EXHIBIT B-2(b)
CONFORMED COPY
THIRTY-THIRD ASSIGNMENT OF AVAILABILITY AGREEMENT,
CONSENT AND AGREEMENT
This Thirty-third Assignment of Availability Agreement,
Consent and Agreement (hereinafter referred to as "this
Assignment"), dated as of December 20, 1999, is made by and
between System Energy Resources, Inc. (the "Company"), Entergy
Arkansas, Inc., ("EAI") (successor in interest to Arkansas Power
& Light Company and Arkansas-Missouri Power Company ("Ark-Mo"),
Entergy Louisiana, Inc., ("▇▇▇"), Entergy Mississippi, Inc.,
("EMI") and Entergy New Orleans, Inc., ("ENOI") (hereinafter EAI,
▇▇▇, EMI, and ENOI are called individually a "System Operating
Company" and collectively, the "System Operating Companies"), and
The Chase Manhattan Bank, as Administrating Bank (the
"Administrating Bank") under the Reimbursement Agreement dated as
of December 1, 1988 (the "1988 Reimbursement Agreement"), as
amended by a First Amendment and Agreement to 1988 Reimbursement
Agreement dated as of January 11, 1991 ("First Amendment to 1988
Reimbursement Agreement") and a Second Amendment and Agreement to
1988 Reimbursement Agreement dated as of December 17, 1993
("Second Amendment to 1988 Reimbursement Agreement"), as amended
and restated as of December 27, 1996 (the "1996 Restated
Reimbursement Agreement"), and as amended and restated as of
December 20, 1999 (the 1988 Reimbursement Agreement as amended by
the First Amendment to Reimbursement Agreement, the Second
Amendment to Reimbursement Agreement, the 1996 Restated
Reimbursement Agreement and as amended and restated as of the
date hereof is herein called (the "Amended and Restated
Reimbursement Agreement"), among the Company, The Bank of Tokyo-
Mitsubishi, Ltd., Los Angeles Branch (the "Funding Bank"), the
Administrating Bank, Union Bank of California, N.A., as
Documentation Agent, and the banks named therein (the
"Participating Banks").
WHEREAS:
A. Entergy Corporation (formerly Middle South Utilities, Inc.)
("Entergy") owns all of the outstanding common stock of the
Company and each of the System Operating Companies, and the
Company has a 90% undivided ownership and leasehold interest in
Unit 1 of the Grand Gulf Nuclear Electric Station project (more
fully described in the "Indenture" hereinafter referred to).
B. Prior hereto, (i) the Company, Manufacturers Hanover Trust
Company, as agent for certain banks (the "Domestic Agent") and
said banks entered into an Amended and Restated Bank Loan
Agreement dated as of June 30, 1977 (the "Amended and Restated
Agreement"), the First Amendment thereto dated as of March 20,
1980 (the "First Bank Loan Amendment"), the Second Amended and
Restated Bank Loan Agreement dated as of June 15, 1981 as amended
by the First Amendment dated as of February 5, 1982 (as so
amended, the "Second Amended and Restated Bank Loan Agreement"),
and the Second Amendment of the Second Amended and Restated Bank
Loan Agreement, dated as of June 30, 1983 as further amended by
the Third Amendment thereto dated as of December 30, 1983 and the
Fourth Amendment thereto dated as of June 28, 1984 (as so further
amended, the "Second Bank Loan Second Amendment"); (ii) the banks
party to the Amended and Restated Agreement made loans to the
Company in the aggregate principal amount of $565,000,000 and
pursuant to the First Assignment of Availability Agreement,
Consent and Agreement (substantially in the form of this
Assignment) dated as of June 30, 1977, between the Company, the
System Operating Companies, Ark-Mo and the Domestic Agent (the
"First Assignment of Availability Agreement"), the Company
assigned to the Domestic Agent (for the benefit of such banks),
as collateral security for the above loans, certain of the
Company's rights under an Availability Agreement dated as of June
21, 1974, as amended by the First Amendment thereto dated as of
June 30, 1977 (the "Original Availability Agreement") between the
Company, the System Operating Companies and Ark-Mo; (iii) the
First Bank Loan Amendment, among other things, increased the
amount of the loans to be made by the banks party thereto to
$808,000,000 and pursuant to the Fourth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of March 20, 1980 (the
"Fourth Assignment of Availability Agreement"), the Company's
same rights under the Original Availability Agreement were
further assigned as collateral security for the loans made under
the Amended and Restated Agreement as amended by the First Bank
Loan Agreement; (iv) the Second Amended and Restated Bank Loan
Agreement provided, among other things, for (a) the making of
revolving credit loans by the banks named therein to the Company
from time to time in an aggregate amount not in excess of
$1,311,000,000 at any one time outstanding, and (b) the making of
a term loan by said banks in an aggregate amount not to exceed
$1,311,000,000, and pursuant to the Fifth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment) dated as of June 15, 1981 (the
"Fifth Assignment of Availability Agreement"), the Company's same
rights under the original Availability Agreement, as amended by
the Second Amendment thereto dated June 15, 1981, were further
assigned as collateral security for the loans made under the
Second Amended and Restated Bank Loan Agreement; and (v) the
Second Bank Loan Second Amendment, among other things, increased
the amount of the loans to be made by the banks party thereto to
$1,711,000,000 and pursuant to the Eighth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment) dated as of June 30, 1983 (the
"Eighth Assignment of Availability Agreement"), the Company's
same rights under the Original Availability Agreement, as amended
by the Second Amendment thereto dated June 15, 1981, were further
assigned as collateral security for the loans made under the
Second Amended and Restated Bank Loan Agreement, as amended by
the Second Bank Loan Second Amendment.
