five different
Borrowings be outstanding hereunder; and
(B) each Borrowing consisting of Eurodollar Rate
Advances or ABR Advances shall be in the aggregate
principal amount of at least $5,000,000.
(ii) Each notice of Conversion pursuant to
subsection (f) above shall be irrevocable and binding on the
Company.
(h) Repayment of Advances. (i) The unpaid principal amount
of each EOL Initial Advance, together with all accrued and unpaid
interest thereon, shall be due and payable and repaid in full by
the Company on the earlier to occur of (A) the EOL Initial
Advance Repayment Date and (B) upon the occurrence of a
Reimbursement Default, an Event of Default or an Indenture Event
of Default, the date two Business Days after the date on which
demand for repayment thereof is made by the Required Banks or by
the Administrating Bank acting on behalf of the Required Banks.
(ii) The unpaid principal amount of each EOL Term
Advance, together with all accrued and unpaid interest thereon,
shall be due and payable and repaid in full by the Company on the
earliest to occur of (A) the date 330 days from the date of
making such EOL Term Advance, (B) the Stated Expiration Date and
(C) upon the occurrence of a Reimbursement Default, an Event of
Default or an Indenture Event of Default, the date two Business
Days after the date on which demand for repayment thereof is made
by the Required Banks or by the Administrating Bank acting on
behalf of the Required Banks.
(iii) The unpaid principal amount of each DLE
Initial Advance, together with all accrued and unpaid interest
thereon, shall be due and payable and repaid in full by the
Company on the earlier to occur of (A) the DLE Initial Advance
Repayment Date and (B) upon the occurrence of a Reimbursement
Default, an Event of Default or an Indenture Event of Default,
the date two Business Days after the date on which demand for
repayment thereof is made by the Required Banks or by the
Administrating Bank acting on behalf of the Required Banks.
(iv) The unpaid principal amount of each DLE Term
Advance, together with all accrued and unpaid interest thereon,
shall be due and payable and repaid in full by the Company on the
earliest to occur of (A) the date 270 days from the date of
making such DLE Term Advance, (B) the Stated Expiration Date and
(C) upon the occurrence of a Reimbursement Default, an Event of
Default or an Indenture Event of Default, the date two Business
Days after the date on which demand for repayment thereof is made
by the Required Banks or by the Administrating Bank acting on
behalf of the Required Banks.
(i) Prepayment of Advances. (i) The Company shall have no
right to prepay any principal amount of any Advances except in
accordance with paragraph (ii) below.
(ii) The Company may, (A) upon at least three Business
Days' irrevocable written notice to the Administrating Bank, in
the case of any Eurodollar Rate Advance, and (B) upon at least
one Business Day's irrevocable written notice to the
Administrating Bank, in the case of any ABR Advance, in each case
stating the proposed date and aggregate principal amount of the
prepayment and the specific Borrowing(s) to be prepaid, and if
such notice is given, the Company shall, prepay, in whole or
ratably in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid and any amounts
due pursuant to Section 4(c) hereof, the outstanding principal
amount of all Advances comprising the same Borrowing, in each
case as the Company shall designate in such notice; provided,
however, that each partial prepayment shall be in an aggregate
principal amount not less than $5,000,000, or, if less, the
aggregate principal amount of all Advances then outstanding.
(j) Default Interest. Any amounts payable by the Company
hereunder that are not paid when due shall (to the fullest extent
permitted by law) bear interest, from the date when due until
paid in full, at the Alternate Base Rate plus 2% per annum,
payable on demand.
(k) Evidence of Indebtedness. The Funding Bank and each
Participating Bank shall maintain, in accordance with their usual
practice, an account or accounts evidencing the indebtedness of
the Company resulting from each drawing under a Letter of Credit
(in the case of the Funding Bank) and from each Advance (in the
case of each Participating Bank) made from time to time hereunder
and the amounts of principal and interest payable and paid from
time to time hereunder.
(l) In the event of (i) the payment of any principal of any
Eurodollar Rate Advance other than on the last day of an Interest
Period applicable thereto (including as a result of a
Reimbursement Event of Default or Prepayment Event), (ii) the
Conversion for any reason of any Eurodollar Rate Advance other
than on the last day of the Interest Period applicable thereto,
(iii) the failure to Convert, continue or prepay any Eurodollar
Rate Advance on the date specified in any notice delivered
pursuant hereto or (iv) the assignment of any Eurodollar Rate
Advance other than on the last day of the Interest Period
applicable thereto as a result of a request by the Company
pursuant to Section 4(g), then, in any such event, the Company
hereby agrees to compensate each Participating Bank for the loss,
cost and expense attributable to such event. Such loss, cost or
expense to any Participating Bank shall be deemed to include an
amount determined by such Participating Bank to be the excess, if
any, of (x) the amount of interest which would have accrued on
the principal amount of such Advance had such event not occurred,
at the Adjusted LIBO Rate (in the case of a Eurodollar Rate
Advance) that would have been applicable to such Advance, for the
period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to
Convert or continue, for the period that would have been the
Interest Period for such Advance), over (y) the amount of
interest which would accrue on such principal amount for such
period at the interest rate which such Participating Bank would
bid were it to bid, at the commencement of such period, for
dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any
Participating Bank setting forth any amount or amounts that such
Participating Bank is entitled to receive pursuant to this
Section shall be delivered to the Company and shall be conclusive
absent manifest error. The Company shall pay such Participating
Bank the amount shown as due on any such certificate within 10
days after receipt thereof. The obligations of the Company
contained in this subsection (l) shall survive the payment in
full of amounts payable by the Company under Section 2 hereof and
the termination of the Letters of Credit and this Agreement or
the substitution of any of the Banks pursuant to Sections 4(g) or
(h) hereof.
SECTION 3. Fees. The Company agrees to pay to the
Administrating Bank (a) for the account of the Funding Bank a fee
with respect to each Letter of Credit as separately agreed upon
between the Company and the Funding Bank in accordance with the
terms of the letter dated the date hereof between the Company and
the Funding Bank, (b) for the account of each Participating Bank,
a fee with respect to each Letter of Credit (a "Participation
Fee") equal to the Applicable Rate per annum of the product of
(i) such Participating Bank's Participation Percentage and
(ii) the Maximum Credit Amount applicable to such Letter of
Credit, from and including the Date of Issuance of such Letter of
Credit to but excluding the Termination Date of such Letter of
Credit, payable quarterly in arrears on each April 15, July 15,
October 15 and January 15 (commencing January 15, 2000), and on
such Termination Date; (c) upon the execution of this Agreement,
for the account of the Funding Bank and each Participating Bank
(including the Administrating Bank and the Documentation Agent),
the up-front fees separately agreed upon between the
Administrating Bank and the Participating Banks and consented to
by the Company and (d) for the account of the Administrating
Bank, fees computed and payable in accordance with the terms of
the letter dated November 22, 1999, among the Administrating
Bank, Chase Securities Inc., the Company and Entergy. Upon
receipt from the Company of fees payable in accordance with the
provisions of this Section 3, the Administrating Bank agrees to
promptly pay to the account of the Funding Bank and each
Participating Bank, as applicable, the fees paid to it for the
account of the Funding Bank or such Participating Bank pursuant
to this Section 3.
SECTION 4. Change in Circumstances; Alternate Rate of
Interest. If prior to the commencement of any Interest Period
for a Eurodollar Rate Advance:
(a) the Administrating Bank determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period;
or
(b) the Administrating Bank is advised by the Required Banks
that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period will not adequately and fairly reflect the
cost to such Required Banks of making or maintaining their
Eurodollar Rate Advances for such Interest Period;
then the Administrating Bank shall give notice thereof to the
Company and the Participating Banks by telephone or telecopy as
promptly as practicable thereafter and, until the Administrating
Bank notifies the Company and the Participating Banks that the
circumstances giving rise to such notice no longer exist, (i) any
request to Convert any ABR Advance to, or to continue any
Eurodollar Rate Advance as, a Eurodollar Rate Advance shall be
ineffective and (ii) if any request is made for a Eurodollar Rate
Advance, such Borrowing shall be made as an ABR Advance.
(c) If, after the date hereof, any Bank shall have determined
that the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank with any
request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency shall
impose, modify or deem applicable any reserve, special deposit or
similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal
Reserve System) against letters of credit issued by or
participated in or assets of, or deposits with or for the account
of any Bank or shall impose on any Bank any other condition
regarding this Agreement or the Letters of Credit and the result
of the foregoing shall be to increase the cost to such Bank of
issuing, maintaining or participating in any of the Letters of
Credit or any drawing thereunder or making or maintaining any
Eurodollar Rate Advance (or of maintaining its obligation to make
such Advance) (which increase in cost shall be the result of such
Bank's reasonable allocation of the aggregate of such cost
increases resulting from such events), then, within 15 days after
demand by such Bank, the Company agrees to pay to such Bank all
additional amounts that are necessary to compensate such Bank for
such increased cost incurred by such Bank.
(d) If any Bank shall have determined that the applicability of
any law, rule, regulation or guideline adopted pursuant to or
arising out of the July 1988 report of the Basle Committee on
Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital
Standards" (the "Basle Report"), or the adoption after the date
hereof of any other law, rule, regulation or guideline regarding
capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any
governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance
by any Bank (or any lending office of any Bank) or any Bank's
holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on such Bank's capital
or on the capital of such Bank's holding company, if any, as a
consequence of this Agreement or under or in connection with any
Letter of Credit to a level below that which such Bank or such
Bank's holding company could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's
policies and the policies of such Bank's holding company with
respect to capital adequacy) by an amount deemed by such Funding
Bank to be material, then, within 15 days after demand by such
Bank, the Company shall pay to such Bank such additional amount
or amounts as will compensate such Bank or such Bank's holding
company for any such reduction suffered. Notwithstanding the
foregoing, any risk-based capital standard adopted and publicly
announced prior to the Closing Date (regardless of the date on
which compliance with such standard is required), shall not be
considered a basis for imposing additional costs on the Company
under this paragraph (c).
(e) The Company agrees that all payments made by the Company
hereunder to any Bank shall be made free and clear of, and
without reduction for or on account of, any stamp or other taxes,
levies, imposts, duties, charges, fees, deductions, withholdings,
restrictions or conditions of any nature whatsoever hereafter
imposed, levied, collected, withheld or assessed by any country
(or by any political subdivision or taxing authority thereof or
therein), except for franchise taxes and changes in the rate of
tax on the overall net income of the Banks (such nonexcluded
taxes being called "Tax" or "Taxes"). If any Taxes are required
to be withheld from any amounts payable by the Company to any
Bank, the Company agrees that the amounts so payable to such Bank
shall be increased to the extent necessary to yield to such Bank
(after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in
this Agreement; provided that the Company shall not be obligated
to pay such amounts for the benefit of such Bank with respect to
any period in which such Bank has failed (x) to file any form or
certificate that it was entitled to file which would have
exempted such Bank from such Taxes or (y) to take other action
which would entitle such Bank to an exemption from such Taxes, if
such action would not, in the reasonable judgment of such Bank,
be otherwise disadvantageous to it. Whenever any Tax is paid by
the Company, as promptly as possible thereafter, the Company
shall send the applicable Bank a receipt or other evidence of
payment thereof.
(f) A certificate as to the nature of the occurrence giving rise
to, and the calculation of, compensation to the Funding Bank, a
Participating Bank or a Participant pursuant to paragraphs (a),
(b), (c) and (d) of this Section 4 shall be submitted by the
Funding Bank, such Participating Bank or such Participant to the
Administrating Bank. Such certificate shall be submitted by the
Administrating Bank to the Company and shall be conclusive
evidence (absent demonstrable error) as to the amount thereof.
Each such certificate shall provide the identity of the Funding
Bank, such Participating Bank or such Participant.
(g) The Company agrees that each Participating Bank and each
Participant shall have the same rights and obligations under this
Section 4 with respect to its respective participation to the
same extent as if such Participating Bank or Participant were
named instead of the Funding Bank in this Section 4.
(h) In the event any Participating Bank gives a notice with
respect to it or any of its Participants pursuant to Section 4(e)
hereof, the Company may require, at its expense, such Bank to
assign all its Participation Percentage of the Letters of Credit
and all its rights and obligations hereunder to a financial
institution specified by the Company (a "Substitute Bank");
provided that (i) such assignment shall not conflict with or
violate any law, rule or regulation or order of any court or
other governmental agency or instrumentality, (ii) the Company
shall have received the written consent of the Funding Bank and
the Administrating Bank (which consent, in the case of the
Administrating Bank shall not unreasonably be withheld), to such
assignment and (iii) the Company shall have paid to such assignor
Bank all monies accrued and owing hereunder to it. The
Substitute Bank shall execute a counterpart of this Agreement and
such additional amendments, agreements, instruments and documents
as may be reasonably requested by the Administrating Bank.
(i) In the event the Funding Bank gives a notice with respect to
itself pursuant to Section 4(e) hereof, the Company may replace
such Funding Bank with a financial institution specified by the
Company (a "Substitute Funding Bank"); provided that (i) such
replacement shall not conflict with or violate any law, rule or
regulation or order of any court or other government agency or
instrumentality, (ii) the Company shall have received the written
consent of the Owner Trustee and the Owner Participants to such
substitution, and the Company shall have taken all other
applicable actions required under the Transaction Documents and
(iii) the Company shall have paid to the Funding Bank all monies
accrued and owing hereunder to it. The Substitute Funding Bank
shall execute a counterpart of this Agreement and such additional
amendments, agreements, instruments and documents as may be
reasonably requested by the Administrating Bank.
SECTION 5. Participations. (a) By the issuance of a Letter
of Credit and without any further action on the part of the
Funding Bank or any Participating Bank in respect thereof, the
Funding Bank shall be deemed to have granted to each
Participating Bank, and each Participating Bank hereby shall be
deemed to have acquired from the Funding Bank, a participation in
such Letter of Credit equal to such Participating Bank's
Participation Percentage of the Maximum Credit Amount of such
Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing,
each Participating Bank hereby absolutely and unconditionally
agrees to pay to the Funding Bank, in accordance with this
Section 5, such Participating Bank's Participation Percentage of
each payment made by the Funding Bank of a draft under a Letter
of Credit. Upon payment of a draft under a Letter of Credit, the
Funding Bank shall promptly give telephonic notice (to be
followed by delivery by telecopy of a Notice of Drawing) to each
Participating Bank of the date and amount of such payment. If
such Notice of Drawing is received by a Participating Bank after
12:30 p.m. (New York time) such notice shall be deemed to have
been received on the next Business Day. With respect to each
Participating Bank, promptly upon receipt of such Notice of
Drawing but in any event no later than 3:00 p.m. (New York time)
on the date on which such Participating Bank shall have received
or shall be deemed to have received such Notice of Drawing from
the Funding Bank, such Participating Bank shall pay to the
Funding Bank an amount equal to the product of (A) such
Participating Bank's Participation Percentage and (B) the amount
of the payment made by the Funding Bank on such draft; provided,
however, that, with respect to the payment of any draw on a
Letter of Credit, the Funding Bank shall not require such
Participating Bank to pay (exclusive of interest) an amount
greater than the product of (x) such Participating Bank's
Participation Percentage and (y) the lesser of (m) the Maximum
Available Credit Amount of such Letter of Credit immediately
prior to adjustment for payment by the Funding Bank of such draw
and (n) the Maximum Drawing Amount of such Letter of Credit
immediately prior to adjustment of the Maximum Drawing Amount of
such Letter of Credit for payment by the Funding Bank of such
draw; provided further that each Participating Bank shall not be
obligated to make any payment to the Funding Bank pursuant to
this paragraph (a) with respect to any wrongful payment under any
Letter of Credit as a result of the gross negligence or willful
misconduct of the Funding Bank. If payment of the amount due
pursuant to the preceding sentence from a Participating Bank is
received by the Funding Bank after 3:00 p.m. (New York time) on
the date it is due, such Participating Bank agrees to pay to the
Funding Bank along with its payment of the amount due pursuant to
the preceding sentence, interest on such amount at a rate per
annum equal to (i) for the period from and including the Business
Day such payment is due to but excluding the next succeeding day,
the rate in effect on the day such payment is due, quoted by the
Funding Bank at its New York office, for overnight "sale" to the
other Participating Banks of Federal funds (the "Fed Funds Rate")
and (ii) for the period from and including the Business Date next
succeeding the date such payment is due to but excluding the date
such amount is paid in full, the Alternate Base Rate plus 2%.
The Funding Bank agrees to give prompt written notice to a
Participating Bank if the Funding Bank does not receive the
payment required by this paragraph (a) from such Participating
Bank on the date on which such payment was due from such
Participating Bank. Any action taken or omitted to be taken
(other than at the direction of the Participating Banks) which
has the effect of extending a Letter of Credit beyond its
Termination Date shall constitute gross negligence of the Funding
Bank and shall release each Participating Bank from its
obligation set forth in this paragraph (a) to reimburse the
Funding Bank for the payment of a drawing on such Letter of
Credit.
(b) Each Participating Bank acknowledges and agrees that
its obligation to make the payments specified in Section 2 or
Section 5(a) hereof and the right of the Funding Bank to receive
the same, in the manner specified therein, are absolute and
unconditional (except as set forth in said Section 2 or
Section 5(a)) and shall not be affected by any circumstances
whatsoever, including, without limitation (i) the occurrence and
continuance of any Event of Default under any of the Facility
Leases, (ii) any Reimbursement Default or Prepayment Event
hereunder, (iii) any breach or default by the Company, the
Administrating Bank or any Participating Bank hereunder, (iv) any
lack of validity or enforceability of any Letter of Credit, this
Agreement, any of the Transaction Documents or any of the
Financing Documents, (v) any amendment or waiver of or any
consent to departure from the Letters of Credit, this Agreement,
any of the Transaction Documents or any of the Financing
Documents; (vi) the existence of any claim, setoff, defense or
other right which the Participating Banks may have at any time
against the Company, the Owner Participants or the Owner Trustee
(or any persons for whom any of the foregoing may be acting), the
Funding Bank, the Administrating Bank, any other Participating
Bank, or any other Person, whether in connection with this
Agreement, the Transaction Documents, the Financing Documents or
any other documents contemplated hereby or thereby or any
unrelated transactions; provided that nothing herein shall
prevent the assertion of any such claim by separate suit or
compulsory counterclaim; (vii) any statement or other document
presented under the Letters of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatever; (viii) payment by the Funding Bank under any Letter of
Credit against presentation of a draft or a certificate which
does not comply with the terms of such Letter of Credit; or
(ix) any other circumstances or happening whatsoever, whether or
not similar to any of the foregoing; provided, however, that with
regard to this Section 5(b), the Participating Banks shall have
no obligation to make, and the Funding Bank shall have no right
to receive, payments that result from the gross negligence or
wilful misconduct of the Funding Bank.
