Exhibit B-2(a)(1)
THIRTY-FOURTH ASSIGNMENT OF AVAILABILITY AGREEMENT, CONSENT AND
AGREEMENT
This Thirty-fourth Assignment of Availability
Agreement, Consent and Agreement (hereinafter referred to as
"this Assignment"), dated as of September 1, 2002, is made by and
among System Energy Resources, Inc. (formerly Middle South
Energy, Inc.) (the "Company"), Entergy Arkansas, Inc., formerly
Arkansas Power & Light Company ("Entergy Arkansas") (successor in
interest to Arkansas Power & Light Company and Arkansas-Missouri
Power Company ("Ark-Mo")), Entergy Louisiana, Inc., formerly
Louisiana Power & Light Company ("Entergy Louisiana"), Entergy
Mississippi, Inc., formerly Mississippi Power & Light Company
("Entergy Mississippi"), and Entergy New Orleans, formerly New
Orleans Public Service Inc. ("Entergy New Orleans") (hereinafter
Entergy Arkansas, Entergy Louisiana, Entergy Mississippi and
Entergy New Orleans are called individually a "System Operating
Company" and collectively, the "System Operating Companies"), The
Bank of New York (successor to United States Trust Company of New
York), as trustee (hereinafter called the "Corporate Trustee"),
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (successor to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇. ▇▇▇▇), as trustee (hereinafter called the "Individual
Trustee") (the Corporate Trustee and the Individual Trustee being
hereinafter called the "Trustees").
WHEREAS:
A. Entergy Corporation (successor to 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 No. 1 of the Grand Gulf Nuclear Electric Station
project (the "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, among 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") among
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 Amendment; (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 the Trustees, as 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 among the Company and the Trustees (the "Mortgage"), as
supplemented by a First Supplemental Indenture dated as of
June 15, 1977 among 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, an Eighteenth Supplemental Indenture
dated as of April 1, 1993, a Nineteenth Supplemental Indenture
dated as of April 1, 1994, a Twentieth Supplemental Indenture
dated as of August 1, 1996 and a Twenty-first Supplemental
Indenture dated as of August 1, 1996 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 among 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 among
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 among 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 among 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 among 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 among 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 among 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 among 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
among 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 among 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 among 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 among 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 among 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) 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, 7-5/8% Series due 1999 (the "Seventeenth Series
Bonds") issued under the Mortgage, as supplemented by a
Nineteenth Supplemental Indenture dated as of April 1, 1994 among
the Company and the Trustees, entered into a 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) 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, 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 among 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)
the Company, the System Operating Companies and the Trustees, as
trustees for the holders of $135,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 7.71% Series due
2001 (the "Nineteenth Series Bonds") issued under the Mortgage,
as supplemented by a Twenty-first Supplemental Indenture dated as
of August 1, 1996 among 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 among 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 the Eurodollar 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 among 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
among 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 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 among 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, the Bank 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
among 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 among 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) Series D (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 among 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) Series E (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, GG1A Funding Corporation (GG1B
Funding Corporation, successor), 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 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, GG1A Funding Corporation (GG1B
Funding Corporation, successor), 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 Reimbursement Agreement dated as of
December 1, 1988 (the "Reimbursement Agreement") which provided,
among other things, (x) for the issuance by the Funding Bank
named therein (the "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 Reimbursement Agreement with maximum amounts
of $104,000,000, and $26,000,000, (y) for the reimbursement to
such 1988 Funding Bank by the banks named therein (the "1988
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 1988
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 Assignment), dated as of
December 1, 1988 (the "Twenty-second Assignment of Availability
Agreement"), the Company assigned to Chemical Bank (the
"Administrating Bank"), as collateral security for the Company's
obligations under the Reimbursement Agreement, certain of the
Company's rights under the Availability Agreement.