C. Prior hereto (i) the Company, the System Operating
Companies, Ark-Mo, and United States Trust Company of New York
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (▇▇▇▇▇▇ ▇. ▇▇▇▇▇, successor), each as trustee
(collectively, the "Trustees") for the holders of $400,000,000
aggregate principal amount of the Company's First Mortgage Bonds,
9.25% Series due 1989 (the "First Series Bonds") issued under a
Mortgage and Deed of Trust dated as of June 15, 1977 between the
Company and the Trustees (the "Mortgage"), as supplemented by a
First Supplemental Indenture dated as of June 15, 1977 between
the Company and the Trustees (the Mortgage as so supplemented and
as supplemented by a Second Supplemental Indenture dated as of
January 1, 1980, a Third Supplemental Indenture dated as of
June 15, 1981, a Fourth Supplemental Indenture dated as of June
1, 1984, a Fifth Supplemental Indenture dated as of December 1,
1984, a Sixth Supplemental Indenture dated as of May 1, 1985, a
Seventh Supplemental Indenture dated as of June 15, 1985, an
Eighth Supplemental Indenture dated as of May 1, 1986, a Ninth
Supplemental Indenture dated as of May 1, 1986, a Tenth
Supplemental Indenture dated as of September 1, 1986, an Eleventh
Supplemental Indenture dated as of September 1, 1986, a Twelfth
Supplemental Indenture dated as of September 1, 1986, a
Thirteenth Supplemental Indenture dated as of November 15, 1987,
a Fourteenth Supplemental Indenture dated as of December 1, 1987,
a Fifteenth Supplemental Indenture dated as of July 1, 1992, a
Sixteenth Supplemental Indenture dated as of October 1, 1992, a
Seventeenth Supplemental Indenture dated as of October 1, 1992,
and an Eighteenth Supplemental Indenture dated as of April 1,
1993, and as the same may from time to time hereafter be amended
and supplemented in accordance with its terms, being hereinafter
called the "Indenture"), entered into the Second Assignment of
Availability Agreement, Consent and Agreement dated as of
June 30, 1977 (the "Second Assignment of Availability Agreement")
(substantially in the form of this Assignment) to secure the
First Series Bonds; (ii) the Company, the System Operating
Companies, and the Trustees, as trustees for the holders of
$98,500,000 aggregate principal amount of the Company's First
Mortgage Bonds, 12.50% Series due 2000 (the "Second Series
Bonds") issued under the Mortgage, as supplemented by a Second
Supplemental Indenture, dated as of January 1, 1980 between the
Company and the Trustees, entered into the Third Assignment of
Availability Agreement, Consent and Agreement dated as of
January 1, 1980 (the "Third Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Second Series Bonds; (iii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 16% Series due 2000 (the "Third Series Bonds")
issued under the Mortgage, as supplemented by a Fifth
Supplemental Indenture dated as of December 1, 1984 between the
Company and the Trustees, entered into the Eleventh Assignment of
Availability Agreement, Consent and Agreement dated as of
December 1, 1984 (the "Eleventh Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Third Series Bonds; (iv) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $100,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 15.375% Series due 2000 (the "Fourth Series
Bonds") issued under the Mortgage, as supplemented by a Sixth
Supplemental Indenture, dated as of May 1, 1985 between the
Company and the Trustees, entered into the Thirteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1985 (the "Thirteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Fourth Series Bonds; (v) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11% Series due 2000 (the "Seventh Series Bonds")
issued under the Mortgage, as supplemented by a Ninth
Supplemental Indenture, dated as of May 1, 1986 between the
Company and the Trustees, entered into the Sixteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1986 (the "Sixteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Seventh Series Bonds; (vi) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 9 7/8% Series due 1991 (the "Eighth Series
Bonds") issued under the Mortgage, as supplemented by a Tenth
Supplemental Indenture, dated as of September 1, 1986 between the
Company and the Trustees, entered into the Seventeenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Seventeenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Eighth Series Bonds; (vii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $250,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 10-1/2 Series due 1996 (the "Ninth Series Bonds")
issued under the Mortgage, as supplemented by an Eleventh
Supplemental Indenture dated as of September 1, 1986 between the
Company and the Trustees, entered into the Eighteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Eighteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Ninth Series Bonds; (viii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11 3/8% Series due 2016 (the "Tenth Series
Bonds") issued under the Mortgage, as supplemented by a Twelfth
Supplemental Indenture dated as of September 1, 1986 between the
Company and the Trustees, entered into the Nineteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Nineteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Tenth Series Bonds; (ix) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14% Series due 1994 (the "Eleventh Series Bonds")
issued under the Mortgage, as supplemented by a Thirteenth
Supplemental Indenture dated as of November 15, 1987 between the
Company and the Trustees, entered into the Twentieth Assignment
of Availability Agreement, Consent and Agreement dated as of
November 15, 1987 (the "Twentieth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Eleventh Series Bonds; (x) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $100,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14.34% Series due 1992 (the "Twelfth Series
Bonds") issued under the Mortgage, as supplemented by a
Fourteenth Supplemental Indenture dated as of December 1, 1987
between the Company and the Trustees, entered into the Twenty-
first Assignment of Availability Agreement, Consent and Agreement
dated as of December 1, 1987 (the "Twenty-first Assignment of
Availability Agreement") (also substantially in the form of this
Assignment) to secure the Twelfth Series Bonds; (xi) the Company,
the System Operating Companies and the Trustees, as trustees for
the holders of $45,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 8.40% Series due 2002 (the
"Thirteenth Series Bonds") issued under the Mortgage, as
supplemented by a Fifteenth Supplemental Indenture dated as of
July 1, 1992 between the Company and the Trustees, entered into
the Twenty-fourth Assignment of Availability Agreement, Consent
and Agreement dated as of July 1, 1992 (the "Twenty-fourth
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Thirteenth Series Bonds;
(xii) the Company, the System Operating Companies and the
Trustees, as trustees for the holders of $105,000,000 aggregate
principal amount of the Company's First Mortgage Bonds, 6.12%
Series due 1995 (the "Fourteenth Series Bonds") issued under the
Mortgage, as supplemented by a Sixteenth Supplemental Indenture
dated as of October 1, 1992 between the Company and the Trustees,
entered into the Twenty-fifth Assignment of Availability
Agreement, Consent and Agreement dated as of October 1, 1992 (the
"Twenty-fifth Assignment of Availability Agreement") (also
substantially in the form of this Assignment) to secure the
Fourteenth Series Bonds; (xiii) the Company, the System Operating
Companies and the Trustees, as trustees for the holders of
$70,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 8.25% Series due 2002 (the "Fifteenth Series
Bonds") issued under the Mortgage, as supplemented by a
Seventeenth Supplemental Indenture dated as of October 1, 1992
between the Company and the Trustees, entered into a Twenty-sixth
Assignment of Availability Agreement, Consent and Agreement dated
as of October 1, 1992 (the "Twenty-sixth Assignment of
Availability Agreement") (also substantially in the form of this
Assignment) to secure the Fifteenth Series Bonds; (xiv) the
Company, the System Operating Companies and the Trustees, as
trustees for the holders of $60,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 6% Series due 1998
(the "Sixteenth Series Bonds") issued under the Mortgage, as
supplemented by an Eighteenth Supplemental Indenture dated as of
April 1, 1993 between the Company and the Trustees, entered into
a Twenty-seventh Assignment of Availability Agreement, Consent
and Agreement dated as of April 1, 1993 (the "Twenty-seventh
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Sixteenth Series Bonds;
(xv) Entergy, the Company and the Trustees, as trustees for the
holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 7.58% Series due 1999 (the
"Seventeenth Series Bonds") issued under the Mortgage, as
supplemented by a Nineteenth Supplemental Indenture dated as of
April 1, 1994 between the Company and the Trustees, entered into
the Twenty-ninth Assignment of Availability Agreement, Consent
and Agreement dated as of April 1, 1994 (the "Twenty-ninth
Assignment of Availability Agreement") (also substantially in the
form of this Agreement) to secure the Seventeenth Series Bonds;
(xvi) Entergy, the Company and the Trustees, as trustees for the
holders of $100,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 7.28% Series due 1999 (the
"Eighteenth Series Bonds") issued under the Mortgage, as
supplemented by a Twentieth Supplemental Indenture dated as of
August 1, 1996 between the Company and the Trustees, entered into
the Thirtieth Assignment of Availability Agreement, Consent and
Agreement dated as of August 1, 1996 (the "Thirtieth Assignment
of Availability Agreement") (also substantially in the form of
this Agreement) to secure the Eighteenth Series Bonds; and (xvii)
Entergy, the Company and the Trustees, as trustees for the
holders of $135,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 7.7% Series due 2000 (the
"Nineteenth Series Bonds") issued under the Mortgage, as
supplemented by a Twenty-first Supplemental Indenture dated as of
August 1, 1996 between the Company and the Trustees, entered into
the Thirty-first Assignment of Availability Agreement, Consent
and Agreement dated as of August 1, 1996 (the "Thirty-first
Assignment of Availability Agreement") (also substantially in the
form of this Agreement) to secure the Nineteenth Series Bonds.