(c) Upon receipt of a payment from the Company pursuant to
Section 2 hereof, the Funding Bank shall promptly transfer to
each Participating Bank such Participating Bank's pro rata share
(determined in accordance with such Participating Bank's
Participation Percentage) of such payment based on such
Participating Bank's pro rata share (determined as aforesaid) of
amounts paid pursuant to Section 5(a) hereof, and not previously
reimbursed by the Company pursuant to Section 2 hereof; provided,
however, that if a Participating Bank shall fail to pay to the
Funding Bank any amount required by Section 5(a) hereof on the
Business Day following the date on which such payment was due
from such Participating Bank and the Company shall not have
reimbursed the Funding Bank for such amount pursuant to Section 2
hereof (such unreimbursed amount being hereinafter referred to as
the "Transferred Amount"), the Funding Bank shall be deemed to
have purchased, on such following Business Day (a "Participation
Transfer Date") from such Participating Bank, a participation in
such Transferred Amount and shall be entitled, for the period
from and including the Participation Transfer Date to the earlier
of (i) the date on which the Company shall have reimbursed the
Funding Bank for such Transferred Amount and (ii) the date on
which such Participating Bank shall have reimbursed the Funding
Bank for such Transferred Amount (the "Participation Transfer
Period"), to the rights, privileges and obligations of a
"Participating Bank" under this Agreement with respect to such
Transferred Amount; provided further that if, at any time after
the occurrence of a Participation Transfer Date with respect to
any Participating Bank and prior to the reimbursement by such
Participating Bank of the Funding Bank with respect to the
related Transferred Amount pursuant to paragraph (a) above, the
Funding Bank shall receive any payment from the Company pursuant
to Section 2 hereof, the Funding Bank shall not be obligated to
pay any amounts to such Participating Bank, and the Funding Bank
shall retain such amounts (including, without limitation,
interest payments due from the Company pursuant to Section 2
hereof) for its own account as a Participating Bank; provided
that all such amounts shall be applied in satisfaction of the
unpaid amounts (including, without limitation, interest payments
due from such Participating Bank pursuant to Section 5(a) hereof)
due from such Participating Bank with respect to such Transferred
Amount; and, provided further that if, at any time after the
occurrence of a Participation Transfer Date with respect to any
Participating Bank and prior to the reimbursement of the Funding
Bank by such Participating Bank or the Company, such
Participating Bank shall have (i) voluntarily dissolved,
(ii) appointed a receiver, (iii) suffered the appointment of a
receiver who takes possession of its books, records and assets,
commences to collect all dues and claims and to sell all property
of such Participating Bank, or (iv) suffered the appointment of a
conservator, the Funding Bank shall thereafter be entitled to
retain such Participation for its own account. All payments due
to the Participating Banks from the Funding Bank pursuant to this
paragraph (c) shall be made to the Participating Banks if, as,
and to the extent possible, when the Funding Bank receives
payments in respect of drawings under the Letters of Credit or
Advances pursuant to Section 2 hereof, and in the same funds in
which such amounts are received; provided that if any
Participating Bank to whom the Funding Bank is required to
transfer any such payment (or any portion thereof) pursuant to
this paragraph (c) does not receive such payment (or portion
thereof) prior to 3:00 p.m. (New York time) on the Business Day
on which the Funding Bank received such payment from the Company
(which payment, if received by the Funding Bank after 2:00 p.m.
(New York time) on any Business Day, shall be deemed, for the
purposes of this proviso, to have been received on the next
succeeding Business Day), the Funding Bank agrees to pay to such
Participating Bank, along with its payment of the portion of such
payment due to such Participating Bank, interest on such amount
at a rate per annum equal to (i) for the period from and
including such Business Day to but excluding the next succeeding
day, the Fed Funds Rate and (ii) for the period from and
including the date next succeeding such Business Day to but
excluding the date such amount is paid in full, the Alternate
Base Rate plus 2%. If, in connection with any case or other
proceeding seeking liquidation, reorganization or other relief
with respect to the Company or their debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect, the
Funding Bank shall be required to return to the Company or to any
trustee, receiver, liquidator, custodian or other similar
official all or any portion of such payments or interest, each
Participating Bank shall, upon demand of the Funding Bank,
forthwith return to the Funding Bank any amounts transferred to
such Participating Bank by the Funding Bank in respect thereof
pursuant to this paragraph (c).
(d) The Funding Bank will exercise and give the same care
and attention to the Letters of Credit as it gives to its other
letters of credit and similar obligations, and each Participating
Bank agrees that the Funding Bank's sole liability to each
Participating Bank shall be (i) to distribute promptly, as and
when received by the Funding Bank, and in accordance with the
provisions of paragraph (c) above, such Participating Bank's pro
rata share (determined in accordance with such Participating
Bank's Participation Percentage) of any payments to the Funding
Bank by the Company pursuant to Section 2 hereof in respect of
drawings under the Letters of Credit or Advances, (ii) to
exercise or refrain from exercising any right or to take or to
refrain from taking any action under this Agreement or any Letter
of Credit as may be directed in writing by the Required Banks (or
such higher percentage of Banks as may be otherwise expressly
required under this Agreement) or the Administrating Bank acting
on behalf of such Banks and (iii) as otherwise expressly set
forth herein. The Funding Bank shall not be liable for any
action taken or omitted at the request or with approval of the
Required Banks or of the Administrating Bank acting on behalf of
the Required Banks or for the nonperformance of the obligations
of any other party under this Agreement, any of the Transaction
Documents, any of the Financing Documents or any other document
contemplated hereby or thereby. Without in any way limiting any
of the foregoing, the Funding Bank may rely upon the advice of
counsel concerning legal matters and upon any written
communication or any telephone conversation which it believes to
be genuine or to have been signed, sent or made by the proper
person and shall not be required to make any inquiry concerning
the performance by the Company, the Owner Trustee, any Owner
Participant or any other Person, of any of their respective
obligations and liabilities under or in respect of this
Agreement, the Transaction Documents, the Financing Documents or
any other documents contemplated hereby or thereby. The Funding
Bank shall not have any obligation to make any claim, or assert
any Lien, upon any property held by the Funding Bank or assert
any offset there-against; provided that the Funding Bank shall,
if so directed by the Required Banks or the Administrating Bank
acting on behalf of the Required Banks, have an obligation to
make a claim, or assert a Lien, upon property held by the Funding
Bank in connection with this Agreement or assert an offset
thereagainst. The Funding Bank may accept deposits from, make
loans or otherwise extend credit to, and generally engage in any
kind of banking or trust business with the Company or any of its
Affiliates, or any other Person, and receive payment on such
loans or extensions of credit and otherwise act with respect
thereto freely and without accountability in the same manner as
if this Agreement and the transactions contemplated hereby were
not in effect. Without limiting any of the foregoing, the
Funding Bank agrees that (x) it will not give notice of a Date of
Early Termination under a Letter of Credit without a writing
executed by the Required Banks or executed by the Administrating
Bank on behalf of the Required Banks directing it to give such
notice (which writing shall specify the Date of Early Termination
to be given in such notice) and (y) if a Reimbursement Event of
Default or Prepayment Event has occurred and is continuing, upon
receipt of such a writing, it will give such notice as provided
in such Letter of Credit.
(e) The Funding Bank makes no representation and shall have
no responsibility with respect to: (i) the genuineness,
legality, validity, binding effect or enforceability of this
Agreement, any of the Transaction Documents, any of the Financing
Documents or any other documents contemplated hereby or thereby;
(ii) the truthfulness and accuracy of any of the representations
contained in this Agreement, any of the Transaction Documents,
any of the Financing Documents or any other documents
contemplated hereby or thereby; (iii) the collectability of any
amounts due under this Agreement; (iv) the financial condition of
the Company or any other Person; and (v) any act or omission of
any Owner Participant with respect to its use of any Letter of
Credit. Each Participating Bank acknowledges and agrees that
such Participating Bank has been, and will continue to be, solely
responsible for making its own independent appraisal of and
investigation into the financial condition, affairs, status and
nature of the Company and for making its own credit decision in
taking or not taking any action, including without limitation,
entering into this Agreement.
(f) To the extent that the Funding Bank is not reimbursed
and indemnified by the Company under Section 20, Section 21 or
Section 22 hereof, each Participating Bank severally agrees to
reimburse and indemnify the Funding Bank on demand, pro rata in
accordance with such Participating Bank's Participation
Percentage, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against, the Funding
Bank, in any way relating to or arising out of the Letters of
Credit or this Agreement, or any action taken or omitted by the
Funding Bank under or in connection with this Agreement or the
Letters of Credit; provided, however, that such Participating
Bank shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Funding Bank's gross negligence or wilful misconduct or from the
Funding Bank's failure to refrain from exercising or to exercise
any right or to refrain from taking or to take any action under
this Agreement or the Letters of Credit, as directed in writing
by the Required Banks or by the Administrating Bank acting on
behalf of the Required Banks; and provided further that such
Participating Bank shall not be liable to the Funding Bank or any
other Participating Bank for the failure of the Company to
reimburse the Funding Bank or any other Participating Bank for
any drawing made under a Letter of Credit or any Advance, with
respect to which such Participating Bank has paid the Funding
Bank such Participating Bank's pro rata share (determined in
accordance with such Participating Bank's Participation
Percentage), or for the Company's failure to pay interest
thereon. Each Participating Bank's obligations under this
paragraph (f) shall survive the termination of this Agreement and
the Letters of Credit. Nothing in this paragraph (f) is intended
to limit any Participating Bank's reimbursement obligation
contained in paragraph (a) above.
(g) Each Participating Bank agrees that it will promptly
(i) notify the Administrating Bank of any occurrence giving rise
to a right to compensation to such Participating Bank pursuant to
Section 4 hereof and (ii) submit to the Administrating Bank a
certificate detailing such occurrence giving rise thereto and the
calculation of the amount of compensation with respect thereto.
The Administrating Bank agrees to present promptly such
certificate to the Company in accordance with Section 4 hereof.
(h) Each Participating Bank agrees that if it should
receive any amount in respect of its participation other than
from the Funding Bank pursuant to paragraph (c) above and other
than as contemplated by Section 3, Section 4, Section 17(a),
Section 21, or Section 22 hereof, such Participating Bank will
remit all of the same to the Administrating Bank to distribute to
the Participating Banks pro rata in accordance with their
Participation Percentages.
SECTION 6. Payments. (a) All payments by the Company or the
Participating Banks to the Funding Bank pursuant to this
Agreement shall be made in lawful currency of the United States
and in immediately available funds to the Funding Bank's account
maintained with the Administrating Bank for such purpose, or to
such other account as the Funding Bank shall notify the Company
and each Participating Bank in writing. All payments by the
Funding Bank, the Company, or the Administrating Bank to a
Participating Bank shall be made in lawful currency of the United
States and in immediately available funds at the address of such
Participating Bank set forth below the name of such Participating
Bank on the signature pages hereof, or at such other address as
any Participating Bank shall notify each of the Funding Bank, the
Company, and the Administrating Bank in writing.
(b) Whenever any payment under this Agreement shall be due
on a day which is not a Business Day, the date for payment
thereof shall be extended to the next succeeding Business Day,
and any interest payable thereon shall be payable for such
extended time at the specified rate.
(c) Interest payable under Sections 2(a), 2(b)(i), 2(e)(i),
5(a) and 5(c) hereof and the fees payable under Section 3 hereof
shall be computed on the basis of a year of 365 or 366 days (as
applicable) and paid for the actual number of days elapsed
(including the first day but excluding the last day). Interest
payable under Section 2(e)(iii) hereof shall be computed on the
basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last
day).
(d) Except as otherwise expressly provided in Section 3, 4
or 5 hereof, all payments hereunder from the Company to the
Participating Banks, from the Funding Bank to the Participating
Banks, from the Participating Banks to the Funding Bank and from
the Participating Banks to the Administrating Bank shall be made
pro rata among the Participating Banks in accordance with the
Participation Percentages of such Participating Banks.
SECTION 7. Issuance of the Letters of Credit; Conditions
Precedent to Issuance. (a) Subject to satisfaction of the
conditions precedent set forth in subsections (b), (c), (d) and
(e) of this Section 7, the Funding Bank shall issue the Letters
of Credit to the beneficiaries in the amounts set forth in
Schedule 2 hereto (which amounts in the aggregate do not exceed
the Aggregate Maximum Credit Amount) on the date set forth in the
notice referred to in Section 7(b)(xiv) hereof (such date or such
later date on which the conditions precedent are satisfied and
such Letters of Credit are issued being herein called the "Date
of Issuance" of the Letters of Credit). All of such Letters of
Credit shall be issued simultaneously. Each Letter of Credit
shall be effective on its Date of Issuance and shall expire on
the Termination Date applicable to such Letter of Credit.
(b) As a condition precedent to the issuance of each Letter
of Credit, the Administrating Bank and each Bank shall have
received on or before the Date of Issuance of the Letters of
Credit the following, each dated such date except as described in
the last paragraph of this subsection (b), in form and substance
satisfactory to each Bank:
(i) an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, (A) as New
York counsel to the Company, substantially in the form of
Exhibit C hereto, and (B) as New York counsel to Entergy
(including certain Delaware opinions), substantially in the
Form of Exhibit D-1 hereto;
(ii) (A) an opinion of ▇▇▇ ▇. ▇▇▇, as Mississippi
counsel to the Company, substantially in the form of
Exhibit E-1 hereto and (B) an opinion of Friday, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, as Arkansas counsel to the Company, substantially in
the form of Exhibit E-2 hereto;
(iii) an opinion of (A) ▇▇▇ ▇. ▇▇▇, as Mississippi
counsel to EMI, (B) Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, as Arkansas
counsel to EAI, and (C) ▇▇▇ ▇. ▇▇▇, as Louisiana counsel to
▇▇▇ and ENOI substantially in the form of Exhibits F-1 to ▇-
▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ (▇) ▇▇▇ ▇. ▇▇▇, as Mississippi
and Louisiana counsel to Entergy, substantially in the form
of Exhibit D-2 hereto;
(iv) an opinion of King & Spalding, special counsel for
the Administrating Bank and the Participating Banks,
substantially in the form of Exhibit G hereto;
(v) copies of the resolutions of the Board of
Directors of the Company authorizing the execution, delivery
and performance by the Company of this Agreement, the
Collateral Agreements, each of the Transaction Documents to
which the Company is a party and the Collateral Trust
Indenture, certified by the Secretary or an Assistant
Secretary of the Company (which certificate shall state that
such resolutions are in full force and effect on the Date of
Issuance of the Letters of Credit);
(vi) certified copies of all approvals, authorizations,
orders or consents of, or notices to or registrations with,
any governmental body or agency required for the Company,
Entergy or any Operating Company to execute, deliver and
perform its obligations under this Agreement and the
Collateral Agreements to which it is a party and of all such
approvals, authorizations, orders, consents, notices or
registrations required to be obtained or made prior to the
Date of Issuance of the Letters of Credit in connection with
the transactions contemplated by any of the Transaction
Documents, Collateral Agreements or any of the Financing
Documents to which any of the Company, Entergy or any
Operating Company is a party;
(vii) a certificate as to the good standing of each
of the Company, Entergy, and each Operating Company, as of a
recent date, from the Secretary of State of the applicable
state of such Person's organization;
(viii) the Administrating Bank shall have a
perfected first priority security interest in the Collateral
Agreements;
(ix) (i) a certificate of the Secretary or Assistant
Secretary of each of the Company, Entergy, and each
Operating Company certifying (A) that attached thereto is a
true and complete copy of the by-laws of such Person as in
effect on the Closing Date and at all times since a date
prior to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors of
such Person authorizing the execution, delivery and
performance of the Collateral Agreements to which it is a
party, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect,
(C) that (x) attached thereto is a true and complete copy of
the certificate or articles of incorporation, including all
amendments thereto, of such Person and (y) that such
certificate or articles of incorporation have not been
amended since the date of the last amendment thereto, and
(D) as to the incumbency and specimen signature of each
officer executing this Agreement, any Collateral Agreement
or any other document or certificate delivered in connection
herewith on behalf of such Person; and (ii) a certificate of
another officer as to the incumbency and specimen signature
of the Secretary or Assistant Secretary executing the
certificate pursuant to (i) above.
(x) an executed copy of the Supplementary Capital
Funds Agreement.
(xi) an executed copy of the Availability Agreement
Assignment.
(xii) a copy of each Disclosure Document;
(xiii) such other documents, instruments, approvals
(and, if requested by any Bank, certified duplicates of
executed copies thereof) or opinions as any Bank may
reasonably request in writing; and
(xiv) a written notice with respect to each Letter
of Credit of the proposed Date of Issuance of such Letter of
Credit signed by the Company and the Owner Participant to
which such Letter of Credit shall be issued.
The parties hereto acknowledge that (1) the resolutions of
the Board of Directors of the Company described in paragraph (v)
of this subsection (b) with respect to the Transaction Documents,
the Availability Agreement and the Collateral Trust Indenture and
(2) all approvals, consents and other documents described in
paragraph (vi) of this subsection (b) with respect to the
Transaction Documents and the Financing Documents were previously
delivered in 1988 to the banks party to the Original
Reimbursement Agreement and that such documents will not be
required to be redelivered in connection with this Agreement.
(c) The following statements shall be true and correct on
the Date of Issuance of the Letters of Credit and the
Administrating Bank and each Bank shall have received on such
Date of Issuance certificates signed by duly authorized officers
of the Company dated such Date of Issuance, stating that:
(i) the representations and warranties contained in
Section 10 hereof are correct on and as of such Date of
Issuance as though made on and as of such date; and
(ii) no Reimbursement Default, Prepayment Event, Event
of Default, Indenture Event of Default, Event of Loss or
Deemed Loss Event shall have occurred and be continuing and
no Reimbursement Default, Prepayment Event, Event of
Default, Indenture Event of Default, Event of Loss or Deemed
Loss Event shall result from the issuance of the Letters of
Credit.
