Exhibit B-2(a)
THIRTY-SECOND ASSIGNMENT OF AVAILABILITY AGREEMENT,
CONSENT AND AGREEMENT
This Thirty-second Assignment of Availability
Agreement, Consent and Agreement (hereinafter referred to as
"this Assignment"), dated as of December 27, 1996, is made
by and between System Energy Resources, Inc. (formerly
Middle South Energy, Inc.) (the "Company"), Entergy
Arkansas, Inc., formerly known as Arkansas Power & Light
Company ("EAI") (successor in interest to Arkansas Power &
Light Company and Arkansas-Missouri Power Company ("Ark-
Mo")), Entergy Louisiana, Inc., formerly known as Louisiana
Power & Light Company ("▇▇▇") , Entergy Mississippi, Inc.,
formerly known as Mississippi Power & Light Company ("EMI")
and Entergy New Orleans, Inc., formerly known as New Orleans
Public Service 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 successor by merger with Chemical
Bank, as Administrating Bank (the "Administrating Bank")
under the Amended and Restated 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") and as amended and restated as of
December 27, 1996 (the Reimbursement Agreement as amended by
the First Amendment to Reimbursement Agreement and the
Second Amendment to Reimbursement Agreement and as amended
and restated as of the date hereof is herein called the
"Amended 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 l,
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 "Nineteeth 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 Energy 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
▇▇▇▇▇ ▇, ▇▇▇▇, (▇▇) 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 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 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 wishes to amend the 1993
Reimbursement Agreement in the manner provided in the
Amended Reimbursement Agreement and to provide for the
cancellation of the 1993 LOCs and issuance of new LOCs (the
"New LOCs") by the Funding Bank to further secure the Owner
Participants. The Amended 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 Reimbursement Agreement with
maximum amounts of $148,719,045.41 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 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").
P. 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.
Q. 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.
R. 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, and the SEC Orders are in full force and
effect on the date of execution and delivery hereof.
S. 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 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, and
(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 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
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 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
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 tine 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 therewith 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 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
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 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: Assistant Treasurer
THE CHASE MANHATTAN BANK,
as Administrating Bank,
By /s/ Michiel V.M. Van Der Voort
Name: Michiel V.M. Van DerVoort
Title: Vice President