D. The Original Availability Agreement has been amended by the
First Amendment thereto dated as of June 30, 1977, the Second
Amendment thereto dated June 15, 1981, the Third Amendment
thereto dated June 28, 1984 and the Fourth Amendment thereto
dated as of June 1, 1989 (the Original Availability Agreement, as
so amended and as it may be further amended and supplemented, is
hereinafter referred to as the "Availability Agreement").
E. ▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇ ▇▇. ▇ of the Project have been
designated by the Company and the System Operating Companies as
being subject to the Availability Agreement and as being System
Entergy Generating Units (as defined in the Availability
Agreement) thereunder.
F. The Company, Credit Suisse First Boston Limited, as agent
for certain banks (the "Eurodollar Agent"), and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Assignment of Availability Agreement, Consent and
Agreement (substantially in the form of this Assignment) dated as
of February 5, 1982 between the Company, the System Operating
Companies and the Eurodollar Agent (the "Sixth Assignment of
Availability Agreement"), the Company assigned to the Eurodollar
Agent (for the benefit of said banks), as collateral security for
the above loans, certain of the Company's rights under the
Availability Agreement. The Company, the Eurodollar Agent and
the Eurodollar Banks were parties to the First Amendment dated as
of February 18, 1983 to the Loan Facility which, among other
things, increased the amount of the loans to be made by the
Eurodollar Banks to $378,000,000 and pursuant to the Seventh
Assignment of Availability Agreement, Consent and Agreement (also
substantially in the form of this Assignment) dated as of
February 18, 1983 between the Company, the System Operating
Companies and the Eurodollar Agent (the "Seventh Assignment of
Availability Agreement"), the Company assigned to the Eurodollar
Agent (for the benefit of the Eurodollar Banks), as collateral
security for such loans, certain of the Company's rights under
the Availability Agreement.
G. The Company and Citibank, N.A. (the "Bank") were parties to
a letter of credit and reimbursement agreement dated as of
December 1, 1983 (the "Series A Reimbursement Agreement"), which
provided, among other things, for the issuance by the Bank for
the account of the Company of an irrevocable transferable letter
of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1983
between the Company, the System Operating Companies, the Bank and
Deposit Guaranty National Bank, as trustee (the "Ninth Assignment
of Availability Agreement"), the Company assigned to the Bank and
Deposit Guaranty National Bank, as trustee, as collateral
security for the Company's obligations under the Series A
Reimbursement Agreement and the Series A Bonds, certain of the
Company's rights under the Availability Agreement.
H. The Company and Citibank, N.A. (the "Bank") were parties to
a letter of credit and reimbursement agreement dated as of June
1, 1984 (the "Series B Reimbursement Agreement"), which provided,
among other things, for the issuance by the Bank for the account
of the Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of June 1, 1984 between the Company, the
System Operating Companies, the Bank and Deposit Guaranty
National Bank, as trustee (the "Tenth Assignment of Availability
Agreement"), the Company assigned to the Bank and Deposit
Guaranty National Bank, as trustee, as collateral security for
the Company's obligations under the Series B Reimbursement
Agreement and the Series B Bonds, certain of the Company's rights
under the Availability Agreement.
I. The Company, Citibank, N.A., as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks"), were parties to a
letter of credit and reimbursement agreement dated as of December
1, 1984 (the "Series C Reimbursement Agreement") which provided,
among other things, for the issuance by the Banks for the account
of the Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series C (the "Series C Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
December 1, 1984 naming Deposit Guaranty National Bank as
trustee. Pursuant to the Twelfth Assignment of Availability
Agreement, Consent and Agreement (also substantially in the form
of this Assignment), dated as of December 1, 1984 between the
Company, the System Operating Companies, the Banks and Deposit
Guaranty National Bank, as trustee (the "Twelfth Assignment of
Availability Agreement"), the Company assigned to the Banks and
Deposit Guaranty National Bank, as trustee, as collateral
security for the Company's obligations under the Series C
Reimbursement Agreement and the Series C Bonds, certain of the
Company's rights under the Availability Agreement.
J. The Company, the System Operating Companies, the Trustees
and Deposit Guaranty National Bank, as holder of $47,208,334
aggregate principal amount of the Company's First Mortgage Bonds,
Pollution Control Series A (the "Fifth Series Bonds") issued
under the Mortgage, as supplemented by a Seventh Supplemental
Indenture dated as of June 15, 1985 between the Company and the
Trustees, entered into the Fourteenth Assignment of Availability
Agreement, Consent and Agreement dated as of June 15, 1985 (the
"Fourteenth Assignment of Availability Agreement") (also
substantially in the form of this Assignment). The Fifth Series
Bonds were issued as security, in part, for the Claiborne County,
Mississippi 12 1/2% Pollution Control Revenue Bonds due 2015
(Middle South Energy, Inc. Project) (the "Series D Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of June 15, 1985 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fourteenth Assignment
of Availability Agreement, the Company assigned to the Trustees
and Deposit Guaranty National Bank, as collateral security for
the Company's obligations under the Series D Bonds, certain of
the Company's rights under the Availability Agreement.
K. The Company, the System Operating Companies, the Trustees
and Deposit Guaranty National Bank, as holder of $95,643,750
aggregate principal amount of the Company's First Mortgage Bonds,
Pollution Control Series B (the "Sixth Series Bonds") issued
under the Mortgage, as supplemented by an Eighth Supplemental
Indenture dated as of May 1, 1986 between the Company and the
Trustees, entered into the Fifteenth Assignment of Availability
Agreement, Consent and Agreement dated as of May 1, 1986 (the
"Fifteenth Assignment of Availability Agreement") (also
substantially in the form of this Assignment). The Sixth Series
Bonds were issued as security, in part, for the Claiborne County,
Mississippi 9 1/2% Pollution Control Revenue Bonds due 2016
(Middle South Energy, Inc. Project) (the "Series E Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of May 1, 1986 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fifteenth Assignment
of Availability Agreement, the Company assigned to the Trustees
and Deposit Guaranty National Bank, as collateral security for
the Company's obligations under the Series E Bonds, certain of
the Company's rights under the Availability Agreement.