(d) On or before the Date of Issuance of the Letters of
Credit:
(i) each of the Transaction Documents and the
Collateral Agreements shall have been duly authorized and
executed by the respective parties thereto and shall be in
full force and effect;
(ii) the Administrating Bank shall have received
executed copies (or duplicates thereof) of each of such
Transaction Documents and Collateral Agreements, each of
which shall be in form and substance satisfactory to the
Administrating Bank and the Banks;
(iii) all conditions precedent to the Closing set
forth in Section 5(b) of the Participation Agreements
executed by the Owner Participants to which such Letters of
Credit are to be issued shall have been fulfilled (other
than those conditions requiring issuance of such Letters of
Credit and delivery of opinions with respect thereto by
counsel to the Funding Bank);
(iv) each Owner Participant shall have delivered its
letter of credit issued to it on or as of December 27, 1996,
in connection with the 1996 Amended and Restated
Reimbursement Agreement to the Funding Bank for cancellation
together with a duly executed request for cancellation in
the form of Exhibit 7 to such letter of credit;
(v) the Purchase Documents (as such term is defined in
the Participation Agreements executed by the Owner
Participants to which such Letters of Credit are to be
issued) shall have been delivered to the Owner Trustee; and
(vi) all Fees required to be paid pursuant to Section 3
on the Closing Date shall have been received by the
Administrating Bank, the Funding Bank and the other
Participating Banks, as applicable.
The parties hereto acknowledge that (1) the Transaction
Documents described in paragraph (ii) of this subsection (d) and
(2) the Purchase Documents described in paragraph (v) of this
subsection (d) were previously delivered in 1988 to the
Administrating Bank or the Owner Trustee, respectively, and that
such documents will not be required to be redelivered to such
parties in connection with this Agreement.
(e) On the Date of Issuance of the Letters of Credit, the
full power operating license issued for Unit 1 by the Nuclear
Regulatory Commission shall be in full force and effect.
(f) Conditions Precedent to EOL Term Advances. The
obligation of each Participating Bank to make an EOL Term Advance
shall be subject to the conditions precedent that, on the date of
such EOL Term Advance, the following statements shall be true and
the Administrating Bank shall have received a certificate of a
duly authorized officer of the Company, dated the date of such
EOL Term Advance stating that:
(i) the representations and warranties contained in
Section 10 of this Agreement are true and correct in all
material respects on and as of the date of such EOL Term
Advance, before and after giving effect to such EOL Term
Advance and to the application of the proceeds therefrom, as
though made on and as of such date; and
(ii) no event has occurred and is continuing, or would
result from such Advance, that constitutes an Event of
Default, Reimbursement Default, Prepayment Event or
Indenture Event of Default.
(g) Conditions Precedent to DLE Term Advances. The
obligation of each Participating Bank to make any DLE Term
Advance shall be subject to the conditions precedent that, on the
date of such DLE Term Advance, the following statements shall be
true and the Administrating Bank shall have received a
certificate of a duly authorized officer of the Company, dated
the date of such DLE Term Advance stating that:
(i) the representations and warranties contained in
Section 10 of this Agreement are true and correct in all
material respects on and as of the date of such DLE Term
Advance, before and after giving effect to such DLE Term
Advance and to the application of the proceeds therefrom, as
though made on and as of such date; and
(ii) no event has occurred and is continuing, or would
result from such Advance, that constitutes an Event of
Default, a Reimbursement Default, Prepayment Event or
Indenture Event of Default.
SECTION 8. Adjustment of Maximum Drawing Amounts and Maximum
Available Credit Amounts; Terms of Drawing. The Maximum Drawing
Amount and Maximum Available Credit Amount applicable to a given
Letter of Credit shall be subject to modification as specified in
such Letter of Credit and drawings under each Letter of Credit
shall be subject to the other terms and conditions set forth in
such Letter of Credit. If an Owner Participant exercises its
right under Paragraph 5 of the Letter of Credit to revise
Schedule II thereto, the Funding Bank shall notify the
Administrating Bank of such event and will provide to the
Administrating Bank a copy of such revised Schedule, and the
Administrating Bank shall provide copies of such Schedule to the
Participating Banks.
SECTION 9. Obligations Absolute. The payment obligations of
the Company under this Agreement shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under all circumstances
whatsoever, including, without limitation, the following
circumstances:
(a) any lack of validity or enforceability of any Letter of
Credit, this Agreement, any of the Transaction Documents,
Collateral Agreements or any of the Financing Documents;
(b) any amendment or waiver of or any consent to departure from
all or any of the Letters of Credit, this Agreement, any of the
Transaction Documents, Collateral Agreements or any of the
Financing Documents;
(c) the existence of any claim, setoff, defense or other rights
which the Company may have at any time against any of the Owner
Participants or the Owner Trustee, the Funding Bank, the
Administrating Bank, any Participating Bank, or any other Person
or entity, whether in connection with this Agreement, the
Transaction Documents, the Financing Documents or any other
documents contemplated hereby or thereby or any unrelated
transactions; provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(d) any statement or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect whatsoever;
(e) payment by the Funding Bank under any Letter of Credit
against presentation of a draft or certificate which does not
comply with the terms of such Letter of Credit; or
(f) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
SECTION 10. Representations and Warranties. The Company
represents and warrants as follows:
(a) Corporate Existence and Power. It is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Arkansas, is duly qualified to do business
as a foreign corporation in and is in good standing under the
laws of the State of Mississippi and each other state in which
the ownership of its properties or the conduct of its business
makes such qualification necessary except where the failure to be
so qualified would not have a material adverse effect on its
business or financial condition or its ability to perform its
obligations under this Agreement, the Transaction Documents or
the Collateral Agreements to which it is a party, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
(b) Corporate Authorization. The execution, delivery and
performance by it of this Agreement and each Transaction Document
and Collateral Agreement to which it is a party, have been duly
authorized by all necessary corporate action on its part and do
not, and will not, require the consent or approval of its
shareholders, or any trustee or holder of any Indebtedness or
other obligation of it. Certain authorizations, consents and
approvals are required to be and will have been obtained, given
or accomplished on or before the Refunding Date in connection
with the Refunding Loans and Financing Documents.
(c) No Violation, etc. Neither the execution, delivery or
performance by it of this Agreement or any Transaction Document
or Collateral Agreement to which it is a party, nor the
consummation by it of the transactions contemplated hereby or
thereby, nor compliance by it with the provisions hereof or
thereof, conflicts or will conflict with, or results or will
result in a breach or contravention of any of the provisions of
its charter or by-laws or any Applicable Law, or any indenture,
mortgage, lease or any other agreement or instrument to which it
or any of its Affiliates is a party or by which its property or
the property of any of its Affiliates is bound, or results or
will result in the creation or imposition of any Lien (other than
Liens permitted under Section 12(e) hereof) upon any of its
property or the property of any of its Affiliates. There is no
provision of its charter or by-laws, or any Applicable Law, or,
except as disclosed in the Disclosure Documents, any such
indenture, mortgage, lease or other agreement or instrument which
materially adversely affects, or in the future is likely (so far
as it can now foresee) to materially adversely affect, its
business, operations, affairs, condition, properties or assets.
There is no provision of its charter or by-laws, or any
Applicable Law, or any such indenture, mortgage, lease or other
agreement or instrument which materially adversely affects, or in
the future is likely (so far as it now can foresee) to materially
adversely affect its ability to perform its obligations under
this Agreement or any Transaction Document, Collateral Agreement
or Financing Document to which it is, or is to become, a party.
(d) Governmental Actions. No Governmental Action is or will be
required in connection with (a) the execution, delivery or
performance by it, or the consummation by it of the transactions
contemplated by this Agreement or any Transaction Document or
Financing Document to which it is, or is to become, a party, or
Sections 1.3 and 1.4 of the Supplementary Capital Funds Agreement
or Section 2.2(b) of the Availability Agreement Assignment, or
(b) the execution and delivery of the Collateral Agreements,
except such Governmental Actions (i) as have been, or on or
before the Closing Date, in the case of this Agreement, the
Transaction Documents and the Collateral Agreements, or the
Refunding Date, in the case of the Financing Documents, will have
been, duly obtained, given or accomplished, (ii) as may be
required under existing Applicable Law to be obtained, given or
accomplished from time to time after the Closing Date in
connection with the maintenance, use, possession or operation of
Grand Gulf or otherwise with respect to Grand Gulf and its
involvement therewith and which are, for Unit 1, routine in
nature and which it has no reason to believe will not be timely
obtained, and (iii) as may be required under Applicable Law not
now in effect. No Governmental Action by any Governmental
Authority, (I) under the Securities Act, the Securities Exchange
Act, the Trust Indenture Act, the Federal Power Act, the Atomic
Energy Act, the Nuclear Waste Act, the Holding Company Act,
Title 77 of the Mississippi Code of 1972, Subtitle 1 of Title 23
of the Arkansas Code of 1987, Title 45 of the Revised Code of
Louisiana of 1957, or (II) relating to energy or nuclear matters,
public utilities, the environment, or health and safety in
connection with Grand Gulf is or will be required (a) in
connection with the participation by the Administrating Bank or
any Bank in the consummation of the transactions contemplated by
this Agreement, or in connection with the participation by the
Owner Trustee, the Indenture Trustee, any Owner Participant, or
any Loan Participant in the consummation of the transactions
contemplated by the Transaction Documents, the Collateral
Agreements, or the Financing Documents or (b) to be obtained by
any of such Persons during the Lease Term, except such
Governmental Actions of the character previously referred to in
this sentence (i) as have been, or on or before the date hereof,
in the case of this Agreement, the Transaction Documents and the
Collateral Agreements, or the Refunding Date, in the case of any
Refunding Loan or any Financing Documents, will have been, duly
obtained, given or accomplished, (ii) as may be required by
Applicable Law not now in effect, (iii) as may be required in
consequence of any transfer of ownership of any Note or Bond by
the Holder thereof, the beneficial interest in the Trust by any
Owner Participant, or any of the Undivided Interests by the Owner
Trustee, (iv) as may be required in consequence of the issuance,
sale or exchange and delivery of any obligations issued under and
pursuant to any Collateral Trust Indenture, (v) as would be
required by Applicable Law existing on any of the Lease
Termination Dates in connection with taking possession of an
interest in Unit 1, (vi) as may be required by existing
Applicable Law if, after any of the Lease Termination Dates, the
Company should redeliver any Undivided Interest to the Owner
Trustee pursuant to Section 5(a) of any of the Facility Leases or
provide transmission services for the Owner Trustee and sell the
Retained Assets to the Owner Trustee as provided under any of the
Assignment and Assumption Agreements, or (vii) as may be required
in consequence of any exercise of remedies or other rights by any
such Person under Section 16 of any of the Facility Leases. None
of the Governmental Actions referred to in clause (i) of the
first sentence of this Section 10(d) or in clause (b)(i) of the
second sentence of this Section 10(d) are the subject of appeal
or reconsideration or other review, and, except for the Order of
the SEC pursuant to the Holding Company Act and the order of the
NRC under the Atomic Energy Act, regarding the transactions
contemplated hereby, the time in which to make an appeal or
request the review or reconsideration of any such Governmental
Action has expired without any appeal or request for review or
reconsideration having been taken or made.
(e) Execution and Delivery. This Agreement, the Collateral
Agreements and the Transaction Documents to which it is a party
have been duly executed and delivered by it, and this Agreement
and each such Transaction Document and Collateral Agreement is
the legal, valid and binding obligation of it enforceable against
it in accordance with its terms, subject, however, to the
application by a court of general principles of equity and to the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' or lessors'
rights generally.
(f) Litigation. Except as disclosed in the Disclosure
Documents, there is no pending or threatened action or proceeding
affecting the Company, Entergy, EAI, EMI, ▇▇▇, ENOI or any
Significant Operating Company or Significant Operating Group
before any court, governmental agency or arbitrator, as to which
there is a reasonable possibility of an adverse determination
that could affect the validity of this Agreement, any of the
Transaction Documents, the Collateral Agreements or the UPSA, or
materially and adversely affect any of the related transactions,
or as to which there is a reasonable likelihood of an adverse
determination that could materially and adversely affect the
financial condition, business, properties, operations, or
prospects of the Company or it and its Subsidiaries taken as a
whole.
(g) Material Adverse Change. The consolidated balance sheets of
the Company, Entergy and each of EAI, EMI, ▇▇▇, and ENOI as at
December 31, 1998, and the related consolidated statements of
income, retained earnings and changes in financial position
certified by PricewaterhouseCoopers LLP, independent public
accountants, and the most recent consolidated balance sheets of
such companies and the related consolidated statements of income
and changes in financial position which have been furnished to
each Bank, present fairly the consolidated financial position of
such companies as at such dates and the consolidated results of
the operations of such companies for the periods ended on such
dates, in accordance with generally accepted accounting
principles consistently applied. Since December 31, 1998, there
has been no material adverse change in its consolidated financial
condition, business, properties, operations or prospects of
(i) the Company or (ii) Entergy and its Subsidiaries taken as a
whole, except as disclosed in the Disclosure Documents to the
parties hereto prior to the execution of this Agreement.
(h) Employee Benefit Plans. The Company and each of its ERISA
Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the regulations and published
interpretations thereunder. No Reportable Event has occurred as
to which the Company or any ERISA Affiliate was required to file
a report with the PBGC, and the present value of all benefit
liabilities under each Plan (based on those assumptions used to
fund such Plan) did not, as of the last annual valuation date
applicable thereto, exceed by a material amount the value of the
assets of such Plan. Neither the Company nor any ERISA Affiliate
has incurred any Withdrawal Liability that materially adversely
affects the financial condition of the Company and its ERISA
Affiliates taken as a whole. Neither the Company nor any ERISA
Affiliate maintains or contributes to a Multiemployer Plan.
(i) Taxes. The Company, Entergy, and each of EAI, EMI, ▇▇▇ and
ENOI and each Subsidiary thereof has filed all tax returns
(Federal, state and local) required to be filed and paid all
taxes shown thereon to be due, including interest and penalties,
or provided adequate reserves for payment thereof other than such
taxes that the Company or such Subsidiary is contesting in good
faith by appropriate legal proceedings.
(j) UPSA. The UPSA is in full force and effect.
(k) Supplemental Order. The Company, Entergy, EAI, EMI, ▇▇▇ and
ENOI have filed with the SEC a post-effective amendment on Form U-
1 to the Application-Declaration under the Holding Company Act,
File No. 70-7561, requesting authorization of an increase in
approved fees to allow payment in accordance with the provisions
hereof of the maximum Participation Fees reflected in the
Participation Fee Rate pricing grid set forth under the
definition of "Applicable Rate" herein.
(l) Year 2000 Matters. The statements contained in the filings
of the Company and Entergy with the SEC with respect to year 2000
compliance are true and correct in all material respects.
SECTION 11. Affirmative Covenants. The Company agrees that
during the term of this Agreement it will:
(a) Preservation of Corporate Existence, etc. (i) Without
limiting the right of the Company to merge with or into or
consolidate with or into any other corporation or entity in
accordance with the provisions of Section 12(b) hereof, preserve
and maintain its corporate existence in the state of its
incorporation and qualify and remain qualified as a foreign
corporation in each jurisdiction in which such qualification is
reasonably necessary in view of its business and operations or
the ownership of its properties and (ii) preserve, renew and keep
in full force and effect the rights, privileges and franchises
necessary or desirable in the normal conduct of its business.
(b) Compliance with Laws, etc. Comply, and cause each of its
subsidiaries to comply, in all material respects with all
applicable laws, rules, regulations, and orders of any
governmental authority, the noncompliance with which would
materially and adversely affect the business or condition of it
and its Subsidiaries, taken as a whole, such compliance to
include, without limitation, paying before the same become
delinquent all material taxes, assessments and governmental
charges imposed upon it or upon its property, except to the
extent compliance with any of the foregoing is then being
contested in good faith.
(c) Maintenance of Insurance, etc. Maintain, and cause each of
its Subsidiaries to 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
the Company operates and furnish to the Administrating Bank,
within a reasonable time after written request therefor, such
information as to the insurance carried as the Administrating
Bank may reasonably request.
(d) Inspection Rights. At any reasonable time and from time to
time as the Administrating Bank or any Participating Bank may
reasonably request, (i) permit the Administrating Bank or such
Participating Bank or any agents or representatives thereof to
visit the properties of the Company and any of its Subsidiaries,
and to discuss the affairs, finances and accounts of the Company
and any of its Subsidiaries with any of their respective
officers, and (ii) provide reasonable access to the financial
records of the Company and any of its Subsidiaries which are
generally made available to the Company's other bank creditors;
provided, however, that the Company reserves the right to
restrict access to any of its generating facilities in accordance
with reasonably adopted procedures relating to safety and
security. The Administrating Bank and each Participating Bank
agree to use reasonable efforts to ensure that any information
concerning the Company or any of its Subsidiaries obtained by the
Administrating Bank or such Participating Bank pursuant to this
Section which is not contained in a report or other document
filed with the SEC which is publicly available, distributed by
the Company to its security holders or otherwise generally
available to the public, will, to the extent permitted by law and
except as may be required by valid subpoena or in the normal
course of the Administrating Bank's or such Participating Bank's
business operations (which shall include such Participating
Bank's sharing of its liability under the Letters of Credit with
other banks), be treated confidentially by the Administrating
Bank or such Bank and will not be distributed or otherwise made
available by the Administrating Bank or such Participating Bank
to any Person, other than the Administrating Bank's or such
Bank's employees, authorized agents or representatives.
(e) Keeping of Books. Keep, and cause each Subsidiary to keep,
proper books of record and account in which entries shall be made
of all financial transactions and the assets and business of the
Company and each of its Subsidiaries in accordance with generally
accepted accounting principles.
(f) Maintenance of Properties. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its
properties which are used or which are useful in the conduct of
its business in good working order and condition, ordinary wear
and tear excepted, it being understood that this covenant relates
only to the good working order and condition of such properties
and shall not be construed as a covenant of the Company or any of
its Subsidiaries not to dispose of such properties by sale,
lease, transfer or otherwise.