M. The Company, the System Operating Companies and the
Administrating Bank entered into the Twenty-third Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Assignment), dated as of January 11, 1991
("Twenty-third Assignment of Availability Agreement") in
connection with the execution and delivery of the First Amendment
to Reimbursement Agreement dated as of January 11, 1991 (the
"First Amendment to Reimbursement Agreement") (the Reimbursement
Agreement, as amended by the First Amendment to Reimbursement
Agreement, is herein called the "First Amended Reimbursement
Agreement") that provided, among other things, (i) for the
issuance by The Bank of Tokyo, Ltd., Los Angeles Agency (the
"Funding Bank"), for the account of the Company, of irrevocable
transferable letters of credit (the "1991 LOCs") to the Owner
Participants to secure certain obligations of the Company to the
Owner Participants, such 1991 LOCs to be substantially in the
form of Exhibit A to the First Amended Reimbursement Agreement,
with maximum amounts of $116,601,440 and $29,150,360; (ii) for
the reimbursement to the Funding Bank by the banks named in the
First Amended Reimbursement Agreement (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 the
Administrating Bank entered into the Twenty-eighth Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Assignment), dated as of December 17, 1993
("Twenty-eighth Assignment of Availability Agreement") in
connection with the execution and delivery of the Second
Amendment to Reimbursement Agreement, dated as of December 17,
1993 ("Second Amendment to Reimbursement Agreement") (the First
Amended Reimbursement Agreement, as amended by the Second
Amendment to Reimbursement Agreement, is herein called the
"Second Amended 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 (the "1993 LOCs") to the Owner Participants to secure
certain obligations of the Company to the Owner Participants,
such 1993 LOCs to be substantially in the form of Exhibit A to
the Second Amended Reimbursement Agreement with maximum amounts
of $132,131,960 and $33,032,990 (subsequently reduced to
$32,205,291); (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 entered into the Thirty-second Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Assignment), dated as of December 27, 1996
("Thirty-second Assignment of Availability Agreement") in
connection with the execution and delivery of the Amended and
Restated Reimbursement Agreement, dated as of December 27, 1996
(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 (the "1996 LOCs") to the Owner Participants to secure
certain obligations of the Company to the Owner Participants,
such 1996 LOCs to be substantially in the form of Exhibit A to
the 1996 Restated Reimbursement Agreement with maximum amounts of
$148,719,125 and $34,946,720; (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, the System Operating Companies and the
Administrating Bank entered into the Thirty-third Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Assignment), dated as of December 20, 1999
("Thirty-third Assignment of Availability Agreement") in
connection with the execution and delivery of the Amended and
Restated Reimbursement Agreement, dated as of December 20, 1999
(the "1999 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 (the "1999 LOCs") to the Owner Participants to secure
certain obligations of the Company to the Owner Participants,
such 1999 LOCs to be substantially in the form of Exhibit A to
the 1999 Restated Reimbursement Agreement with maximum amounts of
$156,885,464 and $36,061,470; (ii) for the reimbursement to the
Funding Bank by the Participating Banks for all drafts paid by
the Funding Bank under any 1999 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 1999 LOC.
Q. The Company seeks to refinance that part of the
capital costs related to the Project heretofore financed and, to
that end, (i) the Company has entered into an Underwriting
Agreement, dated September 18, 2002 (the "Underwriting
Agreement"), with Barclays Capital Inc., BNP Paribas Securities
Corp. and The ▇▇▇▇▇▇▇▇ Capital Group, L.P., providing, among
other things, for the issue and sale by the Company of
$70,000,000 aggregate principal amount of First Mortgage Bonds, 4
7/8% Series due 2007 (the "Twentieth Series Bonds"), to be issued
under and secured pursuant to the Indenture as heretofore
supplemented and as further supplemented by a Twenty-second
Supplemental Indenture dated as of September 1, 2002 (the "Twenty-
second Supplemental Indenture").
R. The Company, by this instrument, wishes to (i)
provide for the assignment by the Company to the Trustees of
certain of the Company's rights under the Availability Agreement,
and (ii) create enforceable rights hereunder in the Trustees, all
as hereunder set forth.
S. 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.
T. 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. 70-9753, 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.
U. 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 Twentieth Series Bonds (whether at
maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise), (ii) the due and punctual payment of
all fees and costs, expenses and other amounts which may become
payable by the Company under the Indenture which are a charge on
the trust estate thereunder which is superior to the charge
thereon for the benefit of the Twentieth Series Bonds, 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 Trustees, and creates
a security interest in favor of the Trustees, 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 Trustees (or either of the
Trustees), 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 Reimbursement Agreement as referred to in Whereas Clause L
hereof by the Twenty-second Assignment of Availability Agreement,
(x) the obligations under the First Amended Reimbursement
Agreement as referred to in Whereas Clause M hereof by the
Twenty-third Assignment of Availability Agreement, (xi) the
obligations under the Second Amended Reimbursement Agreement, as
referred to in Whereas Clause N hereof by the Twenty-eighth
Assignment of Availability Agreement, (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 (xiii) the obligations under the 1999
Restated Reimbursement Agreement, as referred to in Whereas
Clause P hereof by the Thirty-third 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 Thirty-third
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
Twentieth Series Bonds, the Trustees and the Indenture,
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 holders of
the Twentieth Series Bonds or the Trustees (or either of the
Trustees).