L. The Company has entered into a sale and leaseback
transaction with respect to a portion of its undivided interest
in Unit No. 1 and to that end the Company has entered into, among
other agreements, (i) Facility Leases Nos. 1 and 2, dated as of
December 1, 1988, among Meridian Trust Company and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ (▇▇▇▇▇▇▇ ▇. ▇▇▇▇, successor) (collectively, the "Owner
Trustee") as Owner Trustee and the Company, each as supplemented
by a separate Lease Supplement No. 1 thereto, each dated as of
April 1, 1989, and a separate Lease Supplement No. 2 thereto,
each dated as of January 1, 1994, (ii) a Participation Agreement
No. 1, dated as of December 1, 1988 among Public Service
Resources Corporation ("PSRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation, as Funding
Corporation, the Owner Trustee and the Company pursuant to which
PSRC invested $400,000,000 in an undivided interest in Unit No. 1
(which interest was subsequently acquired by Resources Capital
Management Corporation from PSRC and subsequently acquired by
RCMC I, Inc. (formerly known as RCMC Del., Inc.) from Resources
Capital Management Corporation), and a Participation Agreement
No. 2, dated as of December 1, 1988 among Lease Management Realty
Corporation IV ("LMRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation, as Funding
Corporation, the Owner Trustee and the Company pursuant to which
LMRC invested $100,000,000 in an undivided interest in Unit No. 1
(which interest was subsequently acquired by Textron Financial
Corporation from LMRC) (the owner participants under all such
participation agreements being referred to as the "Owner
Participants") and (iii) the 1988 Reimbursement Agreement which
provided, among other things, (x) for the issuance by the Funding
Bank named therein ("1988 Funding Bank"), for the account of the
Company, of irrevocable transferable letters of credit (the "1988
LOCS") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants substantially in the form
of Exhibit A to the 1988 Reimbursement Agreement with maximum
amounts of $104,000,000, and $26,000,000, (y) for the
reimbursement to such 1988 Funding Bank by the Participating
Banks for all drafts paid by such 1988 Funding Bank under any
1988 LOC and (z) for the reimbursement by the Company to such
1988 Funding Bank for the benefit of the Participating Banks of
sums equal to all drafts paid by such 1988 Funding Bank under any
1988 LOC. Pursuant to the Twenty-second Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Agreement), dated as of December 1, 1988 (the
"Twenty-second Assignment of Availability Agreement"), the
Company assigned to the Administrating Bank, as collateral
security for the Company's obligations under the 1988
Reimbursement Agreement, certain of the Company's rights under
the Availability Agreement.
M. The Company, the System Operating Companies and Chemical
Bank entered into the Twenty-third Assignment of Availability
Agreement, Consent and Agreement dated as of January 11, 1991
("Twenty-third Assignment of Availability Agreement") in
connection with the execution and delivery of the First Amendment
to 1988 Reimbursement Agreement (the 1988 Reimbursement
Agreement, as amended by the First Amendment to 1988
Reimbursement Agreement, is herein called the "1991 Reimbursement
Agreement") that provided, among other things, (i) for the
issuance by the Funding Bank, for the account of the Company, of
irrevocable transferable letters of credit ("1991 LOCS") to the
Owner Participants to secure certain obligations of the Company
to the Owner Participants, substantially in the form of Exhibit A
to the 1991 Reimbursement Agreement, with maximum amounts of
$116,601,440 and $29,150,360; (ii) for the reimbursement to the
Funding Bank by the Participating Banks for all drafts paid by
the Funding Bank under any 1991 LOC; and (iii) for the
reimbursement by the Company to the Funding Bank for the benefit
of the Participating Banks of sums equal to all drafts paid by
the Funding Bank under any 1991 LOC.
N. The Company, the System Operating Companies and Chemical
Bank entered into the Twenty-eighth Assignment of Availability
Agreement, Consent and Agreement dated as of December 17, 1993
("Twenty-eighth Assignment of Availability Agreement") in
connection with the execution and delivery of the Second
Amendment to 1988 Reimbursement Agreement (the 1988 Reimbursement
Agreement, as amended by the First Amendment to 1988
Reimbursement Agreement and the Second Amendment to 1988
Reimbursement Agreement, is herein called the "1993 Reimbursement
Agreement") that provided, among other things, (i) for the
issuance by the Funding Bank, for the account of the Company, of
irrevocable transferable letters of credit ("1993 LOCS") to the
Owner Participants to secure certain obligations of the Company
to the Owner Participants, substantially in the form of Exhibit A
to the 1993 Reimbursement Agreement, with maximum amounts of
$132,131,960 and $33,032,990; (ii) for the reimbursement to the
Funding Bank by the Participating Banks for all drafts paid by
the Funding Bank under any 1993 LOC; and (iii) for the
reimbursement by the Company to the Funding Bank for the benefit
of the Participating Banks of sums equal to all drafts paid by
the Funding Bank under any 1993 LOC.
O. The Company, the System Operating Companies and the
Administrating Bank, as successor by merger with Chemical Bank,
entered into the Thirty-second Assignment of Availability
Agreement, Consent and Agreement dated as of December 27, 1996
("Thirty-second Assignment of Availability Agreement") in
connection with the execution and delivery of the 1996 Restated
Reimbursement Agreement that provided, among other things, (i)
for the issuance by the Funding Bank, for the account of the
Company, of irrevocable transferable letters of credit ("1996
LOCS") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants, substantially in the form
of Exhibit A to the 1996 Restated Reimbursement Agreement, with
maximum amounts of $148,719,125.41 and $34,946,720.11; (ii) for
the reimbursement to the Funding Bank by the Participating Banks
for all drafts paid by the Funding Bank under any 1996 LOC; and
(iii) for the reimbursement by the Company to the Funding Bank
for the benefit of the Participating Banks of sums equal to all
drafts paid by the Funding Bank under any 1996 LOC.
P. The Company wishes to amend and restate the 1996 Restated
Reimbursement Agreement in the manner provided in the Amended and
Restated Reimbursement Agreement and to provide for the
cancellation of the 1996 LOCs and issuance of new LOCs (the "New
LOCS") by the Funding Bank to further secure the Owner
Participants. The Amended and Restated Reimbursement Agreement
provides, among other things, (i) for the issuance by the Funding
Bank, for the account of the Company, of irrevocable transferable
letters of credit to the Owner Participants to secure certain
obligations of the Company to the Owner Participants, such New
LOCs to be substantially in the form of Exhibit A to the Amended
and Restated Reimbursement Agreement with maximum amounts of
$156,885,463.65 and $36,061,469.99; (ii) for the reimbursement to
the Funding Bank by the Participating Banks for all drafts paid
by the Funding Bank under any New LOC; and (iii) for the
reimbursement by the Company to the Funding Bank for the benefit
of the Participating Banks of sums equal to all drafts paid by
the Funding Bank under any New LOC (such amounts shall
hereinafter be called the "Reimbursement Obligations").
Q. The Company, by this instrument, wishes to (i) provide for
the assignment by the Company to the Administrating Bank for the
benefit of the Funding Bank, the Administrating Bank and the
Participating Banks (collectively, the "LOC Banks") of certain of
the Company's rights under the Availability Agreement, and (ii)
create enforceable rights hereunder in the Administrating Bank,
all as hereunder set forth.
R. The System Operating Companies are willing to, and by this
instrument do, supplement their undertakings under the
Availability Agreement in the same manner as in the Assignments
of Availability Agreement.
S. The Company, Entergy and the System Operating Companies have
joined in an Application-Declaration on Form U-1, as amended and
supplemented to date, in File No. 70-7561, filed with the
Securities and Exchange Commission under the Public Utility
Holding Company Act of 1935 with respect to this Assignment and
certain other matters, the Securities and Exchange Commission has
issued orders (the "SEC Orders") granting and permitting to
become effective said Application-Declaration, as so amended and
supplemented (except that, as of the date hereof, no SEC order
has been issued with respect to Post-Effective Amendment No. 11
to said Application-Declaration requesting authorization of an
increase in approved fees to allow payment in accordance with the
provisions of the Amended and Restated Reimbursement Agreement of
the maximum participation fees reflected therein), and the SEC
Orders are in full force and effect on the date of execution and
delivery hereof.