(g) Reporting Requirements. Furnish, or cause to be furnished,
to the Administrating Bank, with sufficient copies for each Bank,
the following:
(i) within five days after an officer has knowledge about the
occurrence of a Reimbursement Default or Prepayment Event or an
Event of Default or an Indenture Event of Default, the statement
of an authorized officer of the Company setting forth details of
such Reimbursement Default or Prepayment Event or Event of
Default or Indenture Event of Default and the action which the
Company has taken or proposes to take with respect thereto;
(ii) promptly after the sending or filing thereof and, with
respect to Reports on Form 10-Q in any event within 60 days after
the close of each of the first three quarters in each fiscal
year, copies of all reports which the Company or Entergy sends to
its Securityholders generally, and copies of all reports on
Form 10-K, Form 10-Q or Form 8-K which any such company or any of
its respective Subsidiaries files with the SEC;
(iii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Company, Entergy, and
each Operating Company, a copy of the annual report in the form
required for reporting to the SEC for such year for such company
and its Subsidiaries, containing financial statements for such
year accompanied by an opinion of PricewaterhouseCoopers LLP or
other independent public accountants of recognized national
standing;
(iv) concurrently with the delivery of the financial statements
specified in clauses (ii) and (iii) above, a certificate of the
chief financial officer, treasurer, assistant treasurer or
controller of the Company (A) stating whether he has any
knowledge of the occurrence at any time prior to the date of such
certificate of any Reimbursement Default or Prepayment Event or
Event of Default or an Indenture Event of Default not theretofore
reported pursuant to the provisions of paragraph (i) of this
subsection (g) or of the occurrence at any time prior to such
date of any such Reimbursement Default or Prepayment Event or
Event of Default or an Indenture Event of Default, except
Reimbursement Defaults or Prepayment Events or Events of Default
or Indenture Events of Default theretofore reported pursuant to
the provisions of paragraph (i) of this subsection (g) and
remedied, and, if so, stating the facts with respect thereto, and
(B) setting forth in a true and correct manner, the calculation
of the ratios required by Sections 12(f) and (g) hereof, as of
the date of the most recent financial statements accompanying
such certificate, to show the Company's compliance with or the
status of the financial covenants contained herein; and
(v) such other information respecting the condition or
operations, financial or otherwise, of the Company or any of its
Subsidiaries, including, without limitation, copies of all
reports and registration statements which the Company or any
Subsidiary files with the SEC or any national securities
exchange, as the Administrating Bank or any Bank may from time to
time reasonably request.
(h) ERISA. (i) Comply in all material respects with the
applicable provisions of ERISA and (ii) furnish to the
Administrating Bank (a) as soon as possible, and in any event
within 30 days after any officer of the Company or any ERISA
Affiliate knows or has reason to know that any Termination Event
(other than one described in clause (v) of such defined term) has
occurred that alone or together with any other such Termination
Event could reasonably be expected to result in liability of the
Company to the PBGC in an aggregate amount exceeding $20,000,000,
a statement of an officer setting forth details as to such
Termination Event and the action that the Company proposes to
take with respect thereto, together with a copy of the notice of
such Termination Event, if any, given to the PBGC, (b) promptly
after receipt thereof, a copy of any notice the Company or any
ERISA Affiliate may receive from the PBGC relating to the
intention of the PBGC to terminate any Plan or Plans (other than
a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) or to appoint a trustee to administer any such Plan,
and (c) within 10 days after the due date for a filing with the
PBGC pursuant to Section 412(n) of the Code of a notice of
failure to make a required installment or other payment with
respect to a Plan, a statement of an officer setting forth
details as to such failure and the action that the Company
proposes to take with respect thereto, together with a copy of
such notice given to the PBGC.
(i) SEC Approval Date. (i) Use its reasonable best efforts to
cause the SEC Approval Date to occur as promptly as practicable,
(ii) promptly provide to the Administrating Bank a copy of all
filings with, and correspondence from, the SEC relating to the
SEC approval process, (iii) promptly inform the Administrating
Bank of the occurrence of the SEC Approval Date if the same shall
occur and provide evidence thereof, including a true and correct
copy of any relevant SEC order or other statement, and (iv) if
the SEC Approval Date shall not have occurred within 12 months
after the Date of Issuance, promptly (and in any event not later
than 15 days after the end of such twelfth month) provide to the
Administrating Bank a detailed written status report on the SEC
approval process and a detailed and feasible written plan and
report for avoiding a Reimbursement Event of Default under
Section 13(xv), in each case satisfactory in scope and coverage
to the Administrating Bank.
SECTION 12. Negative Covenants. The Company agrees that,
during the term of this Agreement, it will not:
(a) Sales, etc., of Assets. Except in the ordinary course of
business, sell, lease, assign, transfer, or otherwise dispose of
or permit any of its Subsidiaries to sell, lease, assign,
transfer, or otherwise dispose of the assets of the Company or
its Subsidiaries (whether in one transaction or in a series of
transactions) provided, however, that (i) the Company may sell
and leaseback the undivided interest in Unit 1 as contemplated by
the Transaction Documents, (ii) the Company or a Subsidiary
thereof may sell and leaseback nuclear fuel under either
capitalized or noncapitalized leases; (iii) the Company or a
Subsidiary thereof may, as part of an industrial development
revenue bond financing of pollution control facilities
constituting part of Grand Gulf, sell, lease or otherwise
transfer and leaseback (or repurchase pursuant to a conditional
sale or other installment sale contract) such facilities;
(iv) the Company or a Subsidiary thereof may sell, assign,
transfer or otherwise dispose of undivided interests in Grand
Gulf if such transactions are for the purpose of complying with
an order or orders of a governmental body having jurisdiction in
the premises or for the purpose of complying with the conditions
of any construction permits issued to the Company or a Subsidiary
thereof by the Nuclear Regulatory Commission, provided that
(A) payment for any such transaction shall be in cash or its
equivalent and (B) each co-owner shall have waived any right it
might have had to require any participation or division of Grand
Gulf during the useful life of Grand Gulf and shall have entered
into an agreement with the Company or a Subsidiary thereof for
the joint operation of Grand Gulf specifying, among other things,
that it will share responsibility for the operating costs of
Grand Gulf and that the Company or a Subsidiary thereof shall
remain responsible for the operation of Grand Gulf; and provided
further that the conditions specified in the foregoing clause (B)
shall be deemed modified by any contrary requirements of the
Nuclear Regulatory Commission; (v) the Company or a Subsidiary
thereof may sell and lease-back assets (up to $500 million in
aggregate proceeds received) under either capitalized or
noncapitalized leases; and (vi) the Company or a Subsidiary
thereof may sell accounts receivable in the ordinary course of
business.
(b) Mergers, etc. Merge with or into or consolidate with or
into any other corporation or entity, or permit any of its
Subsidiaries to do so unless (i) immediately after giving effect
thereto, no event shall occur and be continuing which constitutes
a Reimbursement Default or Prepayment Event, (ii) the
consolidation or merger shall not materially and adversely affect
the ability of such Company (or its successor by merger or
consolidation as contemplated by clause (iii) of this
Section 12(b)) to perform its obligations hereunder or under any
of the Transaction Documents, Collateral Agreements or Financing
Documents, (iii) in the case of any merger or consolidation to
which the Company is a party, the corporation or entity formed by
such consolidation or into which the Company shall be merged
shall (A) assume the Company's obligations under this Agreement,
the Collateral Agreements, the Transaction Documents, and the
Financing Documents in a writing satisfactory in form and
substance to the Required Banks, and (B) provide to the Banks an
opinion to the effect that the instrument of assumption complies
with the terms hereof and constitutes a valid, legally binding
and enforceable obligation of such corporation or entity.
(c) Assignment or Modification of Transaction Documents,
Collateral Agreements or Financing Documents. (i) Enter into any
assignment of its obligations under any of the Transaction
Documents or Financing Documents (except as contemplated herein
or therein), without first obtaining the express prior written
consent of the Required Banks thereto, (ii) cancel, terminate and
supplement, modify, waive or consent to any cancellation,
termination, amendment, supplement of modification (each, a
"Modification") of any of the Transaction Documents or Financing
Documents or any provisions thereof unless it has given the Banks
prior notice thereof, and if such modification could materially
and adversely affect the Required Banks' rights and interests
hereunder or the ability of the Company to perform its
obligations hereunder, the Required Banks have given their prior
written consent within 15 Business Days and (iii) except as
otherwise provided herein, enter into any Modification of any of
the Collateral Agreements or this Section 12(c) without first
obtaining the prior written consent of all Participating Banks.
(d) Cessation of Operations. Cease operating Unit 1 if a
cheaper source of energy is available unless both (i) the
marginal cost of energy at Unit 1 is greater than the cost of
purchasing energy from other available sources and (ii) the
cessation of operation of Unit 1 would not result, or reasonably
be expected to result, in the cessation of allocations of
capacity charges under the UPSA or the removal of ▇▇▇▇ ▇ from the
FERC jurisdictional rate base.
(e) Liens. Create, assume or suffer to exist any Lien upon any
of its assets, now owned or hereafter acquired, securing any
Indebtedness or other obligation except: (i) Liens existing on
the date of execution and delivery of this Agreement, (ii) Liens
established under the Mortgage, and any successor or general and
refunding mortgage so long as provision is made that no further
bonds may be issued under any predecessor mortgage except to
secure bonds issued under the then current successor or general
and refunding mortgage (iii) Liens contemplated to be granted by
the Company or the Owner Trustee pursuant to Section 2.1 of the
Indenture, (iv) Liens contemplated to be granted by the Company
to the Owner Participant pursuant to the Participation Agreement,
(v) Liens securing sale and leaseback transactions permitted
under Section 12(a)(v) hereof, (vi) Liens on nuclear fuel
securing sale and leaseback transactions involving such nuclear
fuel, (vii) assignments of the Capital Funds Agreement permitted
by the Supplementary Capital Funds Agreement, (viii) assignments
of the Availability Agreement permitted by the Availability
Agreement Assignment, (ix) deposits or pledges to secure the
payment of workmen's compensation, unemployment insurance, old
age pensions or other social security benefits or obligations;
(x) mechanics', materialmen's, warehousemen's, carriers' or other
like liens arising in the ordinary course of business securing
obligations which are not overdue for a period longer than
30 days, or which are being contested by the Company in good
faith and as to which adequate reserves shall have been set aside
on the books of the Company; (xi) Liens incurred or created in
connection with or to secure the performance of bids, tenders,
contracts (other than for the payment of money), leases,
statutory obligations, surety bonds or appeal bonds, and other
liens of like nature incurred or created in the ordinary course
of business; (xii) Liens created or incurred in connection with
industrial development revenue bond financing of pollution
control facilities constituting part of Grand Gulf, provided that
any proceeds received by the Company as a result of such
financing (after deducting any costs and expenses incurred in
connection therewith) are applied either to pay or prepay
Indebtedness or to pay the construction costs of Grand Gulf;
(xiii) purchase money liens on property purchased or acquired,
not to exceed in the aggregate the principal amount of
$20,000,000, provided that (A) the aggregate of the liens
pertaining to such property may not exceed sixty-five percentum
(65%) of the cost or fair value, whichever is less, of such
property at the time of acquisition, and (B) each such lien shall
apply only to such property originally subject thereto plus
improvements; (xiv) Liens of financing agencies or other persons
providing financing on any part of Grand Gulf which is reacquired
by the Company following a default by an owner thereof under any
agreement for joint operation of Grand Gulf referred to in
subsection 12(a)(iv) hereof; (xv) Liens on the UPSA, or the right
to receive any payments thereunder, if, but only if, the
Administrating Bank shall have a valid and perfected first
priority security interest in the UPSA and the rights to receive
payment thereunder pro rata and pari passu with any other secured
party; and (xvi) Excepted Encumbrances.
(f) Maintenance of Consolidated Equity. (i) Permit at any time
Consolidated Equity to be less than 33% of (A) Consolidated
Capitalization plus (B) Short-Term Debt in excess of 10% of
Consolidated Capitalization, and (ii) permit at any time
Consolidated Common Equity to be less than 29% of
(A) Consolidated Capitalization plus (B) Short-Term Debt in
excess of 10% of Consolidated Capitalization.
(g) Fixed Charge Ratio. Permit with respect to each fiscal
quarter (determined as of the last day of such fiscal quarter) a
Fixed Charge Ratio to be less than 1.60. "Fixed Charge Ratio"
with respect to any fiscal quarter shall mean the ratio of
(A) the sum of (v) consolidated net income of the Company and its
Subsidiaries for the 12-month period ended on the last day of
such fiscal quarter plus (or minus) (w) all extraordinary items
deducted (or added) in determining said net income plus (x) all
income taxes deducted in determining said net income minus
(y) income tax credits added in determining said net income plus
(z) the sum of (i) all interest expense in respect of
Indebtedness of the Company and its Subsidiaries deducted in
determining said net income and (ii) the interest element of
rental payments deducted in determining such net income under
operating lease obligations of the Company and its Subsidiaries
during such 12-month period as shown in their respective
financial statements or notes thereto (the aggregate interest
expense and interest element of rental payments described in this
clause (z) being referred to as "Interest Expense") to
(B) Interest Expense for such fiscal quarter.
SECTION 13. Reimbursement Events of Default; Prepayment
Events. The following events shall be "Reimbursement Events of
Default" hereunder unless waived by the Required Banks pursuant
to Section 14 hereof:
(i) the Company shall (a) fail to pay when due any amount
payable under Section 2 hereunder, or (b) fail to pay any amount
payable under Section 3 hereof within 5 Business Days after the
same shall become due; or
(ii) the Company shall violate any covenant contained in
Section 12 hereof, except for violations resulting from an
involuntary lien under Section 12(e) hereof; or
(iii) the Company shall fail to observe or perform any
covenant contained in Section 11(g)(i) hereof; or
(iv) the Company shall fail to make, or cause to be made, after
the passage of any applicable grace period, any payment or
payments specified in Section 15(i) of any of the Facility
Leases; or
(v) the Company shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered
by clauses (i), (ii) and (iii) above) for 30 days after written
notice thereof has been given to the Company by the
Administrating Bank or any Bank; or
(vi) any representation, warranty, certification or statement
made by the Company in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect or misleading in any
material respect when made; or
(vii) any material provision of this Agreement shall at any
time for any reason cease to be valid and binding upon the
Company, or shall be declared to be null and void, or the
validity or enforceability thereof shall be contested by the
Company or any governmental agency or authority, or the Company
shall deny that it has any or further liability or obligation
under this Agreement; or
(viii) (a) the Company or any Subsidiary of the Company shall
fail to make any payment of any amount in respect of any
Obligations, or to make any payment of any interest or premium
thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure
shall continue after the applicable grace period, if any,
specified in such agreement or instrument relating to such
Obligations;
(b) any other default under any agreement or
instrument relating to any Obligations of the Company
or any Subsidiary of the Company, or any other event,
shall occur and shall continue after the applicable
grace period, if any, specified in such agreement or
instrument, if the effect of such default or event is
to accelerate, (other than by a specified mandatory
redemption provision in connection with pollution
control bonds unrelated to any default or event of
default with respect thereto), the maturity of any such
Obligations and if the total of all such Obligations
which (x) have become due and not been paid under
clause (viii)(a) and (y) have been accelerated under
this clause (viii)(b) shall exceed $10,000,000 in the
aggregate;
(c) if any EOL Term Advances or DLE Term Advances
are outstanding, Entergy shall fail to make any payment
of any amount in respect of any of its Obligations the
aggregate principal amount of which is greater than
$25,000,000, or to make any payment of any interest or
premium thereon, when due (whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the
applicable grace period, if any, specified in such
agreement or instrument relating to such Obligations;
(d) if any EOL Term Advances or DLE Term Advances
are outstanding, any other default under any agreement
or instrument relating to any Obligations of Entergy
the aggregate principal amount of which is greater than
$25,000,000, or any other event, shall occur and shall
continue after the applicable grace period, if any,
specified in such agreement or instrument, if the
effect of such default or event is to accelerate,
(other than by a specified mandatory redemption
provision in connection with pollution control bonds
unrelated to any default or event of default with
respect thereto), the maturity of any Obligations and
if the total of all such Obligations which (x) have
become due and not been paid under clause (viii)(c) and
(y) have been accelerated under this
clause (viii)(d) shall exceed $25,000,000 in the
aggregate; or
(e) any Obligations of the Company or any
Subsidiary of the Company the aggregate principal
amount of which is greater than $10,000,000, or if any
EOL Term Advances or DLE Term Advances are outstanding,
any Obligations of Entergy the aggregate principal
amount of which is greater than $25,000,000, in any
case shall be declared due and payable, or required to
be prepaid (other than by a regularly scheduled
required prepayment or a specified mandatory redemption
provision in connection with pollution control bonds
unrelated to any default or event of default with
respect thereof) prior to the stated maturity thereof;
or
(ix) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (a) relief in respect of the Company, any
Significant Operating Company or Significant Operating Group or
of a substantial part of its or their property or assets, under
Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy,
insolvency, receivership or similar law, (b) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or
similar official for such company or group, or for a substantial
part of its or their property or assets, or (c) the winding-up or
liquidation of the Company or any Significant Operating Company
or Significant Operating Group; and such proceeding or petition
shall continue undismissed for 60 days, or an order or decree
approving or ordering any of the foregoing shall be entered; or
(x) the Company or any Significant Operating Company or
Significant Operating Group shall (a) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended,
or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (b) consent to the institution of,
or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (ix) above,
(c) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official
for such company or companies, or for a substantial part of its
or their property or assets, (d) file an answer admitting the
material allegations of a petition filed against it or them in
any such proceeding, (e) make a general assignment for the
benefit of creditors, (f) become unable, admit in writing its or
their inability or fail generally to pay its or their debts as
they become due or (g) take any action for the purpose of
effecting any of the foregoing; or
(xi) any judgment or order for the payment of money exceeding any
applicable insurance coverage by more than $10,000,000 shall be
rendered against the Company or any Subsidiary of the Company and
shall remain undischarged or unstayed for 30 days and enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order; or
(xii) within 30 days after the reporting of any Termination
Event to the Administrating Bank, the Administrating Bank shall
have notified the Company in writing that the Required Banks have
made a reasonable determination that, on the basis of such
Termination Event, the financial condition of the Company is, or
could reasonably be expected to become, materially and adversely
affected; or
(xiii) this Agreement or any Collateral Agreement shall for
any reason cease to be, or be asserted by either the Company,
Entergy, or any Operating Company not to be, a legal, valid and
binding obligation of the Company, Entergy or the Operating
Companies, enforceable in accordance with its terms, or the
security interest or lien purported to be created by any
Collateral Agreement shall for any reason cease to be, or be
asserted by the Company not to be, a valid, first priority
perfected security interest (subject to no liens, except liens
not prohibited by Section 12(e) hereof) in the Collateral as
defined under each such agreement; or
(xiv) Entergy shall cease to own, directly or indirectly,
free and clear of all Liens whatsoever, all of the common stock
equity and all of the voting stock of any of the Company, EAI,
▇▇▇, EMI or ENOI (other than preferred stock which has only
limited voting rights upon default); or
(xv) the SEC Approval Date shall not have occurred within 15
months after the Date of Issuance of the first Letter of Credit
to be issued as contemplated hereby, unless (a) each
Participating Bank and the Funding Bank shall have consented, in
their sole and absolute discretion, pursuant to Section 14
hereof, to an extension, beyond such 15th month, of the period in
which the SEC Approval Date may occur and shall have stipulated
such extended period, or (b) the Company shall have posted, and
shall maintain, cash collateral with the Administrating Bank in
an amount equal to the aggregate Maximum Available Credit Amount
under each Letter of Credit, as the same may be increased in
accordance with the terms thereof.