(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
Trustees, or any provision of or filing or recording under the
Uniform Commercial Code or any other applicable law of any
jurisdiction, the Trustees agree that the claims of the Trustees
hereunder with respect to the Trustees and any security interest,
pledge or lien in favor of the Trustees 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 Corporate Trustee. 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 Corporate Trustee. 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
Corporate Trustee shall have given written notice to the System
Operating Companies of the occurrence and continuance of any
Default (as defined in the Indenture), 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 Corporate Trustee simultaneously with the demand
by the Company for any such payments or advances. If the
Corporate Trustee shall have duly notified the System Operating
Companies of the occurrence of any such Default, such payments or
advances shall be made in the manner and in the amounts specified
in Section 1.3 hereof until the Corporate Trustee 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 Corporate Trustee shall give such permission if
no such Default 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 Default (as defined in the
Indenture), then so long as such Default 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 Corporate
Trustee to make payments or advances to the Corporate Trustee in
the amounts and in the manner specified in Section 1.3 at the
Corporate Trustee'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 Corporate Trustee 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 Corporate Trustee or the Company, as
the case may be, and that it will not seek to recover from the
Corporate Trustee for any reason whatsoever any moneys paid or
advanced to the Corporate Trustee 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 Default (as defined in the Indenture)
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 Corporate
Trustee, shall promptly be delivered to the Corporate Trustee
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, as amended), (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 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 Indenture,
the Twenty-second Supplemental Indenture or the Twentieth Series
Bonds 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 the Trustees (or either
of them), 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
the Trustees (or either of them), or any holder, or
representative of any holder of the Twentieth Series Bonds 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, by the Trustees (or either
of them), by the holders of the Twentieth Series Bonds or for
their 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 Trustees and the holders of the
Twentieth Series Bonds 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 Trustees agree that they will
not deal with the Company, or any security for the Twentieth
Series Bonds in such a manner as to prejudice such rights of any
System Operating Company.
ARTICLE III.
Term
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 Trustees (or either of them), by the
holders of the Twentieth Series Bonds as provided in the
Indenture, 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 the Trustees (or either of them) to
their respective successors in accordance with Article XVII of
the Indenture, 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 Corporate
Trustee a written assumption, in form and substance satisfactory
to the Corporate Trustee, 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
Corporate Trustee a written assumption, in form and substance
satisfactory to the Corporate Trustee, 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 by the
holders of more than 50% in principal amount of the Twentieth
Series Bonds Outstanding (as defined in the Indenture) at the
time of such consent or which does not materially adversely
affect the rights of the Trustees or the holders of the Twentieth
Series Bonds or which is necessary in order to qualify the
Indenture under the Trust Indenture Act of 1939, as contemplated
by Section 20.04 of the Mortgage, provided, however, that (i)
without the written consent of the holder of all the Twentieth
Series Bonds affected thereby, no amendment, waiver,
modification, discharge or other change in or to this Assignment
or the Availability Agreement shall be made which shall change
the terms of this Section 5.1 and (ii) no such amendment, waiver,
modification, discharge or other change shall be made which shall
modify, without the written consent of each of the Trustees, the
rights, duties or immunities or the Trustees or either of them.
5.2 The Trustees' Execution. The Trustees 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 Corporate Trustee
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
Trustees (and each of the Trustees), 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:
Echelon One
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
If to Entergy Arkansas, Inc., to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
If to Entergy Louisiana, Inc., to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
If to Entergy Mississippi, Inc., to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
If to Entergy New Orleans, Inc., to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
If to the Corporate Trustee, to:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇]
If to the Individual Trustee, to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 Indenture Terms and Conditions. The Trustees (and
each of them) enter into and accept this Assignment upon the
terms and conditions set forth in Article XVII of the Indenture
with the same force and effect as if those terms and conditions
were repeated at length herein and made applicable to the
Trustees (and each of them) in respect of this Assignment and the
trusts hereunder and in respect of any action taken, suffered or
omitted to be taken by the Trustees (or either of them)
hereunder. Nothing in this Assignment shall affect any right or
remedy of the Company or any System Operating Company against the
Trustees (or either of them) (other than those specifically
waived herein), for breach or violation of any of the obligations
or duties of the Trustees assumed or undertaken in this
Assignment. Without limiting the generality of the foregoing,
the Trustees (and each of them) assume no responsibility as to
the validity or enforceability hereof or for the correctness of
the recitals of fact contained herein or in the Availability
Agreement, which shall be taken as the statements,
representations and warranties of the Company and the System
Operating Companies.
7.2 Enforcement Action. At any time when a Default
under the Indenture has occurred and is continuing, they, it or
he may proceed, either in their, its or his own name and as
trustees or trustee of an express trust or otherwise, to protect
and enforce the rights of the Trustees, or either of them, 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 Trustees, and each of them shall, to the
extent permitted by law, be cumulative and shall be in addition
to any other remedy given hereunder or under the Indenture or now
or hereafter existing at law or in equity or by statute.
7.3 Attorney-in-Fact. The Company hereby constitutes
the Trustees (and each of them), with authority to act without
the other, its true and lawful attorney, irrevocably, with full
power (in such attorney's name or otherwise), at any time when a
Default (as defined in the Indenture) 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 Trustees (or either of them) 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
Thirty-fourth 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 BANK OF NEW YORK,
as Corporate Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
as Individual Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