T. All things necessary to make this Assignment the valid,
legally binding and enforceable obligation of each of the parties
hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
ARTICLE I
SECURITY ASSIGNMENT AND AGREEMENT
1.1. Assignment and Creation of Security Interest. As security
for (i) the due and punctual payment of the interest (including,
if and to the extent permitted by law, interest on overdue
principal, premium and interest) and premium, if any, on, and the
principal of, the Reimbursement Obligations (whether at maturity,
pursuant to mandatory or optional prepayment, by acceleration or
otherwise) and (ii) the due and punctual payment of all fees and
costs, expenses and other amounts which may become payable by the
Company under the Amended and Restated Reimbursement Agreement,
together in each case with all costs of collection thereof (all
such amounts referred to in the foregoing clauses (i) and (ii)
being hereinafter collectively referred to as "Obligations
Secured Hereby"), the Company hereby assigns to the
Administrating Bank, and creates a security interest in favor of
the Administrating Bank for the benefit of the LOC Banks in, all
of the Company's rights to receive all moneys paid or to be paid
to the Company pursuant to Section 4 of the Availability
Agreement or advances pursuant to Section 2.2(b) hereof, but only
to the extent that such payments or advances are attributable to
payments or advances with respect to ▇▇▇▇ ▇▇. ▇ ▇▇ ▇▇▇▇ ▇▇. ▇,
and all other claims, rights (but not obligations or duties),
powers, privileges, interests and remedies of the Company,
whether arising under the Availability Agreement or this
Assignment or by statute or in law or in equity or otherwise,
resulting from any failure by any System Operating Company to
perform its obligations under the Availability Agreement or this
Assignment, but only to the extent that such claims, rights,
powers, privileges, interests and remedies relate to ▇▇▇▇ ▇▇. ▇
▇▇▇ ▇▇▇▇ ▇▇. ▇, all to the extent, but only to the extent,
required for the payment when due and payable of Obligations
Secured Hereby, together in each case with full power and
authority, in the name of the Administrating Bank, or the Company
as assignor, or otherwise, to demand payment of, enforce,
collect, receive and receipt for any and all of the foregoing
(the rights, claims, powers, privileges, interests and remedies
referred to above being hereinafter sometimes called the
"Collateral").
1.2. Other Agreements.
(a) The Company has not and will not assign the rights assigned
in Section 1.1 as security for any indebtedness other than the
obligations Secured Hereby, except as recited and provided in
paragraph (b) of this Section 1.2.
(b) The Company has secured its Indebtedness for Borrowed Money
represented by (i) loans made by certain banks referred to in
Whereas Clause B hereof by the First, Fourth, Fifth and Eighth
Assignments of Availability Agreement, respectively, (ii) the
First Series Bonds, the Second Series Bonds, the Third Series
Bonds, the Fourth Series Bonds, the Seventh Series Bonds, the
Eighth Series Bonds, the Ninth Series Bonds, the Tenth Series
Bonds, the Eleventh Series Bonds, the Twelfth Series Bonds, the
Thirteenth Series Bonds, the Fourteenth Series Bonds, the
Fifteenth Series Bonds, the Sixteenth Series Bonds, the
Seventeenth Series Bonds, the Eighteenth Series Bonds and the
Nineteenth Series Bonds, as referred to in Whereas Clause C
hereof by the Second, Third, Eleventh, Thirteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first,
Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh, Twenty-
ninth, Thirtieth and Thirty-first Assignments of Availability
Agreement, respectively, (iii) loans made by certain banks as
referred to in Whereas Clause F hereof by the Sixth and Seventh
Assignments of Availability Agreement, respectively, (iv) the
obligations under the Series A Reimbursement Agreement referred
to in Whereas Clause G hereof by the Ninth Assignment of
Availability Agreement, (v) the obligations under the Series B
Reimbursement Agreement as referred to in Whereas Clause H hereof
by the Tenth Assignment of Availability Agreement, (vi) the
obligations under the Series C Reimbursement Agreement as
referred to in Whereas Clause I hereof by the Twelfth Assignment
of Availability Agreement, (vii) the Fifth Series Bonds as
referred to in Whereas Clause J hereof by the Fourteenth
Assignment of Availability Agreement, (viii) the Sixth Series
Bonds as referred to in Whereas Clause K hereof by the Fifteenth
Assignment of Availability Agreement, (ix) the obligations under
the 1988 Reimbursement Agreement as referred to in Whereas Clause
L hereof by the Twenty-second Assignment of Availability
Agreement, (x) the obligations under the 1991 Reimbursement
Agreement as referred to in Whereas Clause M hereof by the Twenty-
third Assignment of Availability Agreement, (xi) the obligations
under the 1993 Reimbursement Agreement as referred to in Whereas
Clause N hereof by the Twenty-eighth Assignment of Availability
Agreement, and (xii) the obligations under the 1996 Restated
Reimbursement Agreement as referred to in Whereas Clause O hereof
by the Thirty-second Assignment of Availability Agreement, and
shall be entitled to secure the interest and premium, if any, on,
and the principal of, other Indebtedness for Borrowed Money of
the Company issued by the Company to any person (except Entergy
or any affiliate of Entergy) to finance the cost of the Project
(including, without limitation, Indebtedness outstanding under
the Indenture) or to refund (including any successive refundings)
any such Indebtedness (including such Indebtedness now
outstanding) issued for such purpose, the incurrence of which
Indebtedness is at the time permitted by the Indenture (herein,
together with such Indebtedness now outstanding, called
"Additional Indebtedness"), by entering into an assignment of
availability agreement, consent and agreement including, without
limitation, the First through Twenty-seventh Assignments of
Availability Agreement (each being hereinafter called an
"Additional Assignment") with the holders of such Additional
Indebtedness or representatives of or trustees for such holders,
or both, as the case may be (herein called an "Additional
Assignee"). Each Additional Assignment hereafter entered into
shall be substantially in the form of this Assignment, except
that there shall be substituted in such Additional Assignment
appropriate references to the Additional Indebtedness secured
thereby, the applicable Additional Assignee and the agreement or
instrument under which such Additional Indebtedness is issued in
lieu of the references herein to the Reimbursement Obligations,
the LOC Banks, the Amended and Restated Reimbursement Agreement
and the New LOCS, respectively, and such Additional Assignment
may contain such other provisions as are not inconsistent with
this Assignment and do not adversely affect the rights hereunder
of the LOC Banks.
(c) Notwithstanding any provision of this Assignment to the
contrary, or any priority in time of creation, attachment or
perfection of a security interest, pledge or lien by the
Administrating Bank, or any provision of or filing or recording
under the Uniform Commercial Code or any other applicable law of
any jurisdiction, the Administrating Bank agrees that the claims
of the Administrating Bank hereunder with respect to the
Availability Agreement and any security interest, pledge or lien
in favor of the Administrating Bank now or hereafter existing in
and to the Collateral shall rank pari passu with the claims of
each Additional Assignee under the corresponding provisions of
the Additional Assignment to which it is a party with respect to
the Availability Agreement and any security interest, pledge or
lien in favor of such Additional Assignee under such Additional
Assignment now or hereafter existing in and to the Collateral,
irrespective of the time or times at which prior, concurrent or
subsequent Additional Assignments are entered into in accordance
with Section 1.2(b) hereof.