The following event shall be a "Prepayment Event" hereunder
unless waived by the Required Banks pursuant to Section 14
hereof: any change in Applicable Law or any Governmental Action
(including revocation or modification of any required regulatory
approval) shall occur which adversely affects, in other than
immaterial ways, (I) the obligations or ability of the Company,
Entergy, any Operating Company, any Owner Trustee, the Indenture
Trustee, any Owner Participant, the Funding Corporation, the
Funding Bank, the Administrating Bank, any Participating Bank or
any Participant to make any required payment under, or otherwise
to perform, or the right or ability of any such Person to enforce
its rights under, this Agreement, any of the Transaction
Documents or any of the Collateral Agreements or (II) the value
of the Collateral Agreements or the Lease Indenture Estate,
unless such result can be avoided by action which is within the
control of and can be taken by a Bank or Participant within a
reasonable period of time, and which is not adverse to the
interests of or onerous to such bank (and each Bank and
Participant covenants with each other Bank and Participant to
take any such action).
If a Reimbursement Event of Default or Prepayment Event occurs
and is continuing, the Required Banks may, in their sole
discretion, (I) by notice to the Company and the Owner
Participants cause the Funding Bank to terminate the Letters of
Credit of such Owner Participants as provided therein and
(II) declare the Advances and all other principal amounts
outstanding hereunder, all interest thereon and all other amounts
payable hereunder to be due and payable within two Business Days
after demand therefor by the Required Banks to the Company,
whereupon the Advances and all other principal amounts
outstanding hereunder, all such interest and all such other
amounts shall become and be forthwith due and payable at such
time, without presentment, demand, protest or further notice of
any kind, all of which are hereby expressly waived by the
Company; provided, however, that in the event of the occurrence
of any Reimbursement Event of Default described in
subsection (ix) or subsection (x) above, with respect to the
Company, (1) the obligations of the Participating Banks to make
Advances shall automatically be terminated, and (2) the Advances
and all other principal amounts outstanding hereunder, all
interest accrued and unpaid thereon and all other amounts payable
hereunder shall automatically become due and payable, without
presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Company.
SECTION 14. Amendments and Waivers. Subject to the provisos
of this Section 14 and to Section 23 hereof, neither this
Agreement nor any provision hereof (including, without
limitation, any Letter of Credit) may be waived, amended or
modified except pursuant to an agreement or agreements in writing
entered into by the Company and the Required Banks; provided,
however, that no such agreement shall (i) change the Maximum
Credit Amount with respect to any Letter of Credit (other than
any reduction in such Maximum Credit Amount in accordance with
the provisions of such Letter of Credit), or extend or advance
the maturity of the Letters of Credit or the dates for the
reimbursement of drawings under the Letters of Credit or for the
repayment of Advances or the payment of interest on such drawings
or Advances, or reduce the rate of interest on any unreimbursed
drawings or Advances, (ii) change the Participation Percentage of
any Participating Bank or the fees provided for in Section 3
hereof, (iii) waive, modify or eliminate any of the conditions
specified in Section 7(f) or 7(g), (iv) reduce the principal of,
or interest on, the Advances, any amount reimbursable on demand
pursuant to Section 2(a), or any fees or other amounts payable
hereunder or (v) amend or modify the provisions of this
Section 14, Section 4 hereof, Section 5(b) hereof, Section 6(d)
hereof, Section 9 hereof, Section 12(c)(iii) hereof, Section 13
hereof, Section 17 hereof, Section 19 hereof, Section 21 hereof,
Section 22 hereof or Section 23 hereof, the proviso in Section 18
or the definition of "Required Banks", in each case without the
prior written consent of each Participating Bank and the Funding
Bank; provided further that no such agreement shall (I) change
the identity of any Participating Bank or amend, modify or
otherwise affect the rights or duties of the Funding Bank
hereunder, (II) amend or modify the provisions of Sections 5(a),
(b), (c), (d), (e) or (f) hereof, or (III) change the fees
provided for in Section 3(a) hereof, without the written consent
of the Funding Bank or amend, modify or otherwise affect the
rights or duties of the Administrating Bank hereunder, without
the written consent of the Administrating Bank. The
Administrating Bank and each Bank shall be bound by any
modification or amendment authorized by this Section 14, and any
consent by any Participating Bank pursuant to this Section 14
shall bind any successor Participating Bank acquiring a
participation from it whether or not such successor Participating
Bank has received actual notice thereof.
SECTION 15. Notices. All notices, requests and other
communications to any party hereunder shall be in writing
(including telex, telecopy or other facsimile transmission) and
shall be given to such party, addressed to it, at its address or
telex or telecopy number set forth below the name of such party
on the signature pages hereof or such other address or telex or
telecopy number as such party may hereafter specify for that
purpose by notice to the other parties. Each such notice,
request or communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number
specified below and the appropriate answerback is received,
(ii) if given by mail upon receipt but not later than 10 days
after such communication is deposited in the mails with first-
class postage prepaid, addressed as aforesaid, or (iii) if given
by any other means, when delivered at the address for notices
described above.
SECTION 16. No Waiver; Remedies. No failure on the part of
the Administrating Bank or any Bank to exercise, and no delay in
exercising, any power or right hereunder for any period of time
shall operate as a waiver thereof nor shall any single or partial
exercise of any such right or power preclude any other or further
exercise thereof or the exercise of any other right. The rights
and remedies herein provided to the Administrating Bank and the
Banks are cumulative and not exclusive of any other rights or
remedies which the Administrating Bank or any Bank may otherwise
have. No waiver of any provision of this Agreement nor consent
to any departure by the Company therefrom shall in any event be
effective unless the same shall be authorized as provided in
Section 14 above, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for
which given. No notice to or demand on the Company in any case
shall entitle the Company to any other or further notice or
demand in similar or other circumstances.
SECTION 17. Right of Setoff. (a) If a Reimbursement Event of
Default or Prepayment Event shall have occurred and be
continuing, each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit
or the account of the Company against any of and all the
obligations of the Company now and hereafter existing under this
Agreement, irrespective of whether or not such Bank shall have
made any demand under this Agreement and although such
obligations may be unmatured. If the Funding Bank shall assert
any setoff in accordance with the provisions of Section 5(d)
hereof to be applied in reduction of the obligations of the
Company pursuant to Section 2 hereof and a Participating Bank
shall have fulfilled its obligations to the Funding Bank
hereunder, then such Participating Bank shall be entitled to
share in such application in proportion to its Participation
Percentage. Each Bank agrees promptly to notify the Company
after any such setoff and application made by such Bank, but the
failure to give such notice shall not affect the validity of such
setoff and application. The rights of each Bank under this
Section are in addition to other rights and remedies (including,
without limitation, other rights of setoff) which such Bank may
have.
(b) Each Participating Bank agrees that if it shall,
through the exercise of a right of banker's lien, setoff or
counterclaim against the Company, including, but not limited to,
a secured claim under Section 506 of Title 11 of the United
States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Participating Bank
under any applicable bankruptcy, insolvency or other similar law
or otherwise, obtain payment (voluntary or involuntary) in
respect of amounts paid by it pursuant to Section 5(a) as a
result of which the unreimbursed portion of Section 5(a) payments
made by it shall be proportionately less (determined in
accordance with each Participating Bank's Participation
Percentage) than the unreimbursed portion of Section 5(a)
payments made by any other Participating Bank, it shall be deemed
to have simultaneously purchased from such other Participating
Bank a participation in the unreimbursed portion of Section 5(a)
payments made by such other Participating Bank, so that the
aggregate unreimbursed portion of Section 5(a) payments made by
it and participations in the unreimbursed portion of Section 5(a)
payments made by each other Participating Bank and held by it
shall be in the same proportion (determined in accordance with
each Participating Bank's Participation percentage) to the
aggregate unreimbursed portion of Section 5(a) payments made by
all Participating Banks as the principal amount of the
unreimbursed portion of Section 5(a) payments made by it prior to
such exercise of banker's lien, setoff or counterclaim was to the
unreimbursed portion of all Section 5(a) payments made by all
Participating Banks prior to such exercise of banker's lien,
setoff or counterclaim; provided, however, that if any such
purchase or purchases or adjustments shall be made pursuant to
this Section 17(b) and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without
interest. The Company expressly consents to the foregoing
arrangements and agrees that any Participating Bank holding a
participation in an unreimbursed portion of Section 5(a) payment
deemed to have been so purchased may exercise any and all rights
of banker's lien, setoff or counterclaim with respect to any and
all moneys owing by it to such Participating Bank as fully as if
such Participating Bank held an unreimbursed portion of
Section 5(a) payment in the amount of such participation.
SECTION 18. Continuing Obligation. Except with respect to
Sections 20, 21 and 22, the obligations of the Company under this
Agreement shall continue until the later of (i) the Termination
Date of the last outstanding Letter of Credit or (ii) the date
upon which all amounts due and owing to the Administrating Bank
and the Banks hereunder shall have been paid in full and shall
(a) be binding upon the Company and its successors and assigns
and (b) inure to the benefit of and be enforceable by the Banks
and their successors, transferees and assigns; provided, however,
that the Company may not assign all or any part of this Agreement
without the prior written consent of the Funding Bank and the
Participating Banks.
SECTION 19. Extension of Letters of Credit. At least 120 days
but not more than 365 days before the Stated Expiration Date of a
Letter of Credit, the Company may request the Banks, by giving
written notice of such request to the Administrating Bank, to
extend the Stated Expiration Date of such Letter of Credit,
specifying the terms and conditions, including fees, to be
applicable to such extension. The Administrating Bank shall
promptly notify the Funding Bank and each Participating Bank of
such request, and no later than 60 days from the date on which
the Administrating Bank shall have received notice from the
Company pursuant to the preceding sentence, the Administrating
Bank shall notify the Company of the consent or nonconsent of the
Banks to such extension request, and if the Administrating Bank
shall give no such notice to the Company, the Banks shall be
deemed not to have consented to such extension request. No
extension shall be effective without the consent of the Funding
Bank and each of the Banks. The Banks' consent shall be
conditional upon the preparation, execution and delivery of legal
documentation in form and substance satisfactory to the Banks and
their counsel incorporating substantially the terms and
conditions contained in the extension request as the same may be
modified by agreement among the Company and the Banks.
SECTION 20. Limited Liability of the Banks. As between the
Company, on the one hand, and the Banks and the Administrating
Bank, on the other hand, the Company assumes all risks of the
acts or omissions of the Owner Participants with respect to their
use of the Letters of Credit. None of the Administrating Bank,
the Banks or any of their officers or directors shall be liable
or responsible for: (a) the use which may be made of the Letters
of Credit or for any acts or omissions of the Owner Participants
in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement(s) thereon, even
if such documents should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (c) payment
by the Funding Bank against presentation of documents which do
not comply with the terms of the appropriate Letter of Credit,
including failure of any documents to bear any reference or
adequate reference to the appropriate Letter of Credit; or
(d) any other circumstances whatsoever in making or failing to
make payment under any Letter of Credit, except only that the
Company and the Participating Banks shall have a claim against
the Funding Bank, and the Funding Bank shall be liable to the
Company and the Participating Banks to the extent, but only to
the extent, of any direct, as opposed to consequential, damages
suffered by the Company or the Participating Banks, as the case
may be, which the Company or the Participating Banks, as the case
may be, prove were caused by (i) the Funding Bank's willful
misconduct or gross negligence in determining whether documents
presented under a Letter of Credit comply with the terms thereof
or (ii) the Funding Bank's willful failure to pay under a Letter
of Credit after the presentation to it by the appropriate Owner
Participant of a draft and certificate strictly complying with
the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing, the Funding
Bank may accept documents that appear on their face to be in
order, without responsibility for further investigation,
regardless of any notice or information to the contrary. Nothing
in this Section 20 is intended to limit the Company's
reimbursement obligation contained in Section 2 hereof or any
Participating Bank's reimbursement obligation contained in
Section 5(a) hereof.
SECTION 21. Costs, Expenses and Taxes. The Company agrees to
pay not later than 30 days after demand therefor, whether or not
the transactions contemplated herein are consummated, all
reasonable costs and expenses of the Administrating Bank in
connection with the preparation, execution, delivery, filing and
administration of this Agreement and any other documents which
may be delivered in connection with this Agreement, including,
without limitation, the reasonable fees and out-of-pocket
expenses of special counsel for the Administrating Bank and the
Banks (including, without limitation, the fees and out-of-pocket
expenses of King & Spalding, special counsel for the
Administrating Bank and the Participating Banks, and of
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, special counsel for the Funding Bank and
the Documentation Agent) with respect thereto and with respect to
advising the Administrating Bank and the Banks as to their rights
and responsibilities under this Agreement and to pay all
reasonable counsel fees and expenses that may be incurred by the
Administrating Bank and each of the Banks in connection with any
Reimbursement Event of Default or Prepayment Event or any waiver
or amendment of, or the enforcement of, this Agreement and such
other documents which may be delivered in connection with this
Agreement. In addition, the Company agrees to pay any and all
stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and
recording of this Agreement and such other documents and agree to
hold the Administrating Bank and the Banks harmless from and
against any and all liabilities with respect to or resulting from
any delay in paying or omission to pay such taxes and fees;
provided that the Administrating Bank and the Banks agree
promptly to notify the Company of any such taxes and fees which
are incurred by such Bank. Without prejudice to the survival of
any other obligation of the Company hereunder, the obligations of
the Company contained in this Section 21 shall survive the
payment in full of amounts payable by the Company under Section 2
hereof and the termination of the Letters of Credit and this
Agreement.
SECTION 22. Indemnification. The Company hereby agrees to
indemnify and hold harmless the Administrating Bank and each Bank
from and against any and all claims, damages, losses,
liabilities, costs or expenses whatsoever which the
Administrating Bank or such Bank may reasonably incur (or which
may be claimed against the Administrating Bank or such Bank by
any Person or entity whatsoever) (a) by reason of any inaccuracy
in any material respect, or untrue statement or alleged untrue
statement of any material fact contained or incorporated by
reference in any offering document distributed by or on behalf of
the Company in connection with obtaining purchasers of the
Undivided Interest in Unit 1, or in any supplement or amendment
to either thereof, or the omission or alleged omission to state
therein a material fact necessary to make such statements, in the
light of the circumstances under which they are or were made, not
misleading; (b) by reason of or in connection with the execution,
delivery and performance of this Agreement, the Transaction
Documents and Financing Documents; or (c) by reason of or in
connection with the execution and delivery or transfer of, or
payment or failure to make lawful payment under, any Letter of
Credit; provided that the Company shall not be required to
indemnify the Administrating Bank or any Participating Bank for
any claims, damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, caused by the willful
misconduct or gross negligence of the Funding Bank in determining
whether a draft or certificate presented under a Letter of Credit
complied with the terms of such Letter of Credit or the Funding
Bank's willful failure to make lawful payment under a Letter of
Credit after the presentation to it by the appropriate Owner
Participant of a draft and certificate strictly complying with
the terms and conditions of such Letter of Credit. Nothing in
this Section 22 is intended to limit the Company's reimbursement
obligation contained in Section 2 hereof or any Participating
Bank's reimbursement obligation contained in Section 5(a) hereof.
Without prejudice to the survival of any other obligation of the
Company hereunder, the indemnities and obligations of the Company
contained in this Section 22 shall survive the payment in full of
amounts payable by the Company under Section 2 hereof and the
termination of the Letters of Credit and this Agreement or the
substitution of any of the Banks pursuant to Sections 4(g) or (h)
hereof.
SECTION 23. Sales of Participations; Assignments. (a) Without
the consent of the Funding Bank, the Administrating Bank, the
Company or any other Participating Bank, each Participating Bank
may grant participations in its participation in the Letters of
Credit (each Person to which a participation is granted being
called a "Participant") and in such event such Participating Bank
will, in its own name and as agent for any such Participant,
enforce all rights and interests of any Participant under this
Agreement, and accept all performances required of the Company
under this Agreement; provided, however, that such Participating
Bank shall remain entitled to exercise any right, remedy and
power hereunder (other than, if agreed between the Participating
Bank and the Participant, with respect to (i) the Maximum Credit
Amounts or the effective Participation Percentage of such
Participant, (ii) the maturity of the Letters of Credit or the
dates for the reimbursement of drawings under the Letters of
Credit or the payment of interest thereon, (iii) the rate of
interest on unreimbursed drawings, or (iv) the fees to be paid
hereunder), and shall remain fully obligated to the Funding Bank
as provided herein. Any such Participant will be a
"Participating Bank" for purposes of Section 2(l) and Section 4
hereof. If, at the time of a grant of a participation pursuant
to this Section 23(a), such grant would result in a claim for
compensation pursuant to Sections 2(l), 4(b), (c) or (d) hereof
materially greater than that to which the Participating Bank
granting such participation is entitled, such grant shall be
subject to the consent of the Company.
(b) With the prior written consent of the Administrating
Bank, the Funding Bank and the Company (which consent in the case
of the Administrating Bank and the Company shall not be
unreasonably withheld), any Participating Bank may cause all or a
portion of its obligations hereunder to be assumed by a financial
institution, and notwithstanding the provisions of Section 14
hereof, upon the execution and delivery to the Administrating
Bank (together with a processing and recordation fee of $3,500)
of an assignment and acceptance agreement (which shall be
satisfactory in form and substance to the Administrating Bank and
the Funding Bank) executed by the Administrating Bank, the
Funding Bank, such transferring Participating Bank and such
financial institution, such financial institution shall become a
"Participating Bank" for purposes of this Agreement and shall be
entitled to the rights, privileges and obligations of a
Participating Bank hereunder and such transferring Participating
Bank shall be released from its obligations with respect to the
portion of its participation so assumed; provided, that (i) the
obligations so transferred and assumed shall not be less than
$5,000,000 and (ii) the prior written consent of the Company
shall not be required for a transfer of all or a portion of a
Participating Bank's obligations hereunder to another
Participating Bank or an affiliate of a Participating Bank.
(c) The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that
the Company may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent
of each Bank (and any attempted assignment or transfer by the
Company without such consent shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.