1.3. Payments to the Administrating Bank. The Company agrees
that, if and whenever it shall make a demand to a System
Operating Company for any payment pursuant to Section 4 of the
Availability Agreement or advances pursuant to Section 2.2(b)
hereof with respect to Unit No. 1 or Unit No. 2, it will
separately identify the respective portions of such payment or
advance, if any, required for (i) the payment of Obligations
Secured Hereby and (ii) the payment of any other amounts then due
and payable in respect of Additional Indebtedness and instruct
such System Operating Company (subject to the provisions of
Section 1.4 hereof) to pay or cause to be paid the amount so
identified as required for the payment of Obligations Secured
Hereby directly to the Administrating Bank. Any payments made by
any System Operating Company pursuant to Section 4 of the
Availability Agreement or advances pursuant to Section 2.2(b)
hereof with respect to ▇▇▇▇ ▇▇. ▇ ▇▇ ▇▇▇▇ ▇▇. ▇ shall, to the
extent necessary to satisfy in full the assignment set forth in
Section 1.1 of this Assignment and the corresponding assignments
set forth in the Additional Assignments, be made pro rata in
proportion to the respective amounts secured by, and then due and
owing under, such assignments.
1.4. Payments to the Company. Notwithstanding the provisions of
Sections 1.1 and 1.3, unless and until the Administrating Bank
shall have given written notice to the System Operating Companies
of the occurrence and continuance of any Reimbursement Event of
Default or Prepayment Event (as defined in the Amended and
Restated Reimbursement Agreement), all moneys paid or to be paid
to the Company pursuant to Section 4 of the Availability
Agreement or advanced pursuant to Section 2.2(b) hereof with
respect to ▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇ ▇▇. ▇ shall be paid or advanced
directly to the Company and the Company need not separately
identify the respective portions of payments or advances as
provided in Section 1.3 hereof, provided that notice as to the
amount of any such payments or advances shall be given by the
Company to the Administrating Bank simultaneously with the demand
by the Company for any such payments or advances. If the
Administrating Bank shall have duly notified the System Operating
Companies of the occurrence of any such Reimbursement Event of
Default or Prepayment Event, such payments or advances shall be
made in the manner and in the amounts specified in Section 1.3
hereof until the Administrating Bank shall by further notice to
the System Operating Companies give permission that all such
payments or advances may be made again to the Company, such
permission being subject to revocation by a subsequent notice
pursuant to the first sentence of this Section 1.4. The
Administrating Bank shall give such permission if no such
Reimbursement Event of Default or Prepayment Event continues to
exist.
1.5. Definitions. For the purposes of this Assignment, the
following terms shall have the following meanings:
(a) the term "Indebtedness for Borrowed Money" shall mean the
principal amount of all indebtedness for borrowed money, secured
or unsecured, of the Company then outstanding and shall include,
without limitation, the principal amount of all bonds issued by a
governmental or industrial development agency or authority in
connection with an industrial development revenue bond financing
of pollution control facilities constituting part of the Project;
and
(b) the term "Subordinated Indebtedness of the Company" shall
mean indebtedness marked on the books of the Company as
subordinated and junior in right of payment to the Obligations
Secured Hereby (as defined in Section 1.1 hereof) to the extent
and in the manner set forth below:
(i) if there shall occur a Reimbursement Event of Default or
Prepayment Event (as defined in the Amended and Restated
Reimbursement Agreement), then so long as such Reimbursement
Event of Default or Prepayment Event shall be continuing and
shall not have been cured or waived, or unless and until all the
obligations Secured Hereby shall have been paid in full in money
or money's worth at the time of receipt, no payment of principal
and premium, if any, or interest shall be made upon Subordinated
Indebtedness of the Company; and
(ii) in the event of any insolvency, bankruptcy, liquidation,
reorganization or other similar proceedings, or any receivership
proceedings in connection therewith, relative to the Company or
its creditors or its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or
bankruptcy proceedings, then the Obligations Secured Hereby shall
first be paid in full in money or money's worth at the time of
receipt, or payment thereof shall have been provided for, before
any payment on account of principal, premium, if any, or interest
is made upon Subordinated Indebtedness of the Company.
ARTICLE II
CONSENT TO ASSIGNMENT BY THE SYSTEM OPERATING
COMPANIES AND OTHER AGREEMENTS
2.1. Consent to Assignment by the System Operating Companies.
(a) Each System Operating Company hereby consents to the
assignment under Article I and agrees with the Administrating
Bank to make payments or advances to the Administrating Bank in
the amounts and in the manner specified in Section 1.3 at the
Administrating Bank's address as set forth in Section 6.1 hereof.
(b) Subject to the provisions of Section 4 of the Availability
Agreement and Section 2.2(g) hereof, each System Operating
Company agrees that all payments or advances made to the
Administrating Bank or to the Company as contemplated by Sections
1.3 and 1.4 hereof shall be final as between such System
Operating Company and the LOC Banks or the Company, as the case
may be, and that it will not seek to recover from any LOC Bank
for any reason whatsoever any moneys paid or advanced to the
Administrating Bank by virtue of this Assignment, but the
finality of any such payment or advance shall not prevent the
recovery of any overpayments or mistaken payments or excess
advances or mistaken advances which may be made by such System
Operating Company unless a Reimbursement Event of Default or
Prepayment Event has occurred and is continuing, in which case
any such overpayment or mistaken payment or excess advances or
mistaken advances shall not be recoverable but shall constitute
Subordinated Indebtedness of the Company to such System Operating
Company.
2.2. Other Agreements. Anything in the Availability Agreement to
the contrary notwithstanding, it is hereby agreed as follows:
(a) Regardless of whether any person or persons (other than the
System Operating Companies) shall become a Party or Parties (as
such terms are defined in the Availability Agreement) to the
Availability Agreement, the System Operating Companies shall at
all times be obligated to make the payments required pursuant to
Section 4 of the Availability Agreement and to make advances
pursuant to Section 2.2(b) hereof with respect to ▇▇▇▇ ▇▇. ▇ ▇▇▇
▇▇▇▇ ▇▇. ▇ to the same extent as if the System Operating
Companies were the only Parties to the Availability Agreement,
except to the extent and only to the extent that such payments or
advances are actually made by such person or persons. In the
event that any such person shall become a Party to the
Availability Agreement, the Company and the System Operating
Companies shall cause such person, at the time when such person
becomes a Party to the Availability Agreement, to consent by
written instrument to the terms and provisions of this
Assignment, and thereupon such person shall be bound by all of
the terms and provisions of this Assignment (other than the
provisions of the preceding sentence) to the same extent as if
named a System Operating Company herein. A copy of such written
instrument, in form and substance satisfactory to the
Administrating Bank, shall promptly be delivered to the
Administrating Bank together with an opinion of counsel to the
effect that such instrument complies with the requirements hereof
and constitutes a valid, legally binding obligation of such
person.
(b) In the event and to the extent that any action by any
governmental regulatory authority, including, without limitation,
the Federal Energy Regulatory Commission or any successor
thereto, shall have the effect of prohibiting the System
Operating Companies from making any payments which would
otherwise be required pursuant to Section 4 of the Availability
Agreement (as supplemented hereby) with respect to ▇▇▇▇ ▇▇. ▇ ▇▇▇
▇▇▇▇ ▇▇. ▇, the System Operating Companies shall make advances to
the Company at the same time, and in the same amounts as such
prohibited payments and all such advances shall constitute
Subordinated Indebtedness of the Company.
(c) Each System Operating Company agrees that (i) all
Indebtedness for Borrowed Money of the Company to such System
Operating Company and all amounts paid by such System Operating
Company pursuant to Section 4 of the Availability Agreement or
advanced pursuant to Section 2.2 (b) hereof shall constitute
Subordinated Indebtedness of the Company and (ii) no such
Subordinated Indebtedness of the Company shall be transferred or
assigned (including by way of security) to any person (other than
to a successor of such System Operating Company by way of merger,
consolidation or the acquisition by such person of all or
substantially all of such System Operating Company's assets).
The Company agrees that it shall duly record all Subordinated
Indebtedness of the Company as such on its books.
(d) The obligations of each System Operating Company to make the
payments to the Company pursuant to the provisions of Section 4
of the Availability Agreement and the advances pursuant to
Section 2.2 (b) hereof with respect to ▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇ ▇▇. ▇
having heretofore been authorized by the SEC Orders (and no other
authorization by any governmental regulatory authority being
required other than, with respect to the payments pursuant to the
provisions of Section 4 of the Availability Agreement,
appropriate orders, or the taking of other action, by the Federal
Energy Regulatory Commission or any successor thereto as to
specific terms and Provisions under which power and energy
associated there with available at the Project shall be made
available by the Company to the System Operating Companies and
pursuant to which the System Operating Companies shall agree to
pay the Company for the right to receive such power and the
energy associated therewith), each System Operating Company
agrees that its duty to perform such obligations shall be
absolute and unconditional, (a) whether or not such System
Operating Company shall have received all authorizations of
governmental regulatory authorities necessary at the time to
permit such System Operating Company to perform its other duties
and obligations hereunder, under the Availability Agreement or
under the System Agreement (as defined in the Availability
Agreement), (b) whether or not the Company shall have received
all authorizations of governmental regulatory authorities
necessary at the time to permit the Company to perform its duties
and obligations hereunder, under the Availability Agreement or
under the System Agreement, (c) whether or not any authorizations
referred to in the foregoing clauses (a) and (b) continue, at the
time, in effect, (d) whether or not, at any time in question, the
Company shall have performed its duties and obligations
hereunder, under the Availability Agreement or under the System
Agreement, (e) whether or not the System Agreement shall, from
time to time, be amended, modified or supplemented or shall be
canceled or terminated or such System Operating Company shall
have withdrawn therefrom, (f) whether or not the Project shall be
maintained in commercial operation, energy from the Project is
being produced or delivered or is available (including, without
limitation, delivery or availability to such System Operating
Company), an abandonment of the Project shall have occurred or
the Project shall be in whole or in part destroyed or taken, for
any reason whatsoever, (g) whether or not the Company shall be
solvent, (h) whether or not the Company or such System Operating
Company shall continue to be subsidiary companies of Entergy (as
said term is defined in Section 2(a)(8) of the Public Utility
Holding Company Act of 1935), (i) regardless of any event of
force majeure, and (j) regardless of any other circumstance,
happening, condition or event whatsoever, whether or not similar
to any of the foregoing.
(e) In the event that Entergy shall cease to own at least a
majority of the common stock of any System Operating Company, the
obligations of such System Operating Company hereunder and under
the Availability Agreement shall not be increased by an amendment
to or modification of the terms and provisions of the Amended and
Restated Reimbursement Agreement unless such System Operating
Company shall have consented in writing to such amendment or
modification.
(f) The obligations of each System Operating Company under
Section 4 of the Availability Agreement and Section 2.2(b) hereof
to make the payments or advances specified therein or herein with
respect to ▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇ ▇▇. ▇ to the Company shall not be
subject to any abatement, reduction, limitation, impairment,
termination, set-off, defense, counterclaim or recoupment
whatsoever or any right to any thereof (including, but not
limited to, abatements, reductions, limitations, impairments,
terminations, set-offs, defenses, counterclaims and recoupments
for or on account of any past, present or future indebtedness of
the Company to such System Operating Company or any claim by such
System Operating Company against the Company, whether or not
arising hereunder, under the Availability Agreement or under the
System Agreement and whether or not arising out of any action or
nonaction on the part of the Company or any LOC Bank, including
any disposition of the Project or any part thereof pursuant to
the Indenture, requirements of governmental authorities, actions
of judicial receivers or trustees or otherwise and whether or not
arising from willful or negligent acts or omissions). The
foregoing, however, shall not, subject to the provisions of
paragraph (c) of this Section 2.2, affect in any other way any
rights and remedies of such System Operating Company with respect
to any amounts owed to such System Operating Company by the
Company or any such claim by such System Operating Company
against the Company. The obligations and liabilities of each
System Operating Company hereunder or under the Availability
Agreement shall not be released, discharged or in any way
affected by any reorganization, arrangement, compromise,
composition or plan affecting the Company or any change, waiver,
extension, indulgence or other action or omission in respect of
any indebtedness or obligation of the Company or such System
Operating Company, whether or not the Company or such System
Operating Company shall have had any notice or knowledge of any
of the foregoing. Neither failure nor delay by the Company or
any LOC Bank, to exercise any right or remedy provided herein or
by statute or at law or in equity shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
right or remedy preclude any other or further exercise thereof,
or the exercise of any other right or remedy. Each System
Operating Company also hereby irrevocably waives, to the extent
that it may do so under applicable law, any defense based on the
adequacy of a remedy at law which may be asserted as a bar to the
remedy of specific performance in any action brought against such
System Operating Company for specific performance of this
Assignment or the Availability Agreement by the Company or the
Administrating Bank or for its benefit by a receiver or trustee
appointed for the Company or in respect of all or a substantial
part of the Company's assets under the bankruptcy or insolvency
law of any jurisdiction to which the Company is or its assets are
subject. Anything in this Section 2.2(f) to the contrary
notwithstanding, no System Operating Company shall be precluded
from asserting as a defense against any claim made against such
System Operating Company upon any of its obligations hereunder
and under the Availability Agreement that it has fully performed
such obligations in accordance with the terms of this Assignment
and the Availability Agreement.
(g) Each System Operating Company shall, subject to the
provisions of Section 2.2(c) hereof, be proportionately
subrogated to all rights of the Administrating Bank against the
Company in respect of any amounts paid or advanced by such System
Operating Company pursuant to the provisions of this Assignment
and the Availability Agreement and applied to the payment of the
Obligations Secured Hereby. The Administrating Bank agrees that
it will not deal with the Company in such a manner as to
prejudice such rights of any System Operating Company.