SECTION 24. Administrating Bank. (a) In order to expedite
the various transactions contemplated by this Agreement, The
Chase Manhattan Bank is hereby appointed to act as Administrating
Bank on behalf of the Participating Banks. Each of the
Participating Banks hereby authorizes and directs the
Administrating Bank to take such action on behalf of such
Participating Bank under the terms and provisions of this
Agreement and to exercise such powers hereunder as are
specifically delegated to or required of the Administrating Bank
by the terms and provisions hereof, together with such powers as
are reasonably incidental thereto. The Administrating Bank is
hereby expressly authorized on behalf of the Participating Banks,
without hereby limiting any implied authority, (i) to receive on
behalf of each of the Participating Banks any payment of fees due
to the Participating Banks hereunder and all other amounts
accrued hereunder paid to the Administrating Bank for the
accounts of the Participating Banks, and promptly to distribute
to each Participating Bank its proper share of all payments so
received; (ii) to give notice within a reasonable time on behalf
of each of the Participating Banks to the Company of any
Reimbursement Event of Default or Prepayment Event specified in
this Agreement of which the Administrating Bank has actual
knowledge acquired in connection with its capacity as
Administrating Bank hereunder; and (iii) to distribute to the
Funding Bank and each Participating Bank copies of all notices,
agreements and other material as provided for in this Agreement
as received by the Administrating Bank.
(b) Neither the Administrating Bank nor any of its
directors, officers, employees or agents shall be liable as such
for any action taken or omitted by any of them hereunder except
for its or his own gross negligence or willful misconduct, nor be
responsible for any statement, warranty or representation herein
or the contents of any document delivered in connection herewith
nor be required to ascertain or to make any inquiry concerning
the performance or observance by the Company of any of the terms,
conditions, covenants or agreements of this Agreement. The
Administrating Bank shall not be responsible to the Participating
Banks for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement, the Letters of
Credit or any other instrument to which reference is made herein.
The Administrating Bank shall in all cases be fully protected in
acting, or refraining from acting, in accordance with written
instructions signed by the Required Banks, and, except as
otherwise specifically provided herein, such instructions and any
action taken or failure to act pursuant thereto shall be binding
on all the Participating Banks. The Administrating Bank shall,
in the absence of knowledge to the contrary, be entitled to rely
on any paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons.
Neither the Administrating Bank nor any of its directors,
officers, employees or agents shall have any responsibility to
the Company or the Funding Bank on account of the failure or
delay in performance or breach by any Participating Bank or the
Funding Bank of any of its obligations hereunder or to any
Participating Bank on account of the failure of or delay in
performance or breach by any other Participating Bank, the
Funding Bank or the Company of any of their respective
obligations hereunder or in connection herewith. The
Administrating Bank may execute any and all duties hereunder by
or through agents or employees and shall be entitled to advice of
legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of
such counsel.
(c) With respect to the Participation Percentage of it
hereunder, the Administrating Bank, in its individual capacity
and not as the Administrating Bank, shall have the same rights
and powers hereunder and under any other agreement executed in
connection herewith as any other Participating Bank and may
exercise the same as though it were not the Administrating Bank,
and the Administrating Bank and its affiliates may accept
deposits from, lend money to and generally engage in any kind of
business with the Company, any Subsidiary or any other affiliate
thereof as if it were not the Administrating Bank.
(d) Each Participating Bank agrees (i) to reimburse the
Administrating Bank in the amount of such Participating Bank's
pro rata share (determined in accordance with such Participating
Bank's Participation Percentage) of any expenses incurred for the
benefit of the Participating Banks by the Administrating Bank,
including counsel fees and compensation of agents and employees
paid for services rendered on behalf of the Participating Banks,
not reimbursed by the Company and (ii) to indemnify and hold
harmless the Administrating Bank and any of its directors,
officers, employees or agents, on demand, in the amount of its
pro rata share (determined as aforesaid), from and against any
and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as the Administrating
Bank or against any of its directors, officers, employees or
agents in any way relating to or arising out of this Agreement or
any action taken or omitted by it or any of them under this
Agreement, to the extent not reimbursed by the Company, provided
that no Participating Bank shall be liable to the Administrating
Bank for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful
misconduct of the Administrating Bank or any of its directors,
officers, employees or agents.
(e) Each Participating Bank acknowledges that it has,
independently and without reliance upon the Administrating Bank
or any other Participating Bank and based on such documents and
information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each
Participating Bank also acknowledges that it will, independently
and without reliance upon the Administrating Bank or any other
Participating Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished
hereunder.
SECTION 25. Termination by the Company. The Company may, upon
30 days written notice to the Administrating Bank, terminate this
Agreement; provided, however, that any such proposed termination
shall not be effective until (i) all Owner Participants have
delivered their Letters of Credit to the Funding Bank for
cancellation together with a duly executed request for
cancellation in the form of Exhibit 7 to Exhibit A hereto, and
(ii) the Company has paid all fees, expenses and interest accrued
hereunder.
SECTION 26. Termination of Availability Agreement Assignment.
The parties hereto agree that the Availability Agreement
Assignment shall be terminated upon the earlier of (a) the
release or termination of each other collateral assignment of the
Availability Agreement entered into by the Company and each
Operating Company (other than any collateral assignment that
relates to the Original Reimbursement Agreement or any amendment
or restatement thereof) and (b) the indefeasible repayment in
full of all Indebtedness of the Company (other than Indebtedness
under this Agreement) secured by each such other collateral
assignment of the Availability Agreement.
SECTION 27. Severability. Any provision of this Agreement
which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or
nonauthorization without invalidating the remaining provisions
hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction. The parties shall
endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions, the
economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 28. Governing Law; Jurisdiction; Consent to Service of
Process; Waiver of Jury Trial. (a) This Agreement shall be
governed by, and construed and interpreted in accordance with,
the laws of the State of New York.
(b) Each party to this Agreement hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition
or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrating
Agent, the Funding Bank or any other Bank may otherwise have to
bring any action or proceeding relating to this Agreement against
the Company or its properties in the courts of any jurisdiction.
(c) Each party to this Agreement hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in
Section 15 hereto. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any
other manner permitted by law.
(e) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 29. Headings. Section headings in this Agreement are
included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
SECTION 30. Counterparts. This Agreement may be signed in two
or more counterparts, each of which shall constitute an original
but all of which when taken together shall constitute but one
contract, and shall become effective when it shall have been
executed by all parties hereto and when the Administrating Bank
shall have received copies hereof which, when taken together,
bear signatures of all parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement, any
certificate, document (other than any Letter of Credit) or legal
opinion contemplated or required by the terms of this Agreement
by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first above
written.
SYSTEM ENERGY RESOURCES, INC.
by /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
Address for Notice:
System Energy Resources, Inc.
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF TOKYO-MITSUBISHI, LTD.
LOS ANGELES BRANCH, as Funding Bank,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Deputy General Manager
Address for Notice:
The Bank of Tokyo- Mitsubishi, Ltd.,
Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:Manager --
Corporate Banking
Department #3
Copy to:
Union Bank of California, N.A.
Global Business Coordination Division
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address for Payment:
The Bank of Tokyo-Mitsubishi, Ltd.,
Los Angeles Branch
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Manager-Corporate Banking
Department #3
PARTICIPATING BANKS
$30,473,467/15.8% THE CHASE MANHATTAN BANK,
as Administrating Bank and as a Participating Bank,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Address for Notice:
Loan and Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Copy to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Address for Payments:
The Chase Manhattan Bank
ABA: ▇▇▇▇▇▇▇▇▇
A/C: 000323-2-61-906
Ref: System Energy
$30,473,467/15.8% UNION BANK OF CALIFORNIA, N.A.,
as Documentation Agent and as a Participating Bank,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notice:
Union Bank of California, N.A.
Energy Capital Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Address for Payments:
Union Bank of California, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA # ▇▇▇-▇▇▇-▇▇▇
Acct. # 070-196431
Attn:Commercial Loan Operations
Ref: Systems Energy Resources, Inc.
$15,000,000/7.8% BANK HAPOALIM B.M.
as a Participating Bank,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title: Vice President First Vice President
& Corporate Manager
Address for Notice:
Bank Hapoalim B.M.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address for Payments:
Bank of New York
ABA # ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
For the account of
Bank Hapoalim B.M.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
A/C# ▇▇▇ ▇▇▇ ▇▇▇▇
Operations contact:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telcopy: (▇▇▇) ▇▇▇-▇▇▇▇
Reference: Systems Energy
$29,000,000/15.0% THE BANK OF NEW YORK
as a Participating Bank,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Address for Notice:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Address for Payments:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA # ▇▇▇▇▇▇▇▇▇
Commercial Loans GLA# 111-556
Ref: System Energy Resouces, Inc.
Specify: Interest, Principal, Fees
$29,000,000/15.0% THE BANK OF NOVA SCOTIA
as a Participating Bank,
by /s/ F.C.H. ▇▇▇▇▇
Name: F.C.H. Ashbhy
Title: Senior Manager Loan Operations
Address for Notice:
The Bank of Nova Scotia
Atlanta Agency
Suite 2700
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
The Bank of Nova Scotia
Houston Representative ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Address for Payments:
The Bank of Nova Scotia
New York Agency
ABA # 026 002 532
For Credit to BNS Atlanta Agency
Act# 0606634
Re: System Energy
$29,000,000/15.0% BANK ONE, NA (MAIN OFFICE CHICAGO)
as a Participating Bank,
by /s/ ▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address for Notice:
Bank One, NA (Main Office Chicago)
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇ ▇▇▇▇▇
Address for Payments:
ABA #: ▇▇▇▇▇▇▇▇▇
A/C#: 4811-5286-0000
A/C Title: Incoming Money Transfers
$10,000,000/5.2% CIBC, INC.
as a Participating Bank,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
Address for Notice:
CIBC, Inc.
Two Pages West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and
▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
CIBC, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Address for Payment Instructions:
The Bank of New York
ABA ▇▇▇-▇▇▇-▇▇▇
A/C CIBC New York
A/C # ▇▇▇-▇▇▇▇-▇▇▇
Ref: Systems Energy Resources
Telex Number/Answerback: 542413
(CANBANK)
$20,000,000/10.4% TORONTO DOMINION (TEXAS), INC.
as a Participating Bank,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address for Notice:
The Toronto-Dominion Bank
Manager, Credit Administration
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
The Toronto-Dominion Bank
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇
Address for Payments:
Bank of America, New York
▇▇▇▇▇▇▇▇▇
Toronto-Dominion Bank, Houston
▇▇▇▇-▇-▇▇▇▇▇
Re: System Energy Resources, Inc.
EXHIBIT A
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. [ ]
December 20, 1999
[Owner Participant]
[Address]
(the "Owner Participant")
Attn: [ ]
Dear Sirs:
1. We hereby establish, at the request of System Energy
Resources, Inc. (the "Company"), in your favor, our Irrevocable
Transferable Letter of Credit No. [ ] (the "Letter of
Credit"), in an amount not to exceed [$156,885,463.65]
[$36,061,469.99] (as such amount may be reduced pursuant to the
terms hereof, the "Maximum Credit Amount"), effective immediately
and expiring on the Termination Date. Capitalized terms used
herein and in Schedules II and III and Exhibits 1, 2, 3, 4, 5, 6
and 7 hereto shall have the meanings set forth in Schedule I
hereto. This Letter of Credit is issued in connection with the
leasing of an undivided interest in Unit No. 1 of the Grand Gulf
Nuclear Station to the Company pursuant to a Facility Lease dated
as of December 1, 1988, as supplemented by a Lease Supplement
dated as of April 1, 1989 and as supplemented by a Lease
Supplement dated as of January 1, 1994 (the "Facility Lease"),
among the Company and the Owner Trustees under a trust agreement
with you.
2. The Maximum Credit Amount may be reduced at any time and
from time to time upon receipt by us at the address for
presentation of documents set forth below of a copy of the
instrument effecting such reduction, signed by the Company and by
you in the form of Exhibit 1 hereto (a "Reduction Certificate").
Upon receipt of such certificate, the Maximum Credit Amount shall
be automatically and permanently reduced by the amount specified
as the Reduction Amount in such Reduction Certificate (the
"Reduction Amount").
3. We hereby irrevocably authorize you to draw on us, in
accordance with the terms and conditions hereinafter set forth,
an amount not in excess of the least of (x) the Maximum Drawing
Amount applicable to the date of such drawing (the "Date of
Drawing"), as modified in accordance with the next paragraph and
(y) the Maximum Available Credit Amount applicable to the Date of
Drawing, as modified in accordance with the next paragraph and
(z) in the case of a Partial Draw, the Partial Drawing Amount
applicable to the Date of Drawing; provided, however, that at no
time shall we be required to pay any drawing under this Letter of
Credit in excess of the lesser of the Maximum Available Credit
Amount and the Maximum Drawing Amount, in each case as in effect
on the applicable Date of Drawing.
4. The Maximum Drawing Amounts and the Maximum Available Credit
Amount shall be modified from time to time as follows:
(a) upon receipt by us of a Reduction Certificate, the Maximum
Available Credit Amount shall be permanently reduced by the
Reduction Amount set forth in such Reduction Certificate;
(b) upon payment by us of each Partial Draw (as hereinafter
defined) under the Letter of Credit, (i) the Maximum Drawing
Amount applicable to each Date of Drawing subsequent to such
payment shall be automatically reduced by an amount equal to the
amount of the drawing so paid and (ii) the Maximum Available
Credit Amount shall be automatically reduced by an amount equal
to the amount of the drawing so paid;
(c) upon the application by us of amounts paid by the Company
pursuant to Section 2 of the Reimbursement Agreement to reimburse
any Partial Draw hereunder (as such application is allocated in
accordance with Section 2(d) of the Reimbursement Agreement),
(i) the Maximum Drawing Amount applicable to each Date of Drawing
subsequent to such application shall be automatically increased
by the amount of such payment(s) allocated as a reimbursement of
drawings hereunder and (ii) the Maximum Available Credit Amount
shall be automatically increased by the amount of such payment(s)
allocated as a reimbursement of drawings hereunder; provided,
however, that the Maximum Available Credit Amount shall never
exceed the Maximum Credit Amount;
(d) upon the payment by us of any Final Draw (as hereinafter
defined) under the Letter of Credit, (i) the Maximum Drawing
Amount applicable to each Date of Drawing subsequent to such
payment shall be automatically reduced to zero and (ii) the
Maximum Available Credit Amount shall be automatically reduced to
zero; and
(e) if adjustments are made to Casualty Values, corresponding
adjustments shall be made to the Maximum Drawing Amounts shown in
Schedule II (as theretofore reduced pursuant to clause (b) above
and, if applicable, reinstated pursuant to clause (c) above),
provided that adjustments pursuant to this clause (e) shall be
effective automatically upon receipt by us of a notice from you
in the form of Exhibit 2 hereto, and provided further that such
adjustments shall in no event cause the Maximum Drawing Amount to
exceed the Maximum Credit Amount.
5. Upon return of this Letter of Credit together with a notice
in the form of Exhibit 2 hereto, we will promptly initial and
attach to this Letter of Credit a revised Schedule II reflecting
the adjustments contained in such notice and return this Letter
of Credit to you with such revised Schedule attached.
6. Upon the application by us of amounts paid by the Company
pursuant to Section 2 of the Reimbursement Agreement to reimburse
any Partial Draw hereunder, we will give you prompt (and in any
event within three Business Days of such application) written
notice of such application and the amount thereof. Such notice
shall be given in accordance with the provisions set forth in the
eighth paragraph of this Letter of Credit.
7. Funds under this Letter of Credit are available to you
either (a) against presentation as set forth herein on or prior
to the earlier of (x) March 20, 2003 and (y) the Termination Date
and provided there has not been a Final Draw and provided a
written notice indicating the Date of Early Termination (as
hereinafter defined) has not been delivered to you, of (i) your
draft in the form of Exhibit 3 attached hereto and (ii) a
completed certificate signed by you in the form of Exhibit 4
attached hereto (a "Partial Draw"), or (b) against presentation
on or prior to the Termination Date of (i) your draft in the form
of Exhibit 3 attached hereto and (ii) a completed certificate
signed by you in the form of Exhibit 5 attached hereto (a "Final
Draw"). Each of a Partial Draw and a Final Draw are sometimes
referred to herein as a "Draw". Each such draft and certificate
shall be dated the date of presentation and shall be presented
either (i) by personal delivery at our office located at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Manager-Corporate Banking Department #3 (or at any
other office in Los Angeles, California which may be designated
by us by written notice (given in the manner set forth in the
next paragraph) delivered to you at least 15 days prior to the
applicable Date of Drawing) or (ii) by telecopy at (▇▇▇) ▇▇▇-▇▇▇▇
(or at any other telecopy number in Los Angeles, California which
may be designated by us by written notice (given in the manner
set forth in the next paragraph) delivered to you at least
15 days prior to the applicable Date of Drawing). If
presentation is by telecopy, promptly thereafter, but not as a
condition to a draw, you shall forward such draft and certificate
to us at the location specified in or pursuant to (i) above. We
agree, so long as this Letter of Credit is in effect, that we
will maintain an office in the city of Los Angeles, California
where such presentation may be made. If we receive such draft
and certificate by personal delivery or by telecopy at such
office, all in strict conformity with the terms and conditions of
this Letter of Credit, prior to 10:00 a.m. (New York time) on any
Business Day, we will honor the draft on the same Business Day by
remitting the proceeds thereof to you at your account
[No.__________] at [name of bank]. If we receive such draft and
certificate by personal delivery or by telecopy at such office,
all in strict conformity with the terms and conditions of this
Letter of Credit, on or after 10:00 a.m. (New York time) on any
Business Day, we will honor the draft on the next Business Day by
wire transfer of federal funds to your account with any bank
located in the United States of America or by deposit of
immediately available funds into a designated account that you
maintain with us. Upon receipt of a draft and certificate which
are not in strict conformity with the terms and conditions of
this Letter of Credit, we will promptly (and in any event within
three Business Days of such receipt) notify you of such
nonconformity and the reason therefor; provided that our failure
to so notify you of such nonconformity or the reason therefor
shall not amend, modify, extend or otherwise affect your rights
hereunder and shall not create any additional rights hereunder;
provided further that, notwithstanding the generality of the
foregoing, any such failure shall not have the effect of
extending the time during which you may draw hereunder or
converting such nonconforming draft and certificate into a draft
and certificate in strict conformity with the terms and
conditions of this Letter of Credit.