ARTICLE III
TERM
Except as otherwise provided in Section 26 of the
Amended and Restated Reimbursement Agreement, this Assignment
shall remain in full force and effect until, and shall terminate
and be of no further force and effect after, all Obligations
Secured Hereby shall have been paid in full in money or money's
worth at the time of receipt. It is agreed that all the
covenants and undertakings on the part of the System Operating
Companies and the Company set forth in this Assignment are
exclusively for the benefit of, and may be enforced only by, the
LOC Banks or for their benefit by a receiver or trustee for the
Company or in respect of all or a substantial part of its assets
under the bankruptcy or insolvency law of any jurisdiction to
which the Company is or its assets are subject.
ARTICLE IV
ASSIGNMENT
Neither this Assignment nor the Availability Agreement
nor any interest herein or therein may be assigned, transferred
or encumbered by any of the parties hereto or thereto, except
transfer or assignment by any LOC Bank to its successor in
accordance with the Amended and Restated Reimbursement Agreement,
except as otherwise provided in Article I hereof and except that
(i) in the event that any System Operating Company shall
consolidate with or merge with or into another corporation or
shall transfer to another corporation or other person all or
substantially all of its assets, this Assignment and the
Availability Agreement shall be transferred by such System
Operating Company to and shall be binding upon the corporation
resulting from such consolidation or merger or the corporation or
other person to which such transfer is made and, as a condition
to such consolidation, merger or other transfer, such corporation
or other person shall deliver to the Company and the
Administrating Bank a written assumption, in form and substance
satisfactory to the Administrating Bank, of such System Operating
Company's obligations and liabilities under this Assignment and
the Availability Agreement and an opinion of counsel to the
effect that such instrument complies with the requirements hereof
and thereof and constitutes a valid, legally binding and
enforceable obligation of such corporation or other person; and
(ii) in the event that the Company shall consolidate with or
merge with or into another corporation or shall transfer to
another corporation or other person all or substantially all of
its assets, this Assignment and the Availability Agreement shall
be transferred by the Company to and shall be binding upon the
corporation resulting from such consolidation or merger or the
corporation or other person to which such transfer is made and,
as a condition to such consolidation, merger or other transfer,
such corporation or other person shall deliver to the
Administrating Bank a written assumption, in form and substance
satisfactory to the Administrating Bank, of the Company's
obligations and liabilities under this Assignment and the
Availability Agreement and an opinion of counsel to the effect
that such instrument complies with the requirements hereof and
thereof and constitutes a valid, legally binding and enforceable
obligation of such corporation or other person.
ARTICLE V
AMENDMENTS
5.1. Restrictions on Amendments. Neither this Assignment nor the
Availability Agreement may be amended, waived, modified,
discharged or otherwise changed orally. This Assignment and the
Availability Agreement may be amended, waived, modified,
discharged or otherwise changed only by a written instrument
which has been signed by all the parties hereto, in the case of
this Assignment, or by the persons specified in Section 11 of the
Availability Agreement, in the case of the Availability
Agreement, and which has been approved in writing by the LOC
Banks or which does not materially adversely affect the rights of
the LOC Banks.
5.2. The Administrating Bank's Execution. The Administrating
Bank shall, at the request of the Company, execute any instrument
amending, waiving, modifying, discharging or otherwise changing
this Assignment, or any consent to the execution of any
instrument amending, waiving, modifying, discharging or otherwise
changing the Availability Agreement (a) as to which the
Administrating Bank shall have received an opinion of counsel to
the effect that such instrument has been duly authorized by each
person executing the same and is permitted by the provisions of
Section 5.1 hereof and that this Assignment, or the Availability
Agreement, as the case may be, as amended, waived, modified,
discharged or otherwise changed by such instrument, constitutes
valid, legally binding and enforceable obligations of the Company
and each of the System Operating Companies, and (b) which shall
have been executed by the Company and each of the System
Operating Companies. The Administrating Bank shall be fully
protected in relying upon the aforesaid opinion.
ARTICLE VI
NOTICES
6.1. Notices, etc., in Writing. All notices, consents, requests
and other documents authorized or permitted to be given pursuant
to this Assignment shall be given in writing and either
personally served on the party to whom (or an officer of a
corporate party) it is given or mailed by registered or certified
first-class mail, postage prepaid, or sent by telex or telegram,
addressed as follows:
If to System Energy Resources, Inc., to:
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
If to Entergy Arkansas, Inc., to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
If to Entergy Louisiana, Inc., to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
If to Entergy Mississippi, Inc., to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
If to Entergy New Orleans, Inc., to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
If to the Administrating Bank, to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇
with copies to each other party.
6.2. Delivery, etc. Notices, consents, requests and other
documents shall be deemed given or served or submitted when
delivered or, if mailed as provided in Section 6.1 hereof, on the
third day after the day of mailing, or if sent by telex or
telegram, 24 hours after the time of dispatch. A party may
change its address for the receipt of notices, consents, requests
and other documents at any time by giving notice thereof to the
other parties. Any notice, consent, request or other document
given hereunder may be signed on behalf of any party by any duly
authorized representative of that party.
ARTICLE VII
ENFORCEMENT
7.1. Enforcement Action. At any time when a Reimbursement Event
of Default or Prepayment Event under the Amended and Restated
Reimbursement Agreement has occurred and is continuing, the
Administrating Bank may proceed, either in its own name or as
agent or otherwise, to protect and enforce its rights, those of
the other LOC Banks and those of the Company under this
Assignment and the Availability Agreement by suit in equity,
action at law or other appropriate proceedings, whether for the
specific performance of any covenant or agreement contained
herein or in the Availability Agreement or otherwise, and whether
or not the Company shall have complied with any of the provisions
hereof or thereof or proceeded to take any action authorized or
permitted under applicable law. Each and every remedy of the LOC
Banks shall, to the extent permitted by law, be cumulative and
shall be in addition to any other remedy given hereunder or under
the Amended Reimbursement Agreement or now or hereafter existing
at law or in equity or by statute.
7.2. Attorney-in-Fact. The Company hereby constitutes the
Administrating Bank its true and lawful attorney, irrevocably,
with full power (in such attorney's name or otherwise), at any
time when a Reimbursement Event of Default or Prepayment Event
under the Amended Reimbursement Agreement has occurred and is
continuing, to enforce any of the obligations contained herein or
in the Availability Agreement or to take any action or institute
any proceedings which to the Administrating Bank may seem
necessary or advisable in the premises.
ARTICLE VIII
SEVERABILITY
If any provision or provisions of this Assignment shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE IX
GOVERNING LAW
This Assignment and, so long as this Assignment shall be
in effect, the Availability Agreement, shall be governed by and
construed in accordance with the laws of the State of New York.
ARTICLE X
SUCCESSION
Subject to Article IV hereof, this Assignment and the
Availability Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, but no assignment hereof, or of the Availability
Agreement, or of any right to any funds due or to become due
under this Assignment or the Availability Agreement shall in any
event relieve the Company or any System Operating Company of
their respective obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
ENTERGY ARKANSAS, INC.
ENTERGY LOUISIANA, INC.
ENTERGY MISSISSIPPI, INC.
ENTERGY NEW ORLEANS, INC.
SYSTEM ENERGY RESOURCES, INC.,
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Administrating Bank,
By: /s/▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President