8. Notwithstanding any other provision of this Letter of
Credit, we shall have the right, upon the occurrence of any of
the events listed in Schedule III hereto, to terminate this
Letter of Credit by delivering to you a written notice indicating
the date of such termination (the "Date of Early Termination");
provided that on or before the Date of Early Termination you will
have the right to draw once an amount not in excess of the lesser
of (i) the Maximum Available Credit Amount and (ii) the Maximum
Drawing Amount, in each case as in effect on such date in
accordance with the procedures described herein; provided
further, that upon delivery of such written notice to you
indicating the Date of Early Termination, your right to make a
Partial Draw hereunder shall automatically terminate. The
written notice referred to in the preceding sentence shall be
given by telex or facsimile transmission addressed to you at
[Name], [Address], Telecopy: , Attention: (or to
such other address or telex number designated by you by written
notice delivered to us at least 15 days prior to the notice of
early termination) and shall be effective upon receipt of the
appropriate answerback or confirmation by you of your receipt of
the facsimile transmission or, if no such answerback or
confirmation is given, the end of the Business Day on which
actual transmission is made to the address above. We will also
forward copies of such notice by overnight delivery service (with
a request to such delivery service that they obtain a receipt
from such addressee (to the extent that such a receipt service is
then available, it being understood that the failure of such
delivery service to actually obtain such a receipt shall not be
the responsibility of the Funding Bank and the Funding Bank shall
bear no liability for such failure)) and registered mail (return
receipt requested) to the address set forth above. The Date of
Early Termination specified in such written notice shall be:
(a) in the case of events specified in paragraphs (i), (ix) and
(x) of Schedule III, not earlier than ten days after such notice
is effective, or, if the tenth day is not a Business Day, the
next following Business Day,
(b) in the case of the event specified in paragraph (xvi) of
Schedule III, not earlier than 15 days after such notice is
effective, or, if the fifteenth day is not a Business Day, the
next following Business Day, and
(c) in the case of all other events specified in Schedule III,
not earlier than 30 days after such notice is effective.
You have no obligation upon the receipt of such written
notice indicating the Date of Early Termination to investigate or
otherwise question whether any of the events specified in
Schedule III has occurred and the fact that such an event shall
not have occurred shall not in any way affect your right to draw
hereunder upon the receipt of such written notice.
9. Except as set forth below, this Letter of Credit shall be
governed by the Uniform Customs and Practice for Documentary
Credits (revision effective January 1, 1994) International
Chamber of Commerce Publication No. 500, and, as to matters not
covered therein, be governed by the laws of the State of New
York, including without limitation the Uniform Commercial Code as
in effect in such State. Unless you are otherwise notified in
writing, communications to us with respect to this Letter of
Credit shall be in writing and shall be addressed to us at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Manager-Corporate Banking Department #3, with a copy
to Union Bank of California, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and
shall specifically refer to the number of this Letter of Credit.
10. This Letter of Credit may be transferred and assigned in its
entirety more than once. Upon receipt by us at the address for
presentation of documents set forth above of a copy of the
instrument effecting such transfer and assignment, signed by the
transferor and by the transferee, in the form of Exhibit 6 hereto
then, in such case, we will, upon surrender of this Letter of
Credit, issue an irrevocable transferable letter of credit in the
name of the transferee and providing for notices to be sent to
the transferee at the address set forth therein and in all other
respects identical to this Letter of Credit and the transferee,
instead of the transferor, shall, without necessity of further
act, be entitled to all the benefits of, and rights under, this
Letter of Credit in the transferor's place.
11. Any drawing under this Letter of Credit will be paid from
our general funds and not directly or indirectly from funds or
collateral deposited with or for our account by the Company, or
pledged with or for our account by the Company and we will seek
reimbursement for payments made pursuant to a drawing under this
Letter of Credit only after such payments have been made.
12. This Letter of Credit sets forth in full our undertaking,
and such undertaking shall not in any way be modified, amended,
amplified or limited by reference to any document, instrument or
agreement referred to herein, except only Schedules I, II and III
and Exhibits 1, 2, 3, 4, 5, 6 and 7 hereto and the notices
referred to herein; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or
agreement except as set forth above.
13. We (a) hereby irrevocably submit for ourself and our
property to the nonexclusive jurisdiction of the courts of the
State of New York in New York County, and to the nonexclusive
jurisdiction of the United States District Court for the Southern
District of New York, for the purposes of any suit, action or
other proceeding arising out of this Letter of Credit brought by
the account party or the beneficiary hereof or their successors
or assigns, and
(b) hereby waive, and agree not to assert, by way of
motion, as a defense, or otherwise, in any such suit, action or
proceeding, to the extent permitted by applicable law, that the
suit, action or proceeding is brought in an inconvenient forum,
that the venue of the suit, action or proceeding is improper, or
that this Letter of Credit, or the subject matter hereof or any
of the transactions contemplated hereby may not be enforced in or
by such courts. We generally consent to service of process by
registered mail, return receipt requested, addressed to us at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention of: General Manager, or such other office in the State
of California as from time to time may be designated by us in
writing to the account party and the beneficiary hereof, or their
successors or assigns, as the case may be.
Very truly yours,
THE BANK OF TOKYO-MITSUBISHI, LTD.,
LOS ANGELES BRANCH
By_________________________________
Name:
Title:
EXHIBIT 1
to Exhibit A
[Date]
The Bank of Tokyo-Mitsubishi, Ltd.,
Los Angeles Branch
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Attention: Manager-Corporate Banking Department #3
Dear Sirs:
Reference is made to that certain Irrevocable
Transferable Letter of Credit bearing Letter of Credit No.______
dated [Date of Issuance] (the "Letter of Credit"), which has been
established by you in favor of [name of Owner Participant] (the
"Owner Participant").
We hereby request that the Maximum Credit Amount be
reduced by $___________ (the "Reduction Amount").
Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to them in the Letter of
Credit.
SYSTEM ENERGY RESOURCES, INC.
By________________________________
Title:
[OWNER PARTICIPANT]
By_________________________________
[Name and Title of Authorized
Representative of Owner Participant]
EXHIBIT 2
to Exhibit A
[Date]
The Bank of Tokyo-Mitsubishi, Ltd.,
Los Angeles Branch
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Attention: Manager-Corporate Banking Department #3
Dear Sirs:
Reference is made to that certain Irrevocable
Transferable Letter of Credit bearing Letter of Credit
No._________ dated [Date of Issuance] (the "Letter of Credit"),
which has been established by you in favor of [name of Owner
Participant] (the "Owner Participant").
The undersigned, a duly authorized representative of
the Owner Participant, hereby certifies that Casualty Values have
been adjusted in accordance with the provisions of the
Transaction Documents and the amounts shown on Schedule II to the
Letter of Credit should be modified, in accordance with the terms
of clause (e) of the fourth paragraph of the Letter of Credit, to
the amounts shown in Appendix A hereto.
The Letter of Credit is returned herewith and we
request that you initial and return the Letter of Credit with the
revised Schedule II attached.
Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to them in the Letter of
Credit.
[OWNER PARTICIPANT]
By____________________________
[Name and Title of Authorized
Representative of Owner Participant]
EXHIBIT 3
to Exhibit A
[Place]
[Date]
ON [Business Day of presentation if presented before 10:00 a.m.
(New York time); next Business Day if presented at or after
10:00 a.m.]
PAY TO U.S.$[not to exceed least of
[Name of beneficiary] (i) the Maximum Available
Credit Amount and (ii) the
Maximum Drawing Amount and,
(iii) in the case of a Partial
Draw, the Partial Drawing
Amount] DOLLARS,
[Insert wire instructions]
FOR VALUE RECEIVED AND CHARGE TO ACCOUNT OF LETTER
OF CREDIT NO. OF
The Bank of Tokyo-Mitsubishi, Ltd.,
Los Angeles Branch
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[OWNER PARTICIPANT]
By___________________________
[Name and Title of Authorized
Representative of Owner Participant]
EXHIBIT 4
to Exhibit A
CERTIFICATE FOR A PARTIAL DRAW
The undersigned, a duly authorized representative of
[name of Owner Participant] (the "Owner Participant"), as
beneficiary under that certain Irrevocable Transferable Letter of
Credit No.__________ dated [the Date of Issuance], established by
The Bank of Tokyo-Mitsubishi, Ltd., Los Angeles Branch (the
"Funding Bank"), and issued pursuant to that certain Amended and
Restated Reimbursement Agreement, dated as of December 20, 1999,
(the "Reimbursement Agreement"), among System Energy Resources,
Inc., The Chase Manhattan Bank, as Administrating Bank, the
Funding Bank, Union Bank of California, N.A., as Documentation
Agent, and the banks named therein as Participating Banks (the
"Letter of Credit"), hereby certifies as follows:
1. A Partial Drawing Event has occurred and is continuing.
2. The Owner Participant has not heretofore made a Final Draw
under the Letter of Credit. The Owner Participant has not
heretofore received notice of a Date of Early Termination.
3. The amount of the accompanying draft does not exceed the
least of (i) the Maximum Available Credit Amount on the date
hereof, as determined in accordance with the terms of the Letter
of Credit, and (ii) the Maximum Drawing Amount available under
the Letter of Credit on the date hereof, as determined in
accordance with the terms of the Letter of Credit, and (iii) the
Partial Drawing Amount for such Partial Drawing Event.
Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to them in the Letter of
Credit.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ____________, [19__] [20__].
[OWNER PARTICIPANT]
By_________________________________
[Name and Title of Authorized
Representative of Owner Participant]
EXHIBIT 5
to Exhibit A
CERTIFICATE FOR A FINAL DRAW
The undersigned, a duly authorized representative of
[name of Owner Participant] (the "Owner Participant"), as
beneficiary under that certain Irrevocable Transferable Letter of
Credit No.__________ dated [the Date of Issuance] established by
The Bank of Tokyo-Mitsubishi, Ltd., Los Angeles Branch (the
"Funding Bank"), and issued pursuant to that certain Amended and
Restated Reimbursement Agreement, dated as of December 20, 1999,
(the "Reimbursement Agreement"), among System Energy Resources,
Inc., The Chase Manhattan Bank, as Administrating Bank, the
Funding Bank, Union Bank of California, N.A., as Documentation
Agent, and the banks named therein as Participating Banks (the
"Letter of Credit"), hereby certifies as follows:
1. [Insert one of the following: A Deemed Loss Event (as
defined in Schedule I to the Letter of Credit) has occurred and
is continuing./ An Event of Loss (as defined in Schedule I to
the Letter of Credit) has occurred and is continuing./ An Event
of Default (as defined in Schedule I to the Letter of Credit) has
occurred and is continuing./ Notice has been given by the
Funding Bank of a Date of Early Termination and such Date of
Early Termination is on or after the date hereof.]
2. The Owner Participant has not heretofore made a Final Draw
under the Letter of Credit.
3. The amount of the accompanying draft does not exceed the
lesser of (i) the Maximum Available Credit Amount on the date
hereof and (ii) the Maximum Drawing Amount available under the
Letter of Credit on the date hereof, each as determined in
accordance with the terms of the Letter of Credit.
Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to them in the Letter of
Credit.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ____________, [19__] [20___].
[OWNER PARTICIPANT]
By______________________________________
[Name and Title
Authorized Representative of Owner
Participant]
EXHIBIT 6
to Exhibit A
The Bank of Tokyo-Mitsubishi, Ltd.,
Los Angeles Branch
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Dear Sirs:
Reference is made to the certain Irrevocable
Transferable Letter of Credit bearing Letter of Credit No.___
dated [Date of Issuance] (the "Letter of Credit"), which has been
established by you in favor of [name of Owner Participant] (the
"Transferor").
The Transferor has transferred and assigned (and hereby
confirms to you said transfer and assignment) all of its rights
in and under the Letter of Credit to [name of Transferee] (the
"Transferee") and confirms that the Transferor no longer has any
rights under or interest in the Letter of Credit.
The Letter of Credit is returned herewith and we
request that you issue an irrevocable transferable letter of
credit in the name of the Transferee and providing for notices to
be sent to the Transferee at the address set forth below and in
all other respects identical to the Letter of Credit.
Transferee hereby certifies that it is a duly
authorized transferee under the terms of the Letter of Credit and
is accordingly entitled, upon presentation of the drafts and
certificates called for therein, to receive payment thereunder.
Notices under the Letter of Credit should be sent to us as
follows: [Name], [Address], [Telex Number], Attention:
, [Answerback].
[NAME OF TRANSFEROR]
By____________________________________
[Name and Title of
Authorized Representative
of Transferor]
[NAME OF TRANSFEREE]
By______________________________________
[Name and Title of Authorized
Representative of Transferee]
EXHIBIT 7
to Exhibit A
The Bank of Tokyo-Mitsubishi, Ltd.,
Los Angeles Branch
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Attention: Manager-Corporate Banking Department #3
Dear Sirs:
Reference is made to that certain Irrevocable
Transferable Letter of Credit bearing Letter of Credit No.
dated [Date of Issuance] (the "Letter of Credit"), which has been
established by you in favor of [name of Owner Participant] (the
"Owner Participant").
The undersigned, a duly authorized representative of
the Owner Participant, hereby surrenders the Letter of Credit for
immediate cancellation. The Letter of Credit is returned
herewith and we request that you cancel the Letter of Credit as
of the date hereof.
Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to them in the Letter of
Credit.
[OWNER PARTICIPANT]
By______________________________________
[Name and Title of Authorized
Representative of
Owner Participant]
SCHEDULE I
to Exhibit A
The following terms shall have the following meanings
for purposes of the Letter of Credit and the Schedules and
Exhibits thereto. Terms defined in the Letter of Credit shall
have the meanings given to them therein. Terms defined by
reference to the Participation Agreement shall have the meanings
assigned to them therein from time to time.
"Administrating Bank" means The Chase Manhattan Bank, a
New York banking corporation.
"Availability Agreement" means the Availability
Agreement, dated as of June 21, 1974, among the Company and the
Operating Companies, as amended heretofore and as amended from
time to time.
"Availability Agreement Assignment" means the Thirty-
Third Assignment of Availability Agreement, Consent and Agreement
dated as of December 20, 1999, among the Company, EAI, ▇▇▇, EMI,
ENOI, and the Administrating Bank, substantially in the form of
Exhibit I to the Reimbursement Agreement, and as amended from
time to time.
"Applicable Law" has the meaning assigned to it in the
Participation Agreement.
"Bank" means the Funding Bank or any Participating
Bank.
"Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in New York, New York or
Los Angeles, California are authorized or required by law to
close.
"Code" means the United States Internal Revenue Code of
1986, as amended, and the applicable regulations thereunder.
"Collateral Agreements" means the Supplementary Capital
Funds Agreement, the Availability Agreement and the Availability
Agreement Assignment.
"Date of Issuance" means December 20, 1999.
"Date of Early Termination" has the meaning assigned to
it in the eighth paragraph of the Letter of Credit.
"Deemed Loss Event" has the meaning specified in the
Participation Agreement.
"DLE Term Advance" has the meaning assigned to it in
Section 1 of the Reimbursement Agreement.
"EAI" means Entergy Arkansas, Inc., an Arkansas
corporation.
"▇▇▇" means Entergy Louisiana, Inc., a Louisiana
corporation.
"EMI" means Entergy Mississippi, Inc., a Mississippi
corporation.
"ENOI" means Entergy New Orleans, Inc., a Louisiana
corporation.
"Entergy" means Entergy Corporation, a Delaware
corporation.
"EOL Term Advance" has the meaning assigned to it in
Section 1 of the Reimbursement Agreement.
"ERISA" has the meaning assigned to it in the
Participation Agreement.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) that is a member of a group of which the
Company is a member and which is treated as a single employer
under Section 414 of the Code.
"Event of Default" has the meaning assigned to it in
the Facility Lease.
"Event of Loss" has the meaning specified in the
Participation Agreement.
"Facility Lease" has the meaning assigned to it in the
Participation Agreement.
"Funding Bank" means The Bank of Tokyo-Mitsubishi,
Ltd., Los Angeles Branch.
"Funding Corporation" has the meaning assigned to it in
the Participation Agreement.
"Governmental Action" has the meaning assigned to it in
the Participation Agreement.
"Holding Company Act" means the Public Utility Holding
Company Act of 1935, as amended.
"Indebtedness" of any Person means at any date, without
duplication, the following items to the extent required under
generally accepted accounting principles to be disclosed in such
Person's financial statements (including the notes
thereto): (i) all obligations of such Person for borrowed money,
or with respect to deposits or advances of any kind; (ii) all
obligations of such Person evidenced by bonds, debentures, notes
or similar instruments; (iii) all obligations of such Person upon
which interest charges are customarily paid; (iv) all obligations
under leases which shall have been or should be, in accordance
with generally accepted accounting principles, recorded as
capital leases in respect of which such Person is liable as
lessee; (v) all obligations under the Facility Leases (regardless
of treatment in the financial statements or notes thereto);
(vi) all obligations with respect to any sale and leaseback
transaction permitted under Section 12(a)(v) of the Reimbursement
Agreement (regardless of treatment in the financial statements or
notes thereto); (vii) liabilities in respect of unfunded vested
benefits under Plans; (viii) Withdrawal Liability incurred under
ERISA by such Person or any of its affiliates to any
Multiemployer Plan; (ix) reimbursement obligations of such Person
(whether contingent or otherwise) in respect of letters of
credit, bankers acceptances, surety or other bonds and similar
instruments; (x) the book value of any asset of such Person upon
which a Lien is imposed for the purpose of securing Indebtedness
of others; and (xi) obligations of such Person under direct or
indirect guarantees in respect of, obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of indebtedness or
obligations of others of the kinds referred to above; provided,
however, that the liabilities in Sections (vii) and (viii) above
will only be counted as "Indebtedness" to the extent that they
are required to be capitalized on the balance sheet of such
Person under generally accepted accounting principles.
"Indenture" has the meaning assigned to it in the
Participation Agreement.
"Indenture Trustee" has the meaning assigned to it in
the Participation Agreement.
"Lease Indenture Estate" has the meaning assigned to it
in the Participation Agreement.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset. For the purposes of this
Agreement, a Person or any of its Subsidiaries shall be deemed to
own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Long-Term Debt" means all Indebtedness which is not
otherwise included in the definition herein of Short-Term Debt.
"Maximum Available Credit Amount" shall mean an amount
equal to the Maximum Credit Amount, as such amount may be
modified from time to time in accordance with the fourth
paragraph of the Letter of Credit.
"Maximum Drawing Amount" means, with respect to a Date
of Drawing, the amount shown opposite the period including such
Date of Drawing in the Table of Maximum Drawing Amounts attached
as Schedule II to the Letter of Credit, as such amounts may be
modified from time to time in accordance with the fourth
paragraph of the Letter of Credit (collectively, the "Maximum
Drawing Amounts").
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Company or
any ERISA Affiliate (other than one considered an ERISA Affiliate
only pursuant to subsection (m) or (o) or Code Section 414) is
making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Notes" has the meaning assigned to it in the
Participation Agreement.
"Obligations" means, with regard to any Person at any
date, without duplication, (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person with respect
to deposits or advances of any kind, or for the deferred purchase
price of property or services, (iii) all obligations of such
Person evidenced by bonds, debentures, notes or similar
instruments, (iv) all obligations of such Person upon which
interest charges are customarily paid, (v) all obligations under
leases relating to any sale and leaseback transaction permitted
under Section 12(a)(v) of the Reimbursement Agreement, (vi) all
obligations under leases which shall have been or should be, in
accordance with generally accepted accounting principles,
recorded as capital leases in respect of which such Person is
liable as lessee, (vii) reimbursement obligations of such Person
in respect of letters of credit, bankers acceptances, surety or
other bonds and similar instruments, and (viii) obligations of
such Person under direct or indirect guarantees in respect of,
and obligations to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to above; provided,
however, that obligations under (ii), (vii), or (viii) above
shall not be included in this definition to the extent that such
obligations are being contested by such Person in good faith and
in an appropriate manner.
"Operating Companies" means EAI, EMI, ▇▇▇ and ENOI,
each being an "Operating Company".
"Owner Participant" means RCMC I, Inc. (formerly known
as RCMC Del., Inc.), assignee in interest of Resources Capital
Management Corporation, assignee in interest of Public Service
Resources Corporation, and/or Textron Financial Corporation,
assignee in interest of Lease Management Realty Corporation IV,
as the case may be, and their respective permitted successors and
assigns.
"Owner Trustee" has the meaning assigned to it in the
Participation Agreement.
"Partial Draw" has the meaning assigned to it in the
seventh paragraph of the Letter of Credit.
"Partial Drawing Amount" means, with respect to any
Partial Drawing Event, an amount not exceeding the amount of Rent
due and unpaid the non-payment of which gave rise to such Partial
Drawing Event.
"Partial Drawing Event" means an Event of Default under
Section 15(i) of the Facility Lease.
"Participant" has the meaning assigned to it in
Section 23(a) of the Reimbursement Agreement.
"Participation Agreement" means the Participation
Agreement dated as of December 1, 1988, among the Owner
Participant, the Funding Corporation, the banks named therein as
Original Loan Participants, Meridian Trust Company and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ in their individual capacities and as Owner Trustee,
Bankers Trust Company and ▇▇▇▇▇▇▇ ▇▇▇▇, in their individual
capacities and as Indenture Trustee, and the Company.
"Participating Banks" means the banks, other than The
Chase Manhattan Bank solely in its role as administrating bank,
whose names are listed on the signature pages of the
Reimbursement Agreement, each being a "Participating Bank."
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any entity succeeding to any
or all of its functions under ERISA.
"Person" has the meaning assigned to it in the
Participation Agreement.
"Plan" means any pension plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code and which is maintained for
employees of the Company or any ERISA Affiliate.
"Reimbursement Agreement" means the Amended and
Restated Reimbursement Agreement, dated as of December 20, 1999,
among the Company, the Administrating Bank, the Funding Bank,
Union Bank of California, N.A., as Documentation Agent, and the
banks named therein as Participating Banks, as the same may from
time to time be amended, supplemented or modified.
"Rent" has the meaning assigned to it in the
Participation Agreement.
"Reportable Event" means any reportable event as
defined in Section 4043(b) of ERISA or the regulations issued
thereunder with respect to a Plan (other than a Plan maintained
by an ERISA Affiliate which is considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Code Section 414).
"Required Banks" means at any time Participating Banks
whose aggregate Participation Percentages are equal to at least
66-2/3% at such time.
"SEC" means the Securities and Exchange Commission of
the United States of America or any successor agency.
"SEC Approval Date" means the date on which the Company
obtains an effective order from the SEC under the Holding Company
Act authorizing the payment in accordance with the provisions
hereof, without exception, of the maximum Participation Fees
reflected in the Participation Fee Rate pricing grid set forth
under the definition of "Applicable Rate" in the Reimbursement
Agreement.
"Significant Operating Company" means an Operating
Company whose entitlement percentage under the UPSA exceeds 20%.
"Significant Operating Group" means any two or more
Operating Companies whose entitlement percentage under the UPSA
exceeds 20% in the aggregate.
"Stated Expiration Date" means March 20, 2003.
"Subsidiary" means with respect to any Person (herein
referred to as the "parent"), any corporation, association or
other business entity (a) of which securities or other ownership
interests representing more than 50% of the ordinary voting power
are, at the time any determination is being made, owned,
controlled or held or (b) which is, at the time any determination
is made, otherwise controlled (by contract or agreement or
otherwise) by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the
parent.
"Supplementary Capital Funds Agreement" means the
Thirty-Third Supplementary Capital Funds Agreement and Assignment
dated as of December 20, 1999, between the Company and the
Administrating Bank, substantially in the form of Exhibit H to
the Reimbursement Agreement, and as amended from time to time.
"Termination Date" means the earliest of
(i) 10:00 a.m., New York time, on the Date of Early Termination,
(ii) 5:00 p.m. (New York time) on the date on which the Owner
Participant surrenders the Letter of Credit for cancellation to
the Bank with a notice in the form of Exhibit 7 to the Letter of
Credit, (iii) 5:00 p.m. (New York time) on the date on which the
Bank pays a Final Draw, and (iv) either (x) if a draft and
certificate, all in strict conformity with the terms and
conditions of the Letter of Credit, are presented after
10:00 a.m. but prior to 5:00 p.m. (New York time) on the Stated
Expiration Date, 5:00 p.m. (New York time) on the Business Day
following the Stated Expiration Date or otherwise (y) 5:00 p.m.
(New York time) on the Stated Expiration Date.
"Termination Event" means (i) a Reportable Event or
(ii) the withdrawal of the Company or an ERISA Affiliate from a
Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (iii) the filing of
a notice of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, or
(iv) the institution of proceedings to terminate a Plan by the
PBGC, or (v) any other event or condition which is reasonably
expected to constitute grounds for the imposition of a lien in
favor of a Plan for the termination of, or the appointment of a
trustee to administer, a Plan under Section 4042 of ERISA.
"Transaction Documents" means the Participation
Agreement, the Indenture, the Notes, the Facility Lease, and the
Letter of Credit.
"Unit 1" has the meaning assigned to it in the
Participation Agreement.
"UPSA" means the Unit Power Sales Agreement, dated as
of June 10, 1982, among the Company and the Operating Companies,
as amended heretofore and as amended from time to time.
"Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
SCHEDULE II
to Exhibit A
Table Of Maximum Drawing Amounts
Maximum Drawing Amount
Applicable Period RCMC I, Inc. Textron Total
Financial
Corporation
From December 20, $148,719,125.41 $34,946,720.11 $183,665,845.52
1999 to and
including
January 15, 2000
From January 15, $150,029,763.80 $34,847,843.95 $184,877,607.75
2000 to and
including July 15,
2000
From July 15, 2000 $151,224,418.23 $35,125,753.86 $186,350,172.09
to and including
January 15, 2001
From January 15, $152,346,332.82 $35,374,378.01 $187,720,710.83
2001 to and
including July 15,
2001
From July 15, 2001 $153,423,864.45 $35,587,278.43 $189,011,142.88
to and including
January 15, 2002
From January 15, $154,530,917.29 $35,770,945.50 $190,301,862.79
2002 to and
including July 15,
2002
From July 15, 2002 $155,684,141.81 $35,921,003.67 $191,605,145.48
to and including
January 15, 2003
From January 15, $156,885,463.65 $36,061,469.99 $192,946,933.64
2003 to and
including March 20,
2003
SCHEDULE III
to Exhibit A
The Bank shall have the right upon the occurrence of
any of the events listed below to terminate the Letter of Credit
in accordance with the terms of the Letter of Credit.
(i) the Company shall (a) fail to pay when due any
amount payable under Section 2 of the Reimbursement
Agreement, or (b) fail to pay any amount payable under
Section 3 of the Reimbursement Agreement within 5 Business
Days after the same shall become due; or
(ii) the Company shall violate any covenant contained
in Section 12 of the Reimbursement Agreement, except for
violations resulting from an involuntary lien under
Section 12(e) of the Reimbursement Agreement; or
(iii) the Company shall fail to observe or perform
any covenant contained in Section 11(g)(i) of the
Reimbursement Agreement; or
(iv) the Company shall fail to make, or cause to be
made, after the passage of any applicable grace period, any
payment or payments specified in Section 15(i) of any of the
Facility Leases; or
(v) the Company shall fail to observe or perform any
covenant or agreement contained in the Reimbursement
Agreement (other than those covered by clauses (i), (ii),
and (iii) above) for 30 days after written notice thereof
has been given to the Company by the Administrating Bank or
any Bank; or
(vi) any representation, warranty, certification or
statement made by the Company in the Reimbursement
Agreement or in any certificate, financial statement or
other document delivered pursuant to the Reimbursement
Agreement shall prove to have been incorrect or misleading
in any material respect when made; or
(vii) any material provision of the Reimbursement
Agreement shall at any time for any reason cease to be valid
and binding upon the Company, or shall be declared to be
null and void, or the validity or enforceability thereof
shall be contested by the Company or any governmental agency
or authority, or the Company shall deny that it has any or
further liability or obligation under the Reimbursement
Agreement; or
(viii) (a) the Company or any Subsidiary of the
Company shall fail to make any payment of any amount in
respect of any Obligations, or to make any payment of any
interest or premium thereon, when due (whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the
applicable grace period, if any, specified in such agreement
or instrument relating to such Obligations;
(b) any other default under any agreement or
instrument relating to any Obligations of the Company or any
Subsidiary of the Company, or any other event, shall occur
and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the
effect of such default or event is to accelerate, (other
than by a specified mandatory redemption provision in
connection with pollution control bonds unrelated to any
default or event of default with respect thereto), the
maturity of any Obligations and if the total of all such
Obligations which (x) have become due and not been paid
under clause (viii)(a) and (y) have been accelerated under
this clause (viii)(b) shall exceed $10,000,000 in the
aggregate;
(c) if any EOL Term Advances or DLE Term Advances
are outstanding, Entergy shall fail to make any payment of
any amount in respect of any of its Obligations the
aggregate principal amount of which is greater than
$25,000,000, or to make any payment of any interest or
premium thereon, when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and
such failure shall continue after the applicable grace
period, if any, specified in such agreement or instrument
relating to such Obligations;
(d) if any EOL Term Advances or DLE Term Advances
are outstanding, any other default under any agreement or
instrument relating to any Obligations of Entergy the
aggregate principal amount of which is greater than
$25,000,000, or any other event, shall occur and shall
continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of
such default or event is to accelerate (other than by a
specified mandatory redemption provision in connection with
pollution control bonds unrelated to any default or event of
default with respect thereto) the maturity of any
Obligations and if the total of all such Obligations which
(x) have become due and not been paid under
clause (viii)(c) and (y) have been accelerated under this
clause (viii)(d) shall exceed $25,000,000 in the aggregate;
or
(e) any Obligations of the Company or any
Subsidiary of the Company the aggregate principal amount of
which is greater than $10,000,000, or if any EOL Term
Advances or DLE Term Advances are outstanding, any
Obligations of Entergy the aggregate principal amount of
which is greater than $25,000,000, in any case shall be
declared due and payable, or required to be prepaid (other
than by a regularly scheduled required prepayment or a
specified mandatory redemption provision in connection with
pollution control bonds unrelated to any default or event of
default with respect thereof) prior to the stated maturity
thereof; or
(ix) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (a) relief in respect of the Company,
any Significant Operating Company or Significant Operating
Group or of a substantial part of its or their property or
assets, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal or
state bankruptcy, insolvency, receivership or similar law,
(b) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for such
company or group, or for a substantial part of its or their
property or assets, or (c) the winding-up or liquidation of
the Company or any Significant Operating Company or
Significant Operating Group; and such proceeding or petition
shall continue undismissed for 60 days, or an order or
decree approving or ordering any of the foregoing shall be
entered; or
(x) the Company or any Significant Operating Company
or Significant Operating Group shall (a) voluntarily
commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law,
(b) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing
of any petition described in (ix) above, (c) apply for or
consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for
such company or companies, or for a substantial part of its
or their property or assets, (d) file an answer admitting
the material allegations of a petition filed against it or
them in any such proceeding, (e) make a general assignment
for the benefit of creditors, (f) become unable, admit in
writing its or their inability or fail generally to pay its
or their debts as they become due or (g) take any action for
the purpose of effecting any of the foregoing; or
(xi) any judgment or order for the payment of money
exceeding any applicable insurance coverage by more than
$10,000,000 shall be rendered against the Company or any
Subsidiary of the Company and shall remain undischarged or
unstayed for 30 days and enforcement proceedings shall have
been commenced by any creditor upon such judgment or order;
or
(xii) within 30 days after the reporting of any
Termination Event to the Administrating Bank, the
Administrating Bank shall have notified the Company in
writing that the Required Banks have made a reasonable
determination that, on the basis of such Termination Event,
the financial condition of the Company is, or could
reasonably be expected to become, materially and adversely
affected; or
(xiii) the Reimbursement Agreement or any Collateral
Agreement shall for any reason cease to be, or be asserted
by either the Company, Entergy, or any Operating Company not
to be, a legal, valid and binding obligation of the Company,
Entergy or the Operating Companies, enforceable in
accordance with its terms, or the security interest or lien
purported to be created by any Collateral Agreement shall
for any reason cease to be, or be asserted by the Company
not to be, a valid, first priority perfected security
interest (subject to no liens, except liens not prohibited
by Section 12(e) of the Reimbursement Agreement) in the
Collateral as defined under each such agreement; or
(xiv) Entergy shall cease to own, directly or
indirectly, free and clear of all Liens whatsoever, all of
the common stock equity and all of the voting stock of any
of the Company, EAI, ▇▇▇, EMI or ENOI (other than preferred
stock which has only limited voting rights upon default); or
(xv) any change in Applicable Law or any Governmental
Action (including revocation or modification of any required
regulatory approval) shall occur which adversely affects, in
other than immaterial ways, (I) the obligations or ability
of the Company, Entergy, any Operating Company, any Owner
Trustee, the Indenture Trustee, any Owner Participant, the
Funding Corporation, the Funding Bank, the Administrating
Bank, any Participating Bank or any Participant to make any
required payment under, or otherwise to perform, or the
right or ability of any such Person to enforce its rights
under, the Reimbursement Agreement, any of the Transaction
Documents or any of the Collateral Agreements or (II) the
value of the Collateral Agreements or the Lease Indenture
Estate, unless such result can be avoided by action which is
within the control of and can be taken by a Bank or
Participant within a reasonable period of time, and which is
not adverse to the interests of or onerous to such bank (and
each Bank and Participant covenants with each other Bank and
Participant to take any such action); or
(xvi) the SEC Approval Date shall not have occurred
within 15 months after the Date of Issuance, unless (a) each
Bank shall have consented, in its sole and absolute
discretion, pursuant to Section 14 of the Reimbursement
Agreement, to an extension beyond such 15th month, of the
period in which the SEC Approval Date may occur and shall
have stipulated such extended period, or (b) the Company
shall have posted, and shall maintain, cash collateral with
the Administrating Bank in an amount equal to the aggregate
Maximum Available Credit Amount, as the same may be
increased in accordance with the terms of this Letter of
Credit.
Capitalized terms used herein and not otherwise defined
herein have the meanings given to them in the Letter of Credit.
EXHIBIT B
Form of Notice of Drawing
[Company/Participating Bank]
[Address]
Dear Sirs:
Reference is made to that certain Irrevocable
Transferable Letter of Credit bearing Letter of Credit
No. dated ______________, which has been established by
us in favor of [insert name(s) of beneficiar(ies)].
We have received (i) a draft for payment of
U.S. $ on [insert date to be paid] and (ii) a
Certificate for [a Partial Draw/a Final Draw] from [insert name
of beneficiary presenting draft and certificate].
On [insert date of payment], we paid such draft in the
amount of U.S. $ .
[Insert the following in the case of notice to a
Participating Bank: Your pro rata share of such drawing (based
upon your Participation Percentage) is $ .]
Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to them in the Letter of
Credit.
THE BANK OF TOKYO-MITSUBISHI, LTD.,
Los Angeles Branch
By ____________________________
Title:
SCHEDULE 1
Participating Bank Participation Percentage
The Chase Manhattan Bank 15.8%
Union Bank of California, N.A. 15.8%
The Bank of New York 15.0%
The Bank of Nova Scotia 15.0%
Bank One, NA (Main Office Chicago) 15.0%
Toronto-Dominion (Texas), Inc. 10.4%
Bank Hapoalim B.M. 7.8%
CIBC, Inc. 5.2%
SCHEDULE 2
Beneficiaries and Amounts
of Letters of Credit to Be Issued
LETTERS OF CREDIT
Beneficiary:
RCMC I, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Maximum Credit Amount: $156,885,463.65
Initial Maximum Drawing Amount: $148,719,125.41
Applicable Period Maximum Drawing Amount
From December 20, 1999 to and including $148,719,125.41
January 15, 2000
From January 15, 2000 to and including July $150,029,763.80
15, 2000
From July 15, 2000 to and including January $151,224,418.23
15, 2001
From January 15, 2001 to and including July $152,346,332.82
15, 2001
From July 15, 2001 to and including January $153,423,864.45
15, 2002
From January 15, 2002 to and including July $154,530,917.29
15, 2002
From July 15, 2002 to and including $155,684,141.81
January 15, 2003
From January 15, 2003 to and including March $156,885,463.65
20, 2003
SCHEDULE 2-2
Beneficiary:
Textron Financial Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Maximum Credit Amount: $36,061,469.99
Initial Maximum Drawing Amount: $34,946,720.11
Applicable Period Maximum Drawing
Amount
From December 20, 1999 to and including $34,946,720.11
January 15, 2000
From January 15, 2000 to and including July $34,847,843.95
15, 2000
From July 15, 2000 to and including January $35,125,753.86
15, 2001
From January 15, 2001 to and including July $35,374,378.01
15, 2001
From July 15, 2001 to and including January $35,587,278.43
15, 2002
From January 15, 2002 to and including July $35,770,945.50
15, 2002
From July 15, 2002 to and including $35,921,003.67
January 15, 2003
From January 15, 2003 to and including March $36,061,469.99
20, 